YLR 2006 Judgments - Pakistan Legal Archive

Courts in this Volume

High Court Azad Kashmir
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan
Shariat Court Azad Kashmir

High Court Azad Kashmir

YLR 2006 HIGH COURT AZAD KASHMIR 419 #

2005 Y L R 419

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

MUHAMMAD FAYYAZ---Appellant

Versus

BARKAT HUSSAIN and 2 others---Respondents

Civil Appeal No. 142 of 2005, decided on 13th December, 2005.

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

----Ss. 39 & 42---Qanun-e-Shahadat (10 of 1984), Art.114---West Pakistan Land Revenue Act (XVII of 1967), Ss.53 & 172---Suit for declaration and cancellation of mutation---Maintainability---Estoppel---Deceased owner of land in dispute had two sons and two daughters---One of the sons of deceased owner, who was father of appellant, died in life time of deceased owner of land---Mutation of estate of deceased owner was attested in presence of respondent who was the other son of deceased owner and uncle of appellant who stated before Revenue Officer that he wanted to give appellant/his nephew his full share of his deceased father who admittedly died in life of owner of land and mutation in respect of land of deceased owner was attested in favour - of appellant accordingly---Legality and correctness of said mutation was challenged by respondent in alleging that mutation was sanctioned in violation of Islamic Law and was collusive and inoperative against rights of respondent---Said suit was resisted by appellant on grounds; that it was not maintainable on ground of estoppel and that Civil Court had no jurisdiction in the matter as mutation was challengeable before Revenue Officer-Trial Court dismissed suit, but Appellate Court decreed the same against which, appellant had .filed appeal---Contention of appellant that suit was vague as Khasra number was not mentioned in the plaint, was repelled because suit ,fled by respondent contained sufficient description for identity of suit property---Contention of appellant that suit filed before Civil Court was not maintainable in view of S.172 of West Pakistan Land Revenue Act, 1967, was also repelled as case was not only with regard to correction of entries of Record of Rights, but question of title was also claimed and for such claim S.53 of Land Revenue Act, 1967 had itself created an exception for filing suits in Civil Courts---Contention of appellant that officers who had prepared record and sanctioned mutation were necessary party and in their absence suit was not maintainable, was also not tangible as dispute being between parties, Revenue Officers, were not necessary parties---Rule of estoppel, however was fully attracted in the case because respondent had himself consented before Revenue Officer for attestation of mutation under challenge stating that he wanted to abandon his right in favour of appellant who was his nephew---Such abandonment could he regarded as compromise between the parties which was given due effect by recording mutation---Respondent was estopped by his conduct as he had abandoned his right in favour of the appellant---Judgment and decree of Appellate Court below, were vacated and those of Trial Court were restored.

1992 SCR 214; 2003 YLR 1788; 2005 SCR 53; Kh. Muhammad Akbar's case 2000 SCR 211; Muhammad Nawar v. Muhammad Khan 1989 CLC 2140; Mst. Mumtaz Begum and others v. Abdul Rasheed and others 1988 CLC 2023; Ghulam Rasool v. Muhammad Rafique 1990 MLD 112; Mir Ajab Gul v. Noor Nawaz Khan 1990 MLD 2111; Mustafa Khan and 3 others v. Muhammad Khan and another PLD 1978 SC (AJ&K) 75; Walayat Khan v. Mango Khan PLD 1976 Azad J&K 17; Messrs Farms, Islamabad v. National Development Finance Corporation PLD 1996 Lah. 99 and Allah Rakha v. Federation of Pakistan PLJ 2000 FSC 36 ref.

(b) Islamic Law---

----Inheritance---Inheritance under Islamic Law, would not depend on attestation of a mutation in the Revenue Record, but it would open on the death of individual.

Ghulam Ali's case PLD 1990 SC 1 ref.

Muhammad Azam Khan for Appellant.

Ali Zaman Raja for Respondents.

YLR 2006 HIGH COURT AZAD KASHMIR 460 #

2006 Y L R 460

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

MUHAMMAD HAFEEZ KHAN and another---Appellants

Versus

2006 Y L R 155

[Karachi]

Before Muhammad Afzal Soomro, J

MOOHAN LAL and 2 others-Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-153 of 2005, decided on 16th June, 2005.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 147 & 148---Bail, grant of---Further inquiry---F.I.R. was lodged with a delay of 4 days and there was no medical evidence to show that the deceased was administered poison by the accused---Even one of the co-accused was already released by the police under S.497, Cr.P.C.---No post mortem of the deceased's body was conducted---Case being of blind murder accused were entitled to the grant of bail.

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

----S.497(5)---Penal Code (XLV of 1860), Ss.302, 147 & 148---Bail, recalling of--Trial Court had granted bail to one of the co-accused which was the mother-in-law of the deceased---Murder of deceased was caused at the house of the same coaccused---Motive behind the scene appeared to be cash and dower articles of the. deceased which all remained in the possession of the said co-accused till the death of the deceased---Said co-accused being the head of the family was the beneficiary of all those dower articles---Complainant also had claimed that the said co-accused was a criminal type of woman who had not kept the deceased in a peaceful condition during her life time---Deceased during her life time had complained regarding atrocities at the hands of the coaccused---Co-accused, in circumstances, appeared to have nexus in respect of the murder of the deceased---Trial Court was thus wrong in granting bail to the co-accused which was recalled and she was taken into custody.

Ali Nawaz Ghanghro for Applicants.

Safdar Ali Bhutto for Complainant.

Habib-ur-Rehman Shaikh, Assistant A.-G. for the State.

YLR 2006 KARACHI HIGH COURT SINDH 161 #

2006 Y L R 161

[Karachi]

Before Anwar Zaheer Jamali, J

BAKHSHAL and 4 others---Applicants

Versus

MUKHTIAR AHMED through Legal Heirs and others---Respondents

R.A. No.S-174 of 1994, decided on 30th September, 2005.

Specific Relief Act (I of 1877)---

----S. 9---Civil Procedure Code (V of 1908), Ss.96 & 115---Suit for possession---Appeal---Incompetency---Suit for possession was decreed by Trial Court and appeal against judgment and decree of Trial Court was dismissed being incompetent---Validity---Presentation of appeal before Appellate Court seemed to be due to ill advice of their counsel as only revision could have been legally maintained against judgment and decree in a suit for possession instituted under S.9 of Specific Relief Act, 1877---Appellate Court which was seized of the matter, had jurisdiction to convert said appeal into revision application, subject to other legal

objections and terms to foster cause of justice and for providing an opportunity to litigant parties for disposal of their disputes on merits in accordance with law---Negligence on part of petitioner, also could not be overlooked, more particularly when such litigation between parties had already consumed more than three decades---Revision petition, was allowed taking into account facts and circumstances of the case subject to payment of costs of Rs.10, 000 to the respondents.

Muhammad Yusuf v. Mst. Kharian Bibi 1995 SCMR 784; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Mian Muhammad Talha Adil v. Mian Muhammad Lutfi 2005 SCMR 720; Farukh Nawaz v. Faisal Ajmal PLD 2003 Quetta 68; Mst. Ghulam Sakeena v. Bashir Ahmad 2000 CLC 334 and Ghee Corporation of Pakistan (Pvt.) Ltd. v. Brokenhill Proprietary Co. Ltd. 2003 YLR 2040 ref.

Syed Madad Ali Shah for Applicants.

Kishanchand for Respondents.

YLR 2006 KARACHI HIGH COURT SINDH 168 #

2006 Y L R 168

[Karachi]

Before Anwar Zaheer Jamali, J

WASIM AKRAM---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.33 of 2005, decided on 2nd June, 2005.

Penal Code (XLV of 1860)---

----S. 406---Criminal Procedure Code (V of1898), Ss.249-A & 561-A---Quashing of proceedings---Dispute of civil nature---Civil suit, pendency of---Allegation in F.I.R. made by complainant was that he delivered disputed vehicle to accused who took it with the offer to purchase it and to pay its full value but later on neither its price was paid nor the vehicle was returned---Disputed vehicle was recovered by police during investigation and a civil suit between both the parties was also pending before the Court of competent jurisdiction---Accused filed application under S.249-A, Cr.P.C. for his acquittal but Trial Court, dismissed the application---Validity---Dispute between the parties with regard to the price of the vehicle and recovery of vehicle during investigation were sufficient to show that the allegations of commission of offence of criminal breach of trust levelled against accused were concocted and aimed at causing harassment to him by filing criminal case---Dispute as regards delivery and purchase of the vehicle subsisting between the complainant and accused was of civil nature for which appropriate action had already been taken by complainant before the Civil Court---On the basis of material available with the prosecution, there was no possibility of conviction of accused in the case---As the dispute between the parties was of civil nature, therefore, pendency of criminal proceedings against the accused would be an abuse of process of law and harassment to him, thus accused was entitled to be acquitted---Proceedings were quashed in circumstances.

Muhammad Ali and another v. Assistant Collector, Narowal and others 1987 SCMR 795; State through Advocate-General N.-W.F.P. v. Gulzar Ahmed and others 1998 SCMR 873 and Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 ref.

Zahid F. Ebrahim for Applicant.

Aamir Jalil Zubedi, A.A.-G. for the State.

Complainant absent.

YLR 2006 KARACHI HIGH COURT SINDH 176 #

2006 Y L R 176

[Karachi]

Before Anwar Zaheer Jamali, J

DAROO alias DUR MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.50 of 1999, decided on 7th, October, 2005.

Penal Code (XLV of 1860)---

----S. 308---Criminal Procedure Code (V of 1898), S.103---Qanun-e-Shahadat (10 of 1984), Art.38---Appreciation of evidence---Copy of Roznamcha entry, under which complainant/Investigating Officer of crime, had visited house of accused, had not been produced by the prosecution---Complainant/Investigating Officer, when visited house of accused and found dead body of deceased/son of accused, in 'Kaffan', had also found mother of deceased beside dead body, but Investigating Officer, did not either bother to make her complainant of crime or even to record her statement under S.161, Cr. P. C., which later on was recorded after three days, without any plausible explanation from prosecution side in that regard---Investigating Officer, also did not bother to arrange some private Mashirs for recovery of blood stained hatchet from accused or recovery of blood stained clothes of deceased and no plausible explanation was available for said violation of S.103, Cr.P.C. from prosecution side---Sealed parcel containing blood stained hatchet, blood stained clothes, etc., was received in office of Chemical Examiner after delay of about one month and twelve days from its dispatch and prosecution evidence was silent on that point---Material contradictions in statements of Investigating Officer. and Mashirs of recovery of blood stained hatchet, also found full support from statement of prosecution witnesses available in the Court file---All such factors not only had made whole prosecution story with regard to recovery of blood stained hatchet from accused doubtful, but were further belied from post-mortem report---Material discrepancies in time of incident, time of death of deceased and time of post-mortem report, were also duly supported from case record, which had created further doubt about actual nature of incident and time of its occurrence---Submission with regard to violation of provision of Art.38 of Qanun-e-Shahadat; 1984 had also force and was fully supported---Role of mother of deceased, who was posed to be sole eye-witness, was very strange and did not appeal to a prudent mind---Shaky nature of mother's evidence, was also corroborated from her own admission that deceased had fallen from the tree and was brought home---Prosecution having failed to prove case against accused beyond reasonable doubt, Trial Court was not justified in convicting and sentencing accused on the charge of murder of his own son---Judgment passed by Trial Court was set aside and accused was acquitted and released.

Khalid Javed v. The State 2003 SCMR 1419; Zafar v. The State 2001 YLR 533; Allah Ditta v. The State PLD 2002 Lah. 406; Sharif v. The State 2000 PCr.LJ 562 and Pervaiz Masih v. The State 2005 PCr.LJ 1232 ref.

Syed Madad Ali Shah for Appellant.

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

Date of hearing: 7th October, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 185 #

2006 Y L R 185

[Karachi]

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

KARACHI STOCK EXCHANGE through Attorney and another---Appellants

Versus

MUHAMMAD ASHAQEEN and 6 others---Respondents

M. .A. No.212 of 2003, decided on 1st October, 2005.

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

----Ss. 45(4) & (5)(ii)--Civil Procedure Code (V of 1908), O.XXXIX, R.1 & 2---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Interim injunction, grant of---Conversion of public/ amenity plot into residential/commercial plot, legality of-Suit for declaration and injunction was filed by the appellants challenging the grant/lease of plot in favour of the respondent for use as residential building and construction of residential building thereupon---Application filed with the suit by the appellants for grant of interim injunction in order to restrain the respondent from raising any construction over the said plot was rejected by the High Court (Single Judge)---High Court (Single Judge) had found that the mere existence of prima facie case, balance of convenience and irreparable loss were not the only ingredients to be taken into consideration while refusing or granting the injunction but even good faith and promptitude had to be demonstrated in filing the suit, and since the suit was filed with sufficient delay, which amounted to laches, hence, equitable relief could not be granted under the circumstances---Contention of the appellants in High Court appeal was that the said plot could not have been converted from public use into residential usage, in violation of applicable building laws and regulations along with the rules of natural justice---Area of the subject plot being more than 40 sq. yards, was a case not falling under S.45(5) (ii) of the Sindh Local Government Ordinance, 1979, and thus could not have been granted to the respondent except through public auction---Validity---Said plot was granted/leased out to the respondent through a resolution of the Municipal Corporation approved by the Mayor as well as the Provincial Government under S.45(4) of Sindh Local Government Ordinance, 1979, but in violation of the provisions of S.45(5) (ii) of the Said Ordinance---Grant after conversion of the plot, and its approval had been made without taking into consideration of certain rules and regulations, particularly, that an amenity plot could not be converted into a residential or commercial plot, and furthermore, a plot measuring more than 40 sq. yards could not be granted except through public auction---Even if the appellants had failed to get the said plot transferred in their favour, it did not mean that they were estopped front. challenging its grant in favour of the respondent in 'case it was illegal and void being a violation of the laws dealing with the use and conversion of amenity plots---Fact of delay/laches on the part of appellants could therefore, be examined at the time of .final disposal of the suit---Prima facie case as well as balance of convenience in favour of the appellants ,for grant of interim injunction did appear---Appeal was allowed and interim injunction was granted in circumstances.

Naimur Rehman and Rizwana Islamil for Appellants.

Mushtaq A. Memon for Respondent No.1.

Abbas Ali, Addl. A.-G. for Respondents Nos.2 and 3.

Abdul Karim Khan for Respondent No.5.

Shahid Jamiluddin and Anwer Ali Shah for Respondent No.7.

Nemo for Respondents Nos. and 6.

Dates of hearing: 28th October, 24th November, 2nd December, 2004, 22nd March and 29th March, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 202 #

2006 Y L R 202

[Karachi]

Before Azizullah M. Memon, J

ABDUL RAHEEM---Appellant

Versus

MANZOOR HUSSAIN SHAH and another---Respondents

Criminal Acquittal Appeal No.119 of 2003, decided on 16th November, 2005.

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

----Ss. 249-A & 417---Penal Code (XLV of 1860), S.182---Appeal against acquittal---Earlier accused had lodged F.I.R. regarding an incident, but on investigation same was found false---Separate F.I.R. for offence under S.182, P.P.C., consequently was registered against accused and during proceedings of said case, application under S.249-A, Cr. P. C. for acquittal was filed by accused which was allowed by Trial Court vide the impugned order---Validity---S. H. O. Police Station concerned, had competently submitted proceedings under S.182, P.P.C. before Trial Court with a prayer to take legal action against accused for allegedly having lodged F.I.R., falsely and same did not suffer from any legal infirmity---Witnesses of prosecution were repeatedly appearing before Trial Court, but their depositions were not recorded---Appeal against acquittal was allowed and impugned order was set aside and remanded to Trial Court with direction to proceed further and decide the same on merits.

NLR 1989 Criminal 355; 1993 PCr.LJ 524; Muhammad Afzal Khan v. The State PLD 1962 SC 397; Aurangzeb v. The State 1994 SCMR 1280; Malik Muhammad Sadiq v. The State 1977 PCr.LJ 445; Mst. Nawab Begum v. The State 1972 PCr.LJ 79; Ali Ahmed v. The State 1984 PCr.LJ 772; The State v. Syed Sardar Shah Bukhari PLD 1975 Lah. 1407; Nasim Akhtar Soofi v. The State 1990 PCr.LJ 336; Abdul Hanan v. The State 1990 PCr.LJ 777; Muhammad Boota Anjum v. The State 1990 PCr.LJ 1538; Nizamuddin Samejo v. S.D.M. 1988 PCr.LJ 988; Sher Muhammad v. Emperor AIR 1940 Lah. 15; Daulat Ram v. State of Punjab AIR 1962 SC 1206 and Ashfaq Ahmed Cheema v. The State 1985 PCr.LJ 2104 ref.

(b) Practice and procedure---

----Wherever relevant provisions of law made it incumbent upon successor-in-office to take necessary steps towards compliance of legal requirements under different provisions of law, which his predecessor-in office was directed by law to do/discharge, in such situation, all successors-in-office were bound to discharge all such official duties.

Syed Madad Ali Shah for Appellant.

Allah Bachayo Soomro for Respondent.

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

Date of hearing: 1st November, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 221 #

2006 Y L R 221

[Karachi]

Before Muhammad Moosa K. Leghari, J

Dr. AMBREEN---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.S-89 of 2005, decided on 19th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 491---Interim custody of minor---Jurisdiction of High Court---High Court, in case of emergency, was vested with ample powers and jurisdiction to pass orders with regard to interim custody of minor in appropriate circumstances---Such orders passed under S.491, Cr.P.C. were always tentative in nature, as it was an undisputed legal proposition that ultimate jurisdiction to adjudicate dispute regarding custody of a minor lay with Guardian Court to be governed under provisions of Guardian and Wards Act, 1890---Not appropriate at stage of granting interim custody of minor to dilate upon different contentions raised by both parties with regard to their sect and faith, the right of Hizanat and allegations about contracting of second marriage, by father of minor---Such were essentially the factual controversies, which required detailed investigation and could only be resolved by allowing parties to adduce evidence---Right course left with patties in such circumstances was to approach Guardian Court---Since under tentative order, passed by High Court, temporary custody of minor had been handed over to mother of minor, father of minor, could approach Guardian Court for seeking appropriate relief and said Court would dispose of such application, expeditiously---Till adjudication of dispute with regard to custody of minor by Guardian' Court, order passed by High Court whereby interim custody of child was given to mother, would remain in operation.

Abdul Sattar Kazi for Applicant.

Madad Ali Shah for Respondents.

YLR 2006 KARACHI HIGH COURT SINDH 229 #

2006 Y L R 229

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Khilji Arif Hussain, JJ

SHEHZAD RIAZ---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Cabinet Division

and 3 others---Respondents

Constitutional Petition No.D-1223 of 2005, decided on 23rd September, 2005.

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

---Arts.25 & 199---Constitutional petition---Equal protection of law---Reasonable classification for the purposes of Art.25 of the Constitution---Petitioner was aggrieved with the notice inviting proposal for the import of agricultural tractor in pursuance of a policy decision by the Economic Coordination Committee---Said policy provided that one time import of tractors was allowed at zero tariff only to those companies who had their tractor manufacturing units in Pakistan or were in the process of installing these---Main grievance of the petitioner was that the classification of companies given in the policy decision was discriminatory and was in violation of the constitutional guarantees and on that account the decision was liable to be struck down or in the alternative the petitioner be held to be entitled to be considered for the permission to import the tractors on zero tariff, if such permission was granted to any other party---Validity---On the one hand the petitioner was contending that the policy decision was discriminatory and the classification was not justified and on the other hand he wanted his inclusion in the same classification---Under Art. 25 of the Constitution all citizens were equal before law and were entitled to equal protection of law, however, said Article did not prohibit treatment of citizens by State on the basis of reasonable classification---Nature of classification as to avert violation of Art.25 of the Constitution---Basis of determination---To justify the validity of a classification, it must be shown that it was based on reasonable distinctions or that was on reasonable basis and rested on a real or substantial difference or distinction---Article 25 of the Constitution related to equality of citizens before law and the equality enjoined by the Constitution permitted reasonable classification---Many different classifications of persons were constitutional---Law applying to one person or one class of persons was constitutional if there was sufficient basis or reason for it---Classification could be held to be reasonable if in one given set of circumstances the persons placed in similar situation were given different treatment---If persons placed in different circumstances and in different set of facts were given different treatment, it would not be treated as unreasonable classification---Economic Coordination Committee in the present case, had taken a policy decision and a classification given for the import of tractors was allowed to only those companies who had their tractor manufacturing units in Pakistan or were in the process of installing these---Such concessions in the realm of taxes, direct and indirect, were very common and this was not the only case in which a treatment was being meted out to the manufacturers and was being denied to the others---Large number of concessions under the Income Tax Law and the other indirect taxes were available, where concessions were allowed to the manufacturers only in order to boost the industrial sector in the country---Classification provided through the policy of the Economic Coordination Committee therefore, was neither monopolistic, nor the classification could be held to be arbitrary or unreasonable, reason being that it had been extended to the class of all the manufacturers including those who were in the process of installing manufacturing units---Manufacturers belonged to a class distinct from that of the traders and businessmen---Demand of the tractors in the country was much more, therefore, the other commercial importers and businessmen were not going to be ruined with the policy decision taken by the Economic Coordination Committee---While exercising jurisdiction falling with the ambit of judicial review of administrative actions, it was equally important to ensure that no encroachment was made on the powers vested in executive and no interference was made until and unless any such decision/executive order was shown to be violative of any provision of the Constitution or was established to be in derogation or violation of the statutory law---Classification given by the Economic Coordinate Committee in the policy decision was thus reasonable---Constitutional petition was dismissed in the circumstances.

Fecto Belarus Tractors v. Government of Pakistan PLD 2005 SC 65 and Shaukat Ali v. Government of Pakistan PLD 1997 SC 34 distinguished.

I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041; Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506; Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.N.A. former President of Defunct National Awami Party PLD 1976 SC 57; Mst. Aziz Begum and others v. Federation of Pakistan and others PLD 1990 SC 899; Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another PLD 1990 SC 295; Charanjit Lal Chowdhury v. The Union of India and others AIR 1951 SC 41; Shri Ram Krishna Dalmia and others v. Shri Justice S.R. Rendolkar and others AIR 1958 SC 538; The Anant Mills Co. Ltd. v. State of Gujarat and others (1975) 2 SCC 175; Stateof Kerala and another v. N.M. Thomas and others (1976) 2 SCC 310; Special Courts Bill, 1978 (Special Reference No.1 of 1978) AIR 1978 SC 478; Ajay Hasia and others v. Khalid Mujib Sehravardi and others AIR 1981 SC 487; D.S. Nakara and others v. Union of India AIR 1983 SC 130 and Farzand Ali v. Province of West Pakistan PLD 1970 SC 98 ref.

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

----Art. 199---Constitutional petition---Judicial Review---Administrative action---Separation of powers---Under the concept of judicial review of administrative action the superior Courts always examine the decision taken by the executive to ascertain that they are not violative of the protections given in the Constitution, but at the same time a balance is to be struck keeping in view the principles enshrined in the Constitution.

----Art. 199---Constitutional jurisdiction---Scope---Separation of powers---Principles of---Application---Judicial review of administrative action---Comparison of constitutional jurisdiction with the jurisdiction of civil Court---One of the fundamental principles of the Constitution was of checks and balances and the separation of powers---All three organs of the State, namely, legislature, .!executive and judiciary are required to function within their specified jurisdiction and the one organ of the State should never encroach upon the jurisdiction and powers of the other organ---Superior judiciary shall always be slow in interfering with the policy decision of the executive, so long the policy decision is within the domain of jurisdiction of the authority taking the policy decision or making executive order---While exercising jurisdiction falling with the ambit of judicial review of administrative actions, it is equally important to ensure that no encroachment is made on the powers vested in executive and no interference is made until and unless any such decision/executive order is shown to be violative of any provision of the Constitution or is established to be in derogation or violation of the statutory law---Such principles are applicable when there is any case of judicial review of administrative action-Principles Principles however, are different when the question relates to the jurisdiction of civil Court for the reason that the civil Court is the Court of ultimate, plenary and general jurisdiction, which shall exercise the jurisdiction in respect of all civil matters unless the jurisdiction is expressly barred.

Farzand Ali v. Province of West Pakistan PLD 1970 SC 98 ref.

Amer Raza Naqvi for Petitioner.

Date of hearing: 23rd September, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 249 #

2006 Y L R 249

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

MUHAMMAD SHARIF and 6 others---Applicants

Versus

ALLAH DITTA and 2 others---Respondents

Revision Application No.103 of 1997, decided on 2nd May, 2005.

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

----Ss.5 & 14---Civil Procedure Code (V of 1908), S.115---Appeal before wrong forum---Condonation of delay---Unexplained delay in taking back memo. of appeal---Pre-emption suit was decreed against petitioners by Trial Court, who filed appeal before High Court---As the matterwas within the pecuniary jurisdiction of District Court, High Court therefore, passed an order of return of appeal on 8-2-1993---Petitioners received memo. of appeal on 12.4.1993 from the office of High Court and presented to Lower Appellate Court on 13-4-1993---Petitioners along with memo. of appeal, also filed application under S.14 of Limitation Act, 1908, for condonation of delay---Lower Appellate Court dismissed the appeal being time-barred, for the reason that petitioners failed to give any reason for delay in filing of appeal---Validity---Provisions of S.14 of Limitation Act, 1908, were not applicable to appellate proceedings---If the application for condonation of delay was treated as an application under S.5 of Limitation Act, 1908 and a very lenient view was taken considering that entire period was consumed in pursuing appeal before wrong forum even then the question remained whether a period of about two months consumed by petitioners in taking back memorandum of appeal could be condoned for which no explanation had been offered---For the purpose of condoning delay under S.5 of Limitation Act, 1908, the sufficient cause was to be shown and petitioners failed to show any such cause---As there was no explanation for delay of over two months in taking back memorandum of appeal from the office of High Court and presenting the same in District Court, Lower Appellate Court had rightly refused to condone the delay and dismissed the appeal---Finding of Lower Appellate Court was not open to any exception, which was upheld by High Court---Revision was dismissed in

circumstances.

Sherin v. Fazal Muhammad 1995 SCMR 584; Ahmed Jee v. Government of Azad J&K PLD 1971 Azad J&K 30; Captain Muhammad Afzal v. Hakim Muhammad Ashraf PLD 1959 Azad J&K 55 and Tabbaq Restaurant, Rawalpindi v. Tabbaq Restaurant, Lahore 1986 MLD 2673(2) rel.

Ms. Qudsia Begum v. Hazoor Ahmed Khan 1983 MLD 1073 distinguished.

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

----S.5---Expressions reasonable time' andsufficient cause'---Connotation---Expressions reasonable time' andsufficient cause' are not capable of connotation with exactitude and are to be considered in peculiar facts and circumstances of each case---Time limit on touchstone of expression `reasonable' may differ from case to case and in the light of circumstances and explanation coming forth in each case.

Sherin v. Fazal Muhammad 1995 SCMR 584 rel.

Faiz Muhammad G. Soomro for Applicants.

Hassan Mahmood Baig for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 19th April, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 256 #

2006 Y L R 256

[Karachi]

Before Muhammad Afzal Soomro, J

ALI BAAD KHAN and another-Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.240 and 252 of 2005, decided on 31st May, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss.302, 34 & 109---Qanun-e-Shahadat (10 of 1984), Art.38---Pre-arrest bail and after arrest bail, grant of---Names of accused persons did not find place in F.I.R. which was lodged against culprits not known either to the complainant or any of the witnesses named in F.I.R.---Contents of F.I.R. indicated that culprits were three in number, who came on motor cycle and resorted to firing in night-time on a road, but none of any passers-by was shown or even alleged in' the F.I.R.---Admitted background of enmity, was reflected from the contents of F.I.R., itself---Not appealing to reason that witnesses accompanying deceased, were not able to see accused, if at all they were accompanying. the culprits---Police collected evidence to show that on the day of incident, accused were sitting in taxi, but nothing had been alleged to get them involved in shooting of even a single fire-shot by persons sitting in the taxi---Even detailed further statement of complainant, had not mentioned the names of accused persons---Complainant in such further statement had proceeded to involve other three accused persons---Police, during investigation had introduced two witnesses on basis of whose statement, accused had been involved in the case, but both said two witnesses had not stated that they themselves had seen the killers going away along with accused persons in the taxi---No specific role had been alleged to have been played by accused persons---Only piece of evidence, brought on record by prosecution, against accused persons, was that co-accused in his statement before police had named accused persons which evidence was inadmissible in view of the provisions contained in Art.38 of Qanun-e-Shahadat, 1984---Neither there was any identification parade nor any recovery had been effected from accused persons---Conspirator or abettor, having not been present at the spot, would stand at a lower footing than that of accused instigating his companion to commit crime being himself present on the, spot---One of accused persons having been granted bail by Trial Court, rule of consistency would attract to the case of his co-accused entitling him to be enlarged on bail---Accused persons had been made accused for alleged offence under S.109, P. P. C., ,provisions of which had been declared repugnant to Injunctions of Islam---Interim bail granted to one of accused persons was confirmed and other one was admitted to bail after arrest.

Muhammad Fazal alias Bodi v. The State 1979 SCMR 9; Abdus Sattar and others v. The State 1982 SCMR 909; Syed Amanullah Shah v. The State and another PLD 1996 SC 241; Abdul Salam Irfan v. The State 2000 PCr.LJ 842; Jan Muhammad and 8 others v. The State 2000 PCr.LJ 1123; Muhammad Tufail alias Mushtaq Ahmad and 2 others v. The State 2000 PCr.LJ 1125; Abdul Aziz v. The State 2001 PCr.LJ 239; Nazar Hussain Shah and another v. The State 2002 PCr.LJ 29; Khan Afsar v. Manzoor Baig and others NLR 1981 Criminal 199; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82; The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173; Allah Ditta and others v. The State 1990 SCMR 307; Mst. Reshma Jan v. Abdul Rehman 1991 SCMR 1849; Naseebullah v. The State 1991 SCMR 2450; Shoaib Khan v. The State 1996 PCr.LJ 810; Capt. Dr. Munir Ahmed Khan v. The State 1997 PCr.LJ 348; Syed Ghulam Abbas Shah v. The State 1999 YLR 2680; Rana Muhammad Safdar v. Gulzar Ali alias Papoo and another 1999 PCr.LJ 1; Muhammad Farooq v. Muhammad Afzal and another 2000 PCr.LJ 1680; Ali Hassan v. The State 2001 SCMR 1047; Muhammad Riaz v. The State 2002 SCMR 184; Rana Zulfiqar Ali v. The State PLD 2003 Lah. 403; Muhammad Khan v. Muhammad Ijaz and another 2004 PCr.LJ 1166 and Federation of Pakistan and another v. Gul Hassan Khan PLD 1989 SC 633 ref.

Raza Hashmi and Hassan Sabir for Applicants.

Sardaruddin Qureshi for the State.

Sarfraz Khan Tanoli for the Complainant.

Date of hearing: 31st May, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 269 #

2006 Y L R 269

[Karachi]

Before Amir Hani Muslim, J

Messrs TRADING CORPORATION OF PAKISTAN---Plaintiff

Versus

CITY DISTRICT GOVERNMENT, KARACHI---Defendant

Suit No.773 of 1988, heard on 18th May, 2005.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Suit for recovery of amount---Plaintiff under terms and conditions of agreement, was required to deliver jute bags to godown, which was situated outside Municipal limits of City Government and said bags were not to be used/sold or consumed within the octroi limits of City Government ---Plaintiff sought exemption from payment of octroi for said bags on the ground that godown, was outside the Municipal limits of City Government---City Government allowed transit pass facilities by issuing pass against security deposit of specified amount, which was deposited by plaintiff as security with the understanding that said amount of security would be refunded to plaintiff on completion of delivery of said goods--- City Government having refused to refund said amount of security, plaintiff had filed suit for recovery of said amount---Plaintiff had produced correspondence between the parties and had examined substantial number of witnesses to establish that goods were transported to the godown, which fell outside Municipal limits of the City Government---City Government had not placed any material/documentary evidence to establish that plaintiff had misused facility of transit pass in any manner--- City Government could only issue transit pass facility, when goods were transported outside its Municipal limits---City Government had not placed any notification on record to show that the place where the godown was situated fell within Municipal limits of City Government---City Government, in circumstances could not refuse to refund security amount which plaintiff had paid at the time of availing transit pass facility--Security amount deposited by plaintiff, in circumstances was unauthorisedly withheld by the City Government ---Plaintiff was entitled to decree against defendant for the sum of security deposited by it as security amount with mark-up at the rate of 10% per annum from the date of filing of suit till entire amount was realized along with costs.

Al-Ghazi Tractors Limited v. The Province of Sindh and others 1991 MLD 1616 and Mst. Baswar Sultan v. Mst. Adeeba Alvi 2002 SCMR 326 ref.

Syed Mamnoon Hassan for Plaintiff.

Manzoor Ahmed for Defendnat.

Dates of hearing: 17th and 18th May, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 278 #

2006 Y L R 278

[Karachi]

Before Anwar Zaheer Jamali, J

BAKHT HUSSAIN---Applicant

Versus

THE STATE---Oponent

Criminal Transfer Application No.S-54 of 2005, decided on 20th September 2005.

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

----S. 526---Penal Code (XLV of 1860), 5.302---Transfer of criminal case---Only ground urged by applicant for transfer of case was that the case was off shoot of main crime registered at police station at place 'K'---Case arising out of such crime, being sessions case, was pending before Additional Sessions Judge at place 'K', while due to division of District 'D' other case earlier pending before Court of Judicial Magistrate at place 'K' had been transferred to the Court of Judicial Magistrate at place 'D'---For convenience sake it would be just and equitable if present case was also transferred back to the Court of Judicial Magistrate at place 'K' so that proceedings in both cases could be conducted smoothly without much inconvenience to the prosecution as well as to accused party---Addl. Advocate-General had not opposed such request---Application was allowed and case pending before Judicial Magistrate at place 'D' was transferred to Judicial Magistrate at 'K' where it was earlier pending before bifurcation of District 'D'.

Syed Madad Ally Shah for Applicant.

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

YLR 2006 KARACHI HIGH COURT SINDH 329 #

2006 Y L R 329

[Karachi]

Before Zia Perwaz, J

FAISAL BUGHIO and another---Plaintiffs

Versus

GOVERNMENT OF SINDH through Chief Secretary and others---Defendants

Suit No. 1492 of 1998 and Suit No.689 of 2000 and C.M.As. Nos.9245 and 6151 of 2002, decided on 11th December, 2002.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----Ss.2(2) & 3---Civil Procedure Code (V of 1908), O. VII, R.11---Transfer of Property Act (IV of 1882), S.41---Specific Relief Act (1 of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Allotment of land---Application for rejection of plaint---Notified Officer under S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, granted 3 acres land to the allottees which was mutated in their names---Plaintiffs out of said allotted land purchased 1.20 acres from allottees/defendants vide registered conveyance deed and plaintiffs constructed a site office there---One of the defendants (Authorities) along with police force started demolishing said construction on ground that area of three acres land was illegally allotted which was under consideration of the Authorities for cancellation---Plaintiffs filed suit, claiming that they had derived title from allottees of the said land---Authorities had filed written statement as well as application under O. VII, R.11, C.P.C. for rejection of plaint---Powers conferred upon Secretary, Evacuee Property Board of Revenue under Notification No. SEP/Admn/85-291 dated 15th September, 1985 were restricted one and he had not been conferred with powers to deal with any pending matter after promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---All properties stood transferred to Federal Government as the properties in pursuance of provisions of S.3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Allottees of suit-land, in circumstances could not hold any title with respect to suit-land and could not transfer the same---Alleged transfer of land by the allottees in favour of plaintiffs, was hit by provisions of S.41 of Transfer of Property Act, 1882---Order of Authority granting land to the allottees, was void order passed in excess of powers conferred under the Notification---Plaint seeking enforcement of said void order was rejected and suit filed by plaintiffs was dismissed, in circumstances.

Muhammad Yamin v. Settlement Commissioner 1976 SCMR 489; Aijaz Mehmood v. Muhammad Jamil 1996 CLC 1027; Industrial Development Bank of Pakistan v. Saadi Asmatullah 1999 SCMR 2874; Muhammad Saleem v. Administrator, KMC 2000 SCMR 1784; Javed Iqbal v. Province of Sindh and others 2003 MLD 22; Ali Muhammad v. Chief Settlement Commissioner and others 2001 SCMR 1822; Mirza Mehmood Baig and others v. Deputy Settlement Commissioner Land and others 2002 MLD 1512; Nawabdin v. Member, Board of Revenue PLD 1979 SC . 846; Aligarh Muslim University Old Boys Cooperative Housing Society v. Muhammad Hismuddin Ansari and others 1993 SCMR 1062; Syed Saifullah v. Board of Revenue, Balochistan 1991 SCMR 1255; Member, Board of Revenue v. Muhammad Mustafa and others 1993 SCMR 732; Muhammad Ramzan v. Member Revenue, C.S.S. and others 1997 SCMR 1635; Member and Muhammad Ashraf Khan and others v. Administrator (RP)/Settlement Commissioner, Lahore and others 1987 SCMR 1358 and Yousuf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 ref.

Ghulam Muhammad Ebrahim and Abdul Ghafoor Mangi for Plaintiffs.

Ms. Sana Minhas for Defendants.

Dates of hearing. 27th November and 11th December, 2002.

YLR 2006 KARACHI HIGH COURT SINDH 346 #

2006 Y L R 346

[Karachi]

Before Shamsuddin Hisbani, J

MUHAMMAD HASHIM---Appellant

Versus

AMEER HAIDER SHAH and 8 others---Respondents

Cr. Acquittal Appeal No.75 of 2002, decided on 24th November, 2005.

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

-----S. 417(2-A)-Penal Code (XLV of 1860), S.324---Appeal against acquittal--F.I. R. was lodged after delay of more than one month of the incident---Complainant had nominated as many as eight persons as accused who allegedly were carrying different kinds of weapons---One of prosecution witnesses in the first instance denied that complainant was his nephew, but later on admitted that he was son of his brother---Person who could change his statement within such a short period, could go to any extent and no reliance could be placed on his testimony---Version given by said witness was rightly disbelieved by the Trial Court---Evidence adduced by prosecution which was untrustworthy, defective and unreliable, had inspired no confidence---Evidence of eye,-witnesses who were related inter se, could not always be rejected for the only reason that they were closely related to each other, but same could safely be acted upon, if it was faith inspiring, convincing and corroborated on material particulars of the case---Nothing incriminating had been recovered from possession of accused so as to connect them with commission of crime---Case of prosecution suffered from several infirmities---Witnesses produced by prosecution failed to impress the Trial Court about their credibility---Finding of Trial Court could not be disturbed or interfered with unless record would show that high degree of credibility was in the evidence of prosecution witnesses---Order of acquittal would create double presumption of innocence---Finding of acquittal arrived at by the Trial Court was not open to interference, especially when enmity between parties stood established through evidence led by prosecution--Impugned judgment of Trial Court not suffering from any error of law or jurisdiction, acquittal appeal being without any substance, stood dismissed.

Falik Sher v. State 2003 YLR 2572; Munawar Shah v. Liaquat Hussain 2002 SCMR 713; Khadim Hussain v. Manzoor Hussain Shah 2002 SCMR 261; Muhammad Asghar v. State PLD 1994 SC 301 and Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 ref.

Nisar Ahmad Durrani for Appellant.

Muhammad Ishaque Khoso for Respondents Nos.1 to 8.

Mashooq Ali Sammo, Assistant Advocate-General, Sindh for the State.

Date of hearing: 21st November, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 351 #

2006 Y L R 351

[Karachi]

Before Muhammad Moosa K. Leghari and Shamsuuddin Hisbani, JJ

KHALID AHMED---Appellant

Versus

THE STATE---Respondent

Cr. Jail Appeal No.D-136 of 2004 and Confirmation Case No.5 of 2004, decided on 26th October, 2005.

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

----S. 302(a)-Criminal Procedure Code (V of 1898), S.243---Appreciation of evidence---Capital punishment was awarded to accused solely for the reason that accused had admitted his guilt without requiring him to show cause as to why he should not be convicted---Conviction handed down to accused militated against provisions of S. 243, Cr. P. C. ---Trial Court had acted in haste and proceeded to record judgment warranting death penalty in a cursory, careless, rather over zealous manner---Such disgusting attitude and conduct demonstrated by Trial Court was deprecated---Judgment of Trial Court which was against settled principles of law, was set aside and case was remanded to Trial Court for de novo trial accordingly.

Muhammad Shafquat v. The State 2005 PCr.LJ 1884 ref.

Mashooq Ali Sammo, Assistant A.-G.

Date of hearing: 26th October, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 354 #

2006 Y L R 354

[Karachi]

Before Shamsuddin Hisbani, J

MIR MUMTAZ ALI TALPUR---Appellant

Versus

ALLAH BUKHSH CHANDIO and another---Respondents

Cr. Acquittal Appeal No.23 of 2005, decided on 15th November, 2005.

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

----S. 417(2-A)-,.-West .-West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Appeal against acquittal---State did not challenge order of acquittal passed by the Trial Court and appeal against acquittal had been preferred by appellant who was neither the complainant nor directly concerned with incident and he had not been examined as a witness at the trial---Memorandum of appeal was wholly silent as to the manner how appellant was connected in the matter---Provisions of subsection (2-A) of S.417, Cr.P.C., provided that an "aggrieved person" could prefer an appeal against acquittal, but for the purpose of pressing into service, said provision of law, appellant had to prove that for any practical purpose he was affected by order of acquittal---Merely because a person was remotely concerned about the result of acquittal, he could not be termed as an "aggrieved person" in legal sense unless he established before the Court that his interests were directly jeopardized or injured in consequence of such appeal---Appellant had not been able to show that he had suffered in any way because of acquittal of accused---Appellant seemed to have been motivated by some reason best known to him, but no valid and legal ground was shown to treat him as an aggrieved person within the ambit of subsection (2-A) of S.417, Cr.P.C.---Complainant was a police officer while appellant did not figure in case of prosecution as complainant or having any direct interest---Appellant being not an aggrieved person, was not entitled to prefer acquittal appeal.

Ms. Rachel Joseph v. Aftabuddin Qureshi 2000 PCr.LJ 1715 and Abdul Sattar v. State 2000 PCr.LJ 766 ref.

(b) Words and phrases---

-- "Aggrieved ", meaning explained.

Saeeduddin Siddiqui for Appellant.

Date of hearing: 8th November, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 359 #

2006 Y L R 359

[Karachi]

Before Muhammad Moosa K. Leghari and Shamsuuddin Hisbani, JJ

MUBEEN alias Haji MUHAMMAD MUBEEN----Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.6 of 2002 and Confirmation Case No. 1 of 2002, decided on 17th November, 2005.

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

----Ss. 221 & 222---Charge and framing of charge---Meaning---Charge was precise formation of specific accusation made against a person who was entitled to know its nature at the early stage---Whole object of framing a charge was to enable the defence to concentrate its attention on the case that it had to meet---Charge must contain all material particulars as to time, place as well as specific name of alleged offence, the manner in which offence was committed and particulars of accusation so as to afford accused an opportunity to explain the matter with which he was charged---Purpose behind giving such particulars was that accused should prepare his case accordingly and might not be misled in preparing his defence---Defective and misleading charge would cause serious prejudice to accused and would vitiate whole trial.

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

----S. 302---Criminal Procedure Code (V of 1898), Ss.221, 222 & 367---Appreciation of evidence---Defect in framing the charge---Charge in the present case had not been correctly framed and it was misleading besides lacking in material particulars---Such defect had certainly vitiated the trial and had resulted in miscarriage of justice--Impugned judgment manifestly was untenable for having been recorded in violation of provisions of S.367, Cr.P.C.---Appeal was allowed to the extent that impugned judgment was set aside and case was remanded to the Trial Court for de novo trial after framing a fresh charge containing full material particulars of offence committed to make it in consonance with provisions of S.222, Cr.P.C.---Accused was continuously in prison since his arrest---Case had been remanded on account of omission on the part of Trial Court and not because of any fault committed by the accused---Conclusion of trial could take enough time, accused was directed to be released on bail.

Allah Bachayo Soomro for A ppellant.

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

Date of hearing: 17th November, 2005

YLR 2006 KARACHI HIGH COURT SINDH 366 #

2006 Y L R 366

[Karachi]

Before Muhammad Moosa K. Leghari and Shamsuuddin Hisbani, JJ

MUNIR AHMED and 2 others---Appellants

Versus

THE STATE---Respondent

Cr. ATAJ/Appeal No.163 of 2004, decided on 6th December, 2005.

Penal Code (XLV of 1860)---

----Ss. 302 & 109---Anti-Terrorism Act (XXVII of 1997), S.7---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Appreciation of evidence-2-Prosecution had not placed any material on record to show that deceased while discharging his official duty sustained firearm injuries, which resulted in his death---Deceased was not in police uniform at relevant time---Anti-Terrorism Court had jurisdiction to try case if facts of case fell within the definition of "Terrorism" as defined in S. 6 of Anti-Terrorism Act, 1997---Very perusal of F.I.R. had revealed that deceased was killed when he had grappled with one of the culprits---Facts and circumstances of prosecution case, had very clearly indicated that culprits had no intention to commit murder of deceased or anyone else--Merely because a Policeman was killed, was not sufficient ground for the trial of case by Anti-Terrorism Court---Anti-Terrorism Court having no jurisdiction to try the case, impugned judgment was set aside---Case was remanded with direction to Anti-Terrorism Court to remit the same to the Court of Session having jurisdiction for commencing de novo trial.

Farhan Zafar v. State PLD 2002 Kar. 311; Raees Alam v. State 2002 MLD 1949 and Ghazi Khan v. State PLD 2003 Kar. 71 ref.

Allah Bachayo Soomro for Appellant.

Muhammad Azeem Panhwar for Appellant.

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

Abdul Sattar Kazi for the Complainant.

Date of hearing: 6th December, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 372 #

2006 Y L R 372

[Karachi]

Before Shamsuddin Hisbani, J

MEHBOOB ALI---Appellant

Versus

THE STATE---Respondent

Cr. Appeal No.119 of 1999, decided on 29th November, 2005.

Prevention of Corruption Act (II of 1947)------

--S. 5(2)-Penal Code (XLV of 1860), S.420--- Qanun-e-Shahadat' (10 of 1984), Art.132---Appreciation of evidence--Examination-in-chief-Examination of a witness would include examination-in-chief, cross-examination and Fe-examination---Cross-examination was a continuing part of the whole statement rather more important than the examination-in-chief---Ocular account furnished by a witness of occurrence subject to legal scrutiny, could be relied upon for recording conviction of accused in case same appeared to be trustworthy and confidence inspiring---Second part of examination of complainant's evidence received no attention of the Trial Court in the present case---Evidence given by complainant in no way could be considered sufficient to warrant conviction of accused, particularly, when it was seen that case of prosecution was that five currency notes of Rs.100 denomination were recovered from his possession---Mashirs of recovery were not examined by the Trial Court---Prosecution witness in whose presence accused had received amount as illegal gratification, was given up by P.D.S.P. who was incharge of the case---Officer under whose supervision, the trap was arranged, expired before he could have been examined by the Trial Court---Case being of no evidence, prosecution had failed to establish charge against accused---To sustain a conviction under S.5(2) of Prevention of Corruption Act, 1947, it was not sufficient for prosecution to prove the trap incident only, but prosecution should prove all the vital parts of prosecution story on which trap incident depended---Prosecution had not produced any witness on the point of demand made by accused and acceptance of bribe money---Prosecution was duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt was created, it must go to accused and was sufficient to discredit prosecution story---Prosecution having failed to bring home the guilt of accused, conviction and sentence awarded to him by the Trial Court, was set aside and accused was acquitted.

Allah Bachayo Soomro for Appellant.

Mashooq Ali Sammo, Assistant Advocate-General, Sindh for Respondent.

Date of hearing: 22nd November, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 382 #

2006 Y L R 382

[Karachi]

Before Muhammad Sadiq Leghari, J

TAHIR SHUJJAH and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1041 of 2005, decided on 14th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324 & 34---Pre-arrest bail, grant of--Only single shot was alleged to have been fired and none received any injury---Commission of offence under S.324, P.P.C., was yet to be established---High Court, in circumstances and in view of the fact that offence for the injuries was bailable and mala fides had also been alleged, confirmed the interim bail granted to accused, on same terms and conditions.

Saathi M. Ishaque for Applicants.

Habibur Rasheed for the State.

2006 Y L R 522

[Karachi]

Before Muhammad Sadiq Leghari, J

ABDUL LATIF ---Petitioner

Versus

GHULAM NABI and 2 others---Respondents

C.P. No.760 of 2004, decided on 27th September, 2005.

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

----Ss. 15(2) (ii), 21(1-C) & (1-D)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent---Power of Appellate Authority to bring compromise between the parties---Rent Controller dismissed the case filed by landlord against tenant after recording evidence of parties, but Appellate Authority reversed order of Rent Controller---Petitioner tenant had assailed judgment of Appellate Authority through instant constitutional petition---Appellate Authority did not assess and appreciate evidence on tenant's side nor it had recorded any conclusion about its truthfulness or otherwise and passed judgment without considering evidence on key issue of default in payment of rent---Judgment passed by Appellate Authority was not maintainable under law---Contention of landlord was that requirements of provisions of S.21(1-C) & (1-D) of Sindh Rented Premises Ordinance, 1979 relating to powers of Appellate Authority to bring compromise between parties, were not mandatory, but were directory and that if Appellate Authority did not exercise powers conferred upon it, by said provisions, judgment could not be treated bad due to that omission---Validity---Provisions of S.21(1-C) & (1-D) of Sindh Rented Premises Ordinance, 1979 had conferred powers upon Appellate Authority which could exercise same on its own or even at the request of any of the parties---Such powers being discretionary were coupled with duty and were not discretionary simpliciter and since

" provisions of S.21(1-C) & (1-D) had their own scheme, Appellate Authority ordinarily was to exercise powers conferred upon it by said provisions---Absence of any attempt to bring compromise and non-application of mind about fitness of a case for exercising powers under subsection (1-D) of S.21 of Sindh Rented Premises Ordinance, 1979, could warrant upsetting of decision recorded on merits, in cases which were fit for exercise of that power---Appellate order was set aside by High Court under its constitutional jurisdiction and appeal was remanded to be decided afresh in accordance with law.

1994 CLD 613 ref.

(b) Compromise---

----Parties entering into compromise---Duty of Court.

S. Ali Ahmed Tariq for Petitioner.

Khalil-ur-Rehman for the Respondent No.1.

Date of hearing: 27th September, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 530 #

2006 Y L R 530

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Maqbool Baqar, JJ

FATEH ALAM SIDDIQUI and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.10 of 1992, decided on 9th June, 2005.

Penal Code (XLV of 1860)---

----Ss. 408 & 420---Appreciation of evidence---Trial Court had framed charge against accused for extending credit facility without approval of competent authority and after absolving accused of said charge, there was no justification for the Trial Court to award conviction to accused---Prosecution having failed to make out a case against accused warranting conviction and sentence, Trial Court was not justified in convicting accused and awarding sentence---Conviction and sentences so awarded were set aside and accused was acquitted of the charge.

Ghulam Hussain v. State 1971 SCMR 35 and Fateh Alam Siddiqui v. The State 1993 PCr.LJ 1573 ref.

Anjum Ghani for Appellants.

Ziauddin Nasir, Standing Counsel for Respondent.

Date of hearing: 9th June, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 537 #

2006 Y L R 537

[Karachi]

Before Nadeem Azhar Siddiqi, J

Syed TAJUDDIN---Plaintiff

Versus

AFZAL HABIB---Defendant

Suit No.878 of 2003, decided on 9th December, 2005.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1, 2 & 3---Stamp Act (II of 1899), Ss.12, 35 & 36---Negotiable Instruments Act (XXVI of 1861), S.4---Qanun-e-Shahadat (10 of 1984), Art.102---Suit for recovery of amount on the basis of promissory note---Non-cancelling stamp affixed on promissory note---Effect--Promissory note on the basis of which suit was filed was not sufficiently stamped and some stamps appearing on the promissory note had not been cancelled properly---Purpose of cancellation of stamp was that it could not be used again---Promissory note, if was not duly stamped, was inadmissible in evidence and said defect could not be cured by payment of duty and penalty---No evidence was recorded and promissory note in question was not exhibited and same was only produced in the Court on the direction of the Court---Same could not be equated with production of document during evidence---Pro note on basis of which suit was filed being not admissible in evidence as same was not properly stamped, plaintiff could fall back on original consideration and claim, a decree for the amount in dispute on that basis---Plaintiff in his plaint had stated that amount was paid as loan to defendant and for repayment of said loan defendant had executed promissory note and delivered the same to plaintiff---Promissory note in the present cases, did not embody all terms of contract----Article 102 of Qanun-e-Shahadat 1984 and S.35 of Stamp Act, 1899, would be a bar in the way of plaintiff to file a suit for recovery of debt alleged to have been advanced by him as loan---Court had ordered that suit be converted from short cause to long cause and fresh summons in ordinary course be issued to the defendant---Plaintiff was required to prove the advancing of loan by adducing evidence independent of the pro note.

Muhammad Hanif v. Kissan Dost (Pvt.) Ltd. 2003 CLD 224; Mst. Sajida Abbas Zaidi v. Syed Arshad Ali Jafri 1990 CLC 1018; Habib Bank Ltd. v. Raza Sons & Co. and another PLD 1978 Kar 425; S.B. Rehmat Ali v. Wahid Bux NLR 1979 Civil SC 809; Abul Hashem v. Serajul Haque and others PLD 1961 Dacca 596; Muhammad Ashiq and another v. Niaz Ahmad and another PLD 2004 Lah 95; Munir Ahmad Kahloon v. Rana Muhammad Yousaf PLD 2003 Lah 173; Hafizullah v. Haji Hussain Bakhsh 1990 CLC 603; Jatindra Seb Lask v. Khala Singh AIR 1964 Assam 138; K.M. Muneer v. Mirza Rashid Ahmad PLD 1963 (W.P.) Kar 905 and Sheo Nath Prasad v. Sarjoo Nonia and another AIR 1943 All. 220 ref.

Muhammad Ilyas Khan Tinoli for Plaintiff.

Afzal Habib (absent) for Defendant.

Date of hearing: 10th November, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 543 #

2006 Y L R 543

[Karachi]

Before Muhammad Afzal Soomro, J

ABDUL WAHEED SIDDIQUI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.690 of 2005, heard on 26th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.409, 420, 161, 468, 471 & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, refusal of---Co-accused in connivance with accused had caused wrongful loss to the tune of huge amount about ten crores and wrongful benefit to themselves and thereby had committed cognizable offences---Accused having failed to make out a case for bail, his bail application was dismissed.

Nehal Hashmi for Applicant.

Habibur Rasheed for the State.

Date of hearing: 26th September, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 548 #

2006 Y L R 548

[Karachi]

Before Khilji Arif Hussain, J

MUHAMMAD SHARIF alias ABDUL RAHIM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.54 of 2005, heard on 20th April, 2005.

Criminal Procedure Code (V of 1898)---

------S. 497(2)-Penal Code (XLV of 1860), Ss.302, 337-H(2), 148 & 149---Bail, grant of---Further inquiry---Passport and National Identity Card issued to accused showed that his name had been shown as Abdul Rahim and on both the documents photograph of the accused appeared---F.I.R. revealed that accused and co-accused fired upon the deceased, whereas from the medical report it appeared that deceased had received only one fire-arm injury---F.I.R. had further shown that all accused persons thereafter fired in the air for creating harassment, but as per Mashirnama of place of Wardat only two empties were recovered from place of Wardat---Was yet to be decided whether accused was the person against whom F.I.R. had been registered and there were contradictions between the ocular evidence and medical report---Accused was admitted to bail in circumstances.

Muhammad Ayaz Soomro for Applicant.

Shaikh Habib-ur-Rehman A.A.-G. for Respondent.

Date of hearing: 20th April, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 567 #

2006 Y L R 567

[Karachi]

Before Ghulam Rabbani and Munib Ahmad Khan , JJ

JAMILA BANO---Petitioner

Versus

UNIVERSITY OF KARACHI and others---Respondents

C.P. No.D-1495 of 2005, decided on 1st December, 2005.

Educational institution---

----Admission in LL.B. Class was denied to petitioner on ground that she had passed her B.A. examination in third division---Petitioner's case was not that for the same accademic year for which she had sought admission; other candidates securing third division had been allowed admission in L.L.B. Class---Since by way of Resolution it had been mandated that according to Code of Law Colleges of University only those graduates, who did their graduation in Second Division, would be allowed admission, Authority, by denying admission to petitioner, had not violated regulations---Graduates, in many colleges, were allowed admission on giving priority to those who secured higher marks showing high standard of education and those who were third divisioners were comparatively discouraged---Such reasonable classification, when made, could not be said to be violative of fundamental rights; more so in absence of any instance of admission to third divisioners, such as the petitioner, happened to be---Denial of admission to petitioner to LL.B. Class, was neither illegal nor unlawful--Petitioner having not been discriminated; her constitutional petition was dismissed---Constitution of Pakistan (1973), Arts. 199 &25.

Syed Nasir Abbas Rizvi for Petitioner.

Dates of hearing: 22nd, 30th November, 2005 and 1st December, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 573 #

2006 Y L R 573

[Karachi]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

Sheikh SULTAN TRUST---Petitioner

Versus

EXCISE AND TAXATION OFFICER and others---Respondents

C.P. No.D-2495 of 2001, heard on 16th February, 2005.

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

----S. 3(4)---Remission of property tax---Power of Government---Scope---Government for reasons to be recorded could remit payment of tax by any class of persons in respect of any category of property---Such powers would be exercised strictly in non-discriminatory manner---Notification of remission in respect of a particular property owned by a particular person would be without lawful authority for being a mala fide exercise of public power---Under S.3(4) of West Pakistan Urban Immovable Property Tax Act, 1958, only an already accrued tax liability could be remitted, but a person or property could not be exempt from tax liability in future---Notification of remission could be construed to have wiped off existing tax liability, but could not be treated to exempt property from tax for ever.

(b) Words and phrases---

---- "Exemption " and "remission "---Distinction.

Black's Law Dictionary and Chambers 21st Century Dictionary ref.

----Ss. 4(1) (f)---Property of charitable institution---Exemption from payment of tax---Scope---Such exemption could not be claimed in perpetuity, but could be taken away through a specific legislation---Such exemption would extend not to all properties owned by public charity, but only to properties being used exclusively for purposes of public charity.

Messrs Hafiz Abdul Baqi and Raghib Baqi for Petitioner.

Muhammad Qasim Mirjat, Asstt. A.-G. for Respondents.

Date of hearing: 16th February, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 577 #

2006 Y L R 577

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Sajjad Ali Shah, JJ

ABDUL RAZAK---Petitioner

Versus

EXECUTIVE OFFICER, CANTONMENT BOARD OF CLIFTON and others---Respondents

C.P. No.D-181 of 2005, heard on 25th November, 2005.

(a) Cantonments Act (II of 1924)---

----S. 68---Demand of property tax without service of notice under S.68 of Cantonments Act, 1924---Not legal.

(b) Cantonments Act (II of 1924)---

----S. 68---Property tax for more than three years, recovery of---Scope---Such recovery could be made after complying with provisions of Chapter-V of Cantonments Act, 1924.

Petitioner in person.

Sohail H.K. Rana for Respondents Nos.1 and 2 along with Raham Dil, Asstt. Rev. Supdt.

Date of hearing: 25th November, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 580 #

2006 Y L R 580

[Karachi]

Before Mushir Alam, J

RAHIM SHAIKH---Petitioner

Versus

IIND ADDITIONAL DISTRICT JUDGE, (SOUTH) KARACHI

and 2 others---Respondents

Constitution Petition No.617 of 2002, decided on 11th August, 2005.

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

----Ss. 15(2) (ii), 18 & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent---Change of ownership---Landlady having died, her husband, served a notice calling upon the tenant to pay rent to him, but despite said notice, tenant continued to deposit rent in Court in favour of late landlady---Even after filing of ejectment case, tenant continued to deposit rent in favour of deceased landlady---Effect---No justification existed in depositing rent in favour of deceased landlady, even after filing of ejectment application---Court below therefore, had rightly allowed ejectment application on ground of default in payment of rent---Tenant was not able to show that discretion so exercised by the Court below was perverse or that it suffered from any infirmity which could not be sustained---Even if another view was possible, High Court, in exercise of constitutional jurisdiction, would not interfere in such findings of fact recorded by the Court below.

Mehboob Jewellers v. Nur Ahmed 1989 SCMR 1327; A.S.K. Samad v. A. Hussain 1987 SCMR 1013; Feroz Khan v. Syed Zoha 1996 CLC 949; Nasir Ali v. Muhammad Hanif and others 1998 SCMR 448; Muhammad Sharif and another v. Muhammad Afzal Sohail PLD 1981 SC 246 and Ghulam Nabi v. Additional District Judge, Jhelum and 47 others 2001 SCMR 683 ref.

Kazi Wali Muhammad for Petitioner.

Anwar Hussain for Respondent No.2.

YLR 2006 KARACHI HIGH COURT SINDH 584 #

2006 Y L R 584

[Karachi]

Before Muhammad Sadiq Laghari, J

Mst. BIBI KHATOON---Applicant

Versus

GUL DAD KHAN and another-Respondents

Criminal Revision No.123 of 2004, decided on 22nd August, 2005.

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

----Ss. 265-F & 439-"Trial", meaning and object of-Scheme of law was to try accused for offences allegedly committed by him/her-"Trial" would mean a trial in real sense and not in a mechanical manner---Section 265-F, Cr. P. C. related to recording of evidence, if accused did not plead guilty or was not convicted on his plea---Object of law was real trial for the offences allegedly committed by accused---Subsection (1) of S. 265-F, Cr. P. C. had provided taking of such evidence, which could be produced in support of prosecution---Direction of law would not stop here as subsection (2) of S.265-F, Cr. P. C. required the Court further to ascertain from Public Prosecutor or from complainant, the names of any person likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution and then summon such persons for giving evidence before it---Trial of accused, no doubt, was to be concluded without delay, but that right could not supersede the object of trial which was nothing, but to find out the truth to do justice---Legislature for that reason did not prescribe time limit for prosecution to conclude their side nor superior Courts had given any hard and fast rule in that respect---Closing of sides in criminal trials without just reasons was highly irrational and a harsh order---Such practice would shake the confidence of the citizens in judicial system and deterrence of law would also be affected---If High Court would issue direction to the Trial Court for concluding the trial within particular period, that would never mean to conclude the case without real trial and against the entire scheme of law and the object behind establishment of judicial institutions---Orders passed by Trial Court which were totally illegal and against entire scheme of law, were set aside by High Court with direction to Trial Court to start proceedings of the case from the stage where side of prosecution was closed and to decide case in accordance with law.

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

----Ss. 540 & 265-A---Summoning of material witnesses or examining person present--- If on the facts and circumstances of a particular case it appeared essential to the Court to summon additional evidence or recall or examine any person already examined for the just decision of case, then it was obligatory upon the Court to examine such evidence ignoring objections from any side---Exceptions to said requirement were also available---Court was empowered to refuse calling and examining any person or witness when the Court considered that evidence of such persons/witnesses were immaterial or unnecessary in the facts and circumstances of the case---Court could turn down the request for summoning witnesses/evidence, if the purpose for getting them summoned was vexatious or to delay or defeat the ends of justice---Such exceptions too were for securing the ends of justice and not for thwarting the process of law.

2001 SCMR 308 ref.

Aftab Ahmed Satti for Applicant.

Janan Khattak for Respondents.

Dates of hearing: 15th April and 22nd August, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 589 #

2006 Y L R 589

[Karachi]

Before Nadeem Azhar Siddiqi, J

ABDULLAH CONTRACTORS---Plaintiffs

Versus

WATER AND POWER DEVELOPMENT AUTHORITY---Defendant

Suit No. 1660 of 2001, decided on 17th January, 2006.

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

----S. 16---Power to remit award---Scope.

An award may be remitted under section 16 Arbitration Act, 1940 if:

(i) the award leaves any of the matters which were referred to arbitration undetermined;

(ii) a part of the award is upon a matter which was not referred to arbitration and that part cannot be separated from the remaining part without affecting the decision of the matter which was referred to the arbitration;

(iii) the award is so indefinite as to be incapable of execution;

(iv) there is an objection to the legality of the award and such objection is apparent upon the face of it.

Ashfaq Ali Qureshi v. Municipal Corporation, Multan 1984 SCMR 597 fol.

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

----S. 30---Grounds for setting aside award enumerated.

Award can be set aside on one of the following grounds:

(i) that an arbitrator or umpire has misconducted himself;

(ii) that an arbitrator or umpire has misconducted the proceedings;

(iii) that the award is made after the arbitration is suspended;

(iv) that the award is made after the proceedings become invalid under section 35;

(v) that the award is improperly procured; and

(vi) that the award is otherwise invalid.

----S. 11---'Misconduct by arbitrator' and `arbitrator misconducted the proceed?ings'---Concept---Misconduct---Meanings illustrated.

The term misconduct used in connection with arbitration does not imply anything in the nature of fraud or moral turpitude. In the judicial sense the misconduct of an Arbitrator means his failure to perform his essential duty, resulting in substantial miscarriage of justice between the parties. The words `misconducted the proceedings' mean such a mishandling of arbitration as is likely to cause some substantial miscarriage of justice. Awards which are valid on their faces may be set aside in equity for misconduct on the part of the arbitrators, and the extrinsic evidence is admissible to prove such misconduct. Conduct inconsistent with the duties imposed upon those selected as the arbitrators, either at the hearing, or in reaching their conclusions will frequently constitute misconduct as will impeach an award.

As the word 'misconduct' has not been defined in the Arbitration Act, 1940, therefore it has several ambiguities hidden in it. This fact is not disputed by anyone and that this word cannot be limited to moral turpitude but it includes legal misconduct also, which in its judicial sense, means failure to perform duty judiciously by some breach and neglect to do justice resulting in substantial miscarriage of justice, though erroneously. While interpreting the word misconduct, several acts of arbitrators can be termed as misconduct. For example, the acts of neglecting of duties and responsibilities, refusing to provide chance to the parties for engaging Advocates, not providing reasonable opportunities for evidence, recording evidence behind the back of the parties, indicating gross negligence or recklessness apparent from the face of the evidence on record, etc. have been treated as misconduct. Similarly awarding an award beyond the scope of reference or on no evidence or opposed to the evidence on record amounts to legal misconduct.

Non-recording of evidence is inconsistent with the duties imposed upon the arbitrators and amounts to mis?conducting the proceedings.

Brooke Bond (Pakistan) Ltd. v. Government of Sindh PLD 1977 SC 237 and Kashmir Corporation Ltd. v. PIA PLD 1996 Kar. 301 ref.

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

----S. 30---Failure of the arbitrator in not giving effect to the terms of the contract between the parties constitutes an error apparent on the face of the award.

WAPDA v. Ice Pak International 2003 YLR 2494 ref.

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

----Ss. 14 & 30---Arbitrator is not bound to frame issues but as far as evidence is concerned, if the disputed questions of facts are before the arbitrator that cannot be resolved without evidence---If the Court finds that the award is based on no evidence and no opportunity was also afforded to the parties, the Court will be lawfully exercising jurisdiction in setting aside the awards.

Messrs Alpine Construction Co. Ltd. v. University of Karachi etc. 1990 MLD 1764; Messrs Ibad and Co. v. Government ,of Sind and others PLD 1981 Kar. 236 ref.

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

----S. 30---Setting aside of award---Jurisdiction of Court to set aside award---Nature and scope---Jurisdiction to set aside award is supervisory and not appellate---Court, even in supervisory jurisdiction, can examine whether the award is based on the material placed before the arbitrator and that sufficient opportunity was afforded to the parties to prove their respective contentions---Where the award and the record produced by the arbitrator made it apparent that no evidence was recorded and case was that of no evidence, such was an error apparent on the face of award---High Court set aside the award and remitted the same to the arbitrator to hear the parties afresh and provide them opportunity to lead evidence.

Aslam Saeed v. Trading Corporation of Pakistan PLD 1985 SC 69; WAPDA v. Ice Pak. International 2003 YLR 2494; Farida Malik v. Khalida Malik 1998 SCMR 816; Karachi Transport v. Karachi Tameerat Ltd. PLD 1992 SC 479; Ghulam Nabi v. Khuda Bux PLD 1984 Kar.245; Messrs Waheed Brothers (Pakistan) Ltd. Lahore v. Messrs Izhar (Pvt.) Ltd. Lahore 2002 SCMR 366; Tribal Friends Co. v. Province of Balochistan 2002 SCMR 1903; Joint Venture v. Federation of Pakistan PLD 1996 SC 108; Ashfaq Ali Qureshi v. Municipal Corporation of Multan 1984 SCMR 597; Kashmir Corporation v. PIA PLD 1995 Kar.301; Hussain Textile v. Dada Sons PLD 1973 Kar.413; A. Qutubuddin v. KESC 1980 CLC 1997; Premier Insurance v. Ejaz Khawaja 1981 CLC 311; Alpine Construction v. University of Karachi 1990, MLD 1764 and (Ibad & Co. v. Government of Sindh PLD 1981 Kar.236 ref.

Bilal A. Khawaja for Plaintiffs.

Samiuddin Sami for the Defendant.

YLR 2006 KARACHI HIGH COURT SINDH 599 #

2006 Y L R 599

[Karachi]

Before Faisal Arab, J

KALEEM HYDER ZAIDI duly Constituted Attorney---Plaintiff

Versus

MEHMOODA BEGUM and 4 others---Defendants

Suit No. 1035 of 1999, decided on 18th January, 2006.

(a) Benami transaction----

----Burden of proof-Principles of waiver and acquiescence---Applicability.

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

----Ss.42 & 55---Limitation Act (IX of 1908), Arts.120, 127 & 91---Suit for declaration and permanent injunction--Plaintiff in the present case, had sought declaration with regard to his claim to the house on the basis that the same was purchased by him but in the name of his late father who was only its benami---Limitation---Suit for declaration with regard to an exclusive claim to a property on the basis that it was purchased as benami was to be brought in Court within six years whereas a claim for a share in a joint family property', on the basis that it was a benami property, was to be brought within twelve years under Art.127 of the Limitation Act, 1908---Situation in hepresent case, being not the one as envisaged by.Art.127 of the Limitation Act, 1908, Art.120 of the Act would be applicable which provided six years---Suit having been filed beyond the period of limitation, was dismissed.

Sher Ali Rizvi for Plaintiff.

Nemo for Defendants.

Date of hearing: 14th December, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 602 #

2006 Y L R 602

[Karachi]

Before Faisal Arab, J

ABDUL KARIM through Attorney---Plaintiff

Versus

OFFICE OF THE CANTONMENT BOARD through Cantonment

Executive Officer---Defendant

Cantonments Act (II of 1924)---

----Ss. 111, 112 , 113 , 114 & 115-Pakistan Cantonment Property Rules, 1957, Rr.2, 8 & 9---Specific Relief Act (1 of 1877), Ss.12 & 55---Suit for specific performance of agreement to sell and injunction---Transfer of Cantonment property---Right to transfer Cantonment property vests with Cantonment Board subject to the fulfilment of conditions laid down in Pakistan Cantonment Property Rules, 1957 as framed by the Federal Government---Grant of lease or alienation of Cantonment property contrary to the prescribed procedure and sanction of the appropriate authority, is unlawful---Executive Officer of the Cantonment Board, in the present case, while accepting the plaintiff's offer to grant lease of Cantonment property for 99 years without fulfilment of conditions laid down in the Pakistan Cantonments Property Rules, 1957 violated the provision of the Cantonment laws and acted arbitrarily only to shower his favour on plaintiff---Such conduct of the public functionary was depreciated by the High Court with observations that where functions of a public official were circumscribed within four corners of his defined limits, he had to act within such limits and any overstepping of a nature, as in the present case, shall be presumed to be intentional with the sole object of seeking favours or showering blessings on a person---Offer of the plaintiff being clearly violative of the law was, therefore, beyond the legal competence of the Executive Officer of the Cantonment Board---Lease for 99 years could be granted only when the Cantonment Board and the Federal Government had accorded their sanction and approval, which in the present case was not even sought from them---No agreement to sell the suit property between the plaintiff and defendant (Cantonment Board) therefore, existed and plaintiff, in circumstances, was not entitled for specific performance of agreement to sell---Plaintiff, admittedly having paid a sum of Rs.2.5 million to the Board to seek 99 years lease, the same could not be termed as sale consideration as no binding contract had come into existence between the parties---Defendant/Cantonment Board thus could not take the plea which to some extent meant that plaintiff was entitled to 99 years lease had he paid the balance amount, which was not the' case---Acceptance of offer being itself illegal, the question of seeking balance payment or forfeiting the amount already paid did not arise---No enforceable contract existed between the parties as the acceptance of offer by the Executive Officer of the Board was itself illegal---Cantonment Board, in circumstances, ought to have immediately returned the advance amount paid by the plaintiff instead of seeking the balance amount---Cantonment Board's act of forfeiting the amount paid by the plaintiff on the ground that balance was not paid in time was, therefore, not justified and the same was ordered to be refunded to the plaintiff within 15 days by the Cantonment Board---Principles.

Zamiruddin Ahmed for Plaintiff.

Ashraf Ali Butt for Defendant.

Date of hearing: 14th December, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 611 #

2006 Y L R 611

[Karachi]

Before Muhammad Sadiq Leghari, J

SEEMA FAREED and others---Applicants

Versus

ALI HAKIMDIN GHULAM ALI MANDVIWALA and

another---Respondents

Criminal Miscellaneous Application No.99 of 2005, decided on 26th September, 2005.

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

------S. 561-A---Quashing of proceedings---Principles---Proceedings could be quashed under S.561-A, Cr. P. C. in cases which either did not disclose commission of any offence or evidence with prosecution could not result in conviction of accused even if accepted as it was---Where . prosecution case was based on evidence disclosing commission of offence it was right of prosecution to get opportunity for proving allegations---Powers conferred upon the High Court were not to be utilized as to interrupt the ordinary course of the law in criminal proceedings.

2004 SCMR 1892 ref.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 406 & 489-F---Constitution of Pakistan (1973), Art.89---General Clauses Act (X of 1897), S.6-A---Quashing of proceedings---Application for---Express allegations were made by complainant in his F.I.R. that accused had dishonestly got agreement executed by him and then started selling properties of the project without his signatures and also they were dishonestly not giving him the share of profit which was required to be paid to him under the terms of agreement---Complainant had also alleged that cheques were issued to him by the accused dishonestly without availability of funds and same were dishonoured---Said allegations apparently had disclosed misappropriation of the share of profit of the owners of the land and dishonest issuance of the cheques which were not honoured, which offences were punishable under Ss. 406 & 489-F, P.P.C.---Prosecution was entitled to get an opportunity for proving allegations against accused---Proceedings sought to be quashed did not amount to an abuse of process of law---Accused/applicant had raised legal objections against applicability of S.489-F, P.P.C. to the effect that S. 489-F, P.P.C. had been inserted in P.P.C. through Ordinance LXXXV of 2002, which had ceased to be the part of law on its repeal after expiry of four months under Art.89 of the Constitution---Validity---Said objection could not be accepted because Ordinance LXXXV of 2002 had grafted S.498-F in the existing enactment i.e. P.P.C., its status in circumstances was of amending law---No doubt it stood repealed constitutionally under Art.89 of the Constitution on expiry of four months, but legally it did not take away with it the amendment implanted in P.P.C.--Repeal of amending law would not affect amendments which had been brought into the main enactment---Section 6-A of General Clauses Act, 1897 had protected such amendment---Present case therefore, was not the one where proceedings pending against applicants were to be quashed.

Ferozi Lal Jain v. Man Mal and another AIR 1970 SC 794 and Jethanand Betab v. State of Delhi AIR 1960 SC 89 ref.

Khawaja Shamsul Islam for Applicants.

M.A. Kazi for Respondents.

Akhtar Saeed for the State.

Dates of hearing: 31st August, 2nd and 8th September, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 661 #

2006 Y L R 661

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

MEHAR---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.9 & Criminal Appeal No.13 of 1999, heard on 2nd December, 2005.

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

----S.13-E---Appreciation of evidence---Place of recovery of the Rifle at the instance of accused being an open place, could not be said to be in his exclusive possession---Rifle after recovery was neither sealed at the spot, nor it was sent to Ballistic Expert---No private person was associated with the recovery proceedings, nor any person from the locality was persuaded to become a witness to the recovery proceeding, hence the recovery of the Rifle was a flagrant violation of the provisions of S.103, Cr. P. C. ---Accused being in police custody for nine days, recovery of the weapon from him was extremely doubtful---Accused was extended the benefit of doubt and acquitted in circumstances.

Abdul Ghani v. The State 2002 MLD 1075; Abdul Sattar v. The State 2002 PCr.LJ 51; Muhammad Mukhtar v. The State 1999 PCr.LJ 222; 1996 PCr.LJ 1410; 1997 MLD 1632; 1998 PCr.LJ 1368; Loung through Superintendent Central Prison Hyderabad v. The State 1999 PCr.LJ 595 and Sajjan v. State 1998 PCr.LJ 1299 ref.

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

----S.13-D---Conviction---Essentials for---Conviction under S.13-D, of the West Pakistan Arms Ordinance, 1965, cannot be maintained unless the recovered weapon was sealed at the spot and the opinion of tire Ballistic Expert was produced on record to prove that the same was in functioning position.

1996 PCr.LJ 1410; 1997 MLD 1632; 1998 PCr.LJ. 1368; Loung through Superintendent Central Prison Hyderabad v. The State 1999 PCr.LJ 595 and Sajjan v. State 1998 PCr.LJ 1299 ref.

Shaikh Abdul Ghani for Appellant.

M. Mehmood Khan and S. Yousifi A.A.-G. for Respondents.

Date of hearing: 2nd December, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 847 #

2006 Y L R 847

[Karachi]

Before Sarmad Jalal Osmany, J

Syed ZAMAN SHAH ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-622 of 2005, decided on 6th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.353---Interim bail, confirmation op--Litigation was going on since long between parties regarding Dargah and Mosque in-question and properties attached thereto in which predecessors-in-interest of accused were defendants---Due to said litigation, Dargah in-question had been given in receivership of Auqaf Department by Civil Court in which matter was pending and complainant was appointed as care-taker--From time to time F.I.Rs. had been registered against accused and his family for allegedly usurping income of Dargah and forcibly trying to occupy same---Accused had also filed F.I.R. alleging police harassment---False implication of accused could not be ruled out, in view of said background of' enmity between parties, particularly when no independent prosecution witnesses had been examined by police---Interim bail earlier granted to accused was confirmed, in circumstances.

Noor Ahmed Memon for Applicant.

Mehmood S. Khan Yousifi A.A.-G.

Mehmood A.H. Baloch for the Complainant.

Date of hearing: 27th January, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 932 #

2006 Y L R 932(2)

[Karachi]

Before Mrs. Qaisar Iqbal, J

IKHTIAR KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1067 of 2005, decided on 3rd January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.379 & 34---Bail, refusal of-Accused was involved in stealing the property belonging to Pakistan Railways out of which jour air-pressure pipes allegedly were secured from his possession---At the best, if facts as alleged were taken to be correct, case against accused' fell within ambit of S.411, P.P.C. which was neither punishable with death, nor for imprisonment for life nor for 10 years---Case of accused, otherwise, not falling within prohibitory clause contained in S.497(1), Cr.P.C., he was admitted to bail.

Tariq Bashir v. The State PLD 1995 SC 34 and Muhammad Masood v. The State 2004 MLD 648 ref.

Abdul Naeem for Applicant.

2006 Y L R 1136

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

ABU BAKAR---Appellant

Versus

THE STATE---Respondent

Criminal Acquittal Appeal No.5 of 2000, decided on 8th March, 2006.

National Accountability Ordinance (XVII of 1999)---

----Ss. 10, 15 & 18---Reference to Accountability Court---Appreciation of evidence---Accused filed application to the then Chief Minister, requesting that his leased land be converted into industrial/ residential/ commercial and to extend lease period from 30 years to 99 years at the rate of Rs.50, 000 per acre and said application of accused was accepted after due process---Chairman NAB received complaint that said land along with other lands were granted on throwaway price as the rate of said land was Rs.4,89,000 per acre---Chairman NAB formed the opinion that Government was put to loss by the then Chief Minister in connivance with Secretary Board of Revenue and the accused and filed Reference before Accountability Court---Case of prosecution was that the rate of land in question was Rs. 4, 89,000 per acre instead of Rs.50, 000 per acre and the accused in collusion with the then Chief Minister and Secretary Board of Revenue/co-accused, had caused loss to the government exchequer---Prosecution, in order to prove said allegation, did not examine any witness to show that rate of land was Rs. 4, 89,000 per acre at the time of conversion of land---All the four witnesses from the Department did not state anything on said point---Investigating Officer stated that during his inquiry he came to know that rate of land was Rs. 4, 89,000 per acre---Prosecution had not produced any other evidence to support statement .of Investigating Officer---Investigating Officer might have conducted inquiry and he might have formed such opinion, but his opinion was not binding upon the Court as he was not expert in that field---Prosecution, in circumstances, had failed to prove said allegation---Simply moving an application for extension of period of lease and conversion of land was not an offence as it .was the right of a person to move such type of application--Secretary Board of Revenue who was tried and convicted by the Trial Court was acquitted in appeal---Prosecution having failed to prove case against accused beyond any reasonable doubt, he was entitled to benefit of doubt---Conviction and sentence awarded to accused under impugned judgment, were set aside and he was acquitted of charges against him and was set at liberty.

Abdul Hafeez?? Pirzada for Appellant.

Ainuddin Khan, D.P.G.A. NAB for the State.

Date of hearing: 2nd March, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 1250 #

2006 Y L R 1250

[Karachi]

Before Sajjad Ali Shah, J

Messrs TERRA MARINE AGENCIES (PVT.) LIMITED---Petitioner

Versus

VTH DDITIONAL DISTRICT AND SESSIONS JUDGE and

another---Respondents

C.P. No.101 of 2005, decided on 13th February, 2006.

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

----Ss. 15(2)(iv) & 21(3)---Constitution of Pakistan (1973), Art.199---Ejectment of tenant on ground of impairing value and utility of rented premises---Remand of case by appellate authority---Rent Controller upon appreciating evidence led by parties ordered ejectment of tenant on ground that it had been proved that additions and alterations made by tenant in rented premises had impaired value and utility of premises---On filing appeal by tenant against judgment of Rent Controller, appellate authority set aside judgment of Rent Controller and remanded case to Rent Controller for deciding same afresh after recording evidence of any expert on point of additions and alternations which allegedly had impaired the value and utility of premises---Remand of case to record additional evidence by appellate Court, in fact was blessing in disguise for the tenant---Appellate authority, if came to the conclusion that material on record was not sufficient for the purposes of arriving at a just and proper conclusion, it could only direct Rent Controller to hold further inquiry and to submit to appellate authority the additional material as a result of further inquiry for deciding appeal in accordance with law---Order of appellate authority directing Rent Controller to decide case afresh after recording additional evidence, was modified to the extent that after recording necessary evidence, Rent Controller would place same before appellate authority for its decision in accordance with law.

Aga Faqir Muhammad for Petitioner.

Ms. Rukhsana Ahmed for Respondents.

Date of hearing: 24th January, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 1317 #

2006 Y L R 1317

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

Dr. AKMAL WAHEED and another---Appellants

Versus

THE STATE---Respondent

Special A.T. Appeal No.15 of 2005, decided on 10th March, 2006.

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

----Ss. 201, 212, 216 & 34---Anti-Terrorism Act (XXVII of 1997), S.21-J---Appreciation of evidence---Accused, who were doctors, were convicted and sentenced for causing disappearance of evidence of offence, and harbouring offender who had escaped from custody---Allegation against accused persons was that they had provided medical treatment and harboured one who was involved in a crime---Prosecution had relied upon evidence of a witness who was declared hostile and his evidence was not sufficient to prove said allegation without any corroborative piece of evidence---No allegation was available against accused that they had given false information to screen offender, but prosecution case rested upon allegation that accused caused evidence of commission of offence of crime to disappear---Prosecution was required to prove that accused had knowledge that offence was committed and evidence of that offence was caused to disappear by them, but prosecution had not produced any evidence to show that any evidence collected by prosecution in said crime was caused to be disappeared by accused---Main ingredients of S.201, P.P.C. under which accused were convicted, were not attracted in the case---Special Prosecutor had conceded that provisions of S.216, P.P.C. were also not applicable in the case---Prosecution had also failed to produce any evidence to prove alleged harbouring of accused involved in the crime---Confession of an accused could be used against co-accused if they were being tried together for one and the same offence---Accused were not tried together with the Doctors/accused persons--Allegation made in confessions could not be used as circumstantial evidence against accused persons---Said confessional statements carried no weight---Prosecution was required to prove case against accused beyond reasonable doubt and then defence could be examined in juxtaposition with prosecution case---Weakness in defence, if any, would not be taken adversely against the accused---Prosecution having failed to prove case against accused, there was no justification to examine defence of accused in detail---Prosecution having failed to prove case against accused, their conviction and sentence, were set aside and they were acquitted and set at liberty.

Prasanna Deb v. Tan3ina Khatun AIR 1946 PC 47; Habibur Rehman Khan v. Mustafa Abbas PLD 1989 SC 20; State v. Abdul Ghaffar 1996 SCMR 678; Zarid Khan v. Gulsher 1972 SCMR 597; Hidayatullah v. State 1994 PCr.LJ 20; Muhammad Alam v. The State 2001 PCr.LJ 86 and Muhammad Aslam v. State 2006 SCMR 198 ref.

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

----Art. 40---Discovery---Merely, pointing to a place would not come within the ambit of discovery as provided under Art.40 of Qanun-e-Shahadat, 1984.

Naeem Akhtar v. Shate 1993 PCr.LJ 769 and Muhammad Ramzan v. State PLD 1957 (WP) Lah. 956 ref.

M. Ilyas Khan along with Muhammad Farooq for Appellants.

I.A. Hashmi, Special Public Prosecutor along with Moula Bux Bhatti for Respondent.

Date of hearing: 1st February, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 1334 #

2006 Y L R 1334

[Karachi]

Before Shamsuddin Hisbani, J

SHEHLUM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.137 of 2003, decided on 15th February, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Eye-witness account of incident had been given by complainant to two other prosecution witnesses---Complainant was a relative of deceased and he knew the accused and absconding accused---Complainant was declared hostile and cross-examined by counsel for prosecution and in cross-examination, he admitted that accused and absconding accused caused hatchet injuries to the deceased who died in the hospital; however, when he was cross-examined by defence counsel, he gave an admission that he had not seen the accused causing hatchet injuries to deceased, but they were seen while going away---Second prosecution witness, was cross-examined at length, but nothing could come out disturbing his veracity---Third prosecution witness, who was brother of deceased, his evidence had shown that he was present with the complainant and other prosecution witness---Said witness was also cross-examined at length, but nothing could be elicited from him to dispute his credibility---Said ocular testimony was fully supported by medical evidence and same having gone unchallenged, had furnished a satisfactory account of incident---Complainant had lodged report as soon as it was possible and alleged delay of two hours in lodging F.I.R. had been explained satisfactorily---Both witnesses in their statements had given a consistent account of incident implicating accused and absconding accused---Presence of said witnesses was wholly justified and same could not be doubted solely on ground that they belonged to a village far from place of occurrence, unless there appeared otherwise some infirmity or weakness in their testimony, which was absent in the present case and absolute consistency was in their evidence about place of incident---Minor discrepancies coming on record during cross-examination of said witnesses, could not be considered sufficient to discredit or discard their version---Satisfactory evidence was available on point of motive, which was matrimonial dispute between accused and deceased---Mashir, prosecution witnesses and Investigating Officer had supported prosecutions case on point of recovery of blood-stained hatchet/crime weapon produced by accused---Entire evidence, ocular as well as corroborative, had fully established charge against accused---Prosecution having proved guilt of accused beyond shadow of doubt by producing reliable and faith inspiring evidence, judgment passed by the Trial Court; convicting and sentencing accused, could not be interfered with. )

Dur Naz v. Yousif 2005 SCMR 1996; Feroz Khan v. State 2002 SCMR 99; Abdur Rauf v. State 2003 SCMR 522; Sikandar v. The State PLD 1963 SC 17; Muhammad Sharif v. Tahir Rehman 1972 SCMR 144; Iftikhar v. State 2000 MLD 991; Shakeel Ahmad v. State 2003 MLD 1196 and Raza Khan v. State 1998 PCr. LJ 530 ref.

Syed Madad Ali Shah for Appellant.

Sher Muhammad Leghari for the State.

Salahuddin Panhwar for Respondent.

Date of hearing: 11th November, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 1359 #

2006 Y L R 1359

[Karachi]

Before Mushir Alam, J

ISMAIL through Legal Heirs and another---Applicants

Versus

PROVINCE OF SINDH through Chief Secretary and 4 others---Respondents

Civil Revision No.134 of 1991, decided on 24th February 2006.

Land Grant Policy, 1972---

----Para. 2(g)---Hari, definition of---Entitlement to grant of land---Controversy in the present case, was with regard to entitlement of petitioners to grant of land in terms of statement of conditions---Revenue Officer granted half of land in dispute to the petitioner and other half to the respondent---Said order passed by Revenue Officer was set aside by Additional Commissioner with direction that matter be disposed of afresh---Revenue Officer on remand of the case, granted half of land to respondent alone and other half remained unattended---Appeal against said order was dismissed---Validity---Under definition of "Hari" as given in Para. 2 (g) of Land Grant Policy, 1972, entitlement to grant of land in order of preference was given; firstly to those persons who owned no land; secondly to those who owned less than 16 acres of land; in addition to said conditions, evidence of Haris who resided for ten years in Deh or in adjoining Deh, was also relevant consideration to earn eligibility---Forums below, right from Revenue authorities to civil Courts, found that petitioner did not satisfy said conditions---Petitioner was found possessing land more than ceiling set down under Land Grant Policy, 1972 whereas respondent was found without land---Respondent being landless Hari, was rightly held to have preferential claim over the petitioner---In absence of any jurisdictional error, revision filed by petitioner against impugned order was Heirs and another---Applicants dismissed with costs.

Rais Dil Murad Khan v. Ali Nawaz 1997 MLD 1309 and Alam Sher v. Muhammad Sharif 1998 SCMR 468 ref.

Jhamat Jethanand for Applicants.

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

Jagdesh R. Mullani for Respondent.

Date of hearing: 24th February, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 1369 #

2006 Y L R 1369

[Karachi]

Before Anwer Zaheer Jamali and Muhammad Tahir Saeed, JJ

IFTIKHAR AHMED---Petitioner

Versus

BOARD OF TRUSTEES, PORT OF KARACHI and others---Respondents

Constitutional Petition No.D-1848 of 2002, decided on 15th February, 2006.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Condemned unheard---Lowest tender of petitioner was accepted but without providing any opportunity of hearing, same was subsequently rejected and contract was not executed on the report of vigilance cell---Validity---Authorities did not afford any opportunity of hearing to petitioner before taking the action, which was communicated to him---Such action taken by the authorities being illegal was set aside---High Court left open to the authorities to take any further appropriate action in the matter against the petitioner but not without affording due opportunity of hearing to him in the matter---Petition was disposed of accordingly.

Abrar Hassan for Petitioner.

S. Hassan Azhar Rizvi for Respondents.

YLR 2006 KARACHI HIGH COURT SINDH 1378 #

2006 Y L R 1378

[Karachi]

Before Muhammad Sadiq Leghari and Nadeem Azhar Siddiqui, JJ

ALLAM KHAN---Applicant

Versus

THE STATE---Respondent

CR. B.A. No.D-576 of 2005, decided on 23rd February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 427, 404, 148 & 149---Bail, grant of---Co-accused had been released on bail on the ground of inordinate delay/hardship---Accused deserved bail on principle of consistency---Compromise had been arrived at between the parties---Complainant's counsel and Assistant Advocate General also had expressed that accused deserved concession on ground of consistency---Accused was admitted to bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Asif Ali and Abdul Razak Soomro for the Complainant.

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

YLR 2006 KARACHI HIGH COURT SINDH 1381 #

2006 Y L R 1381

[Karachi]

Before Muhammad Afzal Soomro and Faisal Arab, JJ

JAHAD WALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.96 of 2006, decided on 24th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of---Accused was minor and State Counsel had also conceded to grant of bail---Accused was admitted to bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto for the State.

YLR 2006 KARACHI HIGH COURT SINDH 1382 #

2006 Y L R 1382

[Karachi]

Before Mrs. Yasmin Abbasey, J

SHAFIQUE AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.53 of 2006, decided on 27th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-H, 114, 148, 149 & 504---Bail, grant of---Accused, who was in custody for the last seven years, was not produced in Court on about 34 hearings by jail authorities---Last witness was examined by prosecution after about seven years and that too on the direction of the High Court---No delay took place on the part of accused in disposal of the case---Good ground of hardship as even after about 7 years, prosecution had not been able to examine its witnesses---If at later stage it was found that accused was not guilty of offence charged, then who would account for his such long confinement---Main object of criminal trial was that accused was made to face the trial and answer criminal charge against him and not to punish him for the offence alleged against him---Detention of accused for a period of 7 years and particularly in the circumstances when there was no likelihood of conclusion of case in near future, was a great injustice and hardship; to accused---Accused was enlarged on bail in circumstances.

2003 MLD, 19: 1997 SCMR 2147; 2005 PCr.LJ 555 and 2005 PCr.LJ 712 ref.

Syed Madad Ally Shah for Applicant.

Hidayatullah Abbasi for the Complainant.

Anwar H. Ansari, A.A.-G. for the State.

YLR 2006 KARACHI HIGH COURT SINDH 1383 #

2006 Y L R 1383

[Karachi]

Before Muhammad Afzal Soomro, J

WAHEED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.98 of 2006, decided on 28th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 147, 148 & 149---Bail, grant of---Role played by accused was of ineffective firing upon complainant party and it had also been admitted by complainant party that old murderous enmity existed between the parties---False implication of accused, in such situation, could not be ruled out---No objection was raised by State Counsel for grant of bail to accused---Accused was admitted to bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Mushtaque Ahmed Kourejo for the State.

YLR 2006 KARACHI HIGH COURT SINDH 1385 #

2006 Y L R 1385

[Karachi]

Before Nadeem Azhar Siddiqi, J

ABDUL-SATTAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.782 of 2005, decided on 23rd January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 337(F-i), 224, 248 & 249---Bail, refusal of---Interpretation of S.497, Cr. P. P.C. ---Some delay in lodging F.I.R. was fully explained in F.I.R. and said explanation, appeared to be plausible---Even otherwise, in presence of incriminating material available on record, delay in lodging F.I.R. was to be ignored---Sufficient material was available on record to connect accused with commission of crime and reasonable ground existed to believe that accused was guilty of offence punishable with imprisonment of 10 years---Grant of bail in bailable offences was a right and not favour, whereas in non-bailable offences, grant of bail was not a right, but concession---Section 497, Cr.P.C., had divided non-bailable offences into two categories i.e. (i) Offences punishable with death, imprisonment for life or imprisonment for ten years; and (ii) Offences punishable with imprisonment for less than 10 years---Grant of bail in non-bailable offences falling in second category, was a rule and refusal an exception---Offence under S.324, P.P.C. provided imprisonment for 10 years and same fell within prohibitory clause of S.497, Cr. P. C. ---Delay in conclusion of trial was no more a valid ground for grant of bail in non-bailable offence---Inordinate delay, however, if not explained, would amount to abuse of process of law and same could be considered as a valid ground of bail---Accused had not produced any material in support of his contention that delay in conclusion of trial could not be attributed to him---Reasonable grounds being available to believe that accused was guilty of offence punishable with imprisonment for 10 years he was not entitled to concession of bail.

Waris v. State 2000 PCr.LJ 642; Irshad v. State 2004 PCr.LJ 1246; Syed Amanullah v. State PLD 1996 SC 241 and Gulsher v. State in Cr.B.A. No.270 of 2005 ref.

Altaf Hussain Surahio for Applicant.

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

Date of hearing: 19th January, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 1389 #

2006 Y L R 1389

[Karachi]

Before Mrs. Qaiser Iqbal, J

SHOAIB MUHAMMAD---Appellant

Versus

KULSOOM BIBI---Respondent

F.R.A. No. 1176 of 2000, decided on 6th February, 2006.

(a) Cantonment Rent Restriction Act (XI of 1963)---

----S. 17---Ejectment application---Proceedings before Rent Controller---Recording evidence through Reader of Rent Controller---Tenant had alleged that Rent Controller had erred in law by recording evidence under his dictation through his Reader, which being full of discrepancies and cuttings, could not be relied upon for the purpose of adjudication of controversy---Validity---Evidence produced by parties was recorded by official of the court under dictation of Presiding Officer---Parties had cross-examined witnesses of each other---Said objection having not been raised before the Trial Court or at the time of final hearing of the case, no prejudice had been caused to any party and it would be just and proper that case be decided on merits instead of recommending same to the Trial Court for recording evidence afresh, especially when initials of Presiding Officer were available on evidence so recorded.

Muhammad Shaiq Hussain v. Samir Manzoor Khokhar 2003 CLC Lah 1652 and Mst. Sardar Bibi v. Hameed 2000 CLC Lah 1311 ref.

(b) Cantonment Rent Restriction Act (XI of 1963)---

----S. 17(2) (i)---Modes of payment of rent---Cantonment Rent Restriction Act, 1963 did not prohibit or limit the period for payment of rent---Party was to agree either for payment of rent on daily basis; weekly basis; monthly basis; half yearly basis or yearly basis.

---S.17(2) (i)-Default in payment of rent---Tenant had claimed that he sent rent through money order and on refusal of landlord to accept same he sent cheque, but tenant neither had placed on record acknowledgement receipt of said money order to establish that rent tendered was refused by landlord nor had produced copy of cheque to substantiate his plea with regard to sending of cheque---Fact that tenant had deposited rent in the Court after expiry of prescribed period of sixty days from due date had been established---Promptness in payment of rent with the option to the tenant to deposit same with Rent Controller being a condition precedent for protection against eviction, tenant was required to deposit rent in court on refusal by landlady or on any other pretext---Rent Controller, in circumstances, had rightly found that tenant had committed default in payment of rent and had rightly ordered his ejectment on ground of default in payment of rent---Said findings being proper, could not be interfered with in appeal.

Usman Ghani v. Gulzar 1987 CLC Kar 1753; Abdul Aziz v. Abdul Ghani 1986 SCMR 1857; Ismail v. Ahmed Bux, and Sons 1998 MLD 940; Tahir Ali v. Sh. Miran Bux Karam Bux 1989 SCMR 403; Mehrban Ali v. Haji Muhammad Qasim PLD 1976 Lah 1052; Syed Niaz Ahmad Zaidi v. Mst. Baismillah Begum 1990 CLC 1061; Mst. Saeeda Bano v. Abdul Aziz PLD 1993 Kar 174; Pervaiz Anwar Sajjad v. Ali Muhammad Rashid Fazal Trust PLD 1995 Kar 361; Wajahatullah v. Mahmooddur Rab 1985 CLC 1949; Muhammad Alimullah v. Ziaul Islam PLD 1973 Kar 56; Alima Ahmad v. Amir Ali PLD 1984 SC 32 and Syed Waris Ali Tirmizi v. Liaquat Begum 1980 SCMR 601 ref.

(d) Cantonment Rent Restriction Act (XI of 1963)---

----S. 17(2) )(iii)---Impairing value and utility of premises---Landlady had sought ejectment of tenant on ground that tenant had impaired value and utility of premises by making additions and alterations---Tenant had admitted that he had not sought any written permission from landlady for erecting the partition wall and changing the flooring of bath-room---Landlady, did not examine any Expert to prove that value of her property had been diminished on account of alleged additions and alterations made without the consent of landlady---In absence of evidence, about impairing value and utility of premises in question without consent of landlady, same could not be a good ground for ejectment of tenant---Issue of impairing value and utility of premises, was answered in favour of tenant on account of non-availability of evidence.

PLD 1987 Kar.116 and PLD 1983 Kar.166 ref.

Iftikhar Javed Kazi for Appellant.

Shoukat Hayat for Respondent.

Date of hearing: 23rd December, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 1394 #

2006 Y L R 1394

[Karachi]

Before Muhammad Afzal Soomro and Faisal Arab, JJ

GHULAM RASOOL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.72 of 2006, decided on 22nd March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---According to Chemical Examiner's report total weight of parcel of Chars was 385 grams and net weight was 375 grams---Total weight of recovered Chars, in circumstances was less than one Kilogram subject to final proof at the trial---Case being of two versions, accused was entitled to be enlarged on bail.

Muhammad Ayaz Soomro for Applicant.

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

YLR 2006 KARACHI HIGH COURT SINDH 1395 #

2006 Y L R 1395

[Karachi]

Before Mrs. Yasmeen Abbasey and Anwar Zaheer Jamali, JJ

ANJUMAN JAMIAT-UL-IKHWAN---Petitioner

Versus

KARACHI BUILDING CONTROL AUTHORITY and others---Respondents

C.P. No.D-1201 of 2004, decided on 3rd February, 2006.

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

----S. 2(f)(j)---Qanun-e-Shahadat (10 of 1984), Art.115---Constitution of Pakistan (1973), Art.199---Constitutional petition---Adverse possession---Relationship of landlord and tenant---Estoppel---Premises in question were allotted to petitioners and the respondents were inducted as tenants therein---Petitioners being original allottees of premises in question, could not be denarred from the right to own said premises and respondents being tenants could not claim adverse possession in respect thereof on ground of regularization made in their favour---Tenant would always remain a tenant and could not claim A ownership of property and was estopped to deny title of the owner of said property at any stage---Tenant obtaining possession of property, was deemed to obtain same upon the terms that he would not dispute the title of his landlord who gave the property to him and without whose permission he would not have got it---Party could not back out from the statement made by him at one stage nor could he deny the status once created by any contract on his part or by any statute---Relationship of landlord and tenant between parties having never been disputed by respondents, they could not retract from their previous status---If once a status in any property was created by virtue of any agreement in favour of any person, then such person was estopped to question same at any subsequent stage.

1990 SCMR 1613; AIR 1937 PC 251; 1991 CLC 481 and PLD 1975 Lah.284 ref.

Shafaat Hussain for Petitioner.

Faisal Kamal for Respondents.

Manzoor Ahmed for CDGK.

Mubeen Arshad for KBCA.

Date of hearing: 23rd November, 2005.

2006 Y L R 1423(1)

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUHARRAM ALI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-707 of 2005, decided on 5th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324---Bail, grant of---Further inquiry--Injured persons were not caused serious injuries and injuries were not sustained by injured on the vital part of the body---Enmity between the parties was apparent from the contents of F.I.R.---No empties were secured from the place of Vardat---Case of accused calling for further inquiry, they were granted bail.

Noor Ahmed Memon for Applicants.

Anwar Ansari for the State.

YLR 2006 KARACHI HIGH COURT SINDH 1425 #

2006 Y L R 1425

[Karachi]

Before Nadeem Azhar Siddiqi, J

LEVER BROTHERS PAKISTAN LTD.---Plaintiffs

Versus

Messrs EFFEF INDUSTRIES LTD. and others ---Respondents

Suit No.310 of 1996, decided on 7th January, 2006.

Civil Procedure Code (V of 1908)---

----O. VI, R.17---Limitation Act (IX of 1908), Arts.115 & 196---Power of Court to allow amendment in pleadings---Purpose, scope and nature---Delay, negligence or carelessness was no ground to refuse amendment---Principles.

The rules of Court are intended to secure the proper administration of justice and should be subordinate to that purpose so the full power of amendment should always be exercised liberally. The power to allow amendment is discretionary with the Court and has to be exercised in accordance with judicial principles. The amendment can be allowed at any stage of suit and the purpose is to avoid multiplicity of proceedings. This can also be exercised in meeting the ends of justice. The amendment can also be allowed if by bona fide mistake some part of claim was not mentioned in the plaint. The only restriction is that the amendment will not change the nature of relief claimed and the complexion of the suit. The delay itself is no ground to refuse amendment.

Amendment of pleadings has always been liberally allowed subject to the conditions that cause of action and complexion of the suit is not changed.

O. VI, Rule 17, C.P.C. does not lay down any guideline which has to be followed by the Court while considering the question of amendment. It only lays down that if the permission for amendment is granted the manner in which the amendment would be made and terms on which it would be allowed should be just. Since there are no guidelines, it has always been assumed by Courts that this power has to be liberally exercised. However, the question still remains as to what considerations should be kept in view while liberally considering a request for amendment. On this question there is consensus of the superior Courts that amendment can be allowed if two conditions are fulfilled. Firstly that the proposed amendmer' should not change the nature of the suit and, secondly, that new cause of action is not set up.

Once the two conditions, as aforesaid, are fulfilled amendment has to be allowed, delay or negligence notwithstanding.

O.VI Rule 17, C.P.C. does not visualize that there will be limitation for making an amendment. The limitation prescribed in the Limitation Act relates to the institution of the suits, appeals etc. Section 3 of the Limitation Act lays down that suit instituted, appeal preferred and application made after the period of limitation, shall be dismissed. But the Act does not fix any time for moving an amendment application. In section 22 of the Limitation Act it is specifically laid down that if a new plaintiff or defendant is substituted or added after the institution of the suit the suit shall be deemed to have been instituted as regards him, when he was made a party. It is significant that no such provision has been made in respect of an amendment.

The negligence or carelessness is not a ground on which a prayer for amendment may be refused. However, a Court is not bound to accept a mala fide amendment application.

Muhammad Iqbal v. Mirza Begum 1992 MLD 1257 fol.

Perveen Akhter v. Mst. Sania Feroze 2004 CLJ 879 rel.

Saeed Sehgal v. Khurshid Hassan PLD 1964 SC 598 and Bhagwanji Morarji Goculdas v. Alembic Chemical Works Co. Ltd. AIR 1948 PC 100 distinguished.

Perveen Akhter v. Mst. Sania Feroze 2004 CLC 351; Nazim Din v. Ali Muhammad 1996 MLD 1111; Muhammad Iqbal v. Mirza Begum 1992 MLD 1257; Haji Hakeem Gul v. Madad Khan 1998 MLD 1260; M. Saeed Sehgal v. Kazi Khurshid Hassan PLD 1964 SC 598 and Bhagwanji Morarji Goculdas v. Alembic Chemical Works Co. Ltd. AIR 1948 PC 100 ref.

Munawar Ghani for Plaintiff.

Muhammad Qadir for Defendants Nos. 1, 2 and 4.

Mansoor-ul-Arfin for Defendant No.5.

YLR 2006 KARACHI HIGH COURT SINDH 1433 #

2006 Y L R 1433

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUZAMMAL SHAH---Applicant

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No.201 of 2005, decided on 10th March, 2006.

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

---Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss.324 & 34---Pre-arrest bail, cancellation of---According to Medical certificate complainant had sustained injury in his abdomen which was declared as "Jurh Ghayr Jaiffah Munaqillah "---Grievous injury caused with Chhurri, a sharp cutting weapon, inflicted on the abdomen, was most likely to cause death of victim/complainant---Besides the merits, order passed by the Trial Court was absolutely silent with regard to any malice alleged on the part of prosecution---Neither such point was taken in arguments before the Trial Court nor the requisite condition for grant of pre-arrest bail was taken into consideration---Pre-arrest bail, in circumstances, was granted to accused persons in flagrant violation of settled principles of law laid down by Supreme Court and certainly without proper application of mind---Pre-arrest bail granted to accused, was cancelled, in circumstances.

Murad Khan PLD 1983 SC 82 and Zia-ul-Hassan v. The State PLD 1984 SC 192 ref.

Munawar Malik and Ms. Cooki Rawat for Applicant.

Raja Mir Muhammad Khan for Respondents.

Agha Zafar Ali, A.A-G. for the State.

YLR 2006 KARACHI HIGH COURT SINDH 1471 #

2006 Y L R 1471

[Karachi]

Before Amir Hani Muslim and Sarmad Jalal Osmany, JJ

SAJJADULLAH QURESHI---Petitioner

Versus

GOVERNMENT OF SINDH through Secretary Local Government Housing

and Town Planning, Karachi and 4 others---Respondents

Constitutional Petitions Nos.D-288 and D-151 of 2005, decided on 5th October, 2005.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Public nuisance---Encroachment on public street---Grievance of petitioner was that private respondent while raising construction for a petrol pump and in connivance with the officials of Municipal Corporation, had encroached upon the adjacent public street---Validity---Municipality, in law could not allot any portion of street to any private person, nor any construction could be allowed to be raised on street to cause inconvenience to public---Public streets being public amenities were meant to provide comfort and convenience to public and no public functionary had any authority in law to allot and/or lease out any portion of them in any manner, to any person---No private person could be allowed to utilize public amenities by raising unauthorized construction on it to the disadvantage of public at large---High Court directed the private respondent to confine his construction activity within plot line and construction beyond that should be removed by him within the time stipulated by High Court, failing which the Municipal Corporation was directed to remove the construction/encroachment with the assistance of police---Petition was allowed accordingly.

David Lawrence for Petitioner.

G.D. Shahani, Addl. A.-G.

Sardar Abdul Sattar Chohan for Respondent No.2.

Ghulam Shabbir Dayo and Shaikh Amanullah for Respondent No.5.

YLR 2006 KARACHI HIGH COURT SINDH 1571 #

2006 Y L R 1571

[Karachi]

Before Mushir Alam, J

KHAN MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Cr. Anty B.A. No.391 of 2004, decided on 16th August, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 498 &. 498-A---Ad interim bail, confirmation of---State Counsel having no objection for confirmation of bail, bail extended was confirmed on the same terms and conditions.

Jai Jai Veshnu for Applicant.

Mushtaque Ahmed Kourejo for the State.

YLR 2006 KARACHI HIGH COURT SINDH 1575 #

2006 Y L R 1575

[Karachi]

Before Rahmat Hussain Jafferi, J

AHSAN ALI---Petitioner

Versus

Mst. IRFANA and another---Respondents

Constitutional Petition No.S-14 of 2003, decided on 12th March, 2003.

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

----S. 5, Sched.---Constitution of Pakistan (1973), Art.199 Constitutional petition---Suit for dissolution of marriage---Plaintiff had alleged in her plaint that defendant, after marriage with her, used to maltreat her and used to take intoxicant and then turned her out from the house after beating her and thereafter defendant did not maintain her---Further allegation in the plaint was that defendant having developed hatred against her, she could not live with him within the limit prescribed by God---Judge Family Court, after considering material available on the record and conduct of parties, dissolved marriage on ground of Khula under impugned judgment and decree---Validity---Trial Court had appreciated evidence in accordance with law by giving due weight to examination-in-chief of parties and their cross-examination and from that evidence, the Trial Court formed opinion that plaintiff had proved all the issues---In absence of any material contradiction in evidence available on record, impugned judgment and decree could not be interfered with.

Muhammad Saleem Jessar for Petitioner.

Muhammad Bachal Tunio, A.A.-G.

YLR 2006 KARACHI HIGH COURT SINDH 1580 #

2006 Y L R 1580

[Karachi]

Before Shamsuddin Hisbani, J

MUHAMMAD YOUSIF and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.S-784, 2005, decided on 31st January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 337-F(i), 337-A(i), 504, 147, 148, 149 & 114---Bail, grant of---Further inquiry---Allegations of general nature were levelled against six persons nominated in F.Z.R. to the effect that they had launched attack and inflicted injuries on complainant party---Final medical certificate had reflected that none of the injured sustained injury on vital part of the body---Case against accused needed further inquiry into their guilt---Co-accused having been granted pre-arrest bail by the Trial Court, in view of rule of consistency, accused were also entitled to be released on bail during pendency of the trial---Accused, were admitted to bail, accordingly.

Syed Madad Ali Shah for Applicants.

Mumtaz Alam Leghari for the State.

YLR 2006 KARACHI HIGH COURT SINDH 1682 #

2006 Y L R 1682

[Karachi]

Before Muhammad Afzal Soomro, J

Dr. ZAFAR IQBAL---Applicant

Versus

THE STATE---Respondent

Cr. Misc. Application. No.149 of 2005, decided on 27th January, 2006.

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

----S. 561-A---Inherent powers of High Court---Scope and object of 5.561-A, Cr. P. C. ---Scope and object of S.561-A, Cr.P. C. was very wide inasmuch as powers conferred under S.561-A, Cr. P. C. could be exercised at any stage, if from the facts of any particular case it was proved that further pendency of the trial, would amount to abuse of process of the Court---Object of 5.561-A, Cr. P. C. whereby inherent powers were conferred upon High Court in order to do real and substantial justice in order to prevent the abuse of the process of the Court, was to secure the ends of justice and said powers .were very wide---On the ground of delay alone, inherent jurisdiction of High Court, could not be invoked to quash proceedings---Such interference was permitted only in limited cases where it was found that proceedings impugned, if allowed to continue, would defeat the ends of justice.

Zaheer Ahmed and 2 others v. State PLD 1979 Kar.186 ref.

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

----Art. 38---Confession before Police---Confession by accused before police, would be inadmissible in evidence.

----Ss.3(1)(4) & 4---Criminal Procedure Code (V of 1898), S. 561-A---Quashing of proceedings---Application for---No evidence was available against applicant/accused showing in any way his involvement in receiving any benefit or money for sending people abroad and that too for the purpose as mentioned in Prevention and Control of Human Trafficking Ordinance, 2002---Prosecution had failed to examine any witness during investigation, who could give proof of applicant's involvement under Prevention and Control of Human Trafficking Ordinance, 2002 as no witness had stated that he was smuggled out of Pakistan for the purpose of exploitative entertainment, slavery, forced labour or adoption---Section 4 of Prevention and Control of Human Trafficking Ordinance also laid stress on said four ingredients and unless offence committed constituted the ingredients, case under Ss.3 & 4 of the Ordinance, would not be made out---No case under Prevention and Control of Human Trafficking Ordinance, 2002 would be made out against applicant and in peculiar circumstances of case there would be no probability of accused being convicted in alleged offence---Allowing application, proceedings were quashed accordingly.

Muhammad Khalid Mukhtar v. State PLD 1997 SC 275; Ameerullah v. State 2003 YLR 2097; Abdul Sattar v. State 1992 PCr.LJ 2054 and Gulzar Ahmad v. State 2004 YLR 1321 ref.

Raza Hashmi for Applicant.

Syed Ziauddin Nasir, D.A.-G. for the State.

Date of hearing: 10th October, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 1691 #

2006 Y L R 1691

[Karachi]

Before Muhammad Afzal Soomro, J

ZUBAIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1058 of 2005, decided on 26th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Bail, refusal of---Accused was nominated in F.I.R. and recovery of diamond pieces from him was not disputed by accused---Police personnel were as good witnesses as other persons and their evidence, in absence of private mashir, could be safely relied upon---Delay in lodging F.I.R. could be thrashed out in view of circumstances of the case---Accused had not been able to make out a case for bail---Bail application was dismissed with direction to Trial Court to conclude the trial of case within specified period.

Muhammad Jalil v. State 1990 ALD 460(1); Fazal Elahi v. Crown PLD 1953 FC 214; Muhammad Akbar Tariq v. State 1977 PCr.LJ 540; Allah Ditta v. State 1977 SCMR 251 and Abdul Latif v. Crown PLD 1952 FC 113 ref.

Muhammad Ashraf Kazi for Applicant.

Sadruddin Qureshi for the State.

Saifullah for the Complainant.

YLR 2006 KARACHI HIGH COURT SINDH 1694 #

2006 Y L R 1694

[Karachi]

Before Nadeem Azhar Siddiqui, J

KATTO BROHI---Applicant

Versus

THE STATE---Respondent

Cr. B.A. No.49 of 2006, decided on 28th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.393, 324, 337-A(i) & 337-F(i)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Further inquiry---Complainant and prosecution witnesses had given statements which were different from prosecution case---Due to two versions given by complainant and prosecution witnesses, case was fit to be treated as one of further inquiry---No reasonable grounds being available for believing that accused had committed a non-bailable offence, he was released on bail.

Muhammad Nawaz v. The State 1991 SCMR 111; Ali Muhammad v. The State PLD 2002 Kar 125; Zafar Iqbal v. The State PLD 2004 Kar 566; Inayatullah v. The State PLD 2003 Kar 416; Sharbat v. The State 2003 MLD 1191; Naseer Ahmad v. The State PLD 1997 SC 347; Rehmat Ali v. The State, 1979 SCMR 30; Sarwar Sultan v. The State PLD 1994 SC 133; Manzoor Ahmed v. The State PLD 1972 SC 81 and Shahzaman v. The State PLD 1994 SC 65 ref.

Muhammad Ayaz Soomro for Applicant.

Mushtaq Ahmed Korejo for Respondent.

Date of hearing: 14th February, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 1720 #

2006 Y L R 1720

[Karachi]

Before Muhammad Athar Saeed, J

SHAHZAD USMAN---Petitioner

Versus

PRESIDING OFFICER, DISTRICT AND SESSIONS JUDGE, SOUTH, KARACHI and others---Respondents

C.P. No.S-555 of 2003, decided on 24th April, 2006.

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

----Ss. 2(fl(J), 15(2)(iii)(a), 16(1) & (2) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of subletting---Relationship of landlord and tenant---Tentative rent order---Striking off defence---Concurrent judgment of Rent Controller and then Appellate Authority, whereby defence of tenant was struck off for non-compliance of tentative order, had been challenged by petitioner/alleged sub-tenant---Contention of petitioner was that Rent Controller could not pass tentative rent order under S.16(1) & (2) of Sindh Rented Premises Ordinance, 1979 without first determining whether relationship of landlord and tenant existed between landlord and original tenant when tenant had specifically denied existence of such relation---Contention of petitioner was repelled in view of the fact that Rent Controller after examining facts of the case minutely and on the basis of facts argued before him, had reached the conclusion that relationship of landlord and tenant existed---Rent Controller had also concluded on the basis of facts on record that petitioner/alleged sub-tenant, had failed to substantiate with any evidence that there existed relationship of tenant and landlord between petitioner and landlord---Rent Controller had rightly concluded that petitioner was occupying premises in question as a sub-tenant of original tenant---Once an eviction order was passed against original tenant, sub-tenant had no cause of action, especially when original tenant had accepted concurrent order of Rent Controller and Appellate Authority whereby his defence was struck off---Rent Controller after deciding issue of relationship of landlord and tenant between landlord and the original tenant had rightly struck off defence of original tenant for non-compliance of tentative rent order---High Court, in exercise of its constitutional jurisdiction, could not adjudicate on disputed facts of case and could not substitute its view in place of view of the Court below---Constitutional .petition of the sub-tenant being devoid of merits could not be entertained.

A.M. Qureshi v. Government of Sindh 1991 SCMR 1103; Hasan Mohiduddin v. Muhammad Hanif 1985 CLC 1606; Mst. Khursheed v. Abdul Hadi and others PLD 1979 Quetta 39; Ghulam Hussain v. Abdul Rehman and 2 others PLD 1982 Lah.519; Abdul Hameed v. Muhammad Javed 1999 MLD 3031; Habibullah v. Vasdegvir PLD 1968 Kar.869; Hakim Ali v. Muhammad Saleem 1992 SCMR 46; Noor Muhammad v. Sarwar Khan PLD 1985 SC 131; Hessab v. Election Authority (Sindh) PLD 1986 Kar.179; Muhammad Zafar v. Lal Muhammad 1988 SCMR 322; Abdul Rehman Bajwa v. Sultan PLD 1981 SC 532; M/s Mehraj (Pvt.) Ltd. v. Miss Laima Saeed 2003 MLD 1033; Muhammad Younus v. Irfanullah Khan 2002 CLC 256; 1987 CLC 301 and 2000 SCMR 845 ref.

Nazar Akber for Petitioner.

Mumtaz Ahmad Shaikh for Respondents.

Dates of hearing: 25th and 27th March, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 2082 #

2006 Y L R 2082

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUSHTAQ ALI JATOI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.127 and 129 of 2006, decided on 22nd February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.389, 120-B, 418 & 34---Bail, grant of---Further inquiry---Initially F.I.R. was registered for offences falling under Ss.389, 120-B & 418, P.P. C., which were bailable, but subsequently section 388, P.P.C. for extortion of money and S.506-B, P.P.C. for extending threats of dire consequences etc, were inserted---Bare perusal of contents of F.I.R. revealed that ingredients of the offence of "extortion" as well as issuing threats of causing death were hardly available---Case of accused, in circumstances called for further inquiry and they were entitled to be released on bail.

Mahmood A. Qureshi (in Criminal Bail Application No.127 of 2006) and Muhammad Ilyas Khan (in Criminal Bail Application No.129 of 2006) for Applicant.

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

Iqtidar Ali Hashmi for the Complainant.

YLR 2006 KARACHI HIGH COURT SINDH 2102 #

2006 Y L R 2102

[Karachi]

Before Zia Perwaz, J

MEHBOOB RAHMATULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Misc. Application No.185 of 2005, decided. on 3rd January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Quashing of proceedings, application for---Despite lapse of over four months, no evidence was available connecting the applicant with commission of offence---Applicant had been able to establish that matter being sub judice before High Court, as a matter of propriety, applicant could invoke jurisdiction of High Court under 5.561-A, Cr.P.C. in the facts and circumstances of the case---Matter complained of would not incriminate applicant in any manner and could not lead to his conviction---Case of quashing of proceedings having been made out to the extent of applicant, his application for quashing of proceedings was allowed as prayed for.

Agha Faqir -Muhammad v. Federal Government of Pakistan and another 2000 MLD 1576; Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026; Muhammad Haroon v. The State 1980 PCr.LJ 579; Muhammad Tahir v. The State 1991 PCr.LJ 644; Miraj Khan v. Gul Ahmed 2000 SCMR 122; Bashir Ahmed v. Zafar-ul-Islam PLD 2004 SC 298; Bilawal Jakhrani and Naseer Jakhrani v. The State 2003 YLR 2117; Naseem Malik v. The State 2004 SCMR 283; The State v. Asif Ali PLD 2001 SC 536; Altaf Hussain v. Abdul Samad 2000 SCMR 1945; Muhammad Latif v. Mian Ahmed Ali 2002 SCMR 1264; The State v. Muhammad Nawaz 2002 SCMR 634; Muhammad Hanif Pathan v. The State and 3 others PLD 1999 Kar 121; Shandi Muhammad Khan and 2 others v. The State and another PLD 1993 Kar 1; Mian Munir Ahmed v. The State 1985 SCMR 257; Ghulam Ali v. Javid and another 1989 PCr.LJ 507; Wahid Hussain v. The State and 8 others 1990 P.CrLJ 1209 and State v. Gulzar Muhammad and others 1998 SCMR 873 ref.

Sohail Muzaffar for Appellant.

Mehmood Alam Rizvi, D.A.-G., for Respondent.

Dates of hearing: 23rd, 30th December, 2005, and 3rd January, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 2123 #

2006 Y L R 2123

[Karachi]

Before Nadeem Azhar Siddiqui, J

MAQBOOL AHMED SHAIKH---Appellant

Versus

THE STATE---Respondent

Criminal Revision Application No.41-S of 2005, decided on 14th March, 2006.

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

----S. 561-A---Inherent jurisdiction of High Court---Scope---Jurisdiction under S.561-A, Cr. P. C. , could be invoked to make such order as was necessary to give effect to any order under Cr. P. C. , to prevent abuse of process of any Court and to secure ends of justice.

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

----Ss. 439 & 561-A---Offences Against Property (Enforcement of Hudood) Ordinance, (VI of 1979), S.17(3)---Penal Code (XLV of 1860), Ss.353, 188 & 506(2)---Revision---Conversion of petition into miscellaneous application---Validity---Impugned order was passed by Additional Sessions Judge on the same date when application was made, without issuance of any notice to applicant and on that count alone order was liable to be set aside--Issuance of notice and right of hearing were very important in judicial system and any order passed without hearing the affected party, was liable to be set aside---When an earlier order was in the field, second order was not justified unless some evidence was recorded to show the implication of applicant---Impugned order was set aside with direction to Trial Court to examine complainant and prosecution witnesses and then after hearing applicant, decide whether applicant was involved in alleged crime or not.

Sadarullah v. The State 1998 PCr.LJ 2001 and Haji Muhammad Saleem Khan v. Muhammad Aslam 1990 SCMR 211 ref.

Asif Ali Abdul Razak Soomro for Applicant.

Muhammad Ismail Bhutto for the State Counsel.

YLR 2006 KARACHI HIGH COURT SINDH 2131 #

2006 Y L R 2131

[Karachi]

Before Muhammad Sadiq Leghari, J

Mst. BILQUIS JAHAN and others---Petitioners

Versus

Mst. SARAN BAI alias KANEEZ FATIMA and others---Respondents

C.P.S. No.450 of 2002, decided on 18th May, 2005.

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

----Ss. 15(2) (ii) & 21--Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent---Ejectment application was dismissed by Rent Controller, but Appellate Court reversed findings recorded by Rent Controller, accepting ground of default in payment of rent---Validity---Appellate Court had rightly disbelieved genuineness of receipt claimed to be for rent in dispute; it was no body's case that disputed rent was accepted by landlords at any later stage so that question of delay impliedly or by way of conduct be condoned---Landlords pleaded ignorance even about the deposit of disputed rent in the court---Finding recorded by Appellate Court did not call for interference in exercise of constitutional jurisdiction.

Shamim Ahmed Riazi for Petitioners.

Anwar Hussain for Respondents.

Date of hearing: 18th May, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 2194 #

2006 Y L R 2194

[Karachi]

Before Azizullah M. Memon, J

Mst. ASMA USMAN---Petitioner

Versus

Syed ADIL HUSSAIN and others---Respondents

Constitutional Petitions Nos. S-592, 593, 594 of 2002 decided on 11th October, 2004.

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

----Ss. 15(vii) & 21---Constitution of Pakistan (1973), Art.199---Constitutional Petition---Bona fide personal need of landlord---Landlady through her attorney had filed ejectment application for ejectment of tenants from three shops for use of her daughter and two sons---Rent Controller allowed ejectment applications and directed ejectment of tenants from three shops, but Appellate Court set aside the ejectment orders and dismissed ejectment application---Validity---Attorney through whom ejectment applications were filed by landlady was her husband and father of daughter and two sons for whom shops were required by landlady---Landlady had competently filed ejectment applications through attorney/her husband---If landlady/landlord would seek ejectment of tenant from rented premises on ground that same was required for personal bona fide use of her/his sons/daughters, then such sons and daughters may not appear in person in the Court and deposition made by his/her father or mother, in the Court would suffice to prove such a demand of requirement of premises as bona fide to use same for their respective personal use---No unreasonable restriction could be placed against the owner of rented premises seeking ejectment of tenant on plea that same was required by him/her or for bona fide personal use of their children---Tenants had apprehended that after their ejectment from shops in question, landlady intended to re-let same to somebody else by having huge amounts of Pagri etc.---Apprehension of tenants was not justified in view of the fact that right of tenants in that respect would be protected/safe-guarded under provisions of S.15-A of . Sindh Rented Premises Ordinance, 1979---High Court allowed the constitutional petition and set aside the judgment passed by Appellate Court below, and ejectment orders passed by Rent Controller, were restored---All three tenants were directed to be ejected from respective shops.

Mrs. Mariam v. Naeed Ahmed 2001 SCMR 1676; Muhammad Bashir v. Vensimal and others PLD 1980 Kar.409 and Jehangir Rusam Kakalia v. Hashwani Sales and Services (Pvt.) Ltd. 2002 SCMR 241 ref.

Raja Sikandar Khan Yasir for Petitioner.

Zubair Ahmed for Respondent No.l.

Date of hearing: 11th October, 2004.

YLR 2006 KARACHI HIGH COURT SINDH 2242 #

2006 Y L R 2242

[Karachi]

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

UBEDULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-168 of 2001, decided on 3rd May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 435, 148 & 149---Bail, grant of---Bail had been sought on ground of statutory delay, contending that accused was arrested on 13-12-1998 and since then he was behind the bars and charge had not been framed by the Trial Court so far---Accused had placed on record case diary in support of his contention---State counsel had recorded his "no objection" in granting bail to accused---No delay had been attributed to accused towards the trial---No efforts had been taken by the Trial Court to procure attendance of absconded accused--Accused, who had completed two years, had been able to make out good prima facie case for grant of bail on ground of statutory delay.

Muhammad Yousaf v. The State 2000 SCMR 79 ref.

Nisar Ahmed G. Abro for Applicant.

Gul Hassan Solangi for the State.

YLR 2006 KARACHI HIGH COURT SINDH 2246 #

2006 Y L R 2246

[Karachi]

Before Gulzar Ahmad, J

ALI GUL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-598 of 2002, decided on 8th October, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.392 & 337-A(ii), F(i)---Bail, grant of---Further inquiry---Accused although named in F.I.R., but was assigned no role of any sort in the commission of crime---Recovery of gun from accused was not witnessed by complainant or his cousin, in whose presence accused was alleged to have been arrested with a gun and cartridges---Remaining four accused persons were stated to have escaped from the scene despite arrival of five police officials---Sufficient ground existed for grant of bail to accused and his case appeared to be of further inquiry---Accused was admitted to bail, in circumstances.

Nisar Ahmed Abro for Applicant.

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

YLR 2006 KARACHI HIGH COURT SINDH 2250 #

2006 Y L R 2250(1)

[Karachi]

Before Ghulam Nabi Soomro, J

TALIB---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-559 and M.A. Nos.1104, 1105 of 2001, decided on 31st August, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Surrender of Illicit Arms Act (XXI of 1991), S.7(c)---Bail, grant of---Was yet to be determined whether offence would fall under provisions of S.13 of West Pakistan Arms Ordinance, 1965 or under Surrender of Illicit Arms Act, 1991---State Council had stated that he had no objection to bail plea---Bail was granted to accused, in circumstances.

Nisar Ahmed Abro for Applicant.

Altaf Hussain Surahio for the State.

YLR 2006 KARACHI HIGH COURT SINDH 2253 #

2006 Y L R 2253(1)

[Karachi]

Before Zia Pervaiz and Amir Hani Muslim, JJ

AMANULLAH KHAN and another---Petitioners

Versus

RETURNING OFFICER and 3 others---Respondents

Constitutional Petition No.D-190 of 2005, decided on 12th August, 2005.

Sindh Local Government Elections Rules, 2005---

----Rr. 12 & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Rejection of nomination form of petitioner on his failure to disclose immovable properties in his assets---Contention of petitioner was that assets which were alleged to have been owned by him, were neither owned by him nor were in his possession---Validity---Scope of scrutiny under constitutional jurisdiction, was limited and no factual enquiry could be gone into---Parties were free to raise all such objections in regard to disqualification of a candidate in a regular election petition---Petitioner, in circumstances was allowed to contest election and impugned order of rejection of nomination papers was set aside.

Altaf Hussain Surhio for Petitioner.

Muhammad Bachal Tonyo, Additional A.-G.

Habibullah G. Ghori for Respondent No.4.

Date of hearing: 12th August, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 2351 #

2006 Y L R 2351

[Karachi]

Before Azizullah M. Memon, J

AHSAN ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 193 of 2006, decided on 21st June, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 498-A---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Interim bail, confirmation of---Trial Court rejected bail application of accused for the reason that despite issuance of proclamation under Ss. 87 & 88, Cr.P.C., he remained absconder, and thus was not entitled to grant of bail---Validity---Absconder/fugitive from process of law would lose some rights including grant of bail which otherwise were admissible to him, but where accused was found entitled to grant of bail, irrespective of his abscondence or otherwise; and same having not put the prosecution to any adverse circumstance, such accused was entitled to grant of bail---Trial against co-accused proceeded wherein complainant and witnesses did not name any particular person for having committed alleged offence---Interim bail already granted to accused was confirmed on the same terms and conditions.

Syed Aijaz Ali Shah for Applicant.

Muhammad Ismail Bhutto for the State.

YLR 2006 KARACHI HIGH COURT SINDH 2357 #

2006 Y L R 2357

[Karachi]

Before Azizullah M. Memon, J

ABDULLAH SHAIKH---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. S-98 of 2002, decided on 23rd June, 2006.

Penal Code (XLV of 1860)---

----S. 302 (b)---Appreciation of evidence---Benefit of doubt---Only eye-witness of incident was complainant who on the one hand did not state in F.I.R. that deceased was strangulated by accused, while on the other, his statement stood belied by other two witnesses---Complainant in his deposition, had stated that accused strangulated deceased simultaneously while hitting forehead of deceased with the iron bars of gate of barrack, whereas he did not make any mention of strangulation of deceased in F.I.R. at the hand of accused---Conviction could safely be recorded against an accused on solitary deposition of one witness provided same inspired confidence and did not suffer from any infirmity or improbability---Deposition of complainant, in the present case was found suffering from infirmities and could not have safely been relied upon for conviction of accused---Even a single dent in the evidence produced by prosecution would suffice to award benefit of doubt to accused---Accused appeared to be entitled to benefit of doubt available in evidence of prosecution---Judgment of conviction and sentence passed by Trial Court against accused was set aside and he was acquitted and released, accordingly.

Muhammad Saleem Jessar for Appellant.

Mushtaq Ahmed Abbasi, Asst. A.-G. for the State.

Date of hearing: 12th June, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 2373 #

2006 Y L R 2373

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

KHALID HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 29 of 2006, decided on 26th May, 2006.

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

----Arts. 189 & 201---Judgment and order by superior courts in a criminal case, to be taken as a precedent---Requirements---Normally, any judgment or order by superior courts in a criminal case was not to be taken as a precedent, particularly when finding was based on consideration of the facts in that particular case---Only such judgments/orders in criminal cases had the force of precedent in which some principle of law had been enunciated or any law had been interpreted---Seldom facts of two criminal cases were similar, therefore a great caution was required in following the judgments in criminal cases.

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

----S. 497---Penal Code (XLV of 1860), S.342---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, refusal of---Accused had been fully implicated by complainant and prosecution witnesses who were the only witnesses present at the time of incident---Instances of robberies and dacoities being increasing at alarming rate, no liberal view could be taken in such matters-Grant of bail in such matters was not a matter of right, but was a discretion of the Court which was to be exercised, keeping the circumstances in view---Case being not fit for grant of bail, same was refused.

Ghulam Murtaza v. State 1990 PCr.LJ 323; Riasat Ali and another v. The State PLD 1977 SC 480 and Shabbir and another v. State 2003 PCr.LJ 1521 ref.

Roashan Ali Solangi for Applicant.

Muhammad Ismail Bhutto for the State.

YLR 2006 KARACHI HIGH COURT SINDH 2497 #

2006 Y L R 2497

[Karachi]

Before Nadeem Azhar Siddiqui, J

SOONHARO---Applicant

Versus

THE STATE---Respondent

Cr. B.A. No.S-834 of 2005, decided on 30th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 337-H(2)---Bail, grant of---Further inquiry---Allegation against accused was that he was present at the time of murder of deceased, firing in air and raising slogans---Accused, though allegedly was armed with gun, but had not caused any injury to deceased---Presence of accused at the place of ward at and his involvement in the commission of offence, would be determined at the trial---Case required further inquiry for the purpose of determination of vicarious liability and sharing common intention---Material available on record showed that no reasonable grounds existed for believing that accused was guilty of non-bailable offence---Accused was released on bail, in circumstances.

Jai Jai Veshnu Mange Ram for Applicant.

Muhammad Ismail Bhutto, State Counsel.

YLR 2006 KARACHI HIGH COURT SINDH 2501 #

2006 Y L R 2501

[Karachi]

Before S. A. Rabbani, J

SHIPYARD K. DAMEN INTERNATIONAL---Petitioner

Versus

KARACHI SHIPYARD AND ENGINEERING WORKS LTD.---Respondent

Suit No.1435 and C.Ms. Nos. 7893, 8472 of 2001, decided on 22nd January, 2002.

Arbitration Act (X of 1940)---

----S. 20---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & 4---Specific Relief Act (I of 1877), S.12---Application to file arbitration agreement in Court---Suit for specific performance of contract---Ad interim order, vacation of---Contract arrived at between parties contained an arbitration clause and provision of Bank guarantee---Dispute having arisen between parties in respect of supplies of material, application under S.20 of Arbitration Act, 1940 had been filed with a prayer for filing of agreement in the Court with a prayer that defendant be restrained from encashing Bank-guarantee till the matter was decided in arbitration---Ad interim order was passed restraining defendant from encashing Bank-guarantee---Defendant applied for vacation of that order---Validity---Two questions, in circumstances, were involved in the case, one relating to a reference to arbitration and the other relating to encashment of Bank guarantee---Contract contained a clause for reference to arbitration in case of dispute and when there was dispute between parties, reference to arbitration was natural and legal course, so far as question of encashment of Bank guarantee was concerned, guarantee itself mentioned that it was unconditional---Buyer/defendant in the case, was the sole Judge for deciding whether seller/plaintiff had performed purchase contract and fulfilled terms and conditions, in view of such provision in the guarantee, there was no legal justification for restraining defendant from encashing the Bank guarantee---Only reason that dispute was to be decided and the claim and liability were to be determined in arbitration, was not sufficient to interfere with the agreed term about defendant being sole Judge of performance---Main application filed under S.20 of Arbitration Act, 1940 was allowed to the extent of filing of agreement in the Court.

Arif Khan for Plaintiff.

Aziz A. Shaikh for Defendant.

YLR 2006 KARACHI HIGH COURT SINDH 2508 #

2006 Y L R 2508

[Karachi]

Before Munib Ahmad Khan, J

Mst. FARZANA ---Applicant

Versus

S.H.O., POLICE STATION, SAKRAND and 4 others---Respondents

Criminal Miscellaneous Application No.S-26 of 2006, decided on 10th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Quashing of F.I.R.---Applicant, a lady who was aged 34 years, was major---Complainant neither was guardian of her nor he could be---Complainant was not supporting the applicant in any way and she also did not reside with him---Complainant, in circumstances had no right to lodge F.I.R. against act of marriage of applicant on her own free will, nor F.I.R. was required to be lodged by concerned police officials without going through the factual position--Concerned police official had failed to apply his mind in recording F.I.R. which smacked of mala fide on his part--Proceedings as a consequence of F.I.R. if pending in any Court against nominated accused, was quashed, in circumstances.

Ms. Kaneez Fatima Shaikh for Applicant.

Amir Ali Thari, the State Counsel.

Syed Madad Ali Shah as Amicus Curaie.

YLR 2006 KARACHI HIGH COURT SINDH 2510 #

2006 Y L R 2510

[Karachi]

Before Mrs. Yasmin Abbasey, J

RIZWAN and 3 others-Applicants/Appellants

Versus

THE STATE---Respondent

M.A. No.761 of 2006 in Criminal Appeal No.S-27 of 2006, decided on 2nd June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.337-L(iii), 337--A(I) & 458---Bail, grant of---Accused had been convicted for a total period of 10 years, out of which 4 years had been served out by them---One of the accused was reported to be suffering from night blindness since childhood and medical report to such effect had also been placed on record---State Counsel had conceded to the grant of bail to accused---Bail was allowed to accused, in circumstances.

Syed Madad Ally Shah for Applicants/Appellants.

Anwar H. Ansari for the State.

YLR 2006 KARACHI HIGH COURT SINDH 2537 #

2006 Y L R 2537

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Sajjad Ali Shah, JJ

ZAHEER AHMED CHAUDHRY and 9 others---Petitioners

Versus

CITY DISTRICT GOVERNMENT, KARACHI through Nazim-e-Ala and 13 others---Respondents

Constitutional Petition No.960-D of 2004, decided on 31st May, 2006.

(a) Karachi Building Control and Town Planning Regulations, 2002---

----Chap.25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Construction on leased land---Restrictive covenant attached to land---Scope---Petitioners had contended that approved plan issued by respondents/authorities was void being in excess of jurisdiction and contrary to Karachi Building Control and Town Planning Regulations, 2002 and consequently construction on basis of said approved plan was also void---Validity---No development Scheme was ever prepared for the 'relevant area'---Condition of restrictive covenant attached to the impugned land was to be governed in accordance with law and Regulations for the time being in force and it could be enforced by lessor only and none else and lessor had already given no objection for alteration in the land use in accordance with Karachi Building Control and Town Planning Regulations, 2002.

Ardeshir Cowasjee v. Naq Nawab PLD 1993 Kar.631; Elliston v. Reacher (1908) 2 Ch. D.374; Excell Builders v. Ardeshir Cowasjee 1999 SCMR 2089; R.G. Sehwani Co-operative Housing Society Limited v. Haji Ahmed PLD 1983 Kar.11; Naseer Ahmed v. Hafiz Muhammad Ahmed 1984 CLC 340; Gunepallay Thamamaya v. Sri Rajah Tyadapusapati AIR 1930 Mad.963; Haji Abdullah Khan v Nisar Muhammad Khan PLD 1965 SC 690; Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Abdul Razak v. KBCA PLD 994 SC 512; Multiline Asseciates v. Ardeshir Cowasjee PLD 1994 SC 423; Muhammad Munir v. Ahmed Ally Memon and 2 others PLD 1982 Kar.425; Moosa Bhaiji v Hashwani Sales and Services Ltd. and others PLD 1982 Kar.940; Mumtaz Ali Khan Rajban v. Federation of Pakistan PLD 2001 SC 169 and Abdul Razak Adamjee v. Messrs Datari Construction Company 2005 SCMR 142 ref.

(b) Lease---

----Use of the land was to be governed under the terms and conditions of the lease and not under the terms published for the purpose of auction of the land.

----System of common law and stature law---Applicability---English people have their own peculiar concepts under which they have developed their system of common law which was based on traditions, customs, conventions, collective practices and several concepts and doctrines accepted by their society and acted upon as the principle of law---With the advent of constitutional and legislative enactment, the statute law started prevailing over the common law concepts; and it was recognized that the concepts of common law would give way to the statute law because in spite of having unwritten Constitution British people believed strongly in the sovereignty of parliament---Whenever statute law was enacted it invariably prevailed over the concepts of the common law; so far Pakistan or sub-continent was concerned, it never adhered to the concepts of the common law and had never been a common law country---Pakistan or sub-continent had been governed by laws, rather than conventions and practices from the time immemorial---Concepts of the common law of England and English judgments based on the common law and doctrines and concepts thereunder or based on statute laws enacted for Britain, were not applicable in Pakistan---In realm of welfare legislation, Food Laws, Traffic Laws etc. and all strict liability cases, that concept would give way to such law---Consequently when a country like Pakistan, where quality and society was governed by statute laws, doctrines and concepts based on traditions, customs and conventions were not relevant and could not be enforced as a law per se, but at the most few general concepts could be used as tools of aid for the restrictive purpose of interpretation of the laws.

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

----Art. 199---Constitutional petition---Laches---Effect---Maintainability of constitutional petition was objected to on the ground that petitioners had no locus standi and that petition suffered from the laches---Validity---Petitioners could not be non-suited on those grounds, because it was not necessary for petitioners to establish the infringement of any fundamental right under the Constitution or a right under the statute---Interest in the property or matter or use thereof was sufficient to give entitlement for filing of constitutional petition---Expression "interest in the property or matter or use thereof" had much wider connotation than the expression "right in the property"---No hard and fast rules were applicable with regard to laches; in some cases a delay of few months could be fatal and in some other cases delay of 8 to 10 years could also ' be condoned---Law relating to laches was not as stringent as the law of limitation---Petitioners in the present case, had pursued the matter at various forums---Petition in circumstances, did not suffer from laches.

(e) Sindh Buildings Control Ordinance (V of 1979)---

----S. 6--- Karachi Building Control and Town Planning Regulations, 2002 Chapter. 25---Construction on lease land---No objection certificate---Effect---Issuance of no-objection certificate by the City District Government and approval of plan by Building Control Authority in accordance with Karachi Building Control and Town Planning Regulations, 2002, would not amount to vary the terms of the lease, because consent/approval given by City District Government, was in pursuance of the terms of the lease and the rules governing same---Permission to increase built up area tit the land in question which was in consonance with Zoning Plan contained in Karachi Building Control and Town Planning Regulations, 2002, was in accordance with the rules under which land was auctioned/leased, where it was specifically provided that in constructing the building, the purchaser would also comply with the provisions of municipal law and building bye-laws in force for the time being and the laws for the time being in force were Sindh Buildings Control Ordinance, 1979 and Karachi Building Control and Town Planning Regulations, 2002.

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

----Preamble, Ss.6, 8 & 21-A---Scope of Sindh Buildings Control Ordinance, 1979---Matters pertaining to building control and town planning being entirely distinct and separate, scope of Sindh Buildings Control Ordinance, 1979 was confined to the approval of building plans, demolition of the buildings, quality of the buildings, supervision of the construction of the buildings, matters pertaining to the safe and sound construction, structural design of the buildings, grant of licence to architects, building designers, structural engineers, town planners, builders and developers and the matters ancillary and incidental thereto and was not extended to the matters pertaining to the town planning and did not include the land use classification, density standards, construction of roads and streets development plans, zoning regulations, etc.

Raghunath v. State of Karnatak AIR 1992 SC 81; Standard Chartered Bank v. Karachi Electric Supply Corporation Ltd. PLD 2001 Kar.344; Arif Hussain Shah v. Operative Director, Administration, Electric Equipment Manufacturing Co. Ltd. PLD 1979 Lah.603 and E.F.U. General Insurance Co. Ltd. v. Federation of Pakistan PLD 1997 SC 700 ref.

Naimur Rehman and Abdur Rehman for Petitioners Nos. 1 to 7.

Yousuf Moulvi for Petitioner No.8.

Arshad Mohsin for Petitioners Nos.9 and 10.

Manzoor Ahmed for Respondents Nos.1 and 2 along with Khawaja Badeeuzzman, Town Building Control Officer.

Kamal Azfar for Respondents Nos.3 and 4.

Nemo for Respondents Nos. 5 to 11.

Abid S. Zuberi for Respondents Nos.12 to 14.

Date of hearing: 1st December, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 2604 #

2006 Y L R 2604

[Karachi]

Before Mrs. Yasmin Abbasey, J

Ms. QURATULAIN ALEEM---Petitioner

Versus

MUHAMMAD REHAN KAHN and another---Respondents

C.P. No.S-576 of 2005, heard on 16h January, 2006.

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

----S. 14---Guardians and Wards Act (VIII of 1890), S.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Interim custody of minor---Appeal against decision or decree of Family Court---Constitutional petition had been preferred against interim order passed by Family Court on an application filed under S.12 of Guardians and Wards Act, 1890, whereby prayer of petitioner for interim custody of minors was dismissed---Maintainability of constitutional petition was challenged on the ground that remedy was available to petitioner to file appeal before District Judge instead of constitutional petition---Validity---Section 14 of West Pakistan Family Courts Act, 1964 referred to two categories of orders i.e. "decision given" or "decree passed" By using said two terms in S.14 of West Pakistan Family Courts Act, 1964, legislature intended two different meanings---Normally, `decision' would mean conclusion of Court proceedings, but where two words i.e. "decision given" or "decree passed" were used in a statute requiring a liberal construction, the term "decision given" would mean a declaration which was to be followed in subsequent proceedings of a case---Term "decision given" would not qualify with any such word as final---Order under S.12 of Guardians and Wards Act, 1890 being of introductory nature would fall under category "decision given "---Even otherwise, while inserting cl. (3) in S.14 of West Pakistan Family Courts Act, 1964, no amendment had been made in cl. (1) of said section and the terms "decision given" or "decree passed" were still without any changing position to an order under S.12 of Guardians and Wards Act, 1890 made on an interlocutory application moved to solicit provisional or interlocutory relief, rather than a final judgment---Remedy, in circumstances lay in filing appeal before District Judge in case an order was passed by Family Court but constitutional petition was not maintainable---Constitutional petition was dismissed in circumstances.

PLD 1975 Kar. 448 and 1987 MLD 2563, ref.

Anwar Hussain for Petitioner.

?Badrul Alam for Respondent No.1

YLR 2006 KARACHI HIGH COURT SINDH 2616 #

2006 Y L R 2616

[Karachi]

Before Muhammad Afzal Soomro, J

GULZAR MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 180 of 2004, decided on 15h December, 2005.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 109 & 34---Criminal Procedure Code (V of 1898),S.561-A---Appreciation of evidence---Complainant appeared in the Court and submitted an application under S.561-A, Cr.P.C. along with affidavit stating therein that accused was her husband; and due to some misunderstanding and at the instigation of police officials she was forced to act as complainant in the matter---Lady had further stated in her supporting affidavit that she did not depose anything against her husband and that accused/her husband was on his duty at the time of offence; that due to said misunderstanding, accused was shocked and mentally disturbed and did not file appeal within prescribed time and that delay had been caused due to his ill health---From the statements of prosecution witnesses who were allegedly present at the time of incident, it had not been proved that accused had committed the offence and/or he was present at the scene of incident---No other overt act had been assigned to accused---Prosecution having failed to prove case against accused, conviction and sentence awarded to accused under impugned judgment, were set aside and accused was acquitted.

Appellant in Person.

Sadruddin Qureshi for Respondent.

Date of hearing: 28th September, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 2816 #

2006 Y L R 2816

[Karachi]

Before Zia Pervaiz, J

Malik GHULAM AKBAR KHAN and others---Applicants

Versus

THE STATE---Complainant

Criminal Bail Applications Nos.813 to 815 of 2004, 913 to 915 and 333 of 2005.

Criminal Procedure Code (V of 1898)

-------Ss. 498 & 561-A---Application for grant of pre-arrest bail---Maintainability---After accused were arrested and taken into custody in presence of order of Court, application for grant of bail before arrest, which had become infructuous in circumstances, could not be taken up for hearing under S. 561-A, Cr. P. C.

Malik Asad Khan v. The State 1969 PCr.LJ 1058; Gul Muhammad v. The State 1999 SCMR 2765; Masood Khan v. The State 1996 MLD 502 and Allah Rakha v. The State 2000 MLD 1932 ref.

Rana Ikramullah and I.A. Hashmi for Applicants.

Azizullah K. Shaikh for the Complainant.

Suhail Jabbar for the State.

YLR 2006 KARACHI HIGH COURT SINDH 2824 #

2006 Y L R 2824

[Karachi]

Before Qaiser Iqbal, J

MUHAMMAD DANISH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1074 of 2005, decided on 5th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392/34---Bail, grant of---Further inquiry ---Mobile phone was secured from the joint possession of accused and co-accused---No active role of commission of crime was assigned to accused, recovery was joint and not from the exclusive possession of accused---Even on the basis of the statement of complainant, memo. of arrest and seizure and statements of police officials, it was spelled out that recovery of robbed property was joint---Guilt of accused required further inquiry, in circumstances---Accused was admitted to bail.

1994 MLD 1014; 1999 PCr.LJ 1529 and 2003 PCr.LJ 411 ref.

Muhammad Zafar for Applicant.

Agha Zafir Ali, A.-G. for the State.

YLR 2006 KARACHI HIGH COURT SINDH 2838 #

2006 Y L R 2838

[Karachi]

Before Ghulam Rabbani and Azizullah M. Memon, JJ

KHADIM HUSAIN KHOKHAR---Petitioner

Versus

CHAIRMAN, NAB and another---Respondents

C.P. No.D-999 of 2005, decided on 9th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), Ss.9 (a) (i) (ii) & (iv) & 10(a)---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Bail, refusal of---Principles---While hearing petition for a prayer of grant of bail, only tentative assessment of evidence collected by prosecution was to be made and detailed scrutiny thereof could not be made---Reference had already been submitted against petitioner/accused before National Accountability Court---No cogent material was found available to indicate that petitioner could falsely be implicated in the case---No reason being available to direct petitioner to be admitted to bail, petition was dismissed.

Khan Asfandyar Wali v. Federal of Pakistan PLD. 2001 SC 607 and Abdul Hafeez v. The State PLD 1981 SC 352 ref.

Syed Sarfaraz Ahmed forPetitioner.

Shafaat Nabi Khan Sherwani, DGP for Respondents.

YLR 2006 KARACHI HIGH COURT SINDH 2881 #

2006 Y L R 2881

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Ather Saeed, JJ

MUHAMMAD ASLAM---Appellant

Versus

Messrs PACIFIC TEXTILE INDUSTRIES---Respondent

L. A. No.47 of 2003.

(a) Counsel and client---

----Counsel engaged in the matter by a party, were under legal obligation to represent their client as long as they had not sought discharge of their vakalatnama in accordance with law.

Zulfiqar Ali v. Lal Din and 7 others 1974 SCMR 162; 1974 PLC 225; 2002 PLC 238; 1987 PLC 636; 1999 PLC 320; 2005 PTD 1029; PLD 1981 SC 94 and Mansoor and others v. Muhammad Umer 1982 CLC 284 ref.

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

----S. 114 & O. XLVII, R.1---Review---Generally, authority passing an order, in appropriate cases, would have power to review its earlier order, falling within well-defined parameters of review---Facts and circumstances of present case, however, being entirely different, review application was not maintainable in law both on facts and law.

Ms. Fauzia Rasheed for Appellant.

Chaudhary Rasheed Ahmed for Respondent.

YLR 2006 KARACHI HIGH COURT SINDH 2885 #

2006 Y L R 2885

[Karachi]

Before Muhammad Afzal Soomro, J

Mst. ZARINA FATIMA---Applicant

Versus

Syed ABDUL MUSSAWWIR SHAH---Respondent

R. A. No.216 of 2003, heard on 29th September, 2005.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for declaration and possession---Claim of plaintiff was that she purchased a shop and premises adjacent to said shop belonged to defendant which was let out---Plaintiff alleged that when premises was properly measured, it was found that area of 50 Sq. Feet was in possession of defendants on which they had constructed a bathroom---Plaintiff had claimed that when she approached defendant, matter was settled through an agreement in which defendant admitted possession of 50 Sq. Feet being the property of plaintiff ---Defendant, despite admission of claim of plaintiff, having not handed over possession of disputed portion of 50 Sq. Feet, she filed suit for declaration and possession---Trial Court decreed suit, but Appellate Court set aside judgment and decree of Trial Court---Validity---Plaintiff had not been able to make out a case in her favour as alleged agreement was not signed by plaintiff herself in presence of witnesses---Application being devoid of force, was dismissed.

Shehenshah Hussain for Applicant.

Nasir Mehmood for Respondent.

Date of hearing: 29th September, 2005.

YLR 2006 KARACHI HIGH COURT SINDH 2973 #

2006 Y L R 2973

[Karachi]

Before Muhammad Afzal Soomro, J

GUL MUHAMMAD and others---Petitioners

Versus

THE STATE---Respondent

Cr. Bail Applications Nos.336, 201, 218 of 2005, decided on 23rd June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Penal Code (XLV of 1860), Ss.324, 427, 436, 148, 149 & 114---Pre-arrest bail, grant of---Complainant had nominated in F.I.R. fifty three persons including accused persons and five unidentified persons---Not humanly possible to recognize a huge number of persons with their names, parentage and the weapons---General allegations were levelled against all accused persons---Accused did not repeat the fire which had shown that they had no intention to cause death of anybody---Delay of pretty long period of seven months in lodging F.I.R., was not plausibly explained---Old standing murder dispute between parties existed and it could not be ruled out that accused had been involved in the case due to enmity--Accused having been able to make out a case for grant of pre-arrest bail, pre-arrest bail earlier granted to accused, was confirmed on same terms and conditions.

Muhammad Saleem Jessar for Applicants.

Altaf Hussain Surahio for Applicants (in Cr. B.A. No.336 of 2005).

Shaikh Habib-ur-Rehman, Asstt. A.-G. for the State.

YLR 2006 KARACHI HIGH COURT SINDH 2994 #

2006 Y L R 2994

[Karachi]

Before Faisal Arab, J

RAJIB---Applicant

Versus

THE STATE-Respondent

Cr. Bail Application No.S-114 of 2006, decided on 12th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497-Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.21---Bail, grant of---F.I.R. was lodged by the police against accused despite no criminal offence was made out against him---Trial Court, on the basis of such allegation, had not applied its blond in the case and rejected bait application of accused considering his past criminal cases---Trial Court, on bare statement of prosecution, had assumed that accused held criminal record without considering the fact whether accused was convicted in those offences or not---Past conviction was no ground to assume that accused was also involved in crime, which too on the face of it did not appear to be criminal offence---Accused was enlarged on bail, in circumstances.

Sarfraz Khan Jatoi for Applicant

Mushtaq Ahmed Abbasi, Assistant A.-G. for the State.

2006 Y L R 3042

[Karachi]

Before Amir Hani Muslim, J

NASIR KHOKHAN---Applicant

versus

THE STATE---Respondent

Bail Application No.411 of 2005, decided on 18th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395 & 511---Bail, grant of---Accused who was in judicial custody, was not required for investigation purposes---Even the charge had to be framed, though more than ten months had passed---Case of accused did not fall within the prohibitory clause of S.497, Cr.P.C.-Accused was granted bail, in circumstances.

Aamir Mansoob Qureshi and Ameenuddin Meo for Applicant.

Ghulam Rasool Mangi for the State.

YLR 2006 KARACHI HIGH COURT SINDH 3050 #

2006 Y L R 3050

[Karachi]

Before Munib Ahmed Khan, J

MUHAMMAD IQBAL---Appellant

Versus

Mst. SHARIFAN---Respondent

IInd Appeal No.4 of 2006, decided on 1st June, 2006.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement---Plaintiff had claimed that defendant had agreed 'to sell shop in dispute to ,him for total consideration of Rs.16, 00, 000 and out of that he (plaintiff) paid Rs. 1, 00, 000 at the time of agreement and Rs. 2, 00, 000 and Rs. 4, 00, 000 on two different dates---Plaintiff alleged that defendant despite receiving Rs. 7, 00,000 had delayed execution of sale-deed and that instead of execution of sale-deed, issued a legal notice calling him to pay balance Rs. 15, 00, 000---Defendant acknowledged receipt of Rs.1,00,000, but denied receipt of Rs. 2.00, 000 and Rs. 4, 00, 000 as claimed by plaintiff---Courts below concurrently having dismissed suit filed by plaintiff---Validity---Two receipts of Rs. 2, 00, 000 and Rs. 4.00, 000 were proved to be false and forged---Plaintiff who had not come to the Court with clean hands, would have been proceeded for giving false evidence and would have been tried for forgery---Statement of counsel for plaintiff that Estate Agent had defrauded plaintiff, could not help him out of crises at appellate stage---Even otherwise such argument, which was not advanced in lower Courts, could not be considered---Trial Court had provided full opportunity of evidence to plaintiff and Appellate Court below had given its findings on basis of evidence on record---Counsel for plaintiff having failed to point out as to how second appeal was maintainable, appeal was dismissed with costs.

PLD 1991 SC 905; PLD 2003 SC 430; 2003 SCMR 971; 2003 MLD 310; 2003 MLD 248 and 2004 MLD 894 ref.

Jhamat Jethanand for Appellant.

Shamsuddin Memon for Respondent.

Date of hearing: 22nd May, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 3067 #

2006 Y L R 3067

[Karachi]

Before Rahmat Hussain Jafferi, J

Mst. NASIBAN and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. S-46 of 2005, decided on 11th August, 2006.

Penal Code (XLV of 1860)---

----S. 228---Criminal Procedure Code (V of 1898), Ss.476, 480, 481, 482 & 486---Accused who were ladies, had been convicted for contempt of Court by Trial Court, for offence punishable under S.228, P. P. C. and sentenced each of them to suffer simple imprisonment for one month and fine of Rs.1,000---Accused were convicted and sentenced because they allegedly obstructed judicial proceedings of the Court on the day when such proceedings were in progress---Trial Court had tried accused then and there, as no charge or plea or statements of accused were recorded---Validity---Trial Court, in circumstances had invoked provisions of S. 480, Cr.P.C. under which the Trial Court was competent to award sentence of Rs.200 only --Sentence of imprisonment for one month and fine of Rs.1,000 were illegal which were required to be set aside---For the proceedings and preparation of record, Trial Court was required to comply with the provisions of S.481, Cr.P.C. under which opportunity should have been given to accused to explain the-situation and to record their statements, but all that had not been done by the Trial Court---Impugned judgment suffering from material irregularity and incurable illegality, was set aside.

Chan Hang Kin's case(1909) 13-C W.N 685 ref.

Muhammad Iqbal Memon for Appellants.

Habibur Rehman Shaikh, A.A.-G. for the State.

Date of hearing: 11th August, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 3074 #

2006 Y L R 3074

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Ather Saeed, JJ

MUHAMMAD AFZAL and another---Petitioners

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION---Respondent

Constitution Petition No.D-395 of 2005.

(a) Administration of justice---

----Principles---Multiplicity of litigation should be avoided for mere hypertechnical reasons and while interpreting a document the Court instead of giving effect to weight to its substance, should give effective and substantive relief to the parties in litigation.

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

----S. 47---Execution of decree---Powers of Executing Court---Scope---Power of Executing Court though was limited to the extent that it could not go behind the decree, but where in the implementation and execution of decree, the question of its interpretation was involved, then it was for the Executing Court to examine the relevant record to conclude exact nature of the reliefs allowed to a party on the basis of decree framed in a suit.

Syeda Tahira Begum and another v. Syed Akram Ali and another 2003 SCMR 29; Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Ltd. and 2 others 1994 SCMR n; The Administrator Thal Development and another v. Mehbood Ali Khan 1986 SCMR 1927; Abdul Khaliq v. Haji and another PLD 1983 Lah 445; Ali Hussain v. Rafiquddin and 9 others 1979 CLC 446; Gladstone Wylie and Co. v. Badshah Mian PLD 1960 Dacca 305; Salma Akhtar Bhatti v. Mehbood Qadir Shah 5 others 2004 YLR 1218 and Muhammad Ali v. Zakir Hussain PLD 2005 Lah 331 ref.

Qamar Abbas for Petitioners.

Amir Malik for Respondent.

YLR 2006 KARACHI HIGH COURT SINDH 3082 #

2006 Y L R 3082

[Karachi]

Before Rahmat Hussain Jaffri and Ali Sain Dino Metlo, JJ

IDARA-E-TULOO-E-ISLAM through Chairman---Applicant

Versus

GOVERNMENT OF SINDH through Chief Secretary, Sindh and another---Respondents

Criminal Miscellaneous Application No.63 of 2002, decided on 18th April, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 99-A & 99-B---Penal Code (XLV of 1860), S.153-A---Forfeiture of booklet---Application against---Booklet titled "FIRQAY KESAY MIT SAKTAY HAIN" written by Ghulam Ahmad Pervaiz and issued by applicant, was forfeited by Provincial Government on the ground that it carried contents which were blasphemous, subversive and likely to hurt the sentiment of Muslims---Notification whereby booklet was forfeited, did not show the objectionable passage or passages of said booklet so that applicant could know as to what portions of same were objectionable---Said Notification also did not show any grounds forming such opinion by the competent Authority---Mere stating in the Notification that disputed booklet carried contents which were blasphemous and likely to hurt the sentiments of Muslims was not enough---Provincial Government should have intelligently considered the booklet and shown from it the words which competent Authority considered violative of law---Authority should have not left it to 'tie Court to pick out such words from the booklet---Law demanded that Notification itself should point out the objectionable passage or passages, but that was lacking in the case---That fact itself was sufficient to hold said Notification as illegal---Said Notification did not show the grounds or reasons on which opinion as required under S.99-A, Cr.P.C. was formed---Impugned Notification was not sustainable under law---Allowing application the impugned Notification was set aside.

Samiuddin Sami for Applicant.

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

YLR 2006 KARACHI HIGH COURT SINDH 3087 #

2006 Y L R 3087

[Karachi]

Before Khiliji Arif Hussain, J

KAREEM BUX---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.304 of 2006, decided on 6th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Bail, grant of---Maximum punishment for offence against accused was five years and his case did not fall within prohibitory clause of S. 497, Cr.P.C.-No independent witness had been cited, though the police had received information well in advance---Accused was admitted to bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto for the State.

YLR 2006 KARACHI HIGH COURT SINDH 3088 #

2006 Y L R 3088

[Karachi]

Before Mrs. Qaisar Iqbal, J

MANU alias MANTHAR and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-485 of 2006, decided on 23rd August, 2006.

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

----S. 497---Penal Code (XLV of 1860), S.382---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.20---Bail, grant of---Nothing had been recovered from the possession of three out of four accused persons which showed that only vague allegations were made against said accused persons for participation, in the commission of crime---Alleged looted cash and bundle of cigarettes were not recovered from possession of said three accused persons---Said accused persons were released in bail on circumstances.

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

----S. 497---Penal Code (XLV of 1860), S.382---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.20---Bail, refusal of---Some part of robbed property was recovered from one out of four accused persons and case of said accused was not identical with the other three accused persons---Accused from whom robbed property was recovered was declined bail in circumstances.

Khadim Hussain D.Solangi for Applicants.

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

2006 Y L R 3116

[Karachi]

Before Amir Hani Muslim, J

HASAN SOHAIL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.669 and M.As.2403 to 2405 of 2005, decided on 19th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i), 504, 506, 147 & 148---Bail before arrest, grant of---Counsel of applicant stated that the applicant on whose behalf bail application was filed, was out of country and he (counsel) had been instructed over phone to move the bail application on his behalf; that applicant was of 19 years of age and that applicant's name had been placed on the Exit Control List and the moment he would land he would be arrested---Validity---High Court, without touching the merits of the case, granted protective bail to the applicant for a period of fifteen days---Bail application of accused was disposed of with specific directions.

Aamir Mansoob Qureshi for Applicant.

2006 Y L R 3128(2)

[Karachi]

Before Rahmat Hussain Jafferi, J

MUHAMMAD AMIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. S-48 of 2004, decided on 15th August, 2006.

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

---S. 302(c)---Appreciation of evidence---All the three prosecution witnesses were subjected to cross-examination but they successfully passed such test as there were no material contradictions, discrepancies or omissions in their statements---Defence counsel did not seriously challenge the incident itself as no cross-examination was conducted denying the fact that accused did not cause hatchet injury to deceased---All the three prosecution witnesses who were police officials, had no enmity whatsoever with the accused nor any enmity was suggested; they, in circumstances had no reason to implicate accused in said heinous offence---Evidence of said prosecution witnesses, made it clear that accused was caught red-handed at the place of incident at the time of commission of murder of his wife---Evidence of Magistrate who recorded confession of accused had revealed that confession was recorded after completing all legal formalities---Confession so recorded had been fully supported by the ocular testimony---Prosecution, in circumstances had proved the confession, which was sufficient to convict accused---Witnesses of recovery of blood-stained hatchet, had specifically stated that blood stained hatchet was secured from possession of accused, which was sent to Chemical Examiner who reported that hatchet was stained with human blood---Said recovery had further corroborated confessional statement of accused---Prosecution, in circumstances had proved case against accused beyond any reasonable doubt---Accused, in circumstances had rightly been convicted and sentenced, by the Trial Court.

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

----S. 164--'-Confession---Retracted confession could be made the basis for conviction, if same was found to be voluntary and true without any corroboration, but as a rule of procedure and prudence, a confession was required to be corroborated on material particulars.

Haq Nawaz v. State 2000 SCMR 785 ref.

Muhammad Amin Pitafi produced in custody for Appellant.

Habib-ur-Rehman Shaikh, Asstt. A.-G. for the State.

Date of hearing: 15th August, 2006.

2006 Y L R 3142

[Karachi]

Before Saiyed Saeed Ashhad, C.J.

MUHAMMAD FAROOQ UMAR---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

C.P. No.D-1015 of 2003, decided on 18th August, 2003.

Penal Code (XLV of 1860)---

----Ss. 406, 408 & 471---Federal Investigation Agency Act, 1974 (VIII of 1975), Sched.---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Plea of fraud, forgery and embezzlement---Respondent/complainant had alleged that petitioner had received/borrowed disputed amount from his brother and issued post-dated cheques, which were dishonoured by the Bank---Respondents had alleged that petitioner had cheated the public through fraud, forgery and embezzlement and committed offences under Ss.406, 408 & 471, P.P.C. which were Scheduled offence of Federal Investigation Agency Act, 1974---Neither any details relating to commission of said offences were provided nor Law Officers of Federal and Provincial Government were able to give details as to what act of commission or omission, had been committed by petitioner which would make him liable for offences alleged---Action of F.I.A. in summoning petitioner repeatedly and holding inquiry into the alleged offences on basis of complaint filed by complainant on behalf of his brother, was without jurisdiction as dispute if any was basically between two private parties---High Court allowed constitutional petition and held that investigation/inquiry conducted by F.I.A. against petitioner on the basis of complaint, was without jurisdiction and illegal and directed that respondents should refrain from inquiry, investigation and stop summoning petitioner to their office.

Mian Hamza Shahbaz Sharif v. Federation of Pakistan and others 1999 PCr.LJ 1584 ref.

Khalid Mahmood Siddiqui for Petitioner.

Sajjad Ali Shah, A.A.-G.

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

YLR 2006 KARACHI HIGH COURT SINDH 3147 #

2006 Y L R 3147

[Karachi]

Before Rahmat Hussain Jafferi, J

MUHAMMAD YAKOOB---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.S-63 of 2002, decided on 11th August, 2006.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), Ss.342 & 103---Appreciation of evidence---Benefit of doubt---Last seen evidence---Motive---Retracted judicial confession---Specific question as to judicial confession not put to accused by Trial Court in his statement recorded under S. 342, Cr. P. C. ---Effect---Accused/appellant and co-accused were tried under S. 302 (b), P.P.C. by Trial Court on grounds that deceased was last seen in the company of accused; that accused/ appellant made judicial confession as to his guilt; that accused produced his blood-stained clothes and Chhurri before the police; that accused had a motive to commit murder of deceased---Accused/appellant was convicted and sentenced to life imprisonment by Trial Court, whereas co-accused was acquitted on basis of his compromise with complainant party---Validity---Witnesses who saw deceased last time in company of accused did not mention such fact to complainant before or at the time of registration of F.I.R. which created doubt in veracity of testimony of witnesses---Retracted judicial confession of accused if found to be true and made voluntarily then the same was sufficient to convict accused without any corroboration but as a rule of procedure and prudence, confession was required to be corroborated on material particulars---Keeping in view the confession of accused, the deceased was to have received stab injuries but medical officer found incised and stab injuries on the person of deceased which signified that confession was not corroborated by medical evidence---Witnesses of recovery did not state that blood-stained clothes and Chhurri/articles were sealed at the place of their recovery---Case property was needed to be sealed at the place of recovery so as to eliminate possibility of its tampering with at subsequent stage---Investigating Officer also did not state that when and where he sealed the articles; in such circumstances there was no guarantee that articles were in same condition when they were received by Chemical Examiner---Without proof that Chemical Examiner received articles in same condition in which they were recovered, the report of Chemical Examiner had lost its importance which was otherwise normally attached to such report---Prosecution witnesses gave contradictory statements as to motive for committing the murder of deceased by accused, as such their evidence was unsafe to rely upon and the same resulted in prosecution's failure to prove motive---Conviction was to be based on evidence which was put to accused in his statement recorded under S.342, Cr.P C. so as to obtain his explanation---If any piece of evidence was not put to accused in his statement under S.342, Cr. P. C. then such piece of evidence was' not to be filed against accused---Trial Court, in the present case, did not put any question to accused about his confession, therefore, evidence of confession could not be' used against accused for convicting him---Case was not remanded to Trial Court on this point because confession was not being corroborated by evidence available on record---Being an old case, remand to Trial Court was to amount to abuse of process of law---Prosecution case being highly doubtful against accused, benefit of doubt was extended to him---Appeal was allowed.?

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

----S. 103---Qanun-e-Shahadat (10 of 1984), Art.49---Fact mentioned in 'Mashirnama' beyond scope of S.103, Cr. P. C. ---Effect---Witnesses if did not state before Trial Court that case property was sealed at the place of recovery though such fact was mentioned in 'Mashirnama' of recovery, then expert's report as to case property would lose its importance---Such report of expert was not to be relied upon on ground that such fact mentioned in Mashirnama was out of scope of S.103, Cr. P. C. and therefore not protected under Art.49 of Qanun-e-Shahadat, 1984, for being an inadmissible piece of evidence. ?

Criminal Appeal No.392 of 2004, decided on 13-7-2006 rel.

Nizamuddin Baloch for Appellant.

Habib-ur-Rehman Shaikh, Asstt. A.-G. for the State.

Date of hearing: 11th August, 2006.

2006 Y L R 3170

[Karachi]

Before Rahmat Hussain Jafferi, J

RAHAM HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. S-54 of 1998, decided on 16th August, 2006.

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

----S.13-A(2) (b)---Constitution of Pakistan (1973), Art. 89(2) (a) (i)---Appreciation of evidence---Enforcement of Ordinance--Incident took place on the date when S.13-A(2) (b) of West Pakistan Arms Ordinance, 1965 was in force, which subsequently was protracted vide Pakistan Arms (Third Amendment) Ordinance XCVIII of 1996 dated 2-11-1996---Life of Ordinance was four months as provided under Art. 89(2) (a) (i) of the Constitution, thereafter provisions of S.13-A of West Pakistan Arms Ordinance, 1965 were not protracted as no Ordinance was issued subsequent to said Ordinance and Ordinance lapsed on 2-3-1997 after four months---Judgment had been announced on 24-4-1998 when provisions of S.13-A(2) (b) of West Pakistan Arms Ordinance, 1965 had already expired and were inoperative---Ordinance XCVIII of 1996 was a temporary statute under which proceedings and action were valid up to the last date of the enforcement of the Ordinance---After the lapse of the Ordinance, all the proceedings stood terminated and no further action could be taken in pursuance of said Ordinance---Proceedings of the case having terminated on 2-3-1997, all proceedings thereafter were corum non judice and thus Additional Sessions Judge was not competent to pass the judgment.

Muhammad Arif and another v. The State and another 1993 SCMR 1589 ref.

Appellant in person.

Mahmood S.Yousifi A.A.-G. for the State.

Date of hearing: 16th August, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 3174 #

2006 Y L R 3174

[Karachi]

Before Rahmat Hussain Jafferi, J

QURBAN SHAR---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.83 of 2004, decided on 25th August, 2006.

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

----Ss. 13(d) & 14---Appreciation of evidence---Magistrate before whom challan of case was submitted, framed the charge---Prosecution examined two witnesses and Magistrate thereafter recorded the statement of accused---As case against accused was triable by the Court of Session, Magistrate sent up the case to the Court of Session, who did not proceed with the case afresh, but after hearing arguments, relying upon the evidence recorded by the Magistrate, convicted accused under impugned order---Validity---Held, as Klashnikov was recovered from accused, his case was covered by the proviso to S.13 of West Pakistan Arms Ordinance, 1965, and Magistrate had no jurisdiction to try the case---Trial and proceedings conducted by the Magistrate, were corum non judice, in circumstances---Sessions Court, after receipt of case from Magistrate, should have tried the case de. novo from the stage of charge, but did not do so---Sessions Court, in circumstances had committed a material illegality in relying upon the charge, evidence and statement of accused recorded by the Magistrate---Proceedings having been vitiated, case was required to be remanded to Sessions Court---High Court observed that accused had remained in jail for a period of about 2 years, and had already served out sentence awarded by the Trial Court, if the case was remanded to the Trial Court for fresh trial in accordance with law, then it was not known when case would be completed and it would be an abuse of the process of law if such procedure was adopted, therefore in circumstances, it was not feasible to remand the case, but to release the accused---Appeal was allowed in said terms.

Qurban Shar, Appellant produced in custody.

Habibur Rehman Shaikh, A.A.-G. for the State.

Date of hearing: 25th August, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 3176 #

2006 Y L R 3176(1)

[Karachi]

Before Azizullah M. Memon, J

DEWAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Protective Bail Appeal No.454 and M.A. No.1254 of 2006, decided on 16th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i), (ii), F(i) & 34---Interim protective bail, grant of---Accused who had sought interim protective bail before arrest had submitted that they wanted to surrender before the competent Trial Court---Accused were admitted to interim protective bail before arrest, accordingly.

Jai Jai Veshno, Mange Ram for Applicants.

Mushtaq Ahmed Abbasi, Asstt. A.-G. for the State.

YLR 2006 KARACHI HIGH COURT SINDH 3185 #

2006 Y L R 3185

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD FAROOQUE and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-77 of 2006, decided on 26th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 364-A, 201 & 34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Bail, refusal of---Allegations against accused persons were of committing forcible Zina with a minor boy of 6/7 years and then killing him---Complainant had seen both accused persons in the house from where dead body of his son was recovered---One of accused persons had taken upon himself the responsibility of committing Zina and killing victim/deceased boy---Possibility that said accused had taken upon himself the entire responsibility to exonerate his two brothers/accused could not be ruled out and at that stage only on the basis of confession of co-accused, other accused persons could not be allowed concession of bail---At bail stage, without examining medical officer, it could not be decided whether Zina was committed upon the deceased by one or more persons; deeper appreciation of evidence was neither allowed nor permissible and for deciding whether Zina was committed by one or more persons whole material available on record was to be scrutinized---Evidence of last seen was available and dead body was recovered from the house of accused, which itself was sufficient to connect accused persons with the commission of the crime---No reasonable grounds were available for believing that accused were not guilty of offence falling under prohibitory clause of S. 497(1), Cr. P. C. ---Bail application was dismissed, in circumstances.

Mumtaz Ali Sheikh v. The State 1993 PCr.LJ 1919 and Muhammad Mumtaz v. The State 1993 PCr.LJ 1170 ref.

Muhammad Saleem Jessar for Applicants.

Muhammad Ismail Bhutto, State Counsel.

YLR 2006 KARACHI HIGH COURT SINDH 3187 #

2006 Y L R 3187

[Karachi]

Before Muhammad Moosa K. Leghari, J

AMIR BUX alias NAEEM---Applicant

Versus

Haji ABDULLAH and 5 others---Respondents

Criminal Miscellaneous Application No.S-40 of 2006, decided on 22nd June, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 491 & 561-A---Application against illegal custody of a female---Report of S.H.O. revealed that lady was with respondents, but said report had no basis to that effect--S. H. O. appeared to have cooked up the report as respondent and his brother were found in his illegal custody during the raid at the Police Station whereat it was stated that matter of illegal confinement was pending before Sessions Judge and according to S.H.O.'s report he was appearing there---Respondent and his brother having been found in the illegal custody of S.H.O., Sessions Judge was directed by the High Court to get F.I.R. registered against the S.H.O. concerned, no clue about the lady having been traced, father of said lady was directed to appear at Police Station concerned for registration of F.I.R., which would be investigated by an independent officer, not below the rank of Inspector.

Ghulam Muhammad Mughal for Applicant.

Anwar Hussain Ansari for the State along with Muhammad Qasim Panhwar, S.H.O., Police Station, Kadhan.

Noor Ahmed Memon for Respondent No.1.

Respondents Nos.1 and 2 are also present in person.

YLR 2006 KARACHI HIGH COURT SINDH 3188 #

2006 Y L R 3188

[Karachi]

Before Rahmat Hussain Jafferi and Nadeem Azhar Siddiqui, JJ

AMIR BUX and others---Appellants

Versus

THE STATE---Respondents

Criminal Appeals Nos.D-29, 30, 32, 33 and 34 of 2002, decided on 24th August, 2006.

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

----Ss. 302, 324, 427, 392 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(1) (a)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Appreciation of evidence---Identification test as a corroborative piece of evidence---Scope---Opinion of foot prints expert, evidentiary value of---Allegation against accused/appellants was that in the eventful night, at Highway, they started firing at vehicle which caused death of deceased and injured complainant, both travelling in the said vehicle---Police with the help of foot-tracker traced foot prints of accused and arrested them in Jungle and recovered alleged unlicensed weapons of crime from their possession---Accused were convicted and sentenced to life imprisonment by Trial Court---Validity---Eye-witnesses though supported the incident but they did not identify accused at the time of incident---Witnesses, after seeing the accused in the trial Court, stated that they could not say whether accused were the real culprits of crime---Identification test of two accused/appellants was not held before any Magistrate---As to identification test of third accused/appellant, who was arrested later, which was held before Magistrate, the Mashir stated that both witnesses of occurrence had identified accused---Both said witnesses, however, did not state that identification test of third accused was held before any Magistrate or they identified accused to be one of the culprits of the crime---Prosecution did not examine the Magistrate---Identification test was a corroborative piece of evidence but when there was no substantive piece of evidence then there was nothing left with prosecution to be corroborated by corroborative piece of evidence in the form of identification test---Evidence of Mashir was therefore, of no help to prosecution in any manner---Prosecution, in order to connect accused with foot-prints found at place of incident, was to first get identified 'chappal' and shoes which accused allegedly wore, by foot-print-Tracker by comparing the said 'chappal' and shoes with foot-prints found at place of incident or arrest and then same was to be verified through identification test held in presence of Magistrate---Prosecution did not collect such evidence so as to prove that foot-prints found at the place of incident were those of accused and, therefore, evidence of foot-prints lost its importance and value---Evidence of foot-prints having been traced and identified was not by itself sufficient to prove case against accused---Evidence of foot-prints expert, moreover, was to be regarded as of less satisfactory character of all evidence produced in courts---Prosecution neither led any evidence to show that watches recovered from accused were robbed from victims/witnesses, nor those were shown to the victims to identify that the same watches were robbed from them---As evidence of robbery of such watches was missing, the same were not to be connected with crime---Prosecution, however, had proved that accused were in possession of unlicensed weapons and ammunition, therefore, they were rightly convicted and sentenced by Trial Court on this count---Prosecution failed to prove charge against accused for offences under Ss.302, 392, 324 & 34 of P.P.C. and convictions and sentences on these counts were set aside.

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

----S. 103---Qanun-e-Shahadat (10 of 1984), Art.49---Fact mentioned in Mashirnama beyond scope of S.103, Cr. P. C. ---Effect---Witnesses when did not state before the Court that case property was sealed at the place of its recovery though such fact was mentioned in Mashirnama, then experts report lost its importance---Such report was not to be relied upon as a piece of evidence on ground that such fact in Mashirnama was out of scope of S.103, Cr. P. C. and was not admissible in evidence under Art.49 of Qanun-e-Shahadat, 1984---Crime empties recovered from place of incident having not been sealed those were not to be legally connected with weapons allegedly secured from possession of accused/appellants.?

Maqbool Ahmed Awan for Appellants (in Criminal Appeals Nos.29, 30 of 2002).

Ubedullah Malano for Appellants (in Criminal Appeals Nos.32, 33 and 34 of 2002).

Habibur Rehman Shaikh Assistant Advocate-General for the State.

Date of hearing: 17th August, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 3194 #

2006 Y L R 3194

[Karachi]

Before Rahmat Hussain Jafferi, J

ANWAR ALI---Appellant

Versus

THE STATE ---Respondent

Criminal Jail Appeal No.S-96 of 2004, decided on 16th August, 2006.

Penal Code (XLV of 1860)---

----Ss. 324, 337-A (i), 452, 506/2 & 34---Appreciation of evidence---Benefit of doubt---Ocular account not corroborated by circumstantial evidence---Concealment of inter se relationship between complainant and prosecution witnesses---Effect---Complainant alleged in F.I.R.; that in the eventful night three accused persons including convict/appellant, all armed with fire-arms came to his Otaq/Dera and in presence of eye-witnesses asked complainant that he would either withdraw murder case of his (complainant's) son or he would be killed; that then accused started firing with fire-arms, whereupon relatives of complainant reached the place of occurrence and by resorting to firing in the air challenged the accused; that accused started running but one of them was nabbed by complainant party along with his pistol and live bullets; that one of complainant witness sustained injury on his arm-Accused/appellant was convicted and sentenced to seven years imprisonment by Trial Court---Validity---None from either party received any fire-arm injury in cross-firing and not even a single crime empty was secured from the place of incident---No fire-arm shot holes were found at any wall, tree or any place---Person can lie but circumstances cannot---Oral evidence was neither supported nor corroborated by circumstantial evidence---One prosecution witness stated that injured eye-witness received lathi blow from accused and then the same injured witness gave lathi blows to accused; but none of the witnesses stated that accused was also armed with lathi---Injured witness, however, did not state that he caused lathi blows to accused as the latter had five injuries on his person, including fracture---Doctor had stated that injury received by injured witness could be self-inflicted---Evidence of prosecution witness was neither supported nor corroborated by any other piece of evidence and it was unsafe to rely upon his evidence---Other villagers had witnessed the occurrence but they were not examined by prosecution---Complainant and- his witnesses were closely related to each other but they tried to conceal their mutual relationship---Witnesses when concealed their mutual relationship, it signified that they wanted to show that they were independent and unrelated witnesses and this was to be done by a person who had a guilty conscience---Witnesses were not only interested and hostile but also inimical to accused due to a murder case of complainant's son filed against accused---Possibility of false involvement of accused in the case was not to be ruled out---Prosecution did not support charge under S.324, P.P.C. but requested that accused be convicted for causing injury to prosecution witness---Prosecution failed to prove fact of causing injury to injured witness---Accused/appellant was entitled to benefit of doubt---Appeal was allowed. ?

Zuber AhmedRajput for Appellant.

Muhammad Mahmood S. Khan Yousfi, Assistant Advocate-General for the State.

Date of hearing; 16th August, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 3198 #

2006 Y L R 3198

[Karachi]

Before Saiyed Saeed Ashhad, C.J. and Maqbool Baqar, J

MERAJUDDIN---Petitioner

Versus

PROVINCE OF SINDH through Home Department and others---Respondents

C.P. No.D-770 of 2006, decided on 17th March, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Constitutional petition earlier filed by petitioner was dismissed by the High Court with direction to petitioner to seek his remedy before a proper forum, but petitioner had again invoked constitutional jurisdiction of High Court by filing present petition where same facts and circumstances had -been mentioned as were mentioned in earlier constitutional petition---Fresh constitutional petition was not maintainable in circumstances.

Ghulam Qadir Jatoi for Petitioner.

M. Sarwar Khan, Additional Advocate-General, Sindh.

Rasheed Khan for Respondent No.2.

Manzoor Ahmed for Respondent CDGK.

YLR 2006 KARACHI HIGH COURT SINDH 3200 #

2006 Y L R 3200

[Karachi]

Before Rahmat Hussain Jafferi, J

ALLAH JURIO---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.S-116 of 2004, decided on 15th August, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 148 & 149---Appreciation of evidence---Conflict between medical and oral evidence---Effect---Benefit of doubt---Scope---Allegation against accused/ appellant and absconding co-accused was that in the night time, they committed murder of deceased with fire-arm weapons, including mousers and gun; that motive behind the occurrence was that accused persons took deceased as a Karo; that accused persons were identified by witnesses in the light of electric bulb---Trial Court convicted and sentenced accused/appellant to life imprisonment and rest of the accused were declared absconders---Validity---Both eye-witnesses and complainant had stated that they identified accused in electric bulb light but Investigating Officer deposed that he did not see any electric bulb installed around the place of incident---Statements of prosecution witnesses as to source of light were not supported or corroborated rather the same were falsified which created doubt as to whether there was electric bulb light at the place of occurrence---Benefit of every doubt appearing in evidence was to be extended to accused---Mistaken identity of culprits was not to be ruled out---Complainant and eye-witnesses had stated that accused/appellant and absconding co-accused fired at deceased .with their mousers but medical evidence showed that deceased had received gun shot injuries and he did not receive any bullet injury caused by mouser---Conflict between medical and oral evidence was there and this conflict appeared to be due to darkness witnesses were unable to see assailants with their respective weapons---Material discrepancies were found in the statements of eye-witness and Investigating Officer as to arrival of police at the place of occurrence and recording of statements of prosecution witnesses---Evidence showed that there was enmity between the parties over an earlier murder, therefore, false implication of accused/appellant was not to be ruled out---Prosecution case being highly doubtful, accused was entitled to benefit of doubt---Appeal was allowed.

Muhammad Iqbal Memon for Appellant.

Habib-ur-Rehman Shaikh, Assistant Advocate-General for the State.

Date of hearing: 15th August, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 3203 #

2006 Y L R 3203

[Karachi]

Before Anwar Zaheer Jamali and Maqbool Baqar, JJ

ALI BRIGHT CAREER EDUCATIONAL SOCEITY (REGISTERED)---Petitioner

Versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional Petition No.D-605 of 2004, decided on 28th September, 2004.

Sindh Disposal of Urban Land Ordinance (X of 2002)----

----Ss. 6 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Entitlement to allotment of plot as amenity plot---Petitioner, an educational society, which claimed entitlement to allotment of plot in question had asserted that action of authorities inserting the plot in list of plots to be auctioned was mala fide--- Authority denied claim of petitioners in respect of plot in question and stated that said plot being available would be disposed of strictly in accordance with provisions of Sindh Disposal of Urban Land Ordinance, 2002 by way of open public auction---Petitioner had contended that before putting plot to auction, its claim for grant/allotment of same should be decided by the concerned Authority---Validity---Petitioner was unable to show any vested or preferential right in its favour entitling it to allotment of disputed plot in violation of relevant rules and regulations of Sindh Disposal of Urban Land Ordinance, 2002, which had provided disposal of amenity plots reserved for health and education only through open public auction---Petitioner, in circumstances was not entitled to any relief in the matter.

Gohar Iqbal for Petitioners.

Ahmad Pirzada, Addl. A.-G., Sindh for Respondent No.1.

Manzoor Ahmad for Respondents Nos.2 and 3.

YLR 2006 KARACHI HIGH COURT SINDH 3205 #

2006 Y L R 3205

[Karachi]

Before Muhammad Moosa K. Leghari, J

KALA KHAN and another---Applicants

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.S-27 of 2006, decided on 19th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.420 & 34---Quashing of proceedings---Application for---Trial Court had already taken cognizance, of the case and the trial had commenced consequent upon framing of the charge and evidence was being recorded---Perusal of F.I.R. and charge sheet did not show with certainty that charges were groundless or that there was no probability of accused being convicted of any offence---Application moved under S. 249-A, Cr.P.C. as well as revision petition, had been dismissed by the Courts below by passing elaborate orders---Quashing of proceedings, in circumstances, would be inappropriate, as it would give an impression of stifling the criminal proceedings, which was not desirable.

Talib Hussain Arain for Applicants.

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

Ghulam Haider Shah for Respondent No.2.

YLR 2006 KARACHI HIGH COURT SINDH 3206 #

2006 Y L R 3206

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

JHANDOO and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-543 of 2005, heard on 18th November, 2005. .

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 114, 504 & 34---Bail, grant of---Further inquiry---F.I.R., showed that enmity existed between the parties before alleged incident---Allegation against accused, who was empty-handed, was that he instigated other accused for commission of offence---Co-accused was armed with Lathi, but no allegation was available against him that he caused any injury to deceased or prosecution witnesses at the time of incident---Applicability of S.34, P. P. C. was yet to be determined at the time of trial---Question of participation of accused persons in the commission of offence, needed further inquiry as envisaged in subsection (2) of S.497, Cr.P. C.---Accused were entitled to grant of bail in circumstances.

Abdul Rehman v. Jawed and 2 others 2002 SCMR 1415; Faraz Akram v. State 1999 SCMR 1360; Shafi Muhammad v. State 1999 PCr.LJ 890; Wazir and others v. State 2003 MLD 1737; Alishah v. State 2002 PCr.LJ 707 and Shahid v. The State 1994 SCMR 393 ref.

Ghulam Shabbir Dayo for Applicants.

Habib-ur-Rehman Shaikh, A.A.-G. for the State.

YLR 2006 KARACHI HIGH COURT SINDH 3209 #

2006 Y L R 3209

[Karachi]

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

A.RSHAD ABDULLAH and others---Petitioners

Versus

GOVERNMENT OF SINDH through Secretary, Housing and Town Planning Department and others---Respondents

Constitutional Petition No.D-945 of 2004, decided on 11th November, 2004.

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

-----Art.40(3)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Commercialization of plots---Request for---Three petitioners claimed to be owners of their respective plots and one petitioner further claimed to be owner of another plot---All three petitioners after obtaining approval from relevant Authorities got said four plots ' amalgamated into one plot---Petitioners requested for commercialization of said amalgamated---Provincial Government, during pendency of request of petitioners, had imposed ban on conversion of plots located at the relevant road from residential to commercial use---Validity---Held, pursuant to Notification dated 20-7-1998 issued by the Provincial Government in purported exercise of its power under Art. 40(3) of Karachi Development Order, 1957, six roads including the relevant road were declared commercial---Any plot facing the relevant road, in circumstances was covered by said Notification and no permission either from Development Authority. or from any other Authority for change of status of plot from residential to commercial was required---Petitioner, who had amalgamated four plots into one plot had sought commercialization of all four plots---Out of said four plots amalgamated into one plot, three of them were facing the relevant road, but fourth plot did not have any access to the same---Out of four plots, three, in view of Notification had already stood commercialized and petitioners in respect of said three plots were not required either to approach any Authority for seeking permission of conversion from residential to commercial as they were free to construct a commercial building on said three plots however, in respect of fourth plot which petitioners claimed to form part of amalgamated plot could not be given benefit of commercialization as said plot was not facing the relevant road and it could not be included in the same category as the plots facing Shahra-e-Faisal.

Arshad Tayebaly for Petitioners.

Ahmad Pirzada, Additional A.-G. for Government of Sindh.

Manzoor Ahmad for City District Government, Karachi.

Anwar Ali Shah, for Karachi Building Control Authority.

Delhi Mercantile Muslim Cooperative Housing Society Limited and Karachi Cooperative Housing Societies Union Limited for Respondents Nos.4 and 5.

Dates of hearing: 5th and 11th November, 2004.

YLR 2006 KARACHI HIGH COURT SINDH 3212 #

2006 Y L R 3212

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUHAMMAD SADIQ and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-237 of 2006, decided on 14th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Bail, grant of---Further inquiry---Sixteen persons had been nominated in the F.I.R. but names of two accused did not appear therein---Said two accused persons had been implicated subsequently on the basis of identification parade which was said to have taken plate after seven days of their arrest---Role assigned to one accused was that of instigation, which was required to be proved through positive evidence at the trial---Other two accused persons were the sons of one accused, but they could not be identified by the complainant---Case of accused persons, in the circumstances called for further inquiry entitling them to concession of bail---Accused were directed to be released on bail, in circumstances.

Abdul Sattar Kazi for Applicants.

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

YLR 2006 KARACHI HIGH COURT SINDH 3213 #

2006 Y L R 3213

[Karachi]

Before Rahamt Hussain Jafferi and Sajjad Ali Shah, JJ

ATTAULLAH alias QASIM and another---Appellants

Versus

THE STATE---Respondent

Special Anti-Terrorism Appeal No.25 and Confirmation Case No.9 of 2004, decided on 5th August, 2006.

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

----Ss. 302(b)/34 & 324---Criminal Procedure Code (V of 1898), Ss.161, 164, 173 & 540---Anti-Terrorism Act (XXVII of 1997), S. 7(a) (c) ---Appreciation of evidence---Non-examination of eye-witnesses---Defective identification parade---Ocular account not corroborated by medical evidence-Non-production of crime weapons in the Court---Effect---Allegation against accused/appellants was that they committed murder of two persons (father and son) and caused injuries to another with firearms when the latter were travelling in the car---Trial Court convicted and sentenced accused to death---Accused contended that prosecution did not examine the eye-witnesses including the injured eye-witness; that identification parade was held in defective manner which had no evidentiary value and that weapons allegedly recovered from accused were not produced before the Court---Validity---F.I.R. had been lodged against unknown persons without mentioning any eye-witness therein---Statement of alleged eye-witnesses were recorded after lodging of F.I.R. though they were available at the place of occurrence when police arrived there---Eyewitness did not disclose the purpose of his presence at the scene of occurrence in his statement recorded under S.164, Cr. P. C. which adversely affected its evidentiary value--No entry was made in daily Roznamcha that statements of eye-witnesses were recorded by Investigating Officer under S.161, Cr. P. C. ---Testimony of eye-witness as to position from where accused fired at deceased did not correspond with the seats of injuries received by deceased; as such statement of eye-witness was not corroborated by factum of injuries received by deceased---Bullet holes were caused on doors of car but neither seizure memo. nor witness deposed as to presence of such bullet holes on the car---Police tried to manipulate .evidence by preparing incorrect record and setting up false witnesses in the case---Injured witness was the most natural witness for prosecution but Investigating Officer neither recorded his statement nor his name was entered in challan submitted before the Court---Prosecution did not put in efforts to examine eye-witnesses including the injured one,. order sheet of Trial Court did not disclose that any summons was ever issued for production of eye-witnesses before the Court---If prosecution wanted to examine a witness not mentioned in list of witnesses in challan then prosecution was required to obtain permission from Court by moving an application under S.540, Cr. P. C., but there was no such application on record---As to non-availability of eye-witness at his given address then the statements of his neighbours in locality were to be recorded to show that he had shifted to some other place but no such statements of neighbours were produced in evidence---Possibility of preparation of false record could not be ruled out---Prosecution witness who arrested accused did not give the number of pistols secured from each accused nor the pistols were produced in the Court so as to be identified by the witness who secured them from accused---Without identification by the witness, pistol bearing a specific number could not be connected with accused---Ballistic expert's report carried no weight in the circumstances of the case---Prosecution failed to prove case against accused/appellants beyond any shadow of doubt---Appeal was allowed.

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

----S. 164---Omission of fact in statement recorded under S.164, Cr. P. C. ---Effect---Presence of eye-witness on the spot was because of a particular fact (purpose) which was not stated in his statement recorded under S.164, Cr. P. C. ; it was an omission as to a material aspect of the case which amounted to contradiction and the same materially affected entire prosecution evidence.

----Art. 129(g)---Failure to produce best piece of evidence available before the Court---Effect---Party was supposed to produce before the Court best piece of evidence available and if it failed to produce the same before the Court then the presumption was to be drawn that had the said piece of evidence been produced in the Court, the same would have been unfavourable to the party withholding it---Prosecution neither examined the injured witness nor the other eye-witness, therefore, a presumption could fairly be drawn that if both these witnesses were produced in the Court they would not have supported prosecution case---Non-examination of both eye-witnesses materially affected prosecution case.

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

----Art. 22---Identification parade---Purpose---Identification parade is held to judge the memory of a witness as to whether he was able to remember any particular feature of person whom he had seen at the place of occurrence and to be identified subsequently in identification test as the same person---Parade witness deposed that at the time of identification test both 'the accused had beard but Magistrate falsified the statement of witness by stating that one of the accused was without beard; as such the memory of witness was defective---Identification parade was moreover, held in the chamber of Magistrate which meant that witness had seen accused before identification parade was held--Witness having been unable to recognize main features of accused it was, unsafe to rely upon such type of evidence.

Mushtaq Ahmed and M. R. Syed for Appellants.

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

Date of hearing: 11th July, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 3223 #

2006 Y L R 3223

[Karachi]

Before Rahmat Hussain Jafferi, J

GULSHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.S-41 of 2003, decided on 15th August, 2006.

Penal Code (XLV of 1860)---

----Ss. 459, 324, 337-A (i), 337-A (iii), 337-F(iii) & 34---Criminal Procedure Code (V of 1898), Ss.164, 342, 367 & 540---Appreciation of evidence---Benefit of doubt---Identification test, evidentiary value of---Confession---Failure of Court to put specific questions to accused as to incriminating facts available in evidence against him---Judgment not rendered in terms of S.367, Cr.P.C.---Effect-Allegation against accused/appellants was that in the eventful night they entered the house of complainant, and caused a butt injury to complainant and fire-arm injury to eye-witness---Trial Court convicted and sentenced two accused/appellants to imprisonment for five years and acquitted two co-accused---Validity---Admittedly, complainant knew accused prior to incident but he did not name them in F.I.R.---Complainant and another eye-witness did not state that they went to the Court of Magistrate and identified accused in identification test held by Magistrate--Identification parade was not a substantive piece of evidence but it had a corroborative value to a substantive evidence--Substantive evidence in the present case was the evidence of complainant and other eye-witness but both of them did not state that they ever identified accused in any identification parade---Substantive piece of evidence being missing, the corroborative evidence lost its importance---Trial Court did not put the evidence of identification test to accused so as to obtain their explanation--If a piece of evidence was not put to accused in his statement under S.342, Cr.P.C. then the same was not to be used against him for his conviction---Evidence of identification parade was not to be used against accused---Magistrate had recorded .confession of one of the accused/appellants which was a substantive piece of evidence and the same was required to be put to accused in his statement recorded under S.342, Cr.P.C., but Trial Court failed to do so and destroyed a valuable piece of evidence--Trial Court also did not put the recovery evidence viz.; pistol, handkerchief and torch to accused to obtain their explanation, as such a valuable piece of evidence was destroyed---After recording statements of accused under S.342, Cr.P.C., on an application moved by prosecution under S.540, Cr.P. C. the Court called Magistrate who had held identification test and recorded his (Magistrate's) statement---Incumbent upon Trial Court to record statements of accused again so as to put evidence of identification parade to accused to obtain their explanation but Trial Court failed to discharge its duty and to conduct himself in accordance with law---Trial Court neither based its judgment on reasons nor made any discussion therein to arrive at decision of proving the guilt of accused---Judgment delivered by Trial Court was not to be termed as 'judgment' within the meanings of S. 367, Cr.P.C.---Case which was otherwise remandable was not remanded to Trial Court for the reasons that accused/appellants were to be put again in agony of protracted trial which amounted to abuse of process of law---Prosecution in circumstances, had failed to prove its case against accused beyond any reasonable doubt---Accused/appellants were entitled to benefit of doubt---Appeal was allowed. ?

Appellant in person.

Habibur Rehman Shaikh, A.A.-G. for the State.

Date of hearing: 15th August, 2006.

YLR 2006 KARACHI HIGH COURT SINDH 3268 #

SOBEY KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3256-B of 2005, decided on 7th September, 2005.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.364---Bail, grant of---Accused was in custody for the last more than twenty-eight months and the trial had not concluded so far---Accused being in jail could not be held liable for the delay---First Investigating Officer had held the accused to be innocent, but on transfer of investigation the D.S.P. had found him to be guilty---Accused was an elderly man of about eighty years of age and the conclusion of the trial was not in sight, as the Trial Court had asked for another period of six months to conclude the same---Prosecution could not be allowed to protract the trial till infinity---Consequence and the true import or implication of the utterance attributed to the accused in the F.I.R. would be adjudged and determined during the course of the trial---Culpability of the accused, thus, needed further probe within the meaning of subsection (2) of S.497, Cr. P. C. ---Even otherwise, accused could not be retained in custody as a measure of punishment---Accused was admitted to bail in circumstances.

Tahir Lateef Sheikh for Petitioner.

Ms. Samina Shehzadi for the State with Muhammad Yasin, S.I.

YLR 2006 LAHORE HIGH COURT LAHORE 8 #

2006 Y L R 8

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUDASSAR HUSSAIN KHAN---Petitioner

Versus

DISTRICT RETURNING OFFICER and 2 others---Respondents

Writ Petition No.14463 of 2005, decided on 22nd August, 2005.

Punjab Local Government Elections Rules, 2005---

----Rr. 14, 65 & 76---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Qualification of candidate to contest election---Article 199 of the Constitution can be invoked when there is no remedy provided under the law---Law provided remedy of filing appeal against the orders of Returning Officer in the present case---Petitioner, however, filed appeal after the expiry of prescribed time for which he could not claim bonus---Act provided under the law had to be done in a manner as required under the law only---Time having been fixed for filing appeal and the petitioner having failed to file appeal within that time, it would amount to not availing the remedy provided under the law---1f the constitutional petition was filed or Art.199 of the Constitution was invoked without availing the remedy of filing appeal, the constitutional petition was not maintainable---High Court observed that petitioner may avail remedy, still available, of filing an election petition under R.65 read with R.76 of the Punjab Local Government Elections Rules, 2005 on the same grounds, which would remain available to the petitioner.

2002 SCMR 1902 ref.

Ch. Muhammad Amin Javaid for Petitioner.

Dr. S. Farooq A. Hassan Barristerat-Law and Ch. Ghulam Rasool Bhatti for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 10 #

2006 Y L R 10

[Lahore]

Before Fazal-e-Miran Chauhan, J

SHEHAR YAR alias SHAHRI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.192 of 2005, decided on 20th July, 2005.

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

----S.302/34---Juvenile Justice System Ordinance (XXII of 2000), S.7---Trial Court had dismissed the application of accused for his separate trial under the Juvenile Justice System Ordinance, 2000---Validity---School Leaving Certificate as well as the Ossification Report of the Medical Board and of the Radiologist had shown the accused to be below the age of 18 years on the day of occurrence---Trial Court had mainly relied on the Birth Certificate produced by the complainant showing the accused to be above the age of 18 years on the day of incident, observing that the Birth Certificate had more evidential value than the expert opinion---Best test for determination of age was ossification and report of the Radiologist, the same having been based on the result of highly technical and advanced equipment--Impugned order was set aside accordingly and the accused being a juvenile was directed to be tried separately under the Juvenile Justice System Ordinance, 2000.

Sadeeque Khan v. The State 2004 YLR 2847; Sultan Ahmad v. Additional Sessions Judge and others PLD 2004 SC 758 and Mst. Shabana Kausar v. Farhan Ahmed and others 2003 PCr.LJ 1507 ref.

(b) Juvenile Justice System Ordinance (XXII of 2000)---

----S.7---Determination of age---Best test for determination of age is ossification and report of Radiologist, which having been based upon the result given by the highly technical and advanced equipment, have a rare chance of wrong decision.

Malik Zafar Mahmood Anjam for Petitioner.

Muhammad Anwar-ul-Haq Shah for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 12 #

2006 Y L R 12

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD ISMAIL---Petitioner

Versus

NUSRAT ALI SADDIQUI and another---Respondents

Writ Petition No.5121 of 2003, decided on 6th September, 2005.

Criminal Procedure Code (V of 1898)---

----S.514--- Penal Code (XLV of 1860), Ss.334, 337-L(ii), 337-D & 34---Constitution of Pakistan (1973), Art.199---Constitutional petition---Forfeiture of surety bond---Issuance of general warrants for attachment and sale of property of petitioner/surety---Accused for whom petitioner stood surety, had disappeared from the Trial Court and was declared proclaimed offender---Trial Court initiated proceedings under 5.514, Cr.P.C. against petitioner/surety and while forfeiting entire amount of Rs.60,000, directed petitioner to pay amount of penalty on specified date---Petitioner having failed to deposit forfeited amount up to specified date, warrants of attachment of movable property of petitioner, were issued---Validity---Petitioner was bound to get attendance of accused in the Court on each and every date of hearing, but accused had been acquitted by Trial Court---Even otherwise petitioner/surety stood surety of accused on humanitarian grounds and not for any monetary benefit---Balance should have been kept between undue leniency and undue severity by taking into consideration financial status of petitioner/surety as well as facts of the case---Impugned order passed by Courts below did not call for any interference and same was maintained, however keeping in view peculiar circumstances of case amount of penalty was reduced from Rs.30,000 to Rs.10, 000 in the interest of justice.

Lal v. The State 1990 PCr.LJ 1371 and Muhammad Khan v. The State 1986 PCr.LJ 1028 ref.

Mehr Haq Nawaz Humayun for Petitioner.

Mubashar Latif Gill, A.A.-G. for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 14 #

2006 Y L R 14

[Lahore]

Before Sh. Javaid Sarfraz, J

MUHAMMAD RAMZAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2599-B of 2005, decided on 13th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.458 & 411---Bail, grant of-Further inquiry---Accused was not named in F.I.R. and it was only through supplementary statement recorded subsequently that he had been involved in the case---Such fact would entitle accused to grant of bail---No identification parade was conducted---Case of further inquiry was made out by accused---Accused was involved in the case on basis of suspicion and on that account; he could not be kept in jail---Accused was behind the bars for the last six months and it would take long time before his case was finally decided---Keeping accused behind the bars for such a long time would not .serve any useful purpose---No concept of punishment before conviction---Accused, in circumstances was entitled to grant of bail.

Muhammad Rafique v. The State 1997 SCMR 971 and Muhammad Suleman v. Riasat All and another 2002 SCMR 1304 ref.

Ch. Muhammad Zulfiqar Cheema for Petitioner.

Muhammad Yousaf Syed for the State with Atta Ullah, S.I.

YLR 2006 LAHORE HIGH COURT LAHORE 15 #

2006 Y L R 15

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUBARIK KHAN DAFADAR B.M.P.---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Home Department and another---Respondents

Writ Petition No.2659 of 2003, decided on 28th June, 2005.

Constitution of Pakistan (1973)---

----Art. 4---General Clauses Act (X of 1897), S. 24-A---Duty and obligation of public functionaries to decide applications of citizens without fear, favour and nepotism with reasons within reasonable time.

Board of Intermediate and Secondary Education through Chairman and another v. Muhammad Younas 1998 SCMR 682 and Yasir Khan v. Vice-Chancellor, University of Punjab, Lahore and 3 others 2005 YLR 177 ref.

Bashir , Ahmad Chaudhry for Petitioner.

Mubashir Lateef Gill, A.A.-G.

Muhammad Arshad, Office Superintendent B.M.P., D.G. Khan.

YLR 2006 LAHORE HIGH COURT LAHORE 18 #

2006 Y L R 18

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD SULEMAN---Petitioner

Versus

NAZIR AHMAD and 5 others---Respondents

Criminal Miscellaneous No.188-CB of 2005, decided on 4th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.337-F(iv), 337-F(v), 337-A(i), 342, 148 & 149---Bail, cancellation of---Guiding principles---Guiding principles for cancellation of bail as laid down by Superior Courts were; (a) bail was granted by a Court having no jurisdiction to grant it; (b) accused on bail, committed same offence for which he was being tried or had been convicted; (c) accused on bail had hampered investigation; (d) accused on bail had tampered with evidence; (e) accused absconded after grant of bail; (f) accused got bail on the basis of false averments regarding his age or illness etc.; (g) accused was implicated as the principal offender in several cases which badly affected the society at large such as in cases of heroin smuggling; (h) grant of bail to accused had become a foundation of revenge against complainant party, prosecution or the witnesses and (i) bail order of subordinate Court was devoid of reasoning while granting bail and facts of case fully implicated accused for attracting S.497(1), Cr.P.C.-None of said conditions applied to the case of accused---Even otherwise both parties had set up their own versions regarding occurrence and in that way two versions were before investigating agency one from the side of complainant and other from side of accused and it was yet to be determined as to which party was actually the aggressor---Trial Court while passing a speaking order had granted pre-arrest bail to both parties---In absence of strong and exceptional grounds for cancellation of bail, same could not be cancelled---No useful purpose, in circumstances, would be served to send accused behind the bars.

Muhammad Ramzan v. Taj Muhammad and another 1996 PCr.LJ 2006 and Bashir Ahmad v. Mirza Muhammad Ayub 1991 MLD 579 ref.

Shaukat Bilal Khan Bangash for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 20 #

2006 Y L R 20

[Lahore]

Before Ch. Ijaz Ahmad, J

Malik MUHAMMAD ISHTIAQ---Petition r

Versus

ABIDA PARVEEN---Respondent

C. R. No.2001 of 2005, decided on 5th September, 2005.

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

----S.12---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Transfer of Property Act (IV of 1882), S.52---Suit for specific performance of oral agreement to sell---Interim injunction to restrain further sale of suit property, prayer for---Defendant's admission regarding plaintiff's possession over suit property as tenant---Refusal of interim injunction by Trial Court and Appellate Court---Filing of affidavits along with revision petition of persons before whom plaintiff allegedly had paid earnest money to the defendant---Validity---Plaintiff had not secured receipt from defendant regarding payment of earnest money---Such affidavits did not find mention in grounds of appeal filed before Appellate Court---Stance taken in plaint had to be proved by plaintiff by producing evidence---Courts below had refused to exercise discretion in favour of plaintiff with cogent reasons---Principle of lis pendens would be applicable to such case---High Court refused to consider such affidavits.

Ali Muhammad Khan v. Riaz-ud-Din Khera PLD 1981 Kar.170 ref.

Murad Begum v. Muhammad Rafique and other PLD 1974 SC 322; Agha Muhammad Afzal and 2 others v. Municipal Corporation, Rawalpindi and 10 others PLD 1992 Lah. 448; Shahzada Muhammad Umar Beg v. Sultan Mehmood Khan and another PLD 1970 SC 139; Messrs National Construction Ltd. v. Aiwan-i-Iqbal, Authority, Lahore PLD 1992 Lah.86; N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madrass 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.

(b) Pleadings---

----Parties would be bound by their pleadings.

---O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Essential ingredients stated.

Three ingredients for grant of ad interim relief are that petitioner has to show his good prima facie case in his favour; that balance of convenience is in his favour; and that he is likely to suffer an irreparable loss, if injunction is not granted.

Shahzada Muhammad Umar Beg v. Sultan Mehmood Khan and another PLD 1970 SC 139 fol.

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

----O.XXXIX, Rr.1 & 2---Observations in interim orders---Nature of---Such observations would be tentative in nature and could not be taken into consideration by Court while deciding main suit after recording evidence of parties.

M. Baleegh-uz-Zaman Chaudhry for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 23 #

2006 Y L R 23

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD BAKHSH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2708 of 2005, decided on 13th October, 2005.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), 5.489-F---Pre-arrest bail, refusal of--Issuance of cheque in question, presentation of same before concerned Bank and its dishonour, were admitted facts---Accused had failed to point out any mala fide or ulterior motive on the part of prosecution to falsely involve him in the case-Bail petition of accused was dismissed, in circumstances.

Ch. M. Zulfiqar Ali Chheena for G Petitioner.

Mubashar Latif Gill, A.A.-G.

Malik Muhammad Tariq Rajwana for the Complainant.

Miss Zahida Batool for the State.

Ghulam Muhammad, S.I.

YLR 2006 LAHORE HIGH COURT LAHORE 24 #

2006 Y L R 24

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL GHAFOOR---Petitioner

Versus

DILDAR HUSSAIN and 2 others---Respondents

Civil Revision No.370-D of 1991, heard on 6th July, 2005.

Tort---

----Malicious civil action---Suit for damages---Suit against petitioner for recovery of amount as damages, alleging that petitioner had filed a malicious civil suit against them---Respondents were summoned, they put in appearance, appointed a counsel and filed written statement---Petitioner withdrew his suit---Respondents claimed that plaint was wholly false and they were made to incur expenses in the matter---Petitioner, did not appear despite his service and he was proceeded against ex parse---Trial Court after recording evidence of respondents, dismissed suit on ground that suit was not contested on merits and having been withdrawn, damages could not be granted to respondents---Respondents filed first appeal against judgment of Trial Court---Petitioner appeared in Court and contested appeal which appeal was allowed by Appellate Court and suit filed by respondents was decreed---Validity---Evidence on record had fully established that suit filed by petitioner against respondents was absolutely false, which was not pressed by petitioner and was withdrawn---Respondents had proved expenses incurred by them due to false and malicious suit filed by petitioner against them---Suit for damages filed by respondents against petitioner on account of malicious civil action was competent and was rightly decreed by Appellate Court---Revision petition filed by petitioner against judgment of Appellate Court being without any force, was dismissed with costs throughout.

Mohamed Amin v. Jogendra Kumar Bannerjee and others AIR 1947 PC 108 and Muhammad Akram v. Mst. Farman Bi PLD 1980 SC 28 ref.

Ch. Muhammad Siddique Safdar for Petitioner.

Altaf Ibrahim Qureshi for Respondent.

Date of hearing: 6th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 26 #

2006 Y L R 26

[Lahore]

Before Ijaz Ahmad Chaudhry, J

IMAM BAKHSH---Petitioner

Versus

SADIQ HUSSAIN, S.H.O. and 2 others

Criminal Revision No.103 of 2005, decided on 11th July, 2005.

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

----Ss.203 & 439---Penal Code (XLV of 1860), Ss. 420/466/468/471---Prevention of Corruption Act (II of 1947), 8.5(2)---Complaint dismissed for non-prosecution---Effect---Dismissal of the private complaint for non-prosecution by the Trial Court could not be termed as acquittal of the accused from the charges on merits---Complainant, therefore, had no remedy of appeal under S.417(2), Cr.P.C. and the revision petition was maintainable against the impugned order---Accused admittedly had not appeared before the Trial Court after issuance of process to face the trial against them---Once the accused were summoned to face the trial by the Trial Court after having formed the opinion that sufficient grounds for proceedings against them were available, private complaint could not be dismissed for non-prosecution as it had become a State case---Impugned order having been passed without lawful authority was set aside and the case was remanded to Trial Court for further proceedings in the private complaint in accordance with law---Revision petition was accepted accordingly.

1995 PCr.LJ 1995 ref.

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

----S.203---Dismissal of private complaint for non-prosecution---Principles---Once the Trial Court summons the accused after having formed an opinion that sufficient grounds were available for proceeding against them, private complaint cannot be dismissed for non prosecution as it becomes a State case.

1995 PCr.LJ.1995 ref.

Petitioner in person.

Haji Muhammad Aslam Malik for Respondents Nos. 1 and 3.

YLR 2006 LAHORE HIGH COURT LAHORE 28 #

2006 Y L R 28

[Lahore]

Before Maulvi Anwarul Haq, J

PIR BAKHSH and 10 others---Petitioners

Versus

MUHAMMAD FAYYAZ and 2 others---Respondents

C.M. 1-C of 2005 in Criminal Revision No.760-D of 2005, decided on 15th July, 2005.

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

----Art. 140---Cross-examination as to previous statements in writing---Where a witness was to be contradicted with reference to some earlier statement or admission, that could be done only by confronting him with said previous statement.

Sikandar Hayat and 4 others v. Master Fazal Karim PLD 1971 SC 730 and Muhammad Yousaf and others v. Mst. Maqsooda Anjum and others 2004 SCMR 1049 ref.

Irshad Hussain Jafferi for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 32 #

2006 Y L R 32

[Lahore]

Before Maulvi Anwarul Haq, J

Malik TANVEER AHMAD---Petitioner

Versus

SHER NAWAZ BALOUCH and another---Respondents

Writ Petition No.1583 of 2005, heard on 10th October, 2005.

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

----S.204-Issue of process---Prerequisite---Court before issuing summons for the attendance of an accused has to satisfy itself that sufficient grounds are available for proceeding against him.

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

Ss.380/454/392---Criminal Procedure Code (V of 1898), S.204---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner was summoned as accused in the complaint case by Trial Court---Validity---Trial Court had to satisfy itself about the existence of sufficient grounds for proceedings against the accused before issuing summons for his attendance in the Court under S.204, Cr. P. C. ---Neither any ground was disclosed in the impugned order for summoning the accused, nor any such ground was available on the record---Impugned order to the extent of summoning the accused in the complaint case by the Trial Court was consequently declared to be without lawful authority and was set aside--- Constitutional petition was allowed accordingly.

Ch. Saghir Ahmad for Petitioner.

Mian Abdul Ghaffar for Respondents.

Date of hearing: 10th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 33 #

2006 Y L R 33

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD AZAM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.3905 of 2005, decided on 14th July, 2005.

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

----Ss. 5 & Sched., 14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of dower---Family Court had dismissed suit on ground that as dower in question was mentioned as deferred in Nikah Nama and as marriage between the parties still subsisted; wife was not entitled to claim same until marriage was dissolved by divorce or her death---Appellate Court set aside findings' of Family Court, holding that husband having contracted second marriage in contravention of provisions of S. 6 of Muslim Family Law Ordinance; 1961, wife had become entitled to recover even deferred dower---Validity---Contention that deferred dower could not be claimed unless marriage was dissolved by death of either party or till dissolution had no force because dower whether prompt or deferred was inalienable right of wife and after consummation, same would become vested right for a wife at any time---Appellate Court while reversing findings of Family Court on that issue neither had committed any illegality or irregularity nor same suffered from any jurisdictional defect---Findings of Appellate Court below were maintained and constitutional petition against said findings, was dismissed.

2000 CLC 1384 and Dr. Anees Ahmad v. Mst. Uzma PLD 1998 Lah.52 ref.

Ch. Muhammad Shafi Meo for Petitioner.

Abdul Jalil Khan for Respondent No.3.

Date of hearing: 14th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 35 #

2006 Y L R 35

[Lahore]

Before Fazal-e-Miran Chauhan, J

Mst. SHAHNAZ MAI---Petitioner

Versus

SUPERINTENDENT DAR-UL-AMAAN, MULTAN and 2 others---Respondents

Writ Petition No.3980 of 2005, decided on 21st July, 2005.

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

----Art.199---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Constitutional petition---Keeping a woman in Dar-ul-Aman against her wishes---Validity---High Court had directed in the earlier constitutional petition that the petitioner was to be lodged in Dar-ul-Aman as two persons were claiming her to be their legally wedded wife---Petitioner admittedly was adult, sui juris and had contracted marriage with her second husband of her free will and consent after having been divorced by her previous husband---Case had been registered against the petitioner by her parents in connivance with her previous husband denying the divorce---Petitioner had filed a suit for jactitation of marriage---Petitioner had moved the present constitutional petition seeking a declaration that her detention in Dar-ul-Aman was not consented by her and she be set at liberty enabling her to pursue the civil and criminal proceedings pending before the lower Courts---Petitioner, present in High Court, had categorically stated that she was not willing to stay in Dar-ul-Amaan and requested to be set at liberty to look after her matrimonial and other affairs of normal life---Adult and major woman who is capable to take decision cannot be forced to be lodged in Dar-ul-Amaan to curtail her right of liberty---Petitioner could not be kept in Dar-ul-Amaan for indefinite period against her wishes as a preventive detention in view of the above circumstances---Petitioner was consequently set at liberty to lead a normal life of a free person---Constitutional petition was allowed accordingly.

Mst. Nazeen v. Judicial Magistrate, Larkana and others 1999 MLD 1250; Muhammad Nawaz alias Mian v. Azhar and 11 others 1999 PCr.LJ 418 and Mir Muhammad v. The State and others 1995 PCr.LJ 2085 ref.

(b) Detention in Dar-ul-Amaan---

----Adult and major women who are capable to take decision cannot be forced to be lodged in Dar-ul-Amaan to curtail their rights of liberty.

Syed Athar Hasan Shah Bukhari for Petitioner.

Shahnaz Mai Petitioner in person.

Muhammad Qasim Khan, A.A.-G.

YLR 2006 LAHORE HIGH COURT LAHORE 38 #

2006 Y L R 38

[Lahore]

Before Syed Zahid Hussain, J

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman

and 5 others---Petitioners

Versus

MUHAMMAD BOOTA and 4 others---Respondents

Writ Petition No.15385 of 2005, decided on 22nd September, 2005.

Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 38---Electricity Act (IX of 1910), Ss.24 & 26---Constitution of Pakistan (1973), Art.199---Constitutional petition---Respondent had made an application under S.38, National Electric Power Regulatory Authority Act, 1997 and Ss.24 & 26 of the Electricity Act, 1910, which was disposed of by the Electric Inspector of the Provincial Government---WAPDA (petitioners), feeling aggrieved by the order of Electric Inspector made a reference to the Government of the Province/Advisory Committee under S.26(6), Electricity Act, 1910, which was dismissed---Contention of WAPDA was that such a reference was maintainable under S.26(6), Electricity Act, 1910 for which there was no limitation while the official respondent contended that under the law appeal was competent only before the Advisory Board, which was time barred---Record showed that matter was put up before the Board and it was noted that "appeal had been filed after expiry of 90 days" and on that the Chairman, Advisory Board proceeded to record the order "Not admitted being time-barred. May inform the appellant accordingly. "---Validity---Tenor of the order itself showed that neither the appellant nor his counsel was present when such an order was recorded---None was heard before passing of the said order---Without, therefore, adverting to the question as to whether it was a "reference" or "appeal" one thing that stood out conspicuously established was that the petitioners/ WAPDA were condemned unheard in the matter---WAPDA (petitioners) should have been afforded an opportunity of hearing as their case was that for a reference, law did not provide any limitation---High Court remitted the matter to the Department with direction to proceed with the reference/appeal and to decide the same in accordance with law expeditiously.

Mian Khurshid Alam Ramay.

Muhammad Yunis.

Ch. Aamir Rehman, Additional Advocate-General, Punjab.

Muhammad Yaqoob, Director Technical (Power) Member Advisory Board.

Muhammad Yaseen, Electric Inspector, Gujranwala.

Nazir Ahmed, S.D.O.

YLR 2006 LAHORE HIGH COURT LAHORE 41 #

2006 Y L R 41

[Lahore]

Before Muhammad Nawaz Bhatti, J

ABDUL SATTAR---Petitioner

Versus

Mst. RAEESA and others---Respondents

Writ Petition No.2708 of 2004, decided on 27th July, 2005.

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

----Ss. 5, Sched. & 14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suits for maintenance allowance, recovery of dower, recovery of dowry articles and for restitution of conjugal rights---Family Court dismissed suit for recovery of dower, decreed suit for restitution of conjugal rights and partially decreed suits for maintenance allowance and recovery of dowry articles---Parties filed respective appeals against judgment of Family Court, which were accepted and case was remanded to Family Court with direction to decide same in accordance with new issues framed, which were 13 in number---Constitutional petition had been filed against said order of Appellate Court---Issues framed by Family Court were not framed according to pleadings, of parties---Appellate Court below, in circumstances was right in remanding case to Family Court for framing new issues.

Arshad Anjam Chughtai for Petitioner.

Malik Muhammad Bakhsh Khaki for Respondents.

Date of hearing: 27th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 43 #

2006 Y L R 43

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD SALEEM ASLAM SHEIKH---Petitioner

Versus

CHIEF ELECTION COMMISSIONER and others---Respondents

Writ Petition No.2634 of 2005, decided on 25th July, 2005.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----S.157---Electoral Rolls Act (XXI of 1974), S.7---Electoral Rolls Rules, 1974, R.20---Constitution of Pakistan (1973), Art.199---Constitutional petition---Local Government Election---Absence of petitioner's name as voter in Electoral Rolls of Union Council, though his name existed in Electoral Rolls prepared for area of Town Committee---Inclusion of petitioner's name as voter in Electoral Rolls of Union Council, prayer for---Validity---Petitioner had earlier applied to Revising Authority under Electoral Rolls Act, 1974 for transfer of his vote from Town Committee to Union Council, but had never sought such transfer in terms of Electoral Rolls prepared exclusively for Local Government Election---Electoral Rolls for general election and Local Government Elections were prepared under different laws, thus, change in one would not automatically amount to change in another---Petitioner had never got his vote transferred from area of Town Committee to area of Union Council from Electoral Rolls prepared under Punjab Local Government

Ordinance, 2001---Schedule for inviting nomination papers of Local Government Election had already been issued and election process was in full swing---Election Authorities at such late stage could not be directed to include petitioner's name in Electoral Rolls of Union Council---High Court dismissed constitutional petition in limine.

(b) Punjab Local Government Ordinance (XIII of 2001)---

----S. 157---Electoral Rolls Act (XXI of 1974), S.7---Electoral Rolls prepared under Punjab Local Government Ordinance, 2001 and Electoral Rolls Act, 1974---Change in one Electoral Roll would not automatically amount to change in other Electoral Roll.

Muhammad Iqbal Sial for Petitioner.

Syed Shaheen Masood Rizvi, A.A.-G. with Zafar Iqbal, Deputy Election Commissioner, Bahawalpur.

YLR 2006 LAHORE HIGH COURT LAHORE 45 #

2006 Y L R 45

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM MUHAMMAD---Petitioner

Versus

MEMBER (JUDICIAL-V), BOARD OF REVENUE, PUNJAB, LAHORE

and others---Respondents

Writ Petitions Nos.6485 and 5503 of 2002, heard on 4th October, 2005.

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

----S.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Horse Breeding Scheme---Allotment under Horse Breeding Scheme---After the death of the allottee, the contesting respondent claimed to have a right to the allotment of the disputed land on the ground of being the heir of the said person---Petitioner also claimed his right to allotment of the disputed land on the basis of the report by the Revenue Authorities---Collector had found none of the candidates suitable for the allotment of the disputed land---Appeal was filed by both the contestants against the C decision of the Collector, but only petitioner succeeded---Revision petition was subsequently filed by the contesting respondent before the Member, Board of Revenue which was allowed but to the detriment of both the contestants---Constitutional petitions were filed by the contestants---Validity---Tenancy under the Horse Breeding Scheme was not inheritable---Contesting respondent, even as a legal heir, was thus not entitled to inherit the tenancy under Horse Breeding Scheme---Petitioners also could not prove through documentary evidence that according to the report by the Collector he had the relevant experience as a Horse Breeder to claim his right to allotment of the land---Constitutional petitions were dismissed in the circumstances.

Sub. Muhammad Ashraf v. Mst. Safia Begum and another PLD 1976 SC 435 ref.

Abdul Rab and others v. Wali Muhammad and others 1980 SCMR 139 and Ali Muhammad and 13 others v. The Province of West Pakistan and another PLD 1969 Lah.951 distinguished.

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

----S.10---Tenancy under Horse Breeding Scheme, whether inheritable---Tenancy which was to be granted under the Horse Breeding Scheme for a fixed period to be renewed from time to time was subject to termination on expiry of lease or death of tenant and was not heritable---Practice of declaring tenancies having fallen vacant on the death of a tenant and thereafter giving preference to the heirs of the deceased was deprecated.

Sub. Muhammad Ashraf v. Mst. Safia Begum and another PLD 1976 SC 435 ref.

Abdul Rab and others v. Wali Muhammad and others 1980 SCMR 139 and Ali Muhammad and 13 others v. The Province of West Pakistan and another PLD 1969 Lah.951 distinguished.

Mian M. Siddique Kamiana and Chaudhry Muhammad Hussain Jehanian for Petitioner.

Zafarullah Khan Khakwani, A.A.-G.

Ch. Muhammad Ashraf for Respondent No.3./L.Rs.

2006 Y L R 59

[Lahore]

Before Ch. Ijaz Ahmad, J

SHAHEEN ---Petitioner

Versus

MUHAMMAD ALI---Respondent

T.A. No.503-C of 2004, decided on 6th September, 2005.

Civil Procedure Code (V of 1908)---

----S. 24---Muslim Family Laws Ordinance (VIII of 1961), S.7-Specific Relief Act (I of 1877), Ss.42 & 54---Delegation of right of divorce to applicant/wife---Notice to respondent/husband through Chairman Arbitration Council---Suit for declaration and permanent injunction by respondent against applicant---Transfer of suit---Application for---Respondent having delegated right of divorce to applicant, she sent a notice to respondent through Chairman Arbitration Council at place 'L'---Respondent filed suit for declaration and permanent injunction against applicant in Court at place 'R'---Applicant filed application for transfer of suit filed by respondent at place to place 'L' where her matter of divorce was pending before Chairman Arbitration Council---Courts would give due weight/benefit to inconvenience of ladies as compared to men---Application filed by female applicant was allowed as prayed for by her and suit for declaration and permanent injunction filed by respondent which was pending in Court at place 'R' was ordered to be withdrawn from said Court and to entrust the same to Civil Judge at place 'L' who would entrust same to competent Civil Judge/Magistrate who would proceed in the matter accordingly.

Ms. Hifza Aziz for Petitioner.

Nemo for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 61 #

2006 Y L R 61

[Lahore]

Before M. Bilal Khan, J

TURABUL HASSAN ---Petitioner

Versus

DISTRICT OFFICER REVENUE, TOBA TEK SINGH and 7 others---Respondents

Writ Petition No.15664 of 2005, decided on 12th September, 2005.

(a) Prevention of Corruption Act (II of 1947)---

----S.5(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of order---Contention that only the Anti-Corruption Establishment could take action against a Government servant or public servant and that the District Officer Revenue and the Deputy District Officer Revenue had no such authority, had no force---Said Revenue Authorities being the custodian of the Revenue Record, were responsible for initiating appropriate action against any tampering with or fabrication of the Revenue Record---Forgery, fabrication or tampering with any official record was a crime by all definitions---No universal principle was available that during the pendency of civil suit a criminal case could not be registered---Constitutional petition was dismissed in limine accordingly.

Shafqat Hussain and another v. Malik Sarfraz and another 2000 PCr.LJ 1995; Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah. 109; Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556; Syed Muhammad Ahmad v. The State 1972 SCMR 85; Akhtar Hussain Zaidi v. The State PLD 1985 Lah. 662 and Sana Ullah v. S.H.O. Police Station Civil Lines, Gujrat and 3 others PLD 2003 Lah. 228 ref.

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

----S. 154---Information in cognizable cases---Second F.I.R., registration of--Second F.I.R. can be registered regarding the same transaction.

Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556 ref.

----S. 154---Information in cognizable cases---Registration of F.I.R.---Purpose---Purpose of lodging an F.I.R. is not only to set the criminal law in motion, but also to provide a solid basis for the investigating agency to investigate the case.

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

----S. 154---Information in cognizable cases---Registration of criminal case during the pendency of civil suit not barred---No universal principle exist that during the pendency of civil suit a criminal case cannot be registered.

Syed Muhammad Ahmad v. The State 1972 SCMR 85; Akhtar Hussain Zaidi v. The State PLD 1985 Lah. 662 and Sana Ullah v. S.H.O., Police Station Civil Lines, Gujrat and 3 others PLD 2003 Lah. 228 ref.

Taffazal H. Rizvi for Petitioner.

Ch. Aamir Rehman, Addl. A.-G. assisted by Tanvir Ahmad Shami (on Court's call).

YLR 2006 LAHORE HIGH COURT LAHORE 63 #

2006 Y L R 63

[Lahore]

Before Syed Zahid Hussain, J

AMIR FAYYAZ ALI KHAN through General Attorney---Petitioner

Versus

MEMBER, BOARD OF REVENUE JUDICIAL-1 and 4 others---Respondents

Writ Petition No.101-R of 2004, decided on 29th September, 2005.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application under S.12(2), C.P.C. in the present case, was addressed to and moved before the Member, Board of Revenue/Chief Settlement Commissioner, who entrusted the matter for inquiry to the Deputy Settlement Commissioner and to submit the report---Deputy Settlement Commissioner, instead of submitting a report to the Member, Board of Revenue/Chief Settlement Commissioner, proceeded to pass order and dismissed the application of the petitioner---Validity---Deputy Settlement Commissioner could not have done so as in doing that, he had exceeded his authority and jurisdiction---Order passed by the Deputy Settlement Commissioner, in circumstances, could not be regarded as a lawful exercise of jurisdiction and said order could not have any legal efficacy except that the same might be treated by Member, Board of Revenue as an inquiry report---Member, Board of Revenue was to pass an effective and operative order on the application of the petitioner which would be deemed pending for hearing and decision according to law---Parties were directed by the High Court to cause their presence on specified date before the Member, Board of Revenue who would proceed to decide the application of the petitioner in accordance with law expeditiously preferably within one month---High Court observed and clarified that there should remain no doubt that it will be open for the parties to raise all available pleas including as to the competency of proceedings before the Member, Board of Revenue/Chief Settlement Commissioner and present order of the High Court would not be construed as a remand order and Member, Board of Revenue would dispose of the matter with open mind in accordance with law.

Ahmad Waheed Khan for Petitioner.

Ms. Samina Yousaf and Mian Zafar Iqbal Kalanauri for Respondent No.3.

Aish Muhammad Khan Sara for Settlement Department.

YLR 2006 LAHORE HIGH COURT LAHORE 65 #

2006 Y L R 65

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. HUSINA BIBI---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION, SHAHR SULTAN, DISTRICT MUZAFFARGARH and 5 others---Respondents

Writ Petition No.5743 of 2005, decided on 13th October, 2005.

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

----S.491---Constitution of Pakistan (1973), Arts. 199, 10 & 35---Habeas corpus petition---Petitioner could not be kept in Darul Amaan for an indefinite period against her wishes which was not only violative of fundamental rights under Article 10 of the Constitution, but also militated against the right of marriage protected by the Constitution under Article 35---Matter, despite lapse of seven months, was being kept pending for one reason or the other---Nikahnama produced by the complainant could not so far be verified by the police officer despite order of High Court---Petitioner claimed herself as the wife of her present husband and she being a sui juris Muslim girl had the exclusive right to decide with whom to marry and she could not be compelled to disassociate her relation with her husband simply because her marriage was not approved by her parents-Petitioner was directed to be released from Darul Amaan with the permission to accompany her husband in circumstances---However, the investigation in the case was directed to proceed on its merits and the findings of the Judge Family Court were to decide the fate of the criminal case registered against the petitioner---Petition was disposed of accordingly.

PLD 1984 SC 95 and Abdul Waheed Roperi v. Aasima Jehangir 2004 SC 219 ref.

(b) Islamic Law---

----Marriage---Validity---Sui juris Muslim girl has the exclusive right to decide with whom to marry and she cannot be compelled to disassociate her relations with her husband for the simple reason that her marriage was not approved by her parents.

Abdul Waheed Roperi v. Aasima Jehangir 2004 SC 219 ref.

Muhammad Ayub Khan Alizai for Petitioner.

Syed Asif Raza Gillani for Respondent No.3.

Allah Diwaya, S.-I.

Muhammad Aslam, Assistant, Darul Amaan, D.G. Khan.

Hazoor Bakhsh father of Mst. Husina Mai in person.

YLR 2006 LAHORE HIGH COURT LAHORE 68 #

2006 Y L R 68

[Lahore]

Before Maulvi Anwarul Haq, J

AKHTAR ALI and another---Petitioners

Versus

Mst. HALEEMA BIBI and another---Respondents

Civil Revision No.683 -D of 2002, heard on 22nd September, 2005.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Transfer of land under a power of attorney to a relative, legality of---Land was inherited by plaintiffs along with the defendant as joint owners---Suit was filed by the plaintiffs sisters alleging that their defendant brother had transferred the said land in favour of his defendant son, by representing himself as the general attorney of the plaintiffs---Suit of the plaintiffs was decreed by the trial Court---Appeal filed by the defendants was dismissed by the Appellate Court---Contention of the plaintiffs in revision was that all efforts were made to produce the witness of power of attorney but could not be produced due to his absence from the village---Execution of power of attorney was proved and the transactions were lawful and with consideration---Contention of the plaintiffs that there was no evidence that the defendant brother was even appointed as an attorney by them, or he proceeded to transfer the land to his defendant son after consultation with the plaintiffs or any consideration was ever paid to the plaintiffs for the same---Validity---Documentary evidence and the testimony of witnesses on record showed that neither the plaintiffs were consulted nor were informed before the defendant transferred the said land in favour of his son---Both the defendant and his son during evidence, had falsified each others' statements in matters of consideration---Mere fact that a person was authorized by means of recital in the power of attorney to alienate the land would not render the transaction entered into by him to be with lawful authority particularly where he proceeded to transfer the land to his own close relative, which in the present case was his son---Petition was dismissed in circumstances.

Muhammad Arif and 2 others v. Zafar Iqbal 2005 YLR 1479 ref.

Syed Kabeer Mehmood for Petitioners.

Ch. Abdul Ghani for Respondents.

Date of hearing: 22nd September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 71 #

2006 Y L R 71

[Lahore]

Before M. Bilal Khan, J

NISAR AHMAD SIDDIQI and 2 others---Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION, CITY MIANWALI

and another---Respondents

Writ Petition No.5959 of 2005, heard on 7th September, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), Ss.294-A, 294-B, 420, 468 & 471---Punjab Prevention of Gambling Ordinance (VII of 1978), S.5---Constitutional petition---Quashing of F.I.R.---S.H.O. concerned despite having knowledge of date of hearing of Constitutional petition, submitted challan in Court one day prior to date of hearing of petition, which had clearly shown that whole action was taken hurriedly with a view to thwarting and sabotaging proceedings in High Court---Record also showed that thereafter Deputy Inspector General of Police ordered yet another inquiry into the matter on plea that Inspector/S.H.O. had controverted the findings of first Investigating Officer and according to Police, latter Inquiry Officer had found that incident was genuine and proceeded to exonerate Inspector/S.H.O.-Whole incident was shrouded in mystery and possibility that fresh inquiry had been conducted and a favourable report procured therein only with a view to protecting and shielding the concerned police official, could not be ruled out---Any proceedings on the basis of present F.I.R., which had been held to be false and forged initially by police itself could not be allowed to proceed---Allowing such an F.I.R. to hold the field would amount to a blatant abuse of process of law, which could not be allowed to be perpetuated---Allowing Constitutional petition, impugned F.I.R. was quashed by the High Court declaring it to be without lawful authority and of no legal effect.

Mian Jameel Akhtar for Petitioners.

Ch. Aamir Rehman, Addl.A.-G. assisted Tanvir Ahmad Shami for the State with Muhammad Aslam Ghauri, D.P.O., Khalid Mahmood, Inspector/S.H.O. and Ghulam Muhammad, Inspector (Investigation), Mianwali.

Date of hearing: 7th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 73 #

2006 Y L R 73

[Lahore]

Before Muhammad Jehangir Arshad, J

SAHIB DAD KHAN---Petitioner

Versus

LAL KHAN NIAZI---Respondent

Civil Revision No.857 of 2005, decided on 22nd September, 2005.

(a) Punjab Pre-emption Act (IX of 1991)--------

----S. 24-Deposit of sale price of property---Extension of time for the deposit of sale price---Validity---Concept for determination of the probable value of property before passing direction for deposit---Recourse to determination of probable value of property, when to be made---Suit for pre-emption filed by the pre-emptor was dismissed by the Trial Court on the ground that the pre-emptor had failed to deposit one-third of the amount of sale price as mentioned in the mutation---Appeal filed by the pre-emptor against the decision of the Trial Court was allowed by the Appellate Court with the direction to the Trial Court to first fix probable value of the suit property after recording evidence and then order for deposit of 1/3rd of that value to be paid by the pre-emptor within the period fixed by the Court---Trial Court had committed a legal mistake in the first instance to dismiss the suit of the pre-emptor, as it impliedly amounted to extending time for the deposit of 1/3rd of the price shown in the mutation, whereas there was no concept at all to extend the time for deposit of such price in view of provisions of S.24 of the Punjab Pre-emption Act, 1991---Section 24 of the Act clearly provided for the deposit of 1/3rd of the sale price of the property in cash within a period not extendable in any case beyond 30 days of filing of the suit---Both the Courts below had adopted a course that was not legal---Trial Court had acted without jurisdiction because non-deposit on the part of the pre-emptor was not due to his fault alone but on account of the Court as well which did not have notice to the price mentioned in the mutation---Appellate Court had equally acted without jurisdiction by directing the Trial Court for fixing probable value of the disputed property after recording of evidence---Section 24(1) of the Act clearly provided that the recourse to the determination of probable value of the property was only to be made when the sale price could not be determined from the sale-deed or the mutation or had appeared to be inflated---Determination of probable value of the property by the Trial Court on the directions of the Appellate Court would allow the pre-emptor to circumvent the object of the provisions of S.24(1) of the Act by lingering on the suit, as the pre-emptor could resort to an appeal against the determination of probable value---Petition was disposed of, in circumstances, with the direction that the pre-emptor would deposit 1/3rd of the sale price mentioned in the mutation with the Trial Court.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.24---Object of S.24, Punjab Pre-emption Act, 1991---Provision of S.24 was enacted for protecting the right of vendees against frivolous suits under the Punjab Pre-emption Act, 1991 and it was under these circumstances that even the powers of the Trial Court to extend for deposit of 1 /3rd of the sale price were taken away, as against similar provisions in the repealed Punjab Pre-emption Act, 1913.

Inyatullah Khan Niazi for Petitioner.

Zahid Hussain Khan for Respondent.

Date of hearing: 21st September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 77 #

2006 Y L R 77

[Lahore]

Before Sh. Javaid Sarfraz, J

GHAZANFAR ABBAS alias GHAZOO and another---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No.108 of 2005, decided on 13th October, 2005.

Penal Code (XLV of 1860)---

----S.302/34---Criminal Procedure Code (V of 1898), Ss.265-C & 439---Supply of statements and documents to accused---Accused had sought copies of the statements recorded by the Investigating Officer favouring the accused as well as of the version of accused so recorded by him---Legal points involved in the petition had been elaborately dealt with by a Full Bench of Lahore High Court in the case of "Muhammad Riaz and another v. The State" PLD 2003 Lahore 290---Matter was, therefore, remanded to the trial Court to examine the same in the light of the said full Bench judgment relied upon by the accused and to provide them the copies of the statements which they were entitled to get---Revision petition was disposed of accordingly.

Muhammad Riaz and another v. The State PLD 2003 Lah. 290 rel.

Nasrullah v. The State 1980 PCr.LJ 5; Muhammad Aslam v. The State PLD 1995 Lah. 632; Liaqat Ali and another v. The State 1998 PCr.LJ 216 and Dost Muhammad v. The Additional Sessions Judge, Okara and another Criminal Revision No.432 of 2005 ref.

Ch. Pervaiz Aftab for Petitioners.

Muhammad Javed Hashmi for the Complainant.

Muhammad Sabir Qureshi for the State with Khizar Hayat, A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 79 #

2006 Y L R 79

[Lahore]

Before Ch. Ijaz Ahmad, Actg. C J

ASAD SHUJA SIDDIQUI through General Attorney---Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY, LAHORE through Director General and 6 others---Respondents

Writ Petition No.7298 of 2004, heard on 12th September, 2005.

Constitution of Pakistan (1973)-----

---Art.199---Constitutional petition---Factual controversy---Concealing of facts---Grievance of petitioner was that Development Authority had refused to grant exemption to him---Authority contended that the original owner had sold his land and the exemption had already been granted to the vendees---Authority further contended that if the petitioner had any claim that was against the original owner and civil suit in that respect was pending before Civil Court---Validity---Petitioner had concealed material facts from High Court and civil suit was pending between private parties---Constitutional jurisdiction being discretionary in character a person who sought equity must come to the Court with clean hands---High Court had no jurisdiction to resolve disputed questions of fact in constitutional jurisdiction---Petitioner had alternative remedy of filing a civil suit before a competent Court for resolution of disputed questions of fact---High Court declined to exercise discretion in favour of the petitioner---Petition was dismissed accordingly.

Principal KEMC Lahore v. Ghulam Mustafa and others 1983 SCMR 196; Muhammad Umar Saeed v. Government of West Pakistan and another 1969 SCMR 141; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; G. M. Malik Chairman v. Province of Punjab and others 1990 CLC 1783; Kh. Muhammad Sharif v. Federation of Pakistan and others PLD 1988 Lah. 725; Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166; Rana Muhammad Arshad Commissioner v. Additional Commissioner Revenue and others 1998 SCMR 1462 and Ch. Tanbir Ahmad Siddiky v. Province of East Pakistan and others PLD 1968 SC 185 rel.

Ch. Shaukat Ali Saqib for Petitioner.

Mian Muzaffar Hussain, LAILDA for Respondents Nos.1, 4 and 5.

M. Hanif Khatana, Addl. A.-G. for Respondent.

Khawaja Muhammad Afzal and Nazir Ahmed Qureshi for Respondent No.7.

Date of hearing; 12th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 83 #

2006 Y L R 83

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. RABIA and another---Petitioners

Versus

D.P.O., MUZAFFARGARH and 2 others---Respondents

Writ Petition No.2697 of 2005, heard on 20th July, 2005.

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.---Lady accused according to the report of Medical Board was 17/18 years old and from her physique and appearance while present in Court she seemed to be major---No allegation was levelled to the effect that the accused had still not attained puberty---Both the accused claimed to have contracted marriage with free-will and consent of the lady accused who even had not supported the prosecution story---Accused, therefore, could not be held guilty of the offence merely for the reason that their Nikahnama was not got registered---Each time when the lady accused was produced in Court from Darul Amaan she had made a consistent statement that she was not abducted by anybody and admitted to have contracted marriage with her co-accused with her free-will and consent---Further proceedings in the F.I.R., in the circumstances, would be abuse of process of law, which could not be allowed to continue as it would be a sword hanging on the heads of both the accused for pressurizing them to dissolve the marriage according to the wishes of the complainant---F.I.R. was quashed accordingly.

Muhammad Tariq Mehmood v. 'S.H.O. 1997 PCr.LJ 758; Mst. Sher Bano v. The State 2004 PCr.LJ 349; Mst. Zaib-un-Nisa v. S.H.O. and others 2003 YLR 2576; Arif Hussain and others v. The State PLD 1982 FSC 42; Hafiz Abdul Waheed v. Mrs. Asma Jehangir PLD 2004 SC 219; PLD 2000 FSC 63; 1987 MLD 1637; NLR 1990 SC 190; PLD 1980 Lah.7; PLD 1980 Lah. 14; PLD 1985 SC 942; 1997 MLD 962; 1997 MLD 641; 1997 PCr.LJ 1437; 2000 YLR 960; PLD 2003 SC 849; 1970 SCMR 437 and PLD 1984 FSC 93 ref.

Mian Bashir Ahmad Bhatti assisted by Tahir Mehmood for Petitioners.

M.R. Khalid Malik Addl. A.-G., Malik Muntazir Mehdi for Respondent No.3.

Muhammad Shafi, S.-I. with Record.

Date of hearing: 20th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 87 #

2006 Y L R 87

[Lahore]

Before Ch. Ijaz Ahmad and Muhammad Khalid Alvi, JJ

NASIR KHAN---Appellant

Versus

PROVINCE OF PUNJAB through Secretary Irrigation, Punjab, Lahore and others---Respondents

R.F.A. No.57 of 2001, heard on 6th September, 2005.

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

----S. 34---Recovery of money---Arbitration clause---Stage of invoking such clause---Right of arbitration, waiver of-Dismissal of suit without adverting to arbitration---Suit for recovery of money was dismissed by Trial Court in view of presence of arbitration clause in the agreement between the parties---Validity---Defendant before filing his written statement or taking any other step in the proceedings could apply, under S.34 of Arbitration Act, 1940, to Trial Court to stay the proceedings so as the matter might be referred to or considered by arbitrators, under the agreement to which he and the plaintiff were parties---Plaintiff already having invoked jurisdiction other than the arbitrator by way of initiating proceedings against defendant had by his choice waived his right to arbitration---If the defendant before joining the proceedings before the Court/authority did not make application under S.34 of Arbitration Act, 1940, he also had waived his right of arbitration---Both the parties to the arbitration agreement by their conduct had agreed not to go to arbitration---Proceedings in the matter would continue in accordance with law---If any such application was made then the Court/authority after considering the same, at the most could stay the proceedings till the arbitration was finalized---Mere existence of arbitration agreement did not authorize a Court/authority to dismiss such proceedings outright---Judgment and decree passed by Trial Court was set aside and the case was remanded to Trial Court for trial in accordance with law---Appeal was allowed in circumstances.

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

----S.11---Res judicata, principle of--Applicability-Judgment passed by High Court was not agitated by any of the parties before any higher forum, such judgment of High Court was binding upon parties on the principle of res judicata.

Pir Bakhsh v. The Chairman Allotment Committee and others PLD 1987 SC 145 rel.

Riaz Karim Qureshi for Appellant.

Muhammad Hanif Khatana, Addl. A.-G. for Respondents.

Date of hearing: 6th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 91 #

2006 Y L R 91

[Lahore]

Before Ijaz Ahmad Chaudhrry, J

MUHAMMAD IBRAHIM---Petitioner

Versus

SUPERINTENDANT, CENTRAL JAIL, D.G. KHAN and

another---Respondents

Criminal Miscellaneous No.238-H of 2005, decided on 6th September, 2005.

Criminal Procedure Code (V of 1898)---

----S.491---Constitution of Pakistan (1973), Art.45---Penal Code (XLV of 1860), S.302---Anti-Terrorism Act (XXV11 of 1997), Ss.7 & 21-F---Habeas corpus petition---Accused was sought to be released from Jail by allowing remissions granted to the convicted persons by the President of Pakistan from time to time---Authority which had granted remissions had withheld the same in the case of convicts of terrorist acts---Accused having been found guilty under S.7 of the Anti-Terrorism Act, 1997, was not entitled to grant of remissions as per instructions contained in the Circulars relied upon and placed on, record on behalf of accused---Grant of remissions to the accused being a child under S.21-F of the Anti-Terrorism Act, 1997, was also irrelevant as the same could be granted in accordance with the said Circulars and the Court could not substitute its opinion while exercising jurisdiction under S.491, Cr.P.C.---Detention of accused in Jail could not be declared as illegal because according to the report of the Superintendent Jail he had still to undergo about 15 years imprisonment---Petition was dismissed in circumstances.

Tariq Mehmood Khan for Petitioner.

Zafarullah Khan Khakwani for Respondents.

Syed Muhammad Hanif Shah, Assistant Superintendent Central Jail, Dera Ghazi Khan.

YLR 2006 LAHORE HIGH COURT LAHORE 93 #

2006 Y L R 93

[Lahore]

Before Muhammad Jehangir Arshad, J

GHULAM NABI and another---Petitioners

Versus

MANAK and another---Respondents

Civil Revision No.273-D of 1997, heard on 21st September, 2005.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13---Suit for pre-emption--Performance of Talbs, requirement of-Suit filed by the pre-emptors, against the sale of land in favour of the defendants, claiming right of pre-emption on the basis of being co-sharers was dismissed by the Trial Court on the findings that the pre-emptors did not fulfil the necessary requirements for performance of Talbs---Appeal preferred by the pre-emptors against the said dismissal was also unsuccessful---Contention of the pre-emptors was that the findings of the Courts below suffered from misreading and non-reading of evidence and were not in line with the judgments of Supreme Court---Validity---Evidence produced by the pre-emptors had failed to sufficiently disclose the necessary particulars of Talb-i-Muwathibat---Requirements of Talbs must not be held as fulfilled, without evidence---Unless Talb-i-Muwathibat was established, other two Talbs, i.e. Talb-i-Ishhad and Talb-i-Khushumat, even if proved, would be of no help to the pre-emptors---No misreading or non-reading of evidence having been found on the part of the Courts below, petition was dismissed in the circumstances.

2000 SCMR 329; Fateh Muhammad's case 2000 CLC 409; Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201 and Allah Bakhsh and another v. Falak Sher 2004 SCMR 1580 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.13---Suit for pro-emption---Talb-i-Muwathibat, performance of---Pre-emptors were not required to pinpoint specific time and place about making of Talb-i-Muwathibat and other details in the plaint---Fact whether the pre-emptors succeeded in proving the requisite Talbs could also not be lost sight of by the Court while deciding issues of Talbs in the context of evidence led by parties, otherwise incorporation of requirement of performance of Talbs in the Punjab Pre-emption Act, 1991 under S.13 would become redundant.

2000 SCMR 329 ref.

----S.13---Suit for pre-emption---Talbs, performance of-Establishing of Talbs---Unless Talb-i-Muwathibat was established, other two Talbs, i.e. Talb-i-Ishhad and Talb-i-Khushumat, even if proved, would be of no help to the pre-emptors.

Fateh Muhammad's case 2000 CLC 409 ref.

Sh. Naveed Shehryar for Petitioners.

Allah Bukhsh Gondal for Respondents.

Date of hearing: 21st September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 96 #

2006 Y L R 96

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD HUSSAIN---Petitioner

Versus

CIVIL JUDGE, ALIPUR DISTRICT MUZAFFARGARH/JUDGE FAMILY

COURT and another---Respondents

Writ Petition No.3166 of 2005, heard on 14th July, 2005.

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

----S.5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage---Entitlement of husband to recover properties and ornaments given to wife as Haqul-mehr---Scope---Suit for dissolution of marriage filed by respondent/wife against petitioner husband having been decreed, petitioner had assailed order of Family Court through constitutional petition---Respondent in her suit for dissolution of marriage had categorically averred that relations between parties became strained as petitioner had levelled obnoxious allegations against her and considered her to be a woman of bad character, which according to her, were false and no possibility was or re-union between parties to live together under limits ordained by Allah---Contention of petitioner that in lieu of decree for dissolution of marriage, respondent should have been ordered to return dower etc., was repelled as respondent had not claimed dissolution of marriage on ground of Khula, but she asked for the same alleging cruelty and levelling of false allegations by petitioner against her---Petitioner had failed to show that he was not at fault and respondent had asked for dissolution of marriage without any just cause and reason---Trial court, in circumstances, had committed no illegality by not directing respondent to return benefits derived by her in lieu of decree for dissolution of marriage---Impugned judgment and decree, were maintained in circumstances.

1984 CLC 3369 and PLD 1998 Lah. 52 ref.

Malik Muhammad Shabbir Langerial for Petitioner.

Respondent No.2 in Person.

Date of hearing: 14th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 99 #

2006 Y L R 99

[Lahore]

Before M. Bilal Khan, J

SANA ULLAH---Petitioner

Versus

THE STATE ---Respondent

Criminal Miscellaneous No.197-B of 2005, decided on 4th October, 2005.

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

----S. 497(2)---Penal Code (XLV of 1860), S.302---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Bail, grant of-Section 302, P.P.C. had been deleted from the F.I.R,---Accused had voluntarily run the risk by submitting himself to the DNA test which could have proved fatal for his case under S.10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but a conclusive report could not be given by the Applied Molecular Biology Centre, because the DNA profile obtained from the stains cut from the "shalwar" of the victim was incomplete---Applicability of the S.10 of the Ordinance, in circumstances, needed further probe as contemplated by S.497(2), Cr. P.C.---Trial had not yet concluded despite the direction already issued by the High Court-Bail was allowed to accused in circumstances.

Muhammad Umar v. The State PLD 2004 SC 477 ref.

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

----S.497(2)---Bail---Commencement of trial was no ground for refusing bail---Submission of challan in the Trial Court or even commencement of trial will not deter High Court from extending the concession of bail to an accused, if 'otherwise he is entitled to the said concession on merits.

Muhammad Umar v. The State PLD 2004 SC 477 ref.

Zafar Iqbal Chohan for Petitioner.

Ch. Aamir Rehman, Addl. A.-G. assisted by Malik Mubarik Ali for the State.

Sabir Hussain A.S.-I.; Police Station, Chak Jhumra, District Faisalabad with Police File.

YLR 2006 LAHORE HIGH COURT LAHORE 102 #

2006 Y L R 102

[Lahore]

Before Maulvi Anwarul Haq, J

ALLAH BAKHSH---Petitioner

Versus

MUHAMMAD RAMZAN through Allah Bakhsh---Respondent

Civil Revision No.1-D of 2003, heard on 4th October, 2005.

Specific Relief Act (I of 1877)---

----S. 42--- Contract Act (IX of 1872), S.24---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(VII)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)---Suit for declaration relating to mutation attested in favour of defendant as illegal and void---Suit was decreed by Trial Court but decree was set aside in appeal---Contention of defendant was that plaintiff's daughter was given in Nikah to him but due to minority Rukhsati did not take place but later on plaintiff married his daughter to another man---Complaint under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was filed---Subsequently matter was referred to arbitrators who decided the matter and in pursuance of said decision mutation was made in favour of defendant in lieu of Zar-e-Khula---Validity---Witnesses stated that plaintiff's daughter had repudiated her Nikah with defendant by executing an affidavit before her re-marriage and that her marriage with defendant was never consummated as no Rukhsati had taken place---Moreover petitioner had not thumb marked the mutation and further no consideration was paid---Transaction vide impugned mutation was thus wholly illegal and being without consideration and in any case said transaction having been made in lieu of getting the criminal complaint rejected, the object and the consideration was against law and the agreement was void and not enforceable---Impugned appellate judgment and decree was set aside while that of Trial Court was restored---Civil revision was allowed in circumstances.

Malik Muhammad Sharif for Petitioner.

Malik M. Latif Khokhar for Respondent.

Date of hearing: 4th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 105 #

2006 Y L R 105

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. GHULAM FATIMA---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Revision No.309 of 2005, decided on 18th July, 2005.

Criminal Procedure code (V of 1898)---

----Ss.491 & 439---Custody of the minor---Alleged detenue from the material available on the file, prima facie, was proved to be major and the story narrated by the petitioner regarding her forcible abduction by her father (respondent) seemed to be doubtful---Custody of his major daughter with the father could not be declared illegal and improper---No illegality or jurisdictional defect could be pointed out in the impugned order passed by the Sessions Court, whereby the application of the petitioner regarding custody of her daughter had been dismissed with valid reasons---Revision petition was dismissed in limine in circumstances---Petitioner, however, could approach the Guardian Judge for the custody of her daughter, if so advised.

PLD 2004 SC 1; PLD 1997 SC 852; 1984 PCr.LJ 2582; 1991 PCr.LJ 2372; 2004 SCMR 990; 1991 PCr.LJ 758; 1991 MLD 1395; 1984 PCr.LJ 1047; 1988 SCMR 1891 and 1988 PCr.LJ 1883 distinguished.

Abdul Rashid Sheikh for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 108 #

2006 Y L R 108

[Lahore]

Before Muhammad Sayeed Akhtar and Muhammad Jehangir Arshad, JJ

Messrs NATIONAL INSURANCE CORPORATION ---Appellant

Versus

AL-KHAN CONSTRUCTION CO. (PVT.) LTD.---Respondent

R.F.A. No.269 of 2003, heard on 14th September, 2005.

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

----S.2(9) & O.XX, R.5---Judgment, qualification and definition of-Appellate jurisdiction---Suit for recovery filed by the plaintiff against the defendant was decreed---Appeal was filed by the defendant against the said decree---Validity---Trial Court while recording the findings neither referred to any evidence of the parties nor discussed its legal effect after conscious application of mind, therefore, such findings were not qualified to be a legal and valid judgment---Principles---Court was obliged to consider the evidence on record, judge its value in the light of legal principles applicable thereto and then pronounce its final opinion---Judgment is the result of accumulative effect on the mind of the Court that finds expression in its final opinion---Appeal was accepted in circumstances.

Anjuman Tajran outside Delhi Gate, Lahore and 15 others v. Chief Administrator of Auqaf, Punjab Awan-e-Auqaf and another 2001 CLC 136 ref.

(b) Administration of Justice---

----Court is obliged to consider the evidence on record, judge its value in the light of legal principles applicable thereto and then pronounce its final opinion.

Anjuman Tajran outside Delhi Gate, Lahore and 15 others v. Chief Administrator of Auqaf, Punjab Awan-e-Auqaf and another 2001 CLC 136 ref.

Muhammad Jamil Erickzada for Appellant.

Ch. Fawad Hussain and Sh. Nazir Ahmad for Respondent.

Date of hearing: 14th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 114 #

2006 Y L R 114

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SHAHBAZ AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.776 of 2004, heard on 19th October, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---F.I.R. was got lodged about five hours after incident and in said F.1.R. complainant had not given any description of three accused who allegedly had participated in occurrence though he claimed that he had witnessed occurrence along with other prosecution witness---Even in supplementary statement no specific role was attributed to accused who, at the trial, was alleged to have made two fire shots during occurrence with .12 bore gun---Make of weapons, accused allegedly were carrying at the time of occurrence, was not mentioned in F.I.R. or in supplementary statement---All those were improvements on material points and were sufficient to declare witnesses wholly untrustworthy---It could not be believed that complainant, who had given minute details of occurrence, had forgotten names of assailants---Report of identification parade revealed that all three witnesses had identified accused, but had not described the role played by him during incident, whereas at the trial they had specifically mentioned that accused had fired at deceased---When accused were named in F.I.R. by complainant then there was no need for identification parade---Recovery of .12 bore gun from accused was also of no consequence as empties allegedly recovered from the spot though were sent to office of Forensic Science Laboratory, but report was negative---Even identity card and gold ring belonging to deceased allegedly taken away by accused after occurrence, were not recovered from the accused---No motive was attributed to accused or other co-accused for committing occurrence---Prosecution having not been able to prove its case against accused through any cogent piece of evidence beyond any shadow of doubt, impugned judgment of conviction and sentence recorded by Trial Court, was set aside and accused was acquitted of charge by extending him benefit of doubt.

Mian Abdul Qadoos for Appellant.

Raja Akhtar Nawaz for Respondent.

Date of hearing: 19th October, 2005

YLR 2006 LAHORE HIGH COURT LAHORE 119 #

2006 Y L R 119

[Lahore]

Before Muhammad Sayeed Akhtar and Muhammad Jehangir Arshad, JJ

SAQIB ZAID KHAN---Petitioner

Versus

UNIVERSITY OF HEALTH SCIENCES KHAYABAN-E-JAMIA, LAHORE

through Vice-Chancellor and another---Respondents

Writ Petition No.9341 of 2005, decided on 7th September, 2005.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Educational institution---Change of examination system---Violation of fundamental rights---Grievance of candidate was that there was system of internal assessment by University of Health Sciences but when he appeared in the examination, the system had been changed---Validity---University of Health Sciences had neither violated any fundamental right of the candidate nor committed any illegality in changing the system of examination, rather the same tended to advance and promote the medical education---By such change not only better results would be achieved but also well-oriented professionals in the field of Health and Medicine would be produced---Petition was dismissed in circumstances.

Khurram Nazir v. University of Health Sciences, Lahore through Vice-Chancellor, and another 2005 MLD 1130 ref.

Abdul Wadood and 18 others v. University of Health Sciences, Sheikh Zayed Hospital, Lahore through Vice Chancellor and 3 others 2005 CLC 467 fol.

Malik Abdus Sattar Chughtai for Petitioner.

Rasal Hussain Syed for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 124 #

2006 Y L R 124

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD SAFDAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.106 of 2004, heard on 4th October, 2005.

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

----S. 302(b)---Appreciation of evidence---Evidence of eye-witnesses was not wholly reliable, which had already been disbelieved to the extent of acquitted accused by Trial Court---Post-mortem report showed that deceased had received 10 injuries---Three injuries on forehead of deceased were specifically attributed to co-accused to have been caused with fire-arm in F.I.R. which version was in conflict with medical evidence---Three injuries with fire-arm attributed to co-accused at the trial, were not mentioned in F.I.R., which had clearly suggested that complainant and witnesses were not present at the time of occurrence, otherwise such type of conflicts could not occur in their statements---Case of accused could not be distinguished from acquitted accused merely for the reason that witnesses made consistent statements regarding injury attributed to him, which was on left knee---In view of improvements made by prosecution witnesses regarding seat of injuries attributed to co-accused, it could not be believed that they had made true version to the extent of accused as well---Ocular account was not corroborated by oral or circumstantial evidence coming from distinct source---Alleged recovery of pistol from accused did not provide any corroboration as no empty was recovered from the spot and only report of Forensic Science Laboratory that weapon recovered from accused was in working condition, was not sufficient to hold that said weapon was used in incident---Four accused were attributed one fire-arm injury each with same type of weapon, it could not be said, in circumstances with certainty that who had caused which injury---Conduct of both eye-witnesses during occurrence for taking no -steps to rescue deceased or raise any hue and cry also created doubt regarding their presence at the spot---In view of statements of both prosecution witnesses they were not found reliable for maintaining conviction in a case of capital punishment---Prosecution was unable to prove motive, which even otherwise was attributed to acquitted accused---Prosecution having not been able to prove its case against accused through any cogent piece of evidence, impugned judgment of conviction and sentence passed by Trial Court, was set aside and accused was also acquitted of charge, extending him benefit of doubt and he would be released from jail.

Ata Muhammad and another v. The State 1995 SCMR 599 ref.

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

----S. 302(b)---Appreciation of evidence---Medical evidence---Corroborative value---Medical evidence could only suggest the type of weapon used in the incident, but it could not be considered as corroborative piece of evidence for maintaining conviction of accused.

Sardar Khuram Latif Khan Khosa for Appellant.

Asghar Ali for the Complainant.

Tahir Abbas Rizvi for the State.

Date of hearing: 4th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 130 #

2006 Y LR 130

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. SHARMAN and 11 others---Petitioners

Versus

Syed ALI HUSSAIN and 8 others---Respondents

C.R. No.185'8 of 1996, decided on 22nd September, 2005.

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

---O.XIV, R.1, O.XVIII, Rr.1 & 3 & O.XLI, Rr.27 & 33 & Ss.115 & 151---Specific Relief Act (I of 1877), S.42---Suit for declaration---Relevant and material fact in issue, significance of-Non-appearance of the plaintiff in affirmative evidence---Effect---Allowing additional evidence before Revisional Court---Legality---Revisional jurisdiction---Scope---Suit for declaration that he was the owner of the suit-land and that the alleged power of attorney executed by him in favour of the defendant, on the basis of which the latter was alienating the suit property was void due to the fact that the former was a minor at the time of execution--- Said suit .was dismissed by the Trial Court, however, an appeal filed by the plaintiff against the same was allowed and the suit decreed---Revision petition was filed by the defendants with an application to file additional evidence on the point of whether the plaintiff was a minor at the time of execution of the power of attorney---Validity---Main ground taken by the plaintiff in his plaint for avoidance of execution of the disputed power of attorney as well as the sale was that of being a minor at the time of execution and this was a relevant and material fact in issue arising out of the pleadings of the parties---Question of minority was not properly taken up by both Courts below---Every material proposition affirmed by one party and denied by the other, had to be a subject of a distinct issue in terms of O.XIV, R.1, C.P.C. and it was mandatory for the Trial Court to frame a specific issue on point of minority of plaintiff, but it had failed to do so---Plaintiff never appeared in his affirmative evidence in the Trial Court and reserved the same till recording of his rebuttal evidence, which was violative of O.XVIII, Rr. 1 & 3, C.P.C., therefore; the revisional Court had ample jurisdiction under S.151, C.P. C. and also even by invoking provisions of O.XLI, R.33, C.P.C. by allowing additional evidence to interfere on the question of minority of plaintiff in the absence of any specific issue to this effect and the statement of the plaintiff having been got recorded after the conclusion of evidence of the defendants along with his evidence in rebuttal, in clear violation of law---Petition was allowed in circumstances.

Mst. Munira Rafique Anwar through Legal Representatives v. Khalid Javed Answar and others PLD 2005 Lah. 622-D.B.; Al-Haj Khalil Ahmad v. The Australasia Bank Ltd., Lahore and another 1979 CLC 494; Mureed Hussain's case 1987 CLC 101; Naseer Ahmad v. District Judge, Multan PLD 1992 Lah. 92; 1993 MLD 247; Province of Punjab v. Muhammad Akram and others 1998 SCMR 2306 and Muhammad Nawaz v. Amir Bibi 1995 SCMR 266 ref.

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

---O.XVIII, Rr.1 & 3---Non-appearance of the plaintiff in affirmative evidence---Effect---Where it was found that the plaintiff never appeared in his affirmative evidence in the Trial Court and reserved the same till recording of his rebuttal evidence, it was declared to be violative not only of O.XVIII, Rr.1 & 3 of the Code but also against the settled, law---Such act of non-appearance of the plaintiff in his affirmative evidence caused prejudice to the defendants who had no opportunity to rebut the statement of the former which got recorded after the latters' evidence was concluded, especially when a material fact was disclosed by the plaintiff for the first time.

Al-Haj Khalil Ahmad v. The Australasia Bank Ltd., Lahore and another 1979 CLC 494; Mureed Hussain's case 1987 CLC 101; Naseer Ahmad v. District Judge, Multan PLD 1992 Lah. 92 and 1993 MLD 247 ref.

----O.XLI, Rr.27 & 33 & Ss.115 & 151---Appellate Court's power of allowing additional evidence, whether available to the revisional Court---Revisional jurisdiction, scope of---Powers of allowing additional evidence are not restricted to appellate jurisdiction only but the same are equally applicable to the revisional jurisdiction---Revisional Court has ample jurisdiction under S.151, C.P.C. and also even by invoking provisions of O.XLI, R.33, C.P.C. to interfere on the question of minority of plaintiff in the absence of any specific issue to this effect and the statement of the plaintiff having been got recorded after the conclusion of evidence of the defendants along with his evidence in rebuttal, in clear violation of law.

Province of Punjab v. Muhammad Akram and others and 1998 SCMR 2306 and Muhammad Nawaz v. Amir Bibi 1995 SCMR 266 and PLD 1993 SC 336 ref.

Hasnat Ahmed Khan and Muhammad Ashab Malik for Petitioners.

Abdul Majeed Khan for Respondents.

Date of hearing: 16th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 138 #

2006 Y L R 138

[Lahore]

Before Muhammad Jehangir Arshad, J

Khawaja GHULAM RASOOL KUREJA and others---Petitioners

Versus

RETURNING OFFICER and others---Respondents

Writ Petition No.2889 of 2005, decided on 11th August, 2005.

(a) Punjab Local Government Ordinance (X111 of 2001)------

--S.152(1)(e)--Punjab Local Government Elections Ordinance (V of 2000), S.14(e)---Punjab Local Government Elections Rules, 2000,.R.18(3)(i)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election of Nazim---Educational qualification of candidate---Acceptance of nomination papers of petitioner for holding " in Islamic and Arabic Studies issued by Jamia Anwar-ul-Mustafa (Regd.), Sukhar, Sindh---Validity---Such Religious Institution did not figure in Notification No. F.2(11)12002-Cord, dated 25-7-2002 issued by Election Commission of Pakistan---Shah Abdul Latif Bhittai University, Khairpur had recognized such Sanad as equivalent to B.A., only for getting admission in M.A. (Previous) Arabic Islamic Culture---High Court set aside impugned order declaring same to be without lawful authority, resultantly nomination papers of petitioner along with his panelist candidate for seat of Naib Nazim would stand rejected.

Moulana Abdullah v. Returning Officer and others 2003 SCMR 195 and Muhammad Younas and another v. D.R.O. and others Writ Petition No.14075 of 2005 fol

(b) Punjab Local Government Ordinance (XIII of 2001)-

---S.152(1)(e)---Punjab Local Government Elections Ordinance (V of 2000), S.14(e)---Punjab Local Government Elections Rules, 2000, R.18(3)(i)---Election of Nazim and/or Naib Nazim---Educational qualification of candidate--- "Equivalence"--- Meaning---Equivalence certificate---Validity---Provisions relating to qualification or eligibility of a candidate would be construed strictly---Relaxation of prescribed criteria neither envisaged by law nor concession could be given to a candidate on any other considerations---Limited, partial or substantial parity with official Matriculation Certificate could not be treated as making a candidate eligible to contest election---Candidate not eligible to contest election without Matriculation certificate or a certificate declared to be at par in all respects with Matriculation or Secondary School Certificate---Principles.

Where an equivalence certificate is granted for a limited purpose, then the person possessing that certificate can utilize it for that purpose only and not for any other purpose. Equivalence denotes and means hundred per cent parity and equality in every sense. A limited, partial or substantial parity with the official Matriculation certificate cannot be treated as making a person eligible under section 152(1)(e) of the Punjab Local Government Ordinance, 2001. Rather, the very concept that a certificate, which is not hundred per cent at par or equivalent to the Matriculation certificate, should be treated as such is a proposition, which, at the face of it, is preposterous and unacceptable. Such a certificate, therefore, would not make a candidate eligible under S.152(1)(e) of the Ordinance to contest election for an office of Local Government. The legislative provisions relating to qualification or eligibility of a particular candidate for the office of Nazim and/or Naib Nazim have to be construed strictly. The law does not envisage relaxation of criteria, because relaxing the criteria would defeat the very purpose of the scheme of devolution of power, which is being enforced through the Ordinance, and compromise in this context is not permissible and no concession can be given to any candidate on any other consideration. A candidate must be Matriculate in terms of provisions of section 152(1)(e) of the Ordinance to be eligible to contest the election. Without Matriculation certificate or a certificate, which has been declared to be at par in all respects with the Matriculation or Secondary School Certificate, a candidate is ineligible to contest the election and cannot be permitted to take part in the election process.

Muhammad Younas and another v. D.R.O. and others Writ Petition No.14075 of 2005 fol.

-----"Equivalence"-Meaning.

Muhammad Younas and another v. D.R.O. and others Writ Petition No.14075 of 2005 ref.

Masud? Ahmad Khan for Petitioners.

Sardar Iqbal Khakwani and S. Muhammad Jamil for Respondents Nos.2 and 3.

Abdul Khaliq Sadozai, A.A.-G.

Date of hearing: 11th August, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 143 #

2006 Y L R 143

[Lahore]

Before Sh. Hakim Ali and Muhammad Jehangir Arshad, JJ.

SHAFQAT HAYAT---Petitioner

Versus

THE STATE and others---Respondents

Writ Petition No.2303 of 2005, decided on 30th June, 2005.

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

----S.302---Juvenile Justice System Ordinance (XXII of 2000), S.7---Constitution of Pakistan (1973), Arts.45 & 199---Constitutional petition---Conversion of death sentence into imprisonment for life on the ground of age---Sentence of death awarded to accused under 5.302, P.P.C. was upheld up to the level of Supreme Court---Accused through Constitutional petition had sought a declaration that he being a child within the meaning of S.7 of the Juvenile Justice System Ordinance, 2000, at the time of occurrence, was entitled to claim benefit of the concession extended by the Notification bearing No.F.8/41/2001 Ptns dated 13-12-2001 issued by the President of Pakistan under Art.45 of the Constitution, hence his death sentence be converted into life imprisonment---High Court while sitting in Constitutional jurisdiction, could not issue any direction amounting to setting aside the final judgment of Supreme Court maintaining the conviction and sentence of accused---Accused in his statement recorded under S.342, Cr. P. C. had mentioned his age as 25 years, meaning thereby that at the time of occurrence he was 24 years old and by no -stretch of imagination he could be considered as child at the relevant time, within the meaning, of S.7 of the Juvenile Justice System Ordinance, 2000---Accused had never raised the question of his age before the Trial Court, High Court and before the Supreme Court---No documentary evidence was appended in respect of his age even with the present petition---Presumption of truth, thus, could be inferred about the age of the accused as recorded by the Trial Court in his statement under S.342, Cr. P. C. ---Sessions Judge on the application of the accused had recorded express findings that the Birth Certificate and the School Leaving Certificate were forged and were produced by him to derive wrongful gain of the aforesaid Notification, which had disentitled him to claim any benefit under the said Ordinance---Constitutional petition was dismissed in limine in circumstances.

Sultan Ahmad v. A.S.J., Mianwali PLD 2004 SC 758; Muhammad Akram v. Muhammad Haleem alias Hamayun PLD 2003 SC 656; Zulfiqar Ali v. Secretary, Home Department, Government of Punjab, Lahore and others PLD 2005 Lah. 275; Rehmat Ullah alias Raja v. Home Secretary, Punjab, Lahore and others 2004 SCMR 1861; Muhammad Jamil v. State and 3 others 2004 SCMR 1871 and Shabir Hussain v. The State in Writ Petition No.1292 of 2005 ref.

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

----Arts. 199 & 45---Juvenile Justice System Ordinance (XXII of 2000), S.7---Constitutional jurisdiction---Commutation of death sentence into imprisonment for life on the question of age---After the accused had lost his case up to Supreme Court, High Court in exercise of its Constitutional jurisdiction cannot convert his death sentence into imprisonment for life on the basis of the Notification issued by the President of Pakistan under Art.45 of the Constitution, keeping in view his age, as the same would amount to circumventing the final judgment of the Apex Court.

Shabir Hussain v. The State in Writ Petition No.1292 of 2005 ref.

Mian Muhammad Tayyab Watto for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 148 #

2006 Y L R 148

[Lahore]

Before M. Bilal Khan, J

PHUL PIR SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4470-B of 2005, decided on 15th July, 2005.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.324/337 A(i)/148/149---Bail, grant of---Accused had been found innocent in three successive investigations conducted by three different police officers which could not be summarily brushed aside---Such opinions though not binding on the Court, were relevant for the purpose of grant of bail---Accused admittedly was an elderly man of 70/72 years who was behind the bars for almost eight and a half months and the trial had not yet commenced---Injury attributed to accused was simple in nature---Case of accused called for further probe within the meaning of S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Malik Muhammad Akram Khan Awan for Petitioner.

Muhammad Shan Gul for the Complainant.

Shahzad Hassan for the State with Jawwad Ahmad Dogar, S.P., Provincial Investigation Crime Branch Punjab, Lahore and Muhammad Jaffar, A.S.-I..

YLR 2006 LAHORE HIGH COURT LAHORE 151 #

2006 Y L R 151

[Lahore]

Before Maulvi Anwarul Haq, J

Malik SARDAR MUHAMMAD---Petitioner

Versus

ATA MUHAMMAD and 10 others---Respondents

Civil Revision No.76 of 1993, heard on 13th July, 2005.

(a) Punjab Pre-emption Act (I of 1913)---

----S.17 (e)---Right of pre-emption---Several pre-emptors---Entitlement, determination of---Principles---Several pre-emptors sought recovery of suit-land on the basis of their superior right of pre-emption---Vendee lost interest in the suit-land during pendency of suits and had withdrawn price of land deposited by pre-emptors---Trial Court decreed the suits and determined the shares of pre-emptors according to their holdings---Appellate Court set aside the judgment and decree passed by Trial Court and remanded the case with direction to determine shares in accordance with their shares in Shamlat land, if available in village, otherwise the suit-land would be distributed equally among the preemptors---Validity---To cover the cases of persons vested with the right of pre-emption, other than the persons specifically mentioned in clauses (a) to (d), clause (e) had been enacted in S.17 of Punjab Pre-emption Act, 1913---Persons claiming as owners in estate or recognized sub-division thereof, could not take land or property, subject-matter of pre-emption, in accordance with their shares in the common land or Shamlat land in the estate or the sub-division---Such land or property, under S.17(e) of Punjab Pre-emption Act, 1913, was to be treated as a Shamlat .or a common land and was to be distributed accordingly---Trial Court did not commit any error of law or fact while proceeding to distribute Shamlat according to the admitted proprietary holdings of pre-emptors in the revenue estate---No occasion was available for remand by Appellate Court after adding condition calling upon the Trial Court or parties to locate Shamlat and then to proceed to distribute the land as the suit-land itself was to be treated as Shamlat---Judgment and decree passed by Appellate Court was set aside and that of the Trial Court was restored.

Fateh Muhammad and another v. Fateh Muhammad and others AIR 1948 Lah. 71 ref.

(b) Counsel and client---

----Statement of counsel on question of law Binding effect---Such statement given by counsel in proceedings may not be binding on their clients.

Mian Muhammad Akram for Petitioner.

Umar Kamal Khan for Respondents Nos.1 to 7.

Nemo for remaining Respondents.

Date of hearing: 13th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 158 #

2006 Y L R 158

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD SHAFIQUE alias SHEEQOO---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4252-B of 2005, decided on 15th July, 2005.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324/148/149---Bail, grant of---Injury attributed to accused in the F.I.R. was on the hand of the injured witness under his thumb which fell under S.337 F(vi), P. P. C. entailing maximum punishment of seven years---Case of accused, thus, was not hit by the prohibitory clause of S.497(1), Cr.P.C., rather the same called for further inquiry within the meaning of S.497(2), Cr.P.C.---None of the twelve accused having been found guilty by the Investigating Officer in the cross-version had so far been arrested---Accused was allowed bail in circumstances.

Malik Muhammad Akram Khan Awan for Petitioner.

Naseem Ullah Khan Niazi, for the Complainant.

Shahzad Hassan for the State with Jawwad Ahmad Dogar, S.P., Provincial Investigation Crime Branch Punjab, Lahore and Muhammad Jaffar, A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 164 #

2006 Y L R 164

[Lahore]

Before M. Bilal Khan, J

NADEEM ASGHAR KAIRA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5771-B of 2005, decided on 7th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 201/409/447/109---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Concerned Department after a detailed inquiry in the allegations levelled against the accused had exonerated him from all the charges---Departmental action and criminal action against a civil servant could go side by side and might even end in varying results, but since the subject-matter of the said inquiry was exactly the same, its finding for the purpose of deciding the bail application was not totally irrelevant-Benefit allegedly accruing to the accused from the construction of the Library in question was yet to be determined as the ownership and the control of the said property was still with the Tehsil Administration---News item published in a newspaper that some essential municipal services like water supply, street light or sanitation had been stopped due to strike observed by the TehsiI Council Staff, could hardly be termed as a criminal offence on the part of the Tehsil Nazim---Culpability of the accused for the offences charged in the F.I.R. was a matter of further probe within the meanings of S.497(2), Cr. P.C.---Accused was admitted to bail in circumstances.

Aitzaz Ahsan for Petitioner.

Ch. Aamir Rehman Addl. A.-G. assisted by Ms. Tahira Sultana for the State with Saif Anwar, Deputy Director, A..C.E., Lahore

YLR 2006 LAHORE HIGH COURT LAHORE 171 #

2006 Y L R 171

[Lahore]

Before Muhammad Jehangir Arshad, J

Ch. MUHAMMAD TARIQ and another---Petitioners

Versus

CHIEF ELECTION COMMISSONER OF PAKISTAN, ISLAMABAD and 2 others---Respondents

Writ Petitions Nos.5039 5115. 5051, 5056, 5082, 5034, 5052, 5045, 5046, 5100, 5101, 5114 and 4892 of 2005, decided on 25th August, 2005.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(1)(e)-Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election of Nazim and/or Naib Nazim---Educational qualification of candidate---Petitioner holding Sanad (i.e. Shahadatul Sanvia) issued by Religious Institution---Validity---According to Memo. No.IBCC/ ES/MISC/1219, dated 21-7-2005 issued by Inter-Board Committee of Boards of Intermediate and secondary Education, any Sanad (i.e. Shahadatul Sanvia) issued by any recognized Institution/Wafaq located in Pakistan could be considered as equivalent to matriculation certificate only, if holder thereof had passed subjects of English, Urdu and Pakistan Studies at Secondary School level from any Board of Intermediate and Secondary Education---No educational certificate could be considered as matriculation certificate, unless Inter-Board Committee granted equivalence certificate---Petitioner's educational quailfication on the basis of such Sanad without having passed such three additional subjects could not be considered as equivalent to Certificate of Matriculation or Secondary School Certificate within meaning of S.152(1)(e) of Punjab Local Government Ordinance, 2001---Petitioner was disqualified from contesting such election and was not entitled to hold such elected office.

Muhammad Younas and another v. District Returning Officer and others (W.P. No.14075 of 2005) and Muhammad Nadim's Case (C.P. No.1673-L of 2005 fol.

(b) Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(1)(e)---Election of Nazim and/or Naib-Nazim---Educational qualification of candidate --- "Equivalence " ---Meaning---Equivalence certificate---Validity---Provisions relating to qualification or eligibility of a candidate would be construed strictly---Relaxation of prescribed criteria was neither envisaged by law nor concession could be given to a candidate on any other consideration---Limited, partial or substantial parity with official Matriculation Certificate could not be treated as making a candidate eligible to contest election---Candidate not eligible to contest election without Matriculation certificate or a certificate declared to be at par in all respects with Matriculation or Secondary School Certificate---Principles.

Where an equivalence certificate is granted for a limited purpose, then the person possessing that certificate can utilize it for that purpose only and not for any other purpose. Equivalence denotes and means hundred per cent. parity and equality in every sense. A limited, partial or substantial parity with the official Matriculation certificate cannot be treated as making a person eligible under section 152(1)(e) of the Punjab Local Government Ordinance, 2001. Rather, the very concept that a certificate, which is not hundred per cent. at par or equivalent to the Matriculation Certificate, should be treated as such is a proposition, which at the face of it is preposterous and unacceptable. Such a certificate, therefore, would not make a candidate eligible under S.152(1)(e) of the Ordinance to contest election for an office of Local Government. The legislative provisions relating to qualification or eligibility of a particular candidate for the office of Nazim and/or Naib-Nazim have to be construed strictly. The law does not envisage relaxation of criteria, because relaxing the criteria would defeat the very purpose of the scheme of devolution of power, which is being enforced through the Ordinance, and compromise in this context is not permissible and no concession can be given to any candidate on any other consideration. A candidate must be Matriculate in terms of provisions of section 152(1)(e) of the Ordinance to be eligible to contest the election. Without Matriculation Certificate or a certificate, which has been declared to be at par in all respects with the Matriculation or Secondary School Certificate, a candidate is ineligible to contest the election and cannot be permitted to take part in the election process.

Muhammad Younas and another v. District Returning Officer and others (W.P. No.14075 of 2005) fol.

"Equivalence "---Meaning.

Muhammad Younas and another v. District Returning Officer and others (W.P. No.14075) of 2005) ref.

Muhammad Irfan Wyne for Petitioners.

M.R. Khalid Malik, Addl. A.-G. Muhammad Aril Alvi for Respondents.

Date of hearing: 25th August, 2005.

JUDUGMENT

MUHAMMAD JEHANGIR ARSHAD, J.---Since similar questions of law and facts are involved, hence the following thirteen Writ Petitions are disposed of through this single judgment:--

(i) W.P. No.5039 of 2005.

(ii) W.P. No.5115 of 2005.

(iii) W.P. No.5051 of 2005.

(iv) W.P. No.5056 of 2005.

(v) W.P. No.5082 of 2005.

(vi) W.P. No.5034 of 2005.

(vii) W.P.No.5052 of 2005.

(viii) W.P. No.5045 of 2005.

(ix) W.P. No.5046 of 2005.

(x) W.P. No.5100 of 2005.

(xi) W.P. No. 5101 of 2005.

(xii) W.P. No.5114 of 2005.

(xiii) W.P. No.4892 of 2005.

In all the above numbered Writ Petitions, the respondents are successful candidates for the offices of Nazim and Naib Nazim from their respective Union Councils and their election has been challenged through these writ petitions on the ground. that since either Nazim or Naib Nazim in each writ petition was not holding the requisite educational qualification within the meaning of section 152(e) of the Punjab Local Government Ordinance, 2001, they were therefore, either disqualified to contest the said election or their election for the said office as elective officers is liable to be declared as without lawful authority and of no legal effect. In support of these Writ Petitions reliance has been placed on an unreported judgment of this Court rendered by worthy Chief Justice in W.P. No. 14075 of 2005 "Muhammad Younas and another v. District Returning Officer and others" on 3-8-2005 and also unreported judgment of the apex Court passed in C.P. No.1673-L of 2005 in Muhammad Nadim's Case on 24-8-2005.
The controversy couched in all these Writ Petitions revolves on the interpretation of section 152 of Punjab Local Government Ordinance, 2001 laying down certain disqualifications for candidates and elected members and subsection (e) of section 152 reads as under:--

"has academic qualifications of not less than matriculation or secondary school certificate or equivalent from a recognized institution, for contesting the election of Nazim or a Naib Nazim."

The above said qualification is meant for candidature of Nazim and Naib Nazim of Union Councils and the same requires that such a candidate must have either of the two following qualifications:--

(i) Having passed matriculation or secondary school certificate;

(ii) Having certificate equivalent from a recognized Institution.

So far as the qualification of having a certificate of not less than matriculation or secondary school certificate is concerned, there is no dispute at all because such certificate can only be issued by a Board of Intermediate and Secondary Education in Pakistan. However, the controversy requiring determination in all these writ petitions is about the status of a certificate issued by a recognized Institution having equivalence to the certificate issued by any of the Board of Intermediate and Secondary Education in Pakistan for the purposes of contesting election of Nazim or Naib Nazim of Union Council under the Punjab Local Government Ordinance, 2001. In all these writ petitions the contesting respondents who have been elected either Nazim or Naib Nazim are holding no certificate of matriculation or secondary school education from Board of Intermediate and Secondary Education of Pakistan but are carrying ASNAD issued by different religious Institutions claiming the same to be equivalent' to the certificate of matriculation or secondary school certificate issued by Board of Intermediate and Secondary Education in Pakistan.

Since it was doubtful whether such type of ASNAD could be considered as equivalent to matriculation certificate issued by the respective Boards of Intermediate and Secondary Education, hence the matter was referred to the Inter-Board Committee B and the said Committee declared the following criteria for treating a certificate issued by other Institutions as equivalent to matriculation or secondary school certificate vide memo. No. IBCC/ES/MISC/1219, dated 21 July, 2005 as under:--

"Subject: Equivalence of Matriculation or Secondary School Certificate from recognized Institutions:

Kindly refer to your Letter No.F3(4)/2005-Elec., dated 21-7-2005 on the above subject. Inter-Board Committee of Chairman considers the following certificates of local and foreign educational qualifications equivalent to Secondary School Certificate issued by any Board of Intermediate and Secondary Education in Pakistan:--

"(i) Grade-1 from any recognized/ accredited school/college in USA.

(ii) O Levels in five subjects UK including subject of English from any recognized institution located outside Pakistan.

(iii) O Levels in seven subjects including the compulsory Subjects of English, Urdu, Pakistan Studies and Islamiat.

(iv) Shahadatul Sanvia from any recognized institution/Wafaq located in Pakistan subject to passing the subjects of English, Urdu and Pakistan Studies at SSC Level, from any BISE of Pakistan."

In terms of abovementioned memo. any sand i.e. Shahadatul Sanvia issued by any recognized Institution/Wafaq located in Pakistan can only be considered as equivalent to matriculation certificate unless the holder of such a SANAD has passed the subjects of English, Urdu and Pakistan Studies at Secondary School level from any Board of Intermediate and Secondary Education in Pakistan and unless the Inter-Board Committee grants equivalence Certificate, no educational certificate can be considered as Matriculation Certificate regardless of the claim of the private Institutions or Foreign Institutions or any Organization, which might be running that Institutions.
Following the above memo. of Inter-Board Committee of Chairman of Board of Intermediate and Secondary Education, while deciding W.P. No.14075 of 2005 titled "Muhammad Younas and another v. D.R.O. and others" the worthy Chief Justice of this Court held as under:--

"Where an equivalence certificate is granted for a limited purpose, that certificate can be utilized by the person, possessing that certificate, for that purpose only and not for any other purpose. Equivalence denotes and means hundred per cent. parity and equality in every sense. A limited, partial or substantial parity with the official Matriculation Certificate, cannot be treated as making a person eligible under section 152(1)(e). Rather, the very concept that a certificate, which is not hundred per cent. at par or equivalent to the Matriculation Certificate, should be treated as such, is a preposterous and unacceptable. Such a certificate therefore, would not make a candidate eligible under section 152(1)(e), of the Punjab Local Government Ordinance, 2001 to contest election for an office of a Local Government.

The legislative provisions relating to qualification or eligibility of a particular candidate for the office of Nazim and/or Naib Nazim have to be construed strictly. Relaxation of criteria is not envisaged by the law, because relaxing the criteria, would defeat the very purpose of the scheme of devolution of power, which is being enforced through the Ordinance and compromise in this contest is not permissible and no concession can be given to any candidate on any other considerations. A candidate must be matriculate in terms of provisions of section 152(1)(e) of the Ordinance to be eligible to contest the election. Sans

Matriculation Certificate or a certificate, which has been declared to be at par in all respects, with the Matriculation or Secondary School Certificate, a candidate is ineligible to contest the election and cannot be permitted to take part in the election process.

In the case in hand, the petitioner Muhammad Asghar had relied upon a Sanad of a private institution, claiming the same to be certificate of Matriculation. His nomination papers were rejected on the ground that the candidate had failed to produce equivalence certificate to be issued by the Inter-Board Committee of Chairman. Even in these proceedings, petitioners were afforded an opportunity to obtain certificate of equivalence from the Inter-Board Committee of Chairman. Despite availing of opportunity, petitioners were unable to produce the requisite certificate. As petitioner No.2 was not in possession of matriculation or Secondary School Certificate, he could not claim himself to be qualified to be elected to an office of local Government."

Similar question also came under consideration before the apex Court of Pakistan in C.P. No.1673-L of 2005 on 24-8-2005 and the Hon'ble Supreme Court of Pakistan held as under:

"Learned counsel for the respondents, despite of availing opportunity failed to produce equivalence certificate from IBCC or from Higher Education Commission, Islamabad, therefore, we are of the opinion that respondents are debarred to contest election as they are not qualified in terms of section 152(1)(e) of the Punjab Local Government Ordinance, 2001. Thus the petition is accepted and the impugned judgment, dated 12-8-2005 is set aside.

Returning Officer of UC-94, Lahore is directed to delete the names of respondents Nos.1 and 2 from the list of validly nominated candidates to contest the election scheduled for 25th August, 2005.

Petition is converted into appeal and allowed. No order as to costs."

Respectfully following the above-mentioned judgment of this Court as well as of the Hon'ble Supreme Court of Pakistan, I have no option but to hold that since all the candidates who are respondents in these writ petitions contested the election of Nazim or Naib Nazim of their respective Union Councils on the basis of ASNAD known as Shahadatul Sanvia without having passed three additional subjects i.e. English, Urdu and Pakistan Studies hence, their educational qualification could not be considered as equivalent to Certificate of matriculation or Secondary School Certificate within the meaning of section 152(e) of Punjab Local Government Ordinance, 2001 and thus they are disqualified from contesting the said election and are also not entitled to hold the said elective office.

YLR 2006 LAHORE HIGH COURT LAHORE 183 #

2006 Y L R 183

[Lahore]

Before M. Bilal Khan, J

Maulvi ABDUL RASHID LAHOOLOHAN and another---Petitioners

Versus

STATION HOUSE OFFICER and 5 others---Respondents

W.P. No. 17005 of 2005, decided on 7th October, 2005.

Penal Code (XLV of 1860)---

----Ss. 186/353/506/148/149---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Perusal of the impugned F.I.R. if accepted as correct at its face value, prima facie, disclosed commission of cognizable offences---Complainant as well as the eye-witnesses mentioned in the F.I.R. had so far stood by their allegations-Contention raised on behalf of accused needed a factual inquiry, which could not be made by High Court in exercise of its constitutional jurisdiction---Police had a statutory right to investigate a criminal case, which could not be stifled in the given circumstances---Constitutional petition was dismissed in limine accordingly.

Mian Muzaffar Ahmad for Petitioners.

Ch. Aamir Rehman, Addl. A.-G. for the State (on Court's Call).

YLR 2006 LAHORE HIGH COURT LAHORE 191 #

2006 Y L R 191

[Lahore]

Before Muhammad Akhtar Shabbir, J

Lt.-Gen (Retd.) ABDUL MAJEED MALIK---Petitioner

Versus

DISTRICT RETURNING OFFICER, RAWALPINDI and 3 others---Respondents

Writ Petitions Nos. 2633; 2693 and 2717 of 2005, heard on 26th September, 2005.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----S.152---Punjab Local Government Elections Rules, 2005, R.18---Qanun-e-Shahadat (10 of 1984), Art.87---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election---Qualification of candidate---Determination---

Certified copies of public documents---Admissibility---Certificate issued by University---Petitioner being candidate for the seat of Zila Nazim filed certified copy of duplicate matriculation certificate duly issued by University along with his nomination papers---Duplicate certificate was issued by the University on the verification of headmaster of the school from where petitioner appeared in the examination---Returning Officer dismissed the objection and accepted the nomination papers of petitioner---District Returning Officer, after holding inquiry, came to the conclusion that duplicate certificate was not issued on the basis of official record maintained by the University and day on which the certificate was issued was a gazetted holiday, thus nomination papers of petitioner were rejected---Validity---University was a statutory corporate body constituted under an Act and its functionaries were public officers---Public documents were admissible in evidence and certified copies of those documents were also admissible in evidence, if were issued by public officer in accordance with the provisions of Art.87 of Qanun-e-Shahadat, 1984---Certified copy of public document could be issued only by an officer having the custody of public document---Where a copy of public document did not bear a certificate written at the foot of such copy that it was true copy of such document and was not supported by evidence of the person who prepared it, such copy was inadmissible in evidence---No record being available with the University or with the headmaster of the school, duplicate copy of the certificate could not be issued to petitioner and if issued, it could not be termed as a `genuine certificate'---Record had established that the certificate produced by petitioner before Returning Officer in support of his qualification was not a true certified copy of the record maintained by school as well as by the University---Such copy of the certificate was not a proof of qualification of petitioner---District Returning Officer, after examining the entire record and satisfying himself, had rightly rejected the nomination papers of petitioner and committed no illegality while passing the order---High Court declined to interfere in the order passed by District Returning Officer---Petition was dismissed in circumstances.

Khadim Ali v. Jagannath and others AIR 1941 Oudh 77; Khizrat Muhammad and others v. Ghulam Muhammad and others PLD 1962 (W.P.) Lah.492; Mst. Rashida Begum v. Muhammad Ameen and 4 others 2001 MLD 725 and Imam Din and 4 others, v. Bashir Ahmad and 10 others PLD 2005 SC 418 rel.

(b) Punjab Local Government Elections Rules, 2005----

------R. 18(3)---Scrutiny of nomination papers---Duty of Returning Officer---Holding of inquiry---Scope---Returning Officer has ,requisite jurisdiction under R.18 (3) of Punjab Local Government Elections Rules, 2005, either suo motu or upon any objection to reject a nomination paper, if he is satisfied that the candidate is not qualified to be elected as a member and for such purpose he .has to hold only a summary inquiry as he may think fit---Nature of inquiry and satisfaction as to the existence of conditions mentioned in R.18(3) of Punjab Local Government Elections Rules, 2005, have been left to Returning Officer.

Sarfraz Khan and another v. Returning Officer for Elections of Union Council No.122-139. District Sargodha and another 2001 MLD 788 rel.

----Art.199---Constitutional petition---Factual inquiry, holding of---Principles---Where there was an abuse of powers /authority, High Court was under constitutional duty to ensure that people were dealt with in accordance with law and High Court could hold inquiry in circumstances.

Ijaz Ahmad and others v. The State and others PLD 2001 Lah 94 rel.

(d) Punjab Local Government Ordinance (XIII of 2001)---

----S.152---Punjab Local Government Elections Rules, 2005, R.18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election---Member of a political party---Determination---Petitioner, on the basis of pamphlet and press-clippings, alleged that respondent was a member of political party and was not qualified to contest election---Respondent contended that he had resigned from the office of his political party before filing of his nomination papers and produced copy of his resignation which was received by the Secretary of the party---Validity---Pamphlet and press-clippings were not direct or primary evidence and on the basis of same, it could not be said that those were published intentionally by the candidate himself---By giving resignation of the office of political party, the respondent had disassociated himself from the party---Respondent was not a member of political party in circumstances.

(e) Punjab Local Government Ordinance (XIII of 2001)---

----S.152---Punjab Local Government Elections Rules, 2005, R.18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election---Platform of political party, use of---Proof---Petitioner claimed disqualification of respondent candidate on the ground that he was using platform of a political party and referred to a statement of Chief Minister in that regard---Validity---Respondent did not use flag of political party or other sources of the party and such statement was not a direct proof that respondent was a candidate of a political party in circumstances.

Sh. Zameer Hussain for Petitioner.

Qazi Muhammad Amin for Respondent No.3.

M.D. Shahzad for University with Jamil Tariq, Dy. Controller, Rana Fazal, Asstt. Controller, Aftab Iqbal Chaudhry, A.G. Punjab and Tanvir Iqbal A.A.-G. for Respondents.

Date of hearing: 26th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 209 #

2006 Y L R 209

[Lahore]

Before Ijaz Ahmad Chaudhry and Fazal-e-Miran Chauhan, JJ

AMANULLAH and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.400 and 399 and Murder Reference No.533 of 2003, heard on 25th July, 2005.

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

----Ss.302(b)/149 & 302(c)---Appreciation of evidence---Incident had occurred at night, but the prosecution had not shown any source of light in which the eye-witnesses had seen the occurrence with such minute description as given in the F.I.R. and at the trial---Eye-witnesses were not found to be present at the scene of occurrence . who appeared to have been brought later on and they had attributed roles to each accused by widening the net---No previous enmity existed between the parties except suspicion of illicit liaison of both the deceased---Murder of both the deceased at the same place with a "Kassi" had supported the defence version that the occurrence had taken place at the spur of the moment---One accused had admitted to have committed the murders of both the deceased, i.e., his real sister and her paramour, on finding them together in compromising position during odd hours of the night---Defence version appeared to be more plausible than the prosecution version, as the prosecution witnesses had failed to give any plausible reason for the murder of their own girl by the. accused---Conviction of the said accused under S. 302(b), P.P.C. was set aside in circumstances and instead he was convicted under S.302(c), P.P. C. and sentenced to ten years' R.I. on two counts---Sentences of the said accused were ordered to run concurrently---Both deceased being not Masoom-ud-Dam, no compensation under S.544-A, Cr.P.C. was awarded to their legal heirs---Rest of the accused, according to the defence, were not present at the time of occurrence and to their extent the prosecution case was of no evidence and they were acquitted on benefit of doubt accordingly.

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

----Ss. 302(b)/149---Appreciation of evidence---Defence version---Principles---Where the prosecution version is disbelieved and conviction is based on defence version, the same has to be believed or rejected in toto and it cannot be accepted in piecemeal to suit the prosecution version.

Sahibzada Farooq Ali for Appellants.

Sh. Muhammad Raheem for the State

Tahir Mahmood for Complainant.

Date of hearing: 25th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 216 #

2006 Y L R 216

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. NAZEERAN BIBI and 5 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, OKARA and another ---Respondents

Writ Petition No.15879 of 2005, decided on 16th September, 2005.

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

----S. 12(2)---Setting aside of decree on grounds of fraud or misrepresentation, prayer for---Decree passed on basis of consenting statement of his attorney without service of summons upon applicant---Plea of applicant was that he was arrested in a criminal case and did not receive notice/summons in suit; and that Power of Attorney in favour of attorney was revoked through registered deed, dated 22-9-1990, thus, he had no authority to give consent and allow respondent's suit to be decreed on 19-5-1991 against applicant---Suit was filed on 13-5-1991---Notice in stay matter and summons in main suit were issued for 19-5-1991 and 29-5-1991 respectively---Attorney of applicant voluntarily appeared before Trial Court and got suit decreed on 19-5-1991 by making consenting statement---Validity---Trial Court had acted in unnecessary haste while passing decree without waiting for return of summons issued for service of applicant---Neither such decree could be allowed to remain on record for having been passed in a short-circuit manner or the manner in which same was obtained from Court could be approved---Procedure adopted by Trial Court showed collusion between respondent and Court and to maintain such type of decree would be a mockery of law---Decree was set aside in circumstances.

Mst. Khadija Begum and 2 others v. Mst. Yasmin and 4 others PLD 2001 SC 355 ref.

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

----S. 115---West Pakistan Civil Courts Ordinance (II of 1962), S.18---Revision---Institution of revision before District Judge instead of High Court---Return of revision by District Judge after one year and eight months for its presentation before High Court---High Court sent back revision to District Judge on enhancement of its pecuniary jurisdiction---Plea of respondent that initial institution of revision before District Judge was invalid---Validity---District Judge had originally entertained revision without determining its maintainability and kept same pending without raising any objection---Petitioner on account of such lapse of Court could not be non-suited---Revision before District Judge, in circumstances was maintainable.

PLD 2005 SC 842 and 2005 SCMR 720 rel.

----An act of Court should not prejudice any person nor any person should suffer for the act or omission of Court.

PLD 2005 SC 842 and 2005 SCMR 720 rel.

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

----S. 12(2)---Application for setting aside of decree---Findings of Court while accepting application---Nature of-Such findings would be considered purely as tentative in nature and would have no bearing at all on final decision of suit, which would be decided in accordance with law after recording evidence of parties.

Salman Mansoor for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 224 #

2006 Y L R 224

[Lahore]

Before Muhammad Jehangir Arshad, J

ABDUR RAZAQ---Petitioner

Versus

THE STATE and others---Respondents

W.P. No. 1961 of 2005, decided on 21st July, 2005.

Penal Code (XLV of 1860)---

----Ss. 302 & 322---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of orders---Sessions Court through the impugned orders had returned the challan of the case and directed the prosecution to submit fresh challan under S. 173, Cr.P.C. in the Court of Magistrate Section 30 by converting the offence under S.302, P.P.C. into 322, P.P.C.-Trial Court while passing the said orders had decided the fate of the case at its initial stage without framing the charge and even waiting for recording of prosecution evidence and had also brushed aside the report submitted under S.173, Cr.P.C.---Such method adopted by the Trial Court could not be approved either in terms of any provision of the Code of Criminal Procedure or in the safer administration of justice---Impugned orders were consequently set aside being without lawful authority and the case was sent back to Trial Court for trial in accordance with law.

Ghulam Haider v. Allah Yar and others 1986 SCMR 139; Muhammad Rasheed v. The State NLR 1995 Criminal 44 and Muhammad Ilyas v. The State 1972 SCMR 255 ref.

Mumtaz Hussain Bazmi for Petitioner.

Syed Shaheen Masood Rizvi, A.A.-G. on Court's call.

Malik Sadiq Mahmood Khurram for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 242 #

2006 Y L R 242

[Lahore]

Before M. Bilal Khan, J

SHAHZAD ULLAH KHAN---Petitioner

Versus

Begum HALEEMA KHAN and others---Respondents

Criminal Revision No. 41 of 2005, decided on 15th September, 2005.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), 439---Summoning petitioner to face trial in a criminal case---Application for---Appreciation of evidence---Petitioner was not named in F.I.R., but his name was later on introduced through a supplementary statement made by complainant---Complainant filed application for summoning petitioner to face trial in criminal case and Trial Court after going through evidence on record, dismissed the application---Said dismissal order was challenged by complainant before High Court in revision petition which was allowed, order of Trial Court was set aside and case was remanded with direction that matter should be decided on basis of material available on record within specified time---Trial Court after hearing both parties, allowed application filed by complainant for summoning petitioner to face trial in criminal case---Trial Court instead of applying its independent mind for evaluating material available on record, proceeded to summon petitioner to face trial despite the fact that in the interregnum no progress had been made in the trial---Impugned order of Trial Court, was not maintainable on that short score alone---Impugned order was set aside and application filed by complainant would be deemed to be pending and Trial Court would decide same by applying its own independent mind instead of being influenced by any observation made by High Court in revision while remanding case.

Haji Muhammad Aslam v. The State 1986 PCr.LJ 1442; Muhammad Saddiq and 5 others v. Mst. Badar Munir and another 1993 SCMR 233; Shaukat Ali others v. The State 1995 PSC (Crl.) 547; Muhammad Nawas Khan v. Noor Muhammad and others PLD 1967 Lah. 176; Wagarul Haq alias Nithoo and another v. The State 1988 SCMR 1428; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304; Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 and Falak Sher v. State PLD 1967 SC 425 ref.

Azam Nazeer Tarar for Petitioner.

Ch. Ehsan-ul-Haq Bhalli for Respondent No.1.

Shahzad Hassan for the State.

Date of hearing: 20th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 265 #

2006 Y L R 265

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD SHABBIR and another---Petitioners

Versus

Malik IMRAN SHAHBAZ, RETURNING OFFICER, UNION COUNCILS Nos.30

to 36 and 5 others ---Respondents

Writ Petition No. 14674 of 2005, decided on 30th August, 2005.

Punjab Local Government Elections Rules, 2005---

----Rr. 35, 36, 33, 3(f), 65 & 71---Constitution of Pakistan (1973), Arts. 199 & 225---Constitutional petition---Adequate remedy---Election petition---Presiding Officer and Assistant Presiding Officer had undisputedly stated that they forgot to open one ballot box to count the ballot-papers contained therein which fact was not rebutted-Ballot-papers were also declared to be spoiled ones without opening another ballot box---Held, word "dispute" was used as a noun as well as verb in R.3(f) of the Punjab Local Government Elections Rules, 2005 which meant an agreement or disagreement between two peoples, groups etc.; there being no "dispute" as such, the Presiding Officer, Assistant Returning Officer and Returning Officer thus, had failed to perform their function of counting and recounting of ballot-papers as required under Rr.35 & 36, Punjab Local Government Elections Rules, 2005---Declaration of uncounted votes contained in the other ballot-box which was never opened as spoilt ballot papers was patently illegal in view of R.33 of Punjab Local Government Elections Rules, 2005---Election petition in circumstances, would not be an adequate remedy in terms of Art.199 of the Constitution---Constitutional petition was allowed by the High Court with directions to Returning Officer to open the unopened ballot box to count the ballot-papers contained therein in the presence of the concerned parties and strictly in accordance with law.

1990 CLC 68; Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 and Ghulam Mustafa Jatoi v. Additional District and Sessions Judge and others 1994 SCMR 1299 ref.

M. Dilawar Mahmood for Petitioners.

Azam Nazir Tarrar for Respondents Nos.4 and 5.

Respondent No.3 in Person.

YLR 2006 LAHORE HIGH COURT LAHORE 273 #

2006 Y L R 273

[Lahore]

Before Ch. Ijaz Ahmad, J

Ch. MUMTAZ KHAN, EX-MANAGER CANTT. BOARD BRANCH, NATIONAL

BANK OF PAKISTAN, RAWALPINDI and another ---Petitioners

Versus

THE STATE and another---Respondents

Criminal Revision. No. 110 of 2005, decided on 5th September, 2005.

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

----S. 249-A---Scope and application of S. 249-A, Cr. P. C. --- Power of Magistrate to acquit accused---Magistrate was not prevented from acquitting accused at any stage of case after completing prescribed conditions that if after hearing prosecution and accused and for reasons to be recorded, Magistrate considered that charge was groundless and there was no probability of accused being convicted of any offence---Legislature had introduced provisions of S. 249-A, Cr. P. C. by an amendment, to ensure speedy trial of criminal cases---Ordinarily, when Magistrate took cognizance of offence, he was enjoined to hold trial in the case and to decide it in the manner of acquittal or conviction---Magistrate, in circumstances, had to complete the trial by following the rules of procedure---Rules relating to trial were inflexible, as the trial could not be dropped on either of the grounds described in S.249-A, Cr. P. C. unless it was finally concluded---Magistrate was vested with discretion to acquit an accused in a case where in the opinion of Magistrate, charge was groundless or where there was no likelihood of conviction of accused of alleged offence---Said provision of law was itself a Code which prescribed scheme of law---Special words "any stage" contained in S.249-A, Cr. P. C., had shown that Magistrate was empowered to record acquittal in exercise of judicial discretion when either of said reasons satisfied his judicial mind---Such power could be exercised even before the charge was framed or after framing the charge subject to fulfilling said conditions prescribed in S. 249-A, Cr. P. C. itself---Court was obliged to discuss evidence already on record while deciding application under S. 249-A, Cr.P.C.

Hamid Siddiqui and another v. The State 1991 MLD 540; Warner Brothers v. Imtiaz and 3 others 2000 PCr.LJ 752; Muhammad Haroon's case 1993 PCr.LJ 524; Ashiq Ali Bhutto's case 1993 SCMR 523; Din Muhammad's case 1979 PCr.LJ 59; Aarub Khan's case PLD 1996 Kar. 253; Muhammad Tufail alias Muhammad Yasin's case PLD 1995 Lah. 293; 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; Aziman's case NLR 1988 UC 539; Ch. Muhammad Ashraf's case 1988 PCr.LJ, 1077; Mehmood and other's case 1984 PCr.LJ 2423; Jahan Shah's case 1990 PCr.LJ 638; Abdul Sattar's case 1992 PCr.LJ 2054; Shaukat Ali's case 1992 ALD 243(1) and Syed Anwar Ali Shah's case 1986 PCr.LJ 1278 ref.

(b) Administration of justice---

----Justice should not only be done, but also seemed to have been done---Each and every case was to be decided on its own peculiar circumstances and facts.

Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

----Art. 4---General Clauses Act (X of 1897), S. 24-A---Duty of public functionaries---Public functionaries were duty bound to decide cases of citizens with reasons.

Messrs Airport Support Services v. The Airport Manager 1998 SCMR 2268 and Zain Yar Khan v. The Chief Engineer 1998 SCMR 2419 ref.

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

----Ss. 409, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal Procedure Code (V of 1898), S.249-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application filed by petitioners under S.249-A, Cr.P.C. was dismissed by Judge Special Court without application of mind and without adverting to documentary evidence available on record---High Court accepting petition remanded case to Judge Special Court to decide application filed under S.249-A, Cr.P.C. afresh after judicial application of mind in accordance with law---Application of petitioners filed under S.249-A, Cr.P.C. would be deemed to be pending adjudication which would be decided afresh by Judge Special Court in accordance with law after judicial application of mind.

Khakan Babar for Petitioners.

Tariq Shamim, Standing Counsel for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 279 #

2006 Y L R 279

[Lahore]

Before Maulvi Anwarul Haq, J

ALLAH WASAYYA TEXTILE AND FINISHING MILLS LTD. through Director and another---Petitioners

Versus

GOVERNMENT OF PUNJAB through Secretary, Agriculture Department, Lahore and another---Respondents

Writ Petition No.1900 of 2004, heard on 12th October, 2005.

(a) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----Ss. 2(a) (iii) & 19(c), proviso---Constitution of Pakistan (1973), Art.199---Constitutional petition---Levy of market fee on ginned cotton---Legality of---Petitioners were aggrieved of a notification by the Government under which the rate of market fee chargeable by -Market Committees was prescribed for ginned cotton (lint)---Contentions of the petitioners were that they had already paid market fee on un-ginned cotton (Phutti) and the lint being a sub-product of the un-ginned cotton, the market fee could not be imposed on the same---No corresponding service was being offered or rendered in lieu of the market fee by the Government and furthermore, lint was not an agricultural produce on which market fee could have been levied---Validity---Agricultural produce was defined in S.2(a) of the Punjab Agricultural Produce Markets Ordinance, 1978 and under sub-clause (iii) of the said section, cotton whether un ginned or ginned, or its waste all were meant to be agricultural produce---Market fee was levied under S.19 of the Ordinance at the rates prescribed for the agricultural produce bought and sold by or through a dealer in the notified market area---Under sub-clause (c) of proviso to S.19 of the Ordinance, no fee was to be levied in respect of any subsequent transaction of sale or purchase within the same notified area of an agricultural produce extracted after being subjected to manufacturing processes---What was prohibited under S.19(c) was the fee on the resale and purchase of agricultural produce within the same notified market -area---Fee, in the present case, was being claimed only for the ginned cotton that had been purchased by the petitioners outside the notified area of market and brought there; the pleas of the petitioners as to the provision of service would not arise in the case as the fee was not being paid---Constitutional petition was dismissed in circumstances.

Bhabhoot Singh v. Ghanshyam Durga Prasad AIR 1962 Raj. 82 distinguished.

Messrs Crescent Jute Products Ltd. through Director v. Government of the Punjab, Agriculture Department through Secretary PLD 2004 Lah. 686 and Pakistan Floor Mills Association and another v. Government of Sindh and others 2003 SCMR 162 ref.

(b) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----S. 2(a) (iii)---Agricultural produce definition of---Ginned cotton, whether agricultural produce---Determination of ---Agricultural produce was defined in S.2(a) of the Punjab Agricultural Produce Markets Ordinance, 1978 and under sub-clause (iii) of the said section---Cotton whether un-ginned or ginned, or its waste were all meant to be agricultural produce.

----Ss.2(a)(iii) & 19---Civil Procedure Code (V of 1908), O.XXI, R.44---Provisions of Punjab Agricultural Produce Markets Ordinance, 1978, were not in para material with that of O.XXI, R.44, C.P. C., especially when the former enactment clearly defined an agricultural produce on which the fee was to be levied.

Mian Ahmad Mahmood for Petitioners.

Zafar Ullah Khan Khakwani, A.A.-G. for Respondent No.1.

M. Ramzan Khalid Joya for Respondent No.2.

Date of hearing: 12th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 283 #

2006 Y L R 283

[Lahore]

Before Muhammad Akhtar Shabbir, J

TARIQ MEHMOOD MUGHAL and another---Petitioners

Versus

RETURNING OFFICER, UNION COUNCIL No.54/L and 5 others---Respondents

Writ Petitions Nos.2367 and 2380 of 2005, decided on 5th September, 2005.

Punjab Local Government Elections Rules, 2005---

----Rr. 35, 36 & 38---Notification No. F. 3 (2) /2005-Elect (1), dated 1-9-2005, issued by Election Commission of Pakistan---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recounting of votes---Grievance of candidates was that after preparation of preliminary results, Returning Officer refused to recount the ballot papers---Validity---Chief Election Commissioner had restrained Returning Officers from recounting of votes and directed that applications made before election authorities for recounting of votes be referred to relevant Election Tribunal for disposal in accordance with law---High Court declined to grant discretionary relief to candidates---High Court directed the candidates to approach Election Tribunal for redressal of their grievance regarding recounting of the votes---Constitutional petition was dismissed in circumstances.

Mirza Waqas Rauf for Petitioner (In Writ Petition No.2367 of 2005).

Malik Muhammad Nawaz Khan for Petitioner (in Writ Petition No.2380 of 2005).

YLR 2006 LAHORE HIGH COURT LAHORE 286 #

2006 Y L R 286

[Lahore]

Before Ijaz Ahmad Chaudhry, J

GHULAM AKBAR---Petitioner

Versus

RIAZ alias RIAZI and 3 others---Respondents

Criminal Revision No.188 of 2005, decided on 18th July, 2005.

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

----S. 302/34---Criminal Procedure Code (V of 1898), 5.439---Sessions Court had refused to summon the accused to face trial in the private complaint---Validity---Accused had promptly got lodged F.I.R. on the same night of occurrence that the deceased along with his companions had come to his house at midnight for committing dacoity and that he had fired at the deceased in self-defence-Deceased was stated to be involved in 39 criminal cases---Possibility of the deceased going to the house of the said accused for committing dacoity, who had come back from Dubai just 15/16 days earlier, could not be ruled out---Police had also found the said version of the accused given in the F.I.R. as correct during investigation---Complainant was not eye-witness of the occurrence narrated by him in his private complaint---Eye-witnesses also did not reside in the vicinity of the place of occurrence and their presence during odd hours of night at the place of incident coupled with the delay of one month in filing of the private complaint, was not believable---Impugned order did not suffer from any material illegality or jurisdictional defect---Revision petition was dismissed in circumstances.

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

----S. 204---Penal Code (XLV of 1860), S.302/34---Issue of process---Courts do not act in vacuum and while summoning the accused to face the trial in a murder case great care and caution has to be taken.

Ch. Muhammad Siddique Safdar for Petitioner.

Ch. Muhammad Atif Murtaza for Respondents.

Ata-ul-Manan for the State.

Shamshair Ali, S.-I. along with the Record.

YLR 2006 LAHORE HIGH COURT LAHORE 289 #

2006 Y L R 289

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mian MUHAMMAD HANIF TAHIR---Petitioner

Versus

CHIEF ELECTION COMMISSIONER OF PAKISTAN, ISLAMABAD---Respondent

Writ Petition No.14640 of 2005, decided on 16th August, 2005.

Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 157 & 175---Electoral Rolls Act (XXI of 1974), S. 4---Punjab Local Government Elections Rules, 2005, R.4---Constitution of Pakistan (1973), Art.199---Constitutional Local Council election---Electoral Rolls to be used in election---Petitioner had sought issuance of direction to Election Commissioner to make necessary arrangement to allow registered voters in Electoral Rolls of 2002 to exercise their right of vote in Local Council Election to be held in 2005---Chief Election Commissioner had updated Electoral Rolls for Local Government Election in 2005 and made a publication of final Electoral Rolls on 15-3-2005; thereafter, completing process of revision of Electoral Rolls, Election Commissioner had asked voters of the area to elect their representatives---Electoral Rolls prepared for General Elections in year 2002, would not be used for present Local Council Elections---Neither there was any provision in Electoral Rolls Act, 1974 nor the Rules made thereunder that such Rolls could be adopted by Election Commissioner for election of Local Government Institutions nor there was any barring provision existed in law---Even otherwise Electoral Rolls prepared in 2002 for General Elections, had not been provided to Returning 'Officer/Presiding Officer in the present election---Constitutional petition being devoid of any force, was dismissed.

Petitioner in person.

YLR 2006 LAHORE HIGH COURT LAHORE 293 #

2006 Y L R 293

[Lahore]

Before Muhammad Jehangir Arshad, J

SHAFAQAT KARIM---Petitioner

Versus

SHAUKAT KARIM---Respondent

Civil Revision No.1920 of 2005, heard on 20th September, 2005.

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

----O. VIII R.1---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Closing of right to file written statement---Trial Court through an order closed the defendant's right to file written statement for failure to file the same within the statutory period---Revision petition was filed by the defendant for annulment of the impugned order---Contention of the defendant was that the Reader of the Court had no authority to fix the next date of hearing on which the right was closed and the Trial Court had made no serious attempt for obtaining written statement and the right was closed in a mechanical manner and without application of mind as the statutory period to file the written statement was not mandatory---Validity---Under O. VIII, R.1, C.P.C. obtaining opportunities by the defendant's counsel for filing of written statement in a mechanical manner and without span of time, was no more rule of law or practice, however, at the same time, the Trial Court was also obliged to follow the said provision strictly by putting defendant at notice about the rigors of penal provision of O. VIII, R.1, C.P.C.-Trial Court was equally responsible for not enforcing the said amended provision in strict terms as while adjourning the case it had failed to put defendant on notice by striking a warning to him about the closure of right to file written statement in case of further default on the next date---Trial Court was required to have granted at least one more opportunity with the warning of closing defendant's right of filing written statement---Trial Court though under O. VIII, R.1, C.P. C. was relieved of its duty of extending the said warning, but the same did not mean that Court was to invoke penal provisions of the Code to trap and knock down the defaulting party with immunity---High Court observed that Courts, before passing such orders need to administer warning to the defendant's counsel that if the needful was not done, penal provision of O. VIII, R.1 of the Code would be invoked---Petition was allowed in the circumstances subject to payment of cots by the defendant.

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

----Object of C.P.C.--Rules framed under C.P.C. are for the advancement of justice and should not, as far as possible, be allowed to operate so as to defeat the ends of justice.

Factory Manager, Burewala Textile Mills and others v. Asghar Ali and another 2005 SCMR 1144 ref.

----Rules of procedure are intended to foster justice---Technicalities, unless these offer insurmountable hurdles, cannot be permitted to operate as a tyrant master.

Liaqat Ali v. Mst. Bashiran Bibi and others 2005 CLC 11 ref.

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

----O. XVII, R.5---Adjournment by the Reader in the absence of Presiding Officer, legality of-Where the Presiding Officer of the Court was on leave and the case was adjourned by the Reader of the Court for the purposes of filing written statement, it was necessary to ascertain whether the Reader had the authority to adjourn the case and had acted in terms of O.XVII, R.5, C.P.C.---Non-compliance of O.XVII, R.5, C.P.C. would render the proceedings on the day when the Presiding Officer was absent, as illegal and invalid.

Kamran Co. and others v. Messrs Modern Motors and another PLD 1990 SC 713 ref.

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

---O. VIII, R.1, proviso Interpretation of O. VIII, R.1, C.P.C. proviso---Rationale of the word "ordinarily" in the proviso---Incorporation of the word "ordinarily" in the amended proviso to O.VIII, R.1, C.P.C. indicates that the Legislature was aware of the situation that invariable application of the said provision would cause hardship to the litigant public and therefore, in view of this the Court can grant opportunity to the defendant for filing written statement by burdening him with reasonable costs, which would be a source of consolation to the other party.

Syed Ikhtisar Ahmad for Petitioner.

Hafiz Ch. Muhammad Tahir for Respondent.

Date of hearing: 20th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 298 #

2006 Y L R 298

[Lahore]

Before Muhammad Akhtar Shabbir, J

SHAHID AZIZ KIANI and another---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary and 4 others---Respondents

Writ Petition No.2319 of 2005, heard on 5th September, 2005.

Punjab Local Government Elections Rules, 2005---

----Rr.35, 36 & 38---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recounting of votes---Disputed question of fact---Grievance of petitioners was that after preparation of preliminary results, Returning Officer recounted ballot papers, and declared respondents as returned candidates---Plea raised by petitioners was that after consolidation of result, Returning Officer was not empowered to recount votes as he had become functus officio---Validity-Controversy was whether preliminary result as prepared by Returning Officer was final result or was consolidated statement of result of count furnished by Presiding Officers or it was result submitted by Returning Officer on Form XV in shape of consolidated statement of results of count as provided in R.36 of Punjab Local Government Elections Rules, 2005; as such the same was a question of fact, which required recording of evidence and scrutiny of record, which could not be gone into by High Court in exercise of its constitutional jurisdiction---Such controversy could be resolved only by Election Tribunal---Constitutional petition was dismissed in circumstances.

Dr. Liaqat Ali Khan and another v. District Returning Officer, District Sargodha and 3 others 2002 SCMR 1632 ref.

Muhammad Younas Khan v. Government of N.-W.F.P. through Secretary and others 1993 SCMR 618; Benedict F.D. Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918 and Federation of Pakistan and 2 others v. Major (Rtd.) Muhammad Sabir Khan PLD 1991 SC 476 fol.

Sardar Muhammad Latif Khan Khosa for Petitioners.

Majeeb-ur-Rahman Kayani for Respondents.

Date of hearing: 5th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 304 #

2006 Y L R 304

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD IQBAL---Appellant

Versus

RAEES-UD-DIN and others---Respondents

R.S.A. No.198 of 1987, heard on 25th July, 2005.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Suit for pre-emption--Plaintiff had claimed that he was collateral of vendor and also an owner in estate---Defendants had alleged that both pre-emptors were present at the time of sale of suit property and they had refused to purchase land and in so doing pre-emptors had lost their right of pre-emption---Trial Court decreed suit of plaintiffs directing them to deposit specified amount on or before specified dates failing which suit would be dismissed---Vendee defendants filed first appeal which was allowed by Appellate Court below and dismissed suits---Validity---Appellate Court below, had committed error of law while misreading evidence on record and proceeded to non-suit plaintiff-Regular second appeal was allowed---Impugned judgment and decree passed by Appellate Court was set aside and one passed by Trial Court, decreeing suit of plaintiff was restored.

Baqri and 4 others v. Salehon and 3 others PLD 1972 SC 133; Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403; Mst. Wazir Begum and others v. Sajjad Ahmed and others 2002 MLD 193; Muhammad Irshad Khan v. Muhammad Khan and another 1981 CLC 203 and Jam Pari v. Muhammad Abdullah 1992 SCMR 786 ref.

Malik Sharif Ahmad for Appellant.

Mirza Aziz Akbar Baig and Ch. Tariq Mehmood Bajwa for Respondents Nos.1 to 4.

Nemo for Respondent No.5.

Date of hearing: 25th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 308 #

2006 Y L R 308

[Lahore]

Before Muhammad Jehangir Arshad, J

ABDUL KHALIQ and others---Petitioners

Versus

Mst. SAIRAN---Respondent

Civil Revision No.1768 of 2000, decided on 21st September, 2005.

Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948)---

----S.3---Succession---Limited estate of female---Plaintiffs claimed entitlement to inheritance on the ground that estate left by their uncle went to his widow under custom for her maintenance and that since she had contracted second marriage before the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948 she was not entitled to retain the said property as a limited owner---Question was as to whether plaintiffs were precluded by their own word and action---Record proved that present plaintiffs had taken a plea in the appeal filed in 1945 that deceased had divorced defendant in his life time while in the present suit a different ground had been taken with object of depriving defendant of her right of inheritance---Conclusion arrived at by the Appellate Court on point of time of second marriage of defendant, that it was solemnized in 1950, were quite natural and based on proper appreciation of evidence.

(b) Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948)----

-----S. 3---Custom--- Succession--- Female limited owner---Question was as to whether there was any custom prevailing in parties' family depriving the widow to her normal right of inheritance from estate of deceased in case of her re-marriage or death before enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948---Validity---Plaintiffs had brought no evidence on record showing existence of any valid custom in the family of deceased depriving widow of her normal share under the Islamic Law, in case of her re-marriage or death and in absence of any such evidence regarding existence of any such valid custom, the presumption would be that the family of deceased was governed by Islamic Law on the termination of limited estate.

----S. 2-A [added by Punjab Muslim Personal Law Shariat (Amendment) Ordinance (X111 of 1983)]---Succession---Limited interest---Maintainability---Fact that after termination of limited estate, plaintiffs were entitled to inherit 3/4th share of suit property and defendant was entitled to inherit 1/4th normal share under the Islamic Law and that property was mutated in her favour on death of her deceased husband for purposes of maintenance only was established---Findings of Appellate Court to such effect were also maintained being in consonance with provisions of section 2-A West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and thus revision was not maintainable---Revision having no force was dismissed by High Court.

Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511and Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407 ref.

Ch. Abdul Wahid for Petitioners.

Zafar Iqbal Ch. for Respondent.

Date of hearing: 16th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 313 #

2006 Y L R 313

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. CHANAN BIBI and 6 others---Petitioners

Versus

IMTIAZ and 2 others---Respondents

Civil Revision No. 394 of 1996, heard on 27th June, 2005.

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

----Ss. 10, 30 & 36---Specific Relief Act (I of 1877), S. 42---Islamabad Oustees Scheme---Lease of land---Conferment of proprietary rights under Scheme---Plaintiffs had claimed that they being lessees of suit-land for five years, and having brought land under cultivation, had become entitled to conferment of proprietary rights under the Scheme and that they had filed application within time for that purpose---Suit-land having been allotted to predecessor-in-interest of defendants, plaintiffs had challenged said allotment in favour of defendants contending that suit-land could not have been allotted to defendants during subsistence of their lease and neither possession had been delivered nor said land was included in Schedule of Islamabad Oustees---Plaintiffs had claimed that they were entitled to conferment of proprietary rights and that orders of allotments of said land in favour of defendants, were illegal and void---Suit filed by plaintiffs was finally decreed by two Courts below---Legal requirement was that a land to be allotted to Islamabad Oustee had to be part of a list or Schedule to be prepared by concerned Revenue or Colony Officer in the manner suggested by Capital Development Authority---No evidence was available on record to show that suit-land ever formed part of such a Schedule or list---Allotment of suit-land in favour of defendants in circumstances was illegal and question of limitation or estoppel, would not be arising---Decree granted by Courts below in favour of plaintiffs, however, was beyond the prayer made by plaintiffs---Entire land comprising temporary lease of plaintiffs was not allotted to defendants---Judgment and decree concurrently passed by two Courts below in favour of plaintiffs was modified and declaration was granted that allotment of land to defendants under Islamabad Oustees Scheme was illegal and void with the result that application filed by plaintiffs for conferment of proprietary rights would be deemed to be pending with Collector who would decide same and would determine as to how much of said leased area stood allotted to predecessor-in-interest of defendants under Islamabad Oustees Scheme.

Muhammad Siddiq and 6 others v. Zafar Iqbal and 9 others 2005 CLC 33; Khuda Bakhsh v. Member (Colonies), Board of Revenue and 3 others 1981 SCMR 1134 and Muhammad Rafiq and others v. Hashmat Ali and another PLD 1992 SC 37 ref.

Ch. Imdad Ali for Petitioners.

Malik Javed Akhtar Wains for Respondents Nos. 1 and 2.

Nemo for Respondent N o.3.

Date of hearing: 27th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 316 #

2006 Y L R 316

[Lahore]

Before Muhammad Muzammal Khan, J

SALMA---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAISALABAD and 2 others---Respondents

Writ Petition No.22062 of 2001, heard on 11th October, 2005.

Guardians and Wards Act (VIII of 1890)---

----S.25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minor---Welfare of minor, determination of---Both the divorced spouses contracted their second marriages---Father of the minor son had three children from his second wife whereas mother of the minor had no issue from her second marriage---Mother of minor filed application under S.25 of Guardians and Wards Act, 1890, for retaining custody of the minor---Guardian Judge and lower Appellate Court dismissed the application and appeal of mother respectively, for the reason-that the matter had already been decided in an earlier application whereby she was bound to hand over the custody of the minor to his father, on attaining the age of seven years---Validity---Welfare of minor would be provided by the mother with more devotion and there was no other better institution than a lap, of a loving mother and there could be no better tutor than mother---Nothing was available on record to show the nature of woman, to whom father of the minor had married second time e.g. whether she was of the type to take proper care of a step-child---Experience of step-mothers in the society was not very healthy, especially when such mother had her own children out of her marriage with the father of the child---Right from birth, the minor was living with his mother and such period was spread over 13 years and to uproot the minor from his given and familiar surroundings although permissible, yet could not be done as there was nothing on record to suggest that the minor would be given beneficent treatment by step-mother on the assumption that he would live with his father in presence of her own two minor sons---High Court, in spite of sitting in constitutional jurisdiction, declined to consign the minor to uncertain environments and surroundings, as done by the Courts below---High Court, in exercise of constitutional jurisdiction intervened to undo the orders which would result in prejudice to the future/personality of the minor and would work against his welfare---Orders passed by both the Courts below were declared illegal, void and of no legal effect and were set aside---Custody of the minor was ordered to be retained with mother as decided by Guardian Judge earlier---Constitutional petition was allowed accordingly.

Shaukat Rafique Bajwa for Petitioner.

Respondents ex parte.

Date of hearing: 11th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 320 #

2006 Y L R 320

[Lahore]

Before Sh. Hakim Ali and Muhammad Jehangir Arshad, JJ

AQEEL AHMED---Appellant

Versus

MUHAMMAD AKRAM---Respondent

Regular First Appeal No.4 of 2005, decided on 21st July, 2005.

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

----O.IX, R.13 & O.XXXVII, Rr.2, 3 & 4---Limitation Act (IX of 1908), Art. 156---Suit for recovery of money on basis of pro note---Ex parte decree, passing of---. Application for setting aside decree filed on 3-7-2004---Trial Court set aside decree on 9-8-2004 and proceedings in original file of suit were held on 10-9-2004---Defendant filed application for leave to appear and defend suit---Trial Court dismissed leave application as defendant had not filed same within ten days from acquiring knowledge of ex parte decree on 3-7-2004 while filing application for its setting aside, and decreed suit afresh on basis of evidence already recorded ex parse---Validity---Defendant in proceedings in suit had not been served with summons or supplied copy of plaint as mandated by O. XXXVII, Rr.2(3) & 3, C.P.C.-Trial Court while showing dissatisfaction over report of Process Server had proceeded to seek service of defendant by way of citation in newspaper, which was substituted service and not due service as contemplated in O.XXXVII, R.2(2) or O.V, R.20(1), C.P.C.-Original file was not before Trial Court till 10-9-2004---In absence of any other evidence, defendant would be deemed to have been served in suit for the first time on 10-9-2004 and from such date leave application filed was well within time---High Court accepted appeal, set aside impugned judgment/decree and remanded case to Trial Court to decide same afresh after obtaining written statement and recording evidence in accordance with law.

Abdul Karim v. Nazir Ahmad PLD 1998 Lah.163 and Habib Bank Limited v. Mussarat Ali Khan PLD 1987 Kar. 86 ref.

Mst. Afzal Begum and others v. Y.M.C.A. through General Secretary, Lahore PLD 1979 SC 18 and Muhammad Aslam v. Additional District Judge, Rawalpindi and others 1979 SCMR 85 and Habib Bank Limited v. Mussarat Ali Khan PLD 1987 Kar. 86 fol.

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

----O. V, R. 20(1)---Substituted service, issuing of---Mandatory conditions stated.

Order V, rule 20(1) requires that the Court before issuing the substituted service must be satisfied that the defendant is keeping out of the way for the purpose of avoiding service or for any other reason, service cannot be effected in ordinary course. It is only then that the Court shall direct substituted service by any of the modes prescribed in the said rule including publication in the newspaper.

Bilal Ahmad Qazi for Appellant.

Muhammad Akbar Cheema for Respondent.

Date of hearing: 14th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 325 #

2006 Y L R 325

[Lahore]

Before Maulvi Anwarul Haq, J

Sardar AURANGZAIB ALIMGIR KHAN---Petitioner

Versus

LAW SECRETARY OF GOVERNMENT OF PUNJAB and 8 others---Respondents

Writ Petition No.1082 of 1994, heard on 19th July, 2005.

Civil Procedure (Special Provisions) Ordinance (I of 1968)---

----Ss. 3, 5 & 12---Constitution of Pakistan (1973). Art.l99---Constitutional petition---Suit for ejectment and declaration---Petitioner had filed a suit for ejectment of respondents, whereas respondents had filed suit for declaration against petitioner---Both suits were filed under Provisions of Civil Procedure (Special Provisions) Ordinance, 1968---Political Assistant dismissed suit for declaration filed by respondents on ground of being barred by time and appeal filed by ,respondents against judgment of Political Assistant was dismissed by Commissioner, but revision filed by respondents against judgment of Commissioner, was allowed by Secretary to Government, who, not only proceeded to reverse findings on res judicata and limitation of authorities below, but straightaway decreed the suit on merits---Where a dispute was required to be adjudicated upon, Deputy Commissioner was required to constitute a Tribunal in accordance with S.5 of Civil Procedure (Special Provisions) Ordinance, 1968 and to refer the dispute to same, but that was subject to condition that dispute was not barred by time---Political Assistant as well as Commissioner found that suit was barred by time and turned down contention of respondents that matter ought to have been referred to the Tribunal---Secretary to Government under provisions of S.12 of Civil Procedure (Special Provisions) Ordinance, 1968 had been authorized to call for and examine record of any appeal disposed of by Commissioner to satisfy himself as to correctness, legality or propriety of any decision, decree or order or irregularity of any proceedings under the Ordinance and was not authorized under Civil Procedure (Special Provisions) Ordinance, 1968 to decree suit straightaway without recording any evidence---Commissioner had decided that suit barred by time, whereas the Secretary had found that suit was within time--Secretary though had exclusive authority to examine the record, but could not decide and decree suit without recording evidence---Secretary, in circumstances had proceeded in the matter utterly without jurisdiction by decreeing suit straight?away---Decision of Secretary was set aside by High Court, with the result that suit filed by respondents would be deemed to be pending before competent Court, which would decide the same in accordance with law.

Ghulam Bungush and others v. Qaum Turi and others 1991 SCMR 2400 ref.

Muhammad Amir Bhatti and Ghazi Raza for Petitioner.

Zafarullah Khan Khakwani, A.A.-G and Tariq Sher Khan for Respondents.

Date of hearing: 19th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 335 #

2006 Y L R 335

[Lahore]

Before Muhammad Akhtar Shabbir, J

MEHNAZ MEHBOOB---Petitioner

Versus

ISHTIAQ UR RASHID and another---Respondents

Writ Petition No. 2179 of 2004, heard on 22nd July, 2005.

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

----Ss. 7 & 8---Talaq-i-Tafweez---Kinds---Power to give divorce, though belonged to husband, but he could delegate said power to wife or to third person, either absolutely or conditionally and either for a particular period or permanently---Section 7 of Muslim Family Laws Ordinance, 1961 had specifically provided such Talaq which was known as 'Talaq-i-Tafweez'---Person to whom power was so delegated, could then pronounce same accordingly---Temporary delegation of power was irrevocable, but a permanent delegation could be revoked---Such delegation of option called `Tafweez' by husband to his wife, would confer on her power of divorcing herself---Said 'Tafweez' was of three kinds viz., Ikhtiar, giving her the authority to Talak herself; Amr-ba-Yed, leaving the matter in her own hand and Mashiat, giving her the option to do what she liked---All these factors when analyzed would resolve themselves into one, viz., leaving it in her or somebody else's option to do what she or he liked---Wife could not sue to enforce authority alleged to have been given to her, but she would sue after she had given effect to it to make husband liable for dower or to restrain him from seeking conjugal relations---Wife was entitled to exercise her right of 'Tafweez of Talaq' and she was entitled to be separated from her husband.

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

----Ss. 7 & 8---Talaq---Right of Talaq-i-Tafweez, exercise of---Talaq once pronounced, would be effective after expiry of 90 days, unless it was revoked by husband or wife exercising her right of Talaq-i-Tafweez.

Dr. Qambar Murtaza Bokhari v. Mst. Zainab Bashir 1995 CLC 1574 ref.

----Ss. 7 & 8---Authority of Chairman Arbitration Council---Chairman Arbitration Council had no authority to adjudicate upon validity or otherwise of 'Talaq' pronounced by husband or his delegatee (wife)---Arbitration Council was constituted only for purpose of bringing about reconciliation between parties and in event of its failure, 'Talaq', ipso facto, would become effective on expiry of 90 days of receipt of notice under S.7 of Muslim Family Laws Ordinance, 1961---Husband, in case of delegating right of Talaq (Tafweez) to wife at the time of marriage, which fact if duly incorporated in 'Nikahnama', and wife in exercise of her said right issued notice to Chairman Union Council---Chairman was duty bound to constitute Arbitration Council and proceed in accordance with provisions and he had no right to declare right of divorce through Tafweez as un-Islamic, unlawful and against Injunctions of Qur'an and Sunnah---Since wife in case, had issued notice to Chairman Union Council, who constituted Arbitration Council, but compromise could not be effected between parties, no option was left with Arbitration Council, but to declare that Arbitration proceedings had failed.

Dr. Qambar Murtaza Bokhari v. Mst. Zainab Bashir 1995 CLC 1574; Batool Tahir v. Province of Sindh through Secretary, Local Government Sindh and 3 others PLD 2005 Kar.358 and Alia Parveen v. Executive District Officer (Revenue), Sheikhupura and 3 others 2004 CLC 652 ref.

Nahida Mehboob Ellahi for Petitioner.

Respondent No.1 ex parte.

Raja Saeed Akram, A.A.-G. for Respondent No.2.

Date of hearing: 22nd July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 349 #

2006 Y L R 349

[Lahore]

Before Maulvi Anwarul Haq, J

SHAUKAT HUSSAIN---Petitioner

Versus

CIVIL JUDGE, MULTAN and 2 others---Respondents

Writ Petition No.3731 of 2005, decided on 23rd June, 2005.

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

----Ss.23 & 24---Muslim Family Laws Ordinance (VIII of 1961), S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Non-registration of Nikah---Effect---Non-registration of Nikah although a serious irregularity but same would not derogate from the validity of Nikah---Family Court while entertaining the suit of non-registered marriage, was to report the matter to the relevant Union Council.

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

----S.23---Qanun-e-Shahadat (10 of 1984), Art.85---Constitution of Pakistan (1973), Art.199---Constitutional petition---Nikahnama, whether a public document---Copy of Nikahnama---Admissibility--- Nikahnama is a public document and a copythereof is admissible and sufficient evidence to prove the factum of Nikah between the parties---Court below committed no misreading or non-reading of evidence concluding that a valid Nikah did exist between parties.

Zubaida Bibi and others v. Mst. Majidan and another 1994 SCMR 1978 ref.

Mian Habib-ur-Rehman Ansari for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 352 #

2006 Y L R 352

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD IQBAL---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHICHAWATNI

and 2 others---Respondents

Writ Petition No.4680 of 2004, heard on 29th September, 2005.

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

---S.5 & Sched.---Muslim Family Laws Ordinance (VIII of 1961), S. 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for restitution of conjugal rights was decreed but decree was set aside in appeal---Contention of husband was that he had divorced wife but same was revoked before its effectiveness---Question was as to whether decree for restitution of conjugal rights was rightly set aside by Appellate Court---Validity---Application for revocation of divorce on record, wherein a cutting did exist, had supported wife's claim that the application was moved after date of effectiveness of divorce---Statement of wife that due to allegation levelled against her by husband she had developed hatredness against the husband was necessitated the framing sufficient ground to lose the chance of reunion of parties---Wife, in circumstances, could not be forced to join the husband who had divorced her---Constitutional petition having no merits, was dismissed.

Rana A.O. Kamran for Petitioner.

Muhammad Ameer Bhatti for Respondent No.3.

Date of hearing: 29th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 357 #

2006 Y L R 357

[Lahore]

Before Maulvi Anwarul Haq, J

SHAUKAT HUSSAIN---Petitioner

Versus

CIVIL JUDGE, MULTAN and 2 others---Respondents

Writ Petition No.3730 of 2005, decided on 23rd June, 2005.

Civil Procedure Code (V of 1908)---

---O.IX, R.13---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(ix)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ex parte decree---Dissolution of marriage on ground of Khula in lieu of waiver by wife of her right to maintenance---Application for setting aside ex parte decree was dismissed by Courts below---Husband besides denying the existence of valid Nikah asserted in application that dower ought to have been adjusted in lieu of Khula and issues framed by Trial Court ought to have been decided before dismissal of application for setting aside ex parte decree---Validity---In presence of plea that dower ought to have been adjusted in lieu of Khula the question 'of non-existence of a valid nikah between the parties could not have been pressed---Upon non-payment of prompt dower wife could claim separate maintenance, therefore, a substantial claim stood remitted in lieu of Khula---Issues framed by Trial Court could never have been the subject matter of an application for setting aside of ex parte decree, therefore, the same need not to be decided before dismissal of application---Constitutional petition was dismissed in limine.

Mian Habib-ur-Rehman Ansari for Petitioner.

2006 Y L R 381

[Lahore]

Before Muhammad Nawaz Bhatti, J

FAISAL RAZA---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Chancellor and 2 others---Respondents

Writ Petition No.5120 of 2004, decided on 23rd November, 2005.

Educational Institution---

----Overlapping in examination---Petitioner had contended that overlapping in examination, had resulted in his missing the chances which were available to him and which now needed to be determined by the University---University stated that such matters were to be determined by Syndicate of the University---Constitutional petition was disposed of with observation that petitioner might approach the Syndicate of University with an appropriate application explaining his grievance and if such application vas made, same would be considered and decided by the Syndicate in accordance with law---Constitution of Pakistan (1973), Art.199.

Zafar Ullah Khan Khakwani for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 383 #

2006 Y L R 383

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD RAFIQUE and others---Petitioners

Versus

DISTRICT RETURNING OFFICER and others ---Respondents

Writ Petition No. 2727 of 2005, decided on 11th August, 2005.

Punjab Local Government Elections Rules, 2005---

----R. 14---Punjab Local Government Ordinance (X111 of 2001), S.152(1)(e)---Election of Nazim and Naib-Nazim---Matriculation Certificate issued to another person with same name being owned/claimed by candidate for seat of Nazim as his certificate---Rejection of nomination papers of petitioner by Returning Officer was upheld by District Returning Officer---Validity---Certificate issued by Assistant Secretary Admn-11, Board of Secondary Education indicating particulars including photograph of original Muhammad Rafique prima facie proved that Matriculation Certificate submitted by petitioner was not that of Muhammad Rafique petitioner, but was in fact property of another Muhammad Rafique who was definitely different from petitioner---Constitutional jurisdiction being discretionary in nature could not be used in aid of retention of illegal gain or in aid of injustice---No illegality or irregularity had been committed by Returning Officer or District Returning Officer while passing impugned orders---High Court dismissed constitutional petition in circumstances.

Abdul Sattar Lalika v. Ch. Sajid Ahmed and another 2003 MLD 459; Raja Muhammad Nasir v. Mahmood Shaukat Bhatti and 4 others PLD 2004 Lah. 213 and Nawabzada Mir Balach Khan Marri v. Mir Mohabat Khan Marri and 4 others ref.

(b) Punjab Local Government Elections Rules, 2005-

----Rr. 12, 14 & 64---Scrutiny proceedings---Nature and scope---Such proceedings being summary in nature, no specific finding could be recorded, which was only possible after recording elaborate evidence by Election Tribunal.

----R. 14---Punjab Local Government Ordinance (XIII of 2001), S.152(1)(e)---Scrutiny of nomination papers---Educational qualification of candidate---Proof---Duty of candidate to prove in scrutiny proceedings that prima facie he was holding requisite qualification in order to establish his entitlement to contest election, otherwise such statutory requirement would become redundant.

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

----Art.199---Disputed question of fact---Bar to determine such question in constitutional jurisdiction of High Court---Scope---Principles.

The findings of fact cannot be gone into in constitutional jurisdiction, which can only be determined after recording of proper evidence through full-fledged trial. While deciding each matter, its peculiar facts has to be kept in mind, and if disputed question of fact floating at the surface and can be resolved tentatively, then there is no bar for determining the same in constitutional jurisdiction, otherwise it would amount to perpetuating injustice.

Secretary to the Government of the Punjab,. Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415; Nawab Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 and Nisar-ul-Haq v. Tehsil Municipal Administrator City through Nazim and 2 others PLD 2002 Lah. 359 rel.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction could not be used in aid of retention of illegal gain or in aid of injustice.

Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415; Nawab Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 and Nisar-ul-Haq v. Tehsil Municipal Administrator City through Nazim and 2 others PLD 2002 Lah. 359 rel.

Masud Ahmad Khan for Petitioners.

Ch. Ijaz Ahmad, Ghazanfar Ali Khan and Mirza Muhammad Azam for Respondents.

Abdul Khaliq Sadozai, A.A.-G.

Date of hearing: 11th August, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 388 #

2006 Y L R 388

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD ARSHAD and others---Petitioners

Versus

RETURNING OFFICER and others ---Respondents

Writ Petition No. 2751 of 2005, heard on 9th August, 2005.

(a) Punjab Local Government Elections Rules, 2005--

----R. 14---Punjab Local Government Ordinance (XIII of 2001), S.152(1)(b)---Qanun-e-Shahadat (10 of 1984), Art.114---Constitution of Pakistan (1973), Arts.199---Constitutional petition---Election of Nazim and, Naib-Nazim---Qualification of candidates---Matriculation Certificate showing age of petitioner less than 25 years at the time of filing nomination papers---Rejection of nomination papers---Validity---Petitioner himself had filed Admission Form and entered therein his date of birth, thus, he was estopped to assert that such entry was against facts---Such entry made on information provided by petitioner, if was wrong, then fault would lie with him for which he must suffer---Petitioner could not assert that such certificate for purposes of passing Matriculation examination be accepted as genuine, but its entry regarding date of birth be ignored and his date of birth as recorded in Register of Births of Union Council be accepted---Date of birth of petitioner recorded in Identification Card and Matriculation Certificate were not same---Such facts showed that either Matriculation Certificate did not relate to petitioner or his age was definitely below 25 years at relevant time as per date of birth entered therein on his information---Petitioner had approached High Court with unclean hands, which fact alone would be sufficient to disentitle him to grant of discretionary relief in constitutional jurisdiction---Impugned orders were correct and valid---High Court dismissed constitutional petition.

Waqas Akram v. Dr. Muhammad Tahirul Qadri and others 2003 SCMR 145 Distinguished

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

----Art.199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction could not be used in aid of retention of illegal gain or in aid of injustice.

Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 rel.

----Art.199---Approaching High Court with unclean hands---Effect---Such fact alone would be sufficient to disentitle petitioner to grant of discretionary relief in constitutional jurisdiction.

Nawab Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 and Nisar-ul-Haq v. Tehsil Municipal Administrator City through Nazim and 2 others PLD 2002 Lah. 359 rel.

Rehan Zafar for Petitioner.

Mian Muhammad Afzal Watto for Respondents.

Date of hearing: 9th August, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 392 #

2006 Y L R 392

[Lahore]

Before Maulvi Anwarul Haq, J

AHMAD KHAN and another---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN, through its Secretary, Islamabad and 8 others---Respondents

Writ Petition No.5496 of 2005, decided on 3rd October, 2005.

Punjab Local Government Election Rules, 2000---

----R.70---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Results were duly notified by Election Commission of Pakistan---Notification issued by Chief Election Commissioner for the recount without stating any reason---Implementation---Declaration of petitioners as returned candidates was reversed---Subsequently inquiry proceedings disposed of as order for the recount was withdrawn by Election Commission and parties were referred to Election Tribunal vide notification---Question was as to whether the proceedings in pursuance of the orders having been implemented before withdrawal, could have been of any legal effect---Validity---Impugned direction for recount having been withdrawn and otherwise having not been issued in a manner prescribed by law, and the proceedings of recount conducted pursuant thereto including the notification of respondents as returned candidates by modification of notification publishing the names of petitioners as returned candidates were declared to be without lawful authority and were set aside---Aggrieved candidates might approach Election Tribunal with a properly instituted election petition.

Mian Abbas Ahmad for Petitioners.

M. R. Khalid Malik, Addl. A.-G.

Abdul Aziz Khan for Respondents Nos.4 and 5.

Irfan Ahmad Khan for Respondent No.6.

YLR 2006 LAHORE HIGH COURT LAHORE 394 #

2006 Y L R 394

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. BHAGARI---Petitioner

Versus

KHIA and 2 others---Respondents

Civil Revision No.309-D of 1983, heard on 21st July, 2005.

Constitution of Pakistan (1973)---

----Art. 260(3)(a)---Specific Relief Act (I of 1877), S. 42---'Muslim', meaning and determination of---Suit for declaration---Parties were sons and daughters of deceased owner of suit property---Respondents in their suit sought declaration that petitioner being 'Ahmadi' or 'Mirzai' was not entitled to inherit estate of their father---Petitioner lady appeared in Court and stated on oath that she was Sunni Muslim and that it was her faith that Hadrat Muhammad (PBUH) was last prophet of Allah and that Mirza Ghulam Ahmad was not such prophet---On such statement of petitioner, respondent withdrew their case unconditionally---Respondent again filed suit against petitioner, which suit was concurrently decreed by Trial Court and Appellate Court declaring petitioner to be Qadiani/Mirzai---Petitioner had filed revision against concurrent judgment of Courts below---Petitioner had reiterated and professed to be a Muslim in her written statement which was signed and verified by her on Oath---Statement of Petitioner lady, who professed to be a Muslim in strict terms laid down in Constitution could not be questioned---Even otherwise there were statutory requirements that certain act could be done only by a Muslim and that certain right or privileges were available only to a Muslim---A Muslim was required to express faith in the terms stated in the Constitution---Regarding question of marriage of petitioner lady with Qadiani/Ahmadi, it could affect the validity of her marriage, but it certainty would not affect her right to inherit her father---Earlier suit having been withdrawn unconditionally, subsequent suit filed by respondent was barred by law and was not competent-High Court accepting revision, set aside impugned judgments and decrees of Courts below and suit filed by respondent was dismissed.

Maula Buksh v. Charuk and others PLD 1952 Sind 54 ref.

Malik Muhammad Sharif for Petitioner.

Kabir Mehmood for Respondents.

Date of hearing: 21st July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 398 #

2006 Y L R 398

[Lahore]

Before Maulvi Anwarul Haq, J

ABBAS ALI SHAH ---Appellant

Versus

MUHAMMAD BASHIR and 13 others---Respondents

R. S. A. No.6 of 2003, heard on 28th June, 2005.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Suit for pre-emption--Superior right of pre-emption and making of Talbs---Register Haqdaran Zamin for relevant years pertaining to suit-land had shown that vendor and plaintiff/pre-emptor were co-owners in suit-land---Plaintiff, in circumstances had a superior right of pre-emption in respect of suit-land, whereas vendees had no such qualification---Evidence on record had also fully proved that plaintiff had made Talbs---Trial Court, in circumstances had rightly decreed the suit and Appellate Court was not justified to set aside judgment and decree of Trial Court holding that Talbs had not been performed by pre-emptor---Impugned judgment and decree of Appellate Court was set aside by the High Court in second appeal whereas that of Trial Court were restored.

Muhammad Yousaf v. Ghulam Muhammad and 5 others 2002 YLR 3764; Malik Pir Bakhsh and others v. Ali Muhammad 1992 SCMR 1031; Berkhurdar v. Muhammad Razzaq PLD 1989 SC 749 and Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 ref.

Ahmad Nadeem Khan Chandia and Muhammad Naveed Hashmi for Appellant.

Sh. Muhammad Rafiq Goreja for Respondents.

Date of hearing: 28th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 403 #

2006 Y L R 403

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD WASEEM ZAFAR---Petitioner

Versus

CHAIRMAN, ADMISSION BOARD, MEDICAL COLLEGES and 13 others---Respondents

Writ Petition No.2083 of 2005; heard on 30th November, 2005.

Educational institution---

----Admission to first year M.B., B.S. Class against seats reserved for disabled students---Petitioner, who was a registered disabled person, had secured "Grade-A with 818/1100 marks in his Intermediate Examination, applied for admission to first year M. B.B. S: Class against seats reserved for disabled students for the Session 2004-05---Petitioner appeared in entry test and got 992/1100 marks, his cumulative merit was 79.9 per cent and amongst category of disabled students, he stood .at No.2 on the merit list, but despite that he was not granted admission---Petitioner had filed constitutional petition against said refusal---Authorities while admitting in their written statement that petitioner was duly qualified to be admitted to M.B., B.S. Class, had made feeble attempt to allege that folly was of the petitioner, who previously appeared for admission and was duly assessed, but he did not mention said fact in his admission form---After said admission by authorities in pleadings, no fault could be attributed to petitioner, who was neither called upon nor was in a position, in view of several Columns in the admission form, to state that he stood qualified by Medical Board earlier---Contention of authorities that since the session was over and new session had started, petitioner should take fresh entry test, was repelled because in absence of any denial that it was the right of petitioner to be admitted to said class in the said category, petitioner could not be denied same on said reason---Petitioner, present in Court with his counsel, had agreed to join next available class of M.B., B.S. first year---Constitutional petition was allowed with direction to authorities to admit petitioner to first year M.B., B.S. class for the Session 2005-06 under "disabled" category in the Medical College, in which seats of said categories were reserved---Constitution of Pakistan (1973), Art.199.

Muhammad Alam v. Chairman, Joint Admission Committee and 3 others 2003 YLR 854 ref.

Mian Mushtaq Ahmad for Petitioner.

Zafar Ullah Khan Khakwani, A.A.-G. with Rana Abdul Khaliq, Budget Accounts Officer, K.E.M.C., Lahore.

Date of hearing: 30th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 406 #

2006 Y L R 406

[Lahore]

Before Sh. Javaid Sarfraz, J

MAZHAR IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3225-B of 2005, decided on 28th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, grant of--Business dealing existed between accused and complainant and due to said dealings cheque in question was handed over to complainant---Amount of cheque in question, had already been paid to complainant in due course of time and said cheque was not to be presented to Bank for encashment---In order to attract S.489-F, P.P.C., element of dishonesty should be shown, which element was absent in the present case as amount had already been paid to the complainant---Dishonouring of cheque would not mean that criminal case be registered forthwith, but purpose for which cheque was issued should be taken into account before initiating criminal action---Accused, in circumstances had made out a case of further inquiry into his guilt---Offence with which accused was charged being punishable only with three years' R.1., would not fall within prohibitory clause of S.497, Cr. P. C.---Grant of bail, in such-like cases, was a rule and its refusal an exception--Pre-arrest bail already granted to accused, was confirmed in circumstances.

Major Anwar-ul-Haq v. The State PLD 2005 Lah.607; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Ali Murtaza v. The State 2005 PCr.LJ 1773 ref.

Ahmad Raza for Petitioner.

Muhammad Yosuaf Syed for the State with Jasel Khan Awan, S.I., P.S. Fateh Sher, District Sahiwal.

YLR 2006 LAHORE HIGH COURT LAHORE 408 #

2006 Y L R 408

[Lahore]

Before Muhammad Nawaz Bhatti, J

SHOUKAT ALI and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2969-B of 2005, decided on 8th December, 2005.

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

----S. 497---Penal Code (XLV of 1860), Ss.337-A(ii) & 337-F(ii)---Bail, grant of---Case of cross-versions---Both parties had sustained injuries---Was yet to be ascertained as to who was the aggressor---Delay of 15 days had occurred in recording of cross-version---Offence attributed to accused person did not fall in prohibitory clause of S. 497, Cr.P.C.-Challan had been submitted in the Court and accused were no more required by police for the purpose of investigation---No useful purpose would be served to put accused behind the bars for an indefinite period---Accused were allowed bail.

Bashir Ahmad v. State 2005 YLR 1201 and Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 ref.

Abid Husain Bhutta for Petitioner.

Ch. Khalid Mahmood for the Complainant.

Masood Sabir for the State.

Mulazim Hussain S.I.

YLR 2006 LAHORE HIGH COURT LAHORE 411 #

2006 Y L R 411

[Lahore]

Before Nasim Sabir, J

KHALID MAHMOOD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.231 of 1996, heard on 8th July, 2004.

Penal Code (XLV of 1860)---

----S. 302 (b) (c)---Appreciation of evidence---Sentence reduction in---Accused, though had taken up a stance that quarrel among womenfolk resulted in the death of deceased, but recovery of "Soya" was effected on pointation of accused---Four witnesses produced in defence had deposed that co-accused was innocent, but no one pleaded innocence of accused---Prosecution through cogent evidence had proved commission of murder of deceased at the hands of accused, but even in F.I.R. it was admitted that complainant party itself had gone to house of accused and dispute between accused and deceased, a day prior to fateful day, was also not denied---What preceded immediately before occurrence, in circumstances was of great importance, but those circumstances remained shrouded in mystery---Case against accused, with said background and material on file, would fall under S.302(c), P.P.C. and not under S.302(b), P. P. C.---While altering conviction of accused under S.302(c), P.P.C., sentence of life imprisonment was reduced to imprisonment for seven years R.1.---Sentence of imposition of compensation was, however, upheld and maintained.

Altaf Ibrahim Qureshi for Appellant.

Muhammad Farooq Ibrhaim for the State.

Date of hearing: 8th July, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 413 #

2006 Y L R 413

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD FAISAL HASEEB KHAN BALOCH and 2 others---Petitioners

Versus

VICE-CHANCELLOR, BAHA-UD-DIN ZAKARIYA UNIVERSITY, MULTAN

and 2 others---Respondents

Writ Petition No.5267 of 2005, decided on 6th December, 2005.

Educational institution-----

----Examination and promotion to next semester---Petitioners were admitted on merit in B.Sc (Hons.) in the University for Session 2004-2005 comprising of 4 years Semester System examination---Petitioners qualified first Semester obtaining the required CGPA and were promoted to 2nd semester; petitioners, however, could not secure CGPA in 2nd Semester up to 50% according to amended rules and also having failed in passing prescribed number of papers, their names were struck off from the roll of the University---Contention of petitioners was that according to examination system, published in the Prospectus 2004-2005, in order to complete a course successfully, petitioners were required to obtain at least 40% marks each in theory and practical separately and according to Regulations published in said prospectus candidates having 40 to 49% marks falling in Grade, Value 1 would be deemed to be passed---Petitioners had claimed that since they had obtained more than 40% marks, they were entitled to sit in the 3rd Semester and that any change, made in rules and regulations after admission in the above said course and without notice was not applicable to them---Validity---Amendment in Regulations was made prior to examination of 2nd Semester and it was duly notified on the college notice board---Petitioners, in circumstances could not take refuge behind the pretext that amendment so made in the regulations was not properly notified to petitioners and they had no knowledge of the same---Petitioners were duty bound to inquire about the change made in the regulations---Opening para. of Prospectus 2004-2005 provided that "prospectus was issued on express condition that it shall not form part of any contract between the University and any student "; very mentioning of that had made it clear that information given in the prospectus, would not bind the Chairman Admission Committee---Issuance of prospectus to students and rules, regulations and conditions mentioned therein, would not constitute any contract between students and the University---Contentions of petitioners that rules were not duly notified through prospectus, had no substance as all laws and regulations, could not be notified through prospectus---Student who sought admission, was supposed to know rules and regulations applicable to his study, which had otherwise been duly notified---Petitioners having failed to obtain requisite CGPA in 2nd Semester, University authorities had rightly removed their names from college roll---Constitution of Pakistan (1973), Art.199.

Tahmasub Faraz Tayyab and others v. University of Health Sciences and others PLD 2005 Lah. 261; Muhammad Ilyas v. Bahauddin Zakariya University, Multan 2005 SCMR 961; Saraha Malik v. Federation of Paksitan and others 2001 MLD 1026; Akhtar Ali Javed v. Principal Quaid-e-Azam Medical College 1994 SCMR 532 and Muhammad Shakeel v. Vice-Chancellor, University of Agriculture and others 2005 CLC 1 ref.

Muhammad Khalid Farooq for Petitioners.

Malik Muhammad Rafique Rajwana, Malik Muhammad Tariq Rajwana along with M. Asghar Rana and Sarfraz Ali Shad on behalf of Respondents Nos.1 and 2.

YLR 2006 LAHORE HIGH COURT LAHORE 425 #

2006 Y L R 425

[Lahore]

Before Mian Hamid Farooq, J

Lt.-General (Retd.) JAMSHAID GULZAR, CHAIRMAN, FPSC and 4 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad and 2 others

Writ Petition No.2379 of 2005, decided on 20th December, 2005.

(a) Federal Public Service Commission Ordinance (XLV of 1977)---

----S. 4(1) (as substituted by Federal Public Service Commission (Amendment) Ordinance (XV of 2005))---Constitution of Pakistan (1973), Arts. 89, 248(1) & 199---Public Service Commission, members of---Promulgation of Federal Public Service Commission (Amending) Ordinance, 2005 by President amending thereby S.4(1) of Federal Public Service Commission Ordinance, 1977 curtailing term of office of such members---Constitutional petition by existing affected members alleging such amendment to be mala fide impleading therein President and Prime Minister as respondents---Validity---Petitioners had not specifically alleged and pleaded any mala fide of fact against President and Prime Minister---Nothing on record was available to show that promulgation of Federal Public Service Commission (Amendment) Ordinance, 2005 by President was due to mala fide of fact---Mere promulgation of Ordinance, 2005 two days before Session of National Assembly would not be a ground to assume and infer that legislative action of President was tainted with mala fide of fact---In presence of Federation of Pakistan, Secretary Establishment Division and Secretary Law Division as respondents, immunity would be available to President and Prime Minister under Art. 248(1) of the Constitution---Suck matter could effectively and conclusively be decided in absence of President and Prime Minister, who were not necessary or proper parties to present proceedings---President in exercise of powers under Art. 89(1) of the Constitution had validly promulgated Ordinance, 2005, vires of which could not be subjected to judicial review---High Court directed deletion of names of President and Prime Minister from array of respondents.

Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Nawabzada Muhammad Umar Khan (represented by his legal heirs) and 4 others v. Pakistan through Secretary, Cabinet Division and 2 others PLD 1982 Pesh.1; Ch. Zahur Ilahi, M.N.A. v. Mr. Zulfikar Ali Bhutto and 2 others PLD 1975 SC 383; Abrar Hassan v. Government of Pakistan and another PLD 1976 SC 315; Khawaja Muhammad Sharif v. Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others PLD 1988 Lah.725; Muhammad Anwar Durrani v. Province of Balochistan through Chief Secretary and 10 others PLD 1989 Quetta 25; Pakistan, through Secretary, Cabinet Division, Islamabad and others v. Nawabzada Muhammad Umar Khan (deceased) now represented by Khawaja Muhammad Khan of Hoti and others 1992 SCMR 2450; Nawabzada Mohsin Ali Khan and others v. Government of N.-W.F.P. and others PLD 1993 Pesh.207; Pakistan Lawyers Forum v. Federation of Pakistan and others PLD 2003 Lah.371; Nayyar Abbas and others v. Government of the Punjab and 4 others 2004 MLD 976; Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Abdul Qayyum Qureshi v. The Government of Punjab and others 1975 SCMR 457; Pakistan v. Fazal Rahman Khundkar and another PLD 1959 SC (Pak.) 82; Ch. Muhammad Bakhsh v. Government of Punjab through Secretary, Education Department, Government of the Punjab, Lahore and 2 others PLD 1989 Lah.175; Professor Feroze Yousif Khan v. Chief Secretary, Government of Sindh, Karachi and another 1988 PLC (C.S.) 763; 1982 CLC 515; Professor Alaud Din Akhtar, Chairman, Punjab Textbook Board v. Government of the Punjab through the Chief Secretary, Punjab, Lahore and another PLD 1979 Lah.324; Saeed Mehtab Butt, Member, Punjab Public Service Commission, Lahore v. The Government of Punjab through Chief Secretary and 3 others 1998 PLC (C.S.) 535; Sh. Muhammad Ali v. Messrs China Silk House and another 1985 CLC 679; State Life Insurance Corporation of Pakistan v. Mercantile Mutual Insurance Company Limited and others 1993 SCMR 1394; Altai Hussain and 2 others v. N.E.D. University of Engineering and Technology through Vice-Chancellor and another PLD 1997 Kar.289; Muhammad Hussain and others v. Muhammad and others 2000 SCMR 367; Zila Council, Jhang, District Jhang through Administrator and others v. Messrs Daewoo Corporation, Kot Ranjeet, Sheikhupura through Director Contract and others 2001 SCMR 1012; Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193; The State v. Maulvi Muhammad Jamil and others PLD 1965 SC 681; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Muhammad Rafique v. Federation of Pakistan through Secretary, Law Justice and Human Rights Division, Islamabad and another PLD 2005 Lah,150; The Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151; Ardeshir Cowasjee and 11 others v. Sindh Province and others 2004 CLC 1353; Mahmood Hassan Harvi v. Federation of Pakistan through Secretary Interior, Government of Pakistan, Islamabad and 3 others PLD 1999 Lah.320 and Ghulam Nabi v. Province of Sindh and others PLD 1999 Kar.372 ref.

Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Pakistan through Secretary, Cabinet Division, Islamabad and others v. Nawabzada Muhammad Umar Khan represented by Khawaja Muhammad Khan of Hoti and others 1992 SCMR 2450; Ch. Shabbir Hussain and others v. Registrar, Lahore High Court, Lahore and others PLD 2004 SC 191; Nawabzada Mohsin Ali Khan and others v. Government of N.-W.F.P. and others PLD 1993 Pesh,207; Abrar Hassan v. Government of Pakistan and another PLD 1976 SC 315; Mahmood Hassan Harvi v. Federation of Pakistan through Secretary Interior, Government of Pakistan, Islamabad and 3 others PLD 1999 Lah. 320; Ardeshire Cowasjee and 11 others v. Sindh Province and others 2004 CLC 1353; Shamimur Rahman v. Fauji Foundation, Rawalpindi and another 1992 SCMR 1496 and Muhammad Rafique v. Federation of Pakistan through Secretary, Law Justice and Human Rights Division, Islamabad and another PLD 2005 Lah.150 rel.

(b) Mala fide---

----Proof of --Mala fide is one of the most difficult things to prove---Onus to prove mala fide is always on the person alleging mala fide.

The Federation of Pakistan through The Secretary Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151; Ch. Shabbir Hussain and others v. Registrar Lahore High Court and others PLD 2004 SC 191 and Nawabzada Mohsin Ali Khan and others v. Government of N.-W.F.P. and others PLD 1993 Pesh.207 rel.

----S. 4(1) (as substituted by Federal Public Service Commission (Amendment) Ordinance (XV of 2005))---Constitution of Pakistan (1973), Art. 199---Public Service Commission, members of-Promulgation of Federal Public Service Commission (Amending) Ordinance, 2005 amending S.4(1) of Federal Public Service Commission Ordinance, 1977 curtailing term of office of existing members of Commission---Constitutional petition by such existing members---High Court admitted constitutional petition for regular hearing to consider questions, whether Ordinance, 2005 would operate prospectively or retrospectively; whether any vested right existed in favour of petitioners at the time of promulgation of Ordinance, 2005, if so, whether same had been infringed ;whether petitioners' cessation to hold offices under Ordinance, 2005 was void, unconstitutional and without lawful authority.

Muhammad Akram Sheikh for Petitioners.

Makhdoom Ali Khan, Attorney-General for Pakistan for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 440 #

2006 Y L R 440

[Lahore]

Before Muhammad Muzammal Khan, J

DISTRICT COUNCIL, FAISALABAD through District Coordination

Officer---Petitioner

Versus

Ch. MUHAMMAD YASIN and another---Respondents

R.S.A. No. 150 and C.M.A. No.1 of 2005, decided on 5th October, 2005.

Limitation Act (IX of 1908)---

----Ss.4 & 5---Civil Procedure Code (V of 1908), S.100---Second appeal--- Limitation---Condonation of delay--- Principles---Government functionaries---Second appeal filed by authorities was barred by 397 days---Condonation of delay was sought on the pleas that no funds were available for purchase of court fee, there was ambiguity of name of appellant and High Court remained closed due to summer vacation---Validity---On the last day for filing of appeals, funds were available with the authorities for purchase of court fee and there was no difficulty of funds and ambiguity of the name of individual for filing of appeal had been resolved---During summer vacation, office of High Court remained open for entertaining cases involving limitation. thus protection of S.4 of Limitation Act, 1908, was not available to the appellant/department---Even if there was any problem within the department of appellants, such problem could not be cited as a valid ground for condonation of delay which was not sufficient and did not justify to deprive respondents of valuable rights which had accrued to them by lapse on the part of department---Government departments could not be given any preferential treatment as against private litigants---Department failed to explain inordinate delay occasioned on account .of its negligence/indolent conduct---Initially it applied for certified copies after two months without any cause then it consumed more than a year in filing the appeals after getting the copies from the copying agency---Department was required under law to explain each day's delay, which was lacking in the case---Department did not have sufficient cause for condonation of unexplained delay, nor the same was asserted or made out from the record---High Court declined to condone the delay---Appeal was dismissed in limine.

Chairman/Secretary, Pakistan Railways, Ministry of Railway, Government of Pakistan, Islamabad and others v. Muhammad Sharif Javed Warsi PLD 2003 SC 6; Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers 1990 SCMR 1059; Government of the Punjab through Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396); Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad and 5 others v. Jamalud-Din and others 1996 SCMR 727; Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port Samberaial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others 1998 SCMR 307; Lahore High Court, Lahore through Registrar v. Nazar Muhammad Fatiana and others 1998 SCMR 2376 and Chairman, District Evacuee Trust, Jhelum v. Abdul Khaliq PLD 2002 SC 436 rel.

Aamir Ikram and 10 others v. District Health Officer, Vehari and others PLD 2003 SC 266 distinguished.

Ch. Khurshid Ahmad for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 445 #

2006 Y L R 445

[Lahore]

Before Muhammad Muzammal Khan, J

ALI NAWAZ---Petitioner

Versus

LAHORE HIGH COURT, LAHORE through Registrar and 2

others---Respondents

Writ Petitions Nos.10240, 10485, 10767, 10769, 10892, 12364, 12377 and 13972 of 2005, decided on 11th November, 2005.

Constitution of Pakistan (1973)---

----Arts. 199(1) & (5)---Constitutional petition---Maintainability---Word person' as used in Art.199 (1) of the Constitution---Import---Issuance of writ against High Court--- Scope--- Non-availability of remedy---Effect---Petitioners being unsuccessful candidates assailed appointments of Additional District and Sessions Judges by Administrative Committee of High Court, before High Court under its constitutional jurisdiction---Plea raised by the petitioners was that constitutional petition was maintainable as there was no. other remedy available to them---Validity---Each Judge of High Court. acted as High Court and any direction by Single Judge would amount to its issuance against himself-Such exercise could not be undertaken in view of the principle that no one can act as a Judge in his own cause---Direction in terms of Art.199 of the Constitution, could be issued to a person performing within the territorial jurisdiction of High Court, functions in connection with the affairs of Federation, Province or a local authority but word 'person' used in Art.199 (1) of the Constitution did not include a High Court including other authorities / institutions mentioned in Art.199 (5) of the Constitution---High Court did not act as persona designata on behalf of the Governor, rather it acted in its own rights to appoint Additional District and Sessions Judges against vacancies, occurring under its control---Cases of petitioners did not fall within any of the exceptions pointed by Supreme Court in case titled Muhammad Ikram Chaudhry v. Federation of Pakistan and others reported as PLD 1998 SC 103---Non-availability of remedy to petitioners for redressal of their grievance could not confer jurisdiction to issue a writ which was specifically excluded by virtue of Art.199(5) of the Constitution---High Court had no power to undo the judgments passed by Supreme Court and Full Bench of High Court, by jumping Constitutional provisions, of which it was under oath to abide by---Petition was dismissed in circumstances.

Asif Saeed v. Registrar, Lahore High Court and others PLD 1999 Lah. 350; Mumtaz Ali Bhutto v. Mr. Justice Anwarul Haq and 2 others PLD 1979 Kar. 524 and Malik Asad Ali and others v. Federation of ,Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161 rel.

Muhammad Ikram Chaudhry and others v. Federation of Pakistan and others PLD 1998 SC 103 and Muhammad Mohsin Siddiqi v. Government of West Pakistan PLD 1964 SC 64 distinguished.

Muhammad Ahsan Bhoon for Petitioner.

Talat Farooq Sheikh for Petitioner (in Writ Petition No 10585 of 2005).

Aamir Iqbal Basharat for Petitioners (in Writ Petitions Nos.10767 and 10769 of 2005).

Malik Khizar Hayat Khan for Petitioner (in Writ Petition No.10892 of 2005).

Malik Muhammad Usman for Petitioner (in Writ Petition No.12364 of 2005).

Kh. Haris Ahmed for Petitioner (in Writ Petition 12377 of 2005).

Raja Shafqat Khan Abbasi for-Petitioner (in Writ Petition No.13972 of 2005).

Ch. Muhammad Sadiq, Additional Advocate-General.

M. Javed Iqbal Jaffari Amicus Curiae.

YLR 2006 LAHORE HIGH COURT LAHORE 454 #

2006 Y L R 454

[Lahore]

Before Muhammad Jehangir Arshad, J

GHULAM YASIN---Appellant

Versus

GHULAM MUSTAFA and another---Respondents

S.A.O. No.18 of 2004, decided on 15th December, 2005.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 2(c)(i), 13(2)(i), 3(a)(ii) & 15(6)---Wilful default and bona fide personal need of landlord---Both parties co-sharers in property in question---Co-sharer, claiming himself as owner of shop, had filed an ejectment application against occupant/cosharer seeking his ejectment from shop on ground of wilful default and for his personal requirement for running business of his sons---Rent Controller, after recording evidence of parties, dismissed ejectment application, but Appellate Authority set aside order of Rent Controller and occupant/co-sharer was ordered to he evicted from shop as prayed .for---Validity---Shop in dispute formed part of undivided joint Khata owned by occupant/ co-sharer and applicant/co-sharer jointly---Appellate Court in circumstances had no jurisdiction to pass ejectment order against occupant/co-sharer being joint owner of shop in dispute and in violation of basic law that no co-sharer could eject another co-sharer without getting joint property partitioned by metes and bounds---No co-sharer could hold any joint property as tenant under other co-sharer---Rent Controller in circumstances, was justified in holding that there existed no relationship of landlord and tenant between the parties---Co-sharer in possession of joint property could not be evicted without filing a suit for partition---Ejectment petition filed by co-sharer was rightly dismissed by Trial Court and appeal filed by occupant/co-'sharer against said order was wrongly accepted by Appellate Authority---Order passed by Appellate Authority below, was set aside by High Court and that of Rent Controller was restored.

Muhammad Nawaz and 2 others v. Sh. Muhammad Latif and 2 others 1971 SCMR 198; Muhammad Daud v. Mst. Surriya Iqbal and another PLD 2000 Pesh.54; Dr. Ubaidur Raza Khan v. Mrs. Saghera Bang and another 1994 CLC 1302; Saeeda Begum v. Shameem Ahmad 1994 SCMR 791; Nazir Ahmad v. Mst. Sardar Bibi and others 1989 SCMR 913; Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1; Ghulam Mustafa and others v. Mst. Muhammadi Begum and others 1991 SCMR 432; Ghulam Mustafa and another v. Mst. Muhammadi Begum and another 1990 CLC 246; Isa Khan and 23 others v. Barkatullah and 9 others PLD 1989 Pesh.67; Rabnawaz v. Haji Muhammad Iqbal and 2 others 2003 SCMR 1476; Khawaja Masood Ahmed and another v. Sajad Sarwar and 2 others 2002 MLD 434; Hafiz Abdul Majeed v. Muhammad Younis 1992 MLD 82; Muhammad and 2 others v. Sh. Abdul Latif and another 1991 SCMR 198; Muhammad Hanif v. Mst. Ahmadi Begum 1996 CLC 137 and Izhar ul Hassan v. Abdul Rehman 1992 SCMR 1243 ref.

Mian Abdul Sami for Appellant.

Jam Abdul Majeed Mustafai for Respondents.

Date of hearing: 12th December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 467 #

2006 Y L R 467

[Lahore]

Before Muhammad Jehangir Arshad, J

AUQAF DEPARTMENT and others---Petitioners

Versus

MUHAMMAD SADIQ and others---Respondents

C.Rs. Nos.19-D and 11-D of 2000 along with Cross-Objections Nos.74 and 73 of 2000, decided on 15th December, 2005.

(a) Punjab Waqf Properties Ordinance (IV of 1979)---

----Ss.3(3) & 9(2)---West Pakistan Waqf Properties (Administration) Rules, 1960, R. 7---Limitation Act (IX of 1908), Art.14---Specific Relief Act (I of 1877), Ss.8, 42 & 55---Suit for declaration and mandatory injunction---Limitation---Crux of findings of two Courts below was that as tenant was ejected from suit properly without issuing any notice to him or affording him opportunity of hearing and even without passing formal order of cancellation/ termination of his tenancy/ lease in terms of S.9 of Punjab Waqf Properties Ordinance, 1979, act of Department was without lawful authority and of no legal effect and that tenant was entitled to restoration of his tenancy---Prima facie, findings of two Courts below to that extent did not suffer from any misreading or non-reading of evidence, especially when nothing had been produced by Department showing that leasehold rights of tenant were terminated after giving him notice as well as affording him opportunity of hearing, but tenant after his eviction from suit properly remained silent for about three years and never agitated against ejectment proceedings and instituted suit after three years after his dispossession from property in dispute---Such silence and inaction on part of tenant was sufficient for one to hold that he had accepted his eviction proceedings and had subsequently admitted delivery of possession of suit property to the other person as valid and that was also sufficient to hold that tenant had surrendered his tenancy rights---Appellate Court in its judgment found tenant as defaulter as well as guilty of subletting of suit property in violation of R.7(3) of West Pakistan Waqf Properties (Administration) Rules, 1960 and said findings were based on proper and correct appreciation of evidence on record--In presence of said evidence and findings recorded by Appellate Court; no room was left for High Court to hold that tenant was still entitled to notice within the meaning of S.9 of Punjab Waqf Properties Ordinance, 1979 as even by issuance of notice, ultimate result would have been the same---Allowing revisions---Judgments and decrees of two Courts below were set aside and suit by tenant was dismissed.

Millac Pakistan (Pvt.) Ltd. v. Sindh Industrial Trading Estate Limited 1996 CLC 213; Additional Commissioner-II, K. Division v. Shahid Raza and others 1997 MLD 2444; Muhammad Hussain v. Akbar Hussain 1982 CLC 1249; Nasir Mahmood v. Mustajabi Begum 1983 CLC 2872; Abdul Haq Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907; Abdul Qadir and others v. The Settlement Commissioner and others PLD 1991 SC 1029; Zarghun Shah v. Surgeon General and another PLD 1998 SC 540; Shahab ud Din and others v. Mst. Mariam Bibi and others 1995 MLD 45; Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, sargodha and another PLD 1966 SC 639; Rehmat Ullah and another v. The Secretary, Evacuee Property Trust Board, Government of Pakistan, Lahore and 2 others 1972 SCMR 168; The Majlis-I-Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore PLD 1963 SC 109; Sardar Muhammad Aslam Sial and 3 others v. Government of Pakistan and 3 others" 1985 SCMR 9; Sharif Har06n v. Province of Sindh through Secretary to the Government of Sindh, Land Utilization Department and another PLD 2003 Kar.237; Walidad v. Shah Din and another 2000 CLC 1207 and Chand Foundation v. Federation of Pakistan and others NLR 1995 Civil 180 ref.

(b) Natural justice, principles of---

----Applicability of-Nobody should be condemned unheard and right of opportunity of hearing Was basic right before any adverse action was taken against a person, but issuance of notice or affording opportunity of hearing would depend upon the facts and circumstances as to whether observance of technical rule of 'audi alteram partem' would serve the ends of justice or it would negate ends of justice---If forum before which question of want of notice or affording opportunity of hearing was raised, was able to examine the merits, there would be nothing wrong in deciding matter finally and refraining from multiplicity of proceedings, which was an end-product also would cause injustice and misery insofar as delay, expenses and anxiety were concerned.

Abdul Qadir and others v. The Settlement Commissioner and others PLD 1991 SC 1029 and Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 ref.

----Ss.3 & 9---West Pakistan Waqf Properties (Administration) Rules, 1960, R.7--- Specific Relief Act (I of 1877), Ss.8, 42 & 55---Civil Procedure Code (V of 1908), S.115---Suit for declaration and mandatory injunction---Termination of tenancy and ejectment from suit property---Subsequent lessee---Rights of---Courts below concurrently decreed suit filed by tenant---Courts below besides granting declaration sought for by tenant, declared leasehold rights in favour of subsequent lessee, who obtained said rights through auction, as illegal and also directed delivery of possession by way of mandatory injunction to the tenant---Findings of Courts below could not remain in field as leasehold rights of the tenant were neither terminated by the Department for default of subsequent lessee nor tenant was evicted at the instance of subsequent lessee---Subsequent lessee had obtained leasehold rights in public auction and was inducted into possession by Auqaf Department in accordance with law---To hold that tenancy rights of subsequent lessee would fall on the ground as the very cancellation leasehold rights of tenant and his eviction from the disputed property was void, was not correct interpretation of law on the subject.

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

---Ss. 8, 9 & 42---Suit for declaration and possession---Relief either under Ss.8 & 9 or S.42 of Specific Relief Act, 1877 was discretionary and could not be granted to a person who was either guilty of delay, slackness, estoppel or had approached the Court with unclean hands i.e. being defaulter as well as guilty of subletting of suit property.

Municipal Committee, Jhang v. Muhammad Rarnzan PLD 1978 Lah.498 and Sheikh Ghulam Ahmad and others v. Raja Muhammad Yusuf Khan and others PLD 1986 SC (AJ&K) 16 ref.

Aejaz Ahmad Ansari and M. Shamshair Iqbal Chughtai for Petitioners.

Sardar Muhammad Hussain Khan for Respondent No.1.

Date of hearing: 9th December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 476 #

2006 Y L R 476

[Lahore]

Before Muhammad Sair Ali, J

IJAZ ASLAM KHAN KHALIL and 4 others---Petitioners

Versus

Mst. SULTANA BEGUM and 3 others---Respondents

Civil Revision No.1917 of 1992, decided on 30th June, 2005.

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

---S.115---Concurrent findings of fact by subordinate Courts---Reframing of opinion by Revisional Court as against such findings---Scope---Such exercise could not be ventured by Revisional Court under 5.115, C.P.C.---Revisional powers could only be exercised, when subordinate Courts either wrongly assumed jurisdiction or failed to exercise or illegally exercised the same or committed material irregularity therein including disregarding or misreading of evidence on record---Well reasoned opinion of Courts below on litigated questions of fact could not be superseded by High Court, even if another view was deducible from evidence or a third opinion of fact was inferable from record.

(b) Islamic law---

----Parentage of a child---Presumption---Presumption would be in favour of validity and legality of parenthood of a child as claimed and deposed by him/her---Such presumption could not be lightly misplaced in absence of compelling reasons and irrebutably strong evidence.

----Parentage of child-Proof-Defendant claimed to be daughter of deceased, while plaintiff alleged her to be daughter of maidservant of deceased---Non-production of maidservant or any of her children as witnesses by plaintiff-Such failure of plaintiff would lead to an adverse presumption against him under rule of best evidence---Presumption would be that had plaintiff produced maidservant or her children as witnesses, they might have deposed against plaintiff and for such reason he had preferred not to produce them or procure their presence as witness in Court even through process of Court.

(d) Islamic law---

----Gift---Execution of "Tamlik" of agricultural land and urban property by deceased in his lifetime in favour of ` donee---Incorporation of gift mutation in revenue record---Change of ownership of gifted land in Khasra Girdawaris and Register Haqdaran Zamin effected by deceased in favour of donee---Deceased got necessary changes in record of Excise and Taxation Department---Deceased in his lifetime never challenged any entry regarding incorporation of gift in such records---Gift stood proved.

Ch. Khurshid Ahmad for Petitioners.

Mian Nisar Ahmad for Respondents.

Date of hearing: 5th April, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 484 #

2006 Y L R 484

[Lahore]

Before Maulvi Anwarul Haq and Sh. Hakim Ali, JJ

PROVINCE OF PUNJAB through District Collector and 2 others---Appellants

Versus

Messers SAJID TRADERS through (Civil Proprietor)---Respondent

Regular First Appeal No.188 of 2001, heard on 23rd November, 2001.

Specific Relief Act (I of 1877)---

----S. 10---Qanun-e-Shahadat (10 of 1984), Arts.72, 74, 76, 85, 92, 117 & 118---Execution of construction work of Government by contractor---Proof---Government work could not be considered to have been granted verbally, it was, therefore, incumbent upon the plaintiff to bring on record such documentary evidence as advertisement of inviting tenders, approval of tenders execution of agreement and work orders issued by the Government in his favour---Plaintiff failed to produce such documents which in natural course of events should have been possessed by plaintiff---Failure of plaintiff to summon the relevant record of the department or seeking permission for adducing secondary evidence and withholding best evidence, could create adverse presumption against the plaintiff's version---Measurement book, which was never signed and verified by competent authority and at the same time was found through improper custody created an impression of its being false and fabricated document and the same could not be considered as an authentic document---Plaintiff came to the Court with unclean hands and no works except one, were ever assigned to him by the Government---Evidence of witnesses was not correctly appreciated by Courts below therefore the decree to the extent of admitted claim was upheld while to the extent of remaining claim was set aside by High Court.

Azmat Ali Khanzada for Appellants.

Syed Samar Mehdi for Respondent.

Date of hearing: 23rd November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 490 #

2006 Y L R 490

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD YOUSAF and 4 others---Petitioners

Versus

Mst. ZAINAB BIBI---Respondent

Civil Revision No.199 and C.Ms. Nos.328 and 329 of 2000, heard on 30th September, 2005.

(a) Pardanashin lady---

----Sale transaction by illiterate villager parda-observing lady having a young son and husband---Denial of sale by lady through suit and as witness---Effect---Onus would shift towards transferees to prove through independent positive evidence not only bargain between parties, but also transaction of sale and sale mutation by showing payment of sale consideration and transfer of possession thereunder---Principles illustrated.

Mst. Farid-un-Nisa v. Munshi Mukhtar Ahmad and another AIR 1925 PC 204; Tara Kumari v. Chandra Mauleshwar Prasad Singh AIR 1931 PC 303; Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Mst. Fazal Jan v. Roshan Din and 2 others PLD 1990 SC 661; Mst. Badshah Begum v. Ghulam Rasool and 4 others PLD 1991 SC 1140; Mst. Hassan Bibi v. Ghulam Siddique and others 1992 CLC 402; Bajju v. Mst. Rahman Bibi 1996 MLD 377 and Amirzada Khan and another v. Itbar Khan and others 2001 SCMR 609 rel.

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

----Art.129(g)---Deliberate withholding witness of bargain---Effect---Natural presumption would be that had such witness appeared, he would have not supported bargain.

----Art.71---Oral evidence being self? contradictory-Evidentiary value---Such evidence would not be worth reliance.

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

----S.54---Sale---Necessary requirements of sale were payment of sale consideration and transfer of possession.

(e) Fraud---

---Fraud would vitiate even solemn proceedings---Limitation---No time limit for challenging fraudulent transaction deliberately kept away from affectee.

Messers Bisvil Spinners (Pvt) Ltd. v. Pakistan through Secretary, Ministry of Finance, Islamabad and 2 others PLD 1992 SC 96 rel.

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

----S.42---Limitation Act (IX of 1908), Art.120---Suit for declaration---Limitation---Sale mutation regarding plaintiff's land was alleged by her to be fraudulent and result of impersonation---Suit was filed in year 1987 to challenge mutation of year 1967---Plaintiff's plea and evidence were to the effect that she came to know of alleged fraud about 21 months earlier to filing of suit, when defendant stopped to pay her share of produce---Validity---No rebuttal on record to such stand taken by plaintiff except mere self-serving statement of defendant which was not enough to misplace impact created by her evidence---No time limit to challenge such transaction deliberately kept secret from affectee---Limitation for filing declaratory suit would start only from date of actual threat to title visualized by the owner---Plaintiff had proved denial of her title by defendant 21 months earlier to filing of suit---Suit was within time.

Messers Bisvil Spinners (Pvt) Ltd. v. Pakistan through Secretary, Ministry of Finance, Islamabad and 2 others PLD 1992 SC 96; Mst. Izzat v. Allah Ditta PLD 1981 SC 165; Fateh Sher and another v. Sharif Khatoon and 3 others 1986 CLC 320 and Qutab Din through his Legal Heirs v. Muhammad Siddiq and 2 others 1988 MLD 1601 rel.

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

---O.XLI, R.27 & S.115---Qanun-e-Shahadat (10 of 1984), Art.84---Revision--- Comparison of respondent's thumb-impressions on disputed documents, seeking of---Non-making any effort to prove such 'documents before Trial Court---Non-making such prayer before Trial Court, Appellate Court or High Court---Petitioner's application for leading additional evidence was dismissed by High Court in circumstances.

Ch. Shahid Saeed for Petitioners.

Syed Ahmad Saeed Kirmani and Muhammad Afzal Khan for Respondent! Applicant(in C.M. No.328 of 2000).

Mian Ghulam Rasul for Applicant (in C.M. No.328 of 2000).

Date of hearing: 3oth September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 498 #

2006 Y L R 498

[Lahore]

Before Muhammad Jehangir Arshad, J

GHULAM ABBAS and another---Petitioners

Versus

MURID HUSSAIN---Respondent

Civil Revision No.2580-D of 1996, heard on 19th September, 2005.

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

----Art.64---Opinion on relationship---Pedigree-table---Relevancy and admissibility in evidence---Witness neither disclosed his source of information about relationship between parties nor his evidence corroborated contents of pedigreetable---Mere exhibition of pedigree-table would not be sufficient, unless its contents were proved by independent evidence---pedigree-table held, was neither relevant nor admissible in evidence, in circumstances.

Sardar Ali's case PLD 1988 SC 287 ref.

Sardar Ali's case PLD 1988 SC 287; Muhammad Nameem and others v. Ghulam Muhammad and others 1994 SCMR 559; Ahmad and others v. Allah Diwaya and others 1998 SCMR 386 and Ghulam Muhammad and another v. Allah Yar and others PLD 1965 (W'.P.) Lah.482 rel.

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

----Art.64---Opinion on relationship---Relevancy and admissibility in evidence---Pre-conditions---Such opinion must be expressed by conduct---Witness must disclose in examination-in-chief source of his information about relationship sought to be proved---Principles.

Unless a witness disclosed his opinion about the relationship on which he was giving opinion, his information can neither be considered as relevant nor admissible within the meaning of Article 64 of Qanun-e-Shahadat 1984. The opinion of a competent witness about relationship must be expressed by conduct and in case, it is not so, it would be irrelevant. Where the statement by a person has any basis, he must be first asked by the party producing him to state the source of his information about the relationship sought to be proved and it cannot be left to chance or cross-examination to bring out the facts, and where the witness gives no evidence of the conduct on which his opinion about relationship was based, then his opinion about relationship between the parties would become legally irrelevant and in-admissible in evidence.

Ghulam Muhammad and another v. Allah Yar and others PLD 1965 (W.P.) Lah.482 fol.

----O.XVIII, Rr.1 & 2---Production of evidence---Mode---Appearance of plaintiff in affirmative and rebuttal after close of defendant's evidence---Validity---Such course adopted by Trial Court would be against the provisions of 0.XVIII, Rr.1 & 2, C.P.C.-Defendant in such way had been deprived of his right of rebuttal of affirmative evidence of plaintiff---Plaintiff's such statement could not be used in his favour and thus, same was discarded.

Allah Wasaya Malik for Petitioners.

Qazi Khurshid Alam for Respondent.

Date of hearing: 19th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 502 #

2006 Y L R 502

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD SARWAR and another---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary and 17 others---Respondents

Writ Petitions Nos.5059, 5072, 5138, 5011, 5024, 5055, 5065, 5078, 5090, 5104, 5028, 5061, 5064, 5080 and 5125 of 2005, decided on 25th August, 2005.

(a) Punjab Local Government Elections Rules, 2005---

----R. 36(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election of Nazim and Naib Nazim---Consolidation of results---Failure of Returning Officer to examine, whether excluded votes had rightly been excluded and not counted as Ballot Paper cast in favour of contesting candidate for whom same had been cast---Validity---Mandatory for Retuning Officer while consolidating results to have followed provisions of R.36(3) of Punjab Local Government Elections Rules, 2005---Such results were likely to be materially affected by inclusion or exclusion of excluded votes after physical examination/determination---Returning Officer by not following provisions of R.36(3) of the Punjab Local Government Elections Rules, 2005 had failed to perform legal duty---Such failure could not be ignored on touchstone of mere convenience or inconvenience at such stage by directing him to do the exercise provided under such Rules---Otherwise High Court would not only be failing to exercise its constitutional jurisdiction, but would also be acting in aid of injustice committed to parties by such failure of Returning Officer--High Court accepted constitutional petition and directed Returning Officer to do the exercise provided under R.36(3) of the Rules, within specified time.

Ch. Nazir Ahmad and others v. Chief Election Commissioner and 4 others PLD 2002 SC 184; Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396 Emmanual Masih v. The Punjab Local Councils Election Authority and others 1985 SCMR 729; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 230 and' Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 ref.

(b) Punjab Local Government Elections Rules, 2005---

----R.63---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election dispute---Alternate remedy by way of filing election petition, availability of-Election Tribunal had not been appointed---Names of returned candidates had not been published in official Gazette, which was a mandatory requirement for filing election petition---Constitutional petition was maintainable in circumstances.

Dr. Liaqat Ali Khan and another v. District Returning Officer, District Sargodha and 3 others 2002 SCMR 1632 and Dr. Amjad Mustafa and another v. Muhammad Fiaz and 9 others 2005 YLR 419 rel.

----Process of-Commission of illegalities and irregularities by Returning Officer, Presiding Officer or their subordinates in performance of their duties---Warning to such officials---Actions to be taken against concerned official highlighted.

High Court recorded a note of warning to all the Returning Officers that already several illegalities and irregularities committed by them had come to the notice of the Court but no action was taken by considering the same either as a result of oversight or not due to some intentional act. However, this time if any such illegality or irregularity in the performance of duty is brought to the notice of High Court, besides taking disciplinary action on departmental side, the same would also be taken note as an intentional violation of the order of High Court. High Court further made clear that while performing specific duty, if any gross illegality or irregularity is found to have been committed by Presiding Officers or their subordinates, the Returning Officers will be free to take them to task and they may lodge complaints against them not only to the Heads of their respective Departments but also to Chief Election Commissioner of Pakistan for appropriate action.

Haveed Asghar Malik and Mian Abbas Ahmad for Petitioners.

M.R. Khalid Malik Addl.A.-G. and M. Arif Alvi for Respondents Nos. 4 to 7.

Date of hearing: 25th August, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 507 #

2006 Y L R 507

[Lahore]

Before Muhammad Jehangir Arshad, J

ZEESHAN SHEHZAD and others---Petitioners

Versus

DISTRICT RETURNING OFFICER and others---Respondents

Writ Petition No.4576 of 2005, decided on 25th August, 2005.

(a) Punjab Local Government Elections Rules, 2005---

----R.12---Punjab Local Government Ordinance (XIII of 2001), S.154(2)---Election of Nazim and Naib-Nazim---Filing of several joint sets of nomination papers in different panels by associating a different person as joint candidate---Withdrawal of nominations papers except the one accepted by District Returning Officer-Such order did not suffer from jurisdictional defect.

Muhammad Jamil Akhtar and another v. Appellate Authority, District Judge, Rawalpindi and 4 others 2003 SCMR 400 rel.

(b) Punjab Local Government Elections Rules, 2005---

---R.12---Punjab Local Government Ordinance (X111 of 2001), S.154(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election of Nazim and Naib Nazim---Filing of joint sets of nomination papers in two different panels by associating a different person as joint candidate---Acceptance of both sets of nomination papers, but withdrawal of one set of nomination papers on same date---Validity---Question, as to which of two nomination papers were accepted earlier by Returning Officer was disputed question of fact, which could not be gone into constitutional jurisdiction---Petitioner had got an alternate remedy by way of filing election petition before Election Tribunal having ample jurisdiction to decide about question of validity or otherwise nomination of returned candidate---High Court dismissed constitutional petition.

Sahibzada Farook Anwar Abbasi and another v. Appellate Authority/District and Sessions Judge, Bahawalpur and 9 others 2003 CLC 64 and Ch. Nazir Ahmad and others v. Chief Election Commissioner and 4 others PLD 2002 SC 184 ref.

M. Arif Alvi, M. Junaid Iqbal Addum and Sardar Mehboob for Petitioners.

M.R. Khalid Malik Addl.A.-G. and Pir Muhammad Asif Shah for Respondents Nos. 4 to 11 with Malik Tariq Rajwana for Respondents Nos.4 to 7.

Date of hearing: 24th August, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 512 #

2006 Y L R 512

[Lahore]

Before Fazal-a-Miran Chauhan, J

IMRAN KHALID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.251-B of 2005, decided on 14th March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 201, 365-A & 34---Bail, grant of---Accused along with his co-accused was tried under S.365-A, P.P.C. by Special Court constituted under Suppression of Terrorist Activities Act, 1975 and was sentenced to imprisonment for life---Said Special Court in its judgment of conviction and sentence had observed that separate challan could be submitted against accused in offences under Ss.302, 201 & 34, P.P.C. before competent Court and as a consequence of same accused was facing trial in that case in challan submitted against him under Ss.302, 201 & 34, P.P.C.---Accused, since the date of his arrest had continuously been detained and his period of detention as under-trial prisoner in offence under Ss.302, 201 & 34, P.P.C. was about 14 years---No possibility of completion of trial existed in the near future---Delay caused in conclusion of trial could not be attributed to accused--- Inordinate delay in conclusion of trial of accused spread over a period of 14 years, would entitle him to relief prayed for---Co-accused had already been released on bail and his case was quite identical to case of his co-accused---Accused, in circumstances was entitled to benefit of grant of bail as per rule of consistency.

Abdul Aziz Khan Niazi for Petitioner.

Mohibul Hussain State Counsel with Muhammad Ashraf, S.I. P.S for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 514 #

2006 Y L R 514

[Lahore]

Before Khawaja Muhammad Sharif, J

GULFAM RASHEED and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1064 of 2004, heard on 14th December, 2005.

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

----S. 302(b)-Appreciation of evidence---Matter was reported to Police 8-1/2 hours after the occurrence, though distance between the place of occurrence and Police Station was two miles---Out of four accused named in F.LR., one was acquitted by Trial Court and two others were shown as unknown persons---Motive behind the occurrence was stated to be previous quarrel between deceased and accused, but neither date nor time nor place of said quarrel or reason of quarrel was mentioned by prosecution---Recovery Memo., of crime empties revealed that 13 crime empties of Kalashinkov, 6 of .222 rifle, 5 of 8 MM rifle, 1 of .12 bore gun, I missed cartridge of .12 bore, were taken into possession, but no empty of either Kalashinkov or .222, 8 MM were deposited in Malkhana nor those were sent to Fire-arms Expert---No weapon was recovered from accused---Recovery in question, in circumstances was of no help to prosecution case---Glaring contradiction between ocular account and Medical evidence, could not be overlooked and benefit of same would go to accused---Complainant could not tell name of police officer who wrote application of complainant---Complainant also had made improvements qua the place of sleeping of deceased and eye-witnesses---In all investigations, all accused persons, except one were found innocent not only by Investigating Officers, but also by S.P. whose investigation was verified by D.I.-G. Crimes---Opinion of police, though was not binding on the Court, but occurrence had taken place during dark hours of the night and it was a case of delayed F.I.R. and delayed post-mortem---Site plan was prepared after two and a half years of occurrence---No mention was of electric bulb at the time of occurrence in the first inspection note was found---Difference was found between site plan prepared by Draftsman and site plan prepared by Investigating Officer-Prosecution had failed to prove its case against accused beyond any shadow of doubt to sustain conviction of accused---Prosecution case being full of doubts and based on shaky evidence, conviction and sentence awarded to accused persons, could not be maintained---Impugned judgment was set aside and accused were acquitted.

Bashir Ahmad v. Muhammad Azam and another PLD 1969 SC 469; Shahbaz Khan Jakhrani v. Lal Beg Jakhrani and others 1984 SCMR 42; Farooq alias Farooqay v. The State 2003 SCMR 567; Allah Dad and others v. Muhammad Nawaz and others 2001 SCMR 1111; Muhammad Iqbal and others v. Muhammad Akram and another 1996 SCMR 908 and Muhammad Afzal and 2 others v. The State 2003 SCMR 1678 ref.

M. A. Zafar for Appellants.

Mazhar Iqbal Sidhi and Gauhar Razzaq Awan for the Complainant.

Ms. Tehseen Irfan for the State.

Date of hearing: 14th December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 519 #

2006 Y L R 519

[Lahore]

Before Ijaz Ahmad Chaudhry, J

GHULAM RASOOL---Petitioner

Versus

ALLAH BAKHSH KHAN, A.S.J., CHINIOT and 3 others---Respondents

Criminal Revision No.882 of 2005, decided on 24th November, 2005.

Penal Code (XLV of 1860)---

----S.320---Criminal Procedure Code (V of 1898), S.439---Appreciation of evidence---Admittedly accused was driving the Bus at the time of occurrence which had collided from front side with the Motorcycle being driven by the deceased---Defence version that the occurrence had taken place due to the negligence of the deceased who was driving the Motorcycle was not borne out from the evidence on record---Presence of prosecution witnesses at the site was established---No passenger of the Bus had been examined to support the defence plea that the occurrence had taken place due to the negligence of the Motorcycle rider---No jurisdictional defect or any illegality was found in the concurrent findings of both the Courts below holding the accused guilty---Fact that the Motorcycle had been `dragged by the Bus to some distance showed that the accused had not applied the brakes at the proper time and the occurrence had taken place due to his negligence---Impugned judgment did not suffer from any misreading or non-reading of any material evidence---Revision petition was dismissed in limine in circumstances.

Ghulam Mustafa v. The State 2004 PCr.LJ 1869; Muhammad Bakhsh v. The State 1976 PCr.LJ 405; Mushtaq alias Niku v. The State 1998 PCr.LJ 158 and Muhammad Akhtar v. The State 1980 PCr.LJ 103 distinguished.

Basit Waheed Watto for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 526 #

2006 Y L R 526

[Lahore]

Before Muhammad Muzammal Khan, J

SAIF ULLAH and 2 others ---Petitioners

Versus

Mst. KAUSAR PARVEEN---Respondent

Civil Revision No.2787 of 2004, decided on 13th December, 2005.

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

---O. V, R.20 & O. IX, Rr 9 & 13---Limitation Act (IX of 1908), Art.181---Ex parte decree, setting aside of-Issuance of summons on four occasions for service of defendant, but non-service thereof each time---Service of summons not effected through registered post acknowledge due---Order of Court directing service of defendant for 6-5-1999 through publication in newspaper---Adjournment of proceedings to 27-5-1999 due to non-availability of Presiding Officer on 6-5-1999---Ex part proceedings against defendant on 27-5-1999 on basis of notice in newspaper requiring his appearance on 6-5-1999---Passing of ex parte decree on .14-10-1999---Filing of application on 22-11-1999 for setting aside of decree---Dismissal of such application as time-barred by Trial Court and Appellate Court---Validity---While ordering service through publication in newspaper, Trial Court had not satisfied itself that defendant had been avoiding his service---Such newspaper had little circulation and nobody knew about it in the suit village---Nothing was available on record to prove dispatch of such newspaper to defendant through post---Defendant could be called upon on a prefixed time, date and place for appearance---Due to non-availability of Presiding Officer on 6-5-1999, no action could have been or was taken against defendant on such date---Trial Court had not issued fresh citation for next date of hearing---Course adopted by Trial Court would not be justified in circumstances, being contrary to law---Defendant had not been personally served and his service through citation in newspaper was defective---Limitation for filing such application would be governed by Art.181 of Limitation Act, 1908 from date of knowledge of decree---High Court accepted revision petition, set aside impugned orders and accepted application under O.IX, R.9, C.P.C.

Shaikh Muhammad Hussain v. Additional District Judge, Lahore and others 1993 CLC 795; Ashiq Hussain Shah v. Province of Punjab through Collector District, Attock and 6 others 2003 SCMR 1840 and Mst. Aniz Maryam v. Mst. Zaibun Nisa and 2 others PLD 1998 Lah.342 ref.

Lithocraft Corporation v. A. Habib through his Legal Heirs 1987 CLC 1730 rel.

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

----O.IX, R.13---Limitation Act (IX of 1908), Arts.164 & 181---Ex parte decree, setting aside of-Application for---Limitation---Defendant, if not served personally or his service not effected according to law, then limitation would be governed by Art.181 of Limitation Act, 1908, otherwise Art.164 thereof would govern the limitation.

Lithocraft Corporation v. A. Habib though his Legal Heirs 1987 CLC 1730 rel.

Raja Nosherwan Akhtar for Petitioners.

Muhammad Asif Bhatti for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 535 #

2006 Y L R 535

[Lahore]

Before Syed Shabbar Raza Rizvi, J

ANJUM ZAHOOR SALEEMI and another---Petitioners

Versus

ELECTION TRIBUNAL/ ADDITIONAL SESSIONS JUDGE, GOJRA and 3

others ---Respondents

Writ Petition No.19498 of 2005, decided on 30th December, 2005.

Punjab Local Government Elections Rules, 2005---

----Rr.65 & 75---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recounting of votes by Election Tribunal---Validity---Polling stations and illegalities committed therein had been specified in the election petition---Order for recounting of votes was in consonance with law---High Court dismissed constitutional petition in circumstances.

Muhammad Saeed Qazi and another v. Election Tribunal, 2004 CLC 631; Malik Irshad Hussain and another v. Muhammad Ashraf Nagra and 12 others 2003 YLR 812; 2005 SCMR 1699 and 2002 SCMR 1523 rel.

S. M. Masud for Petitioners.

Ch. Muhammad Ashraf Wahla for Respondents.

Date of hearing: 28th December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 542 #

2006 Y L R 542

[Lahore]

Before Nazir Ahmad Siddiqui, J

NAZIK HUSSAIN alias GHULAM NAZIK and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3477-B of 2005, decided on 21st December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-F(v), 337-L(b) & 34---Bail, grant of---Delay of three days in lodging F.I.R., was not properly explained---Accused was behind the bars for the last almost four months and there was no likelihood of commencement of Trial in near future---Alleged offences did not fall within prohibitory clause of S.497, Cr.P.C.---Case having already been registered under S.324, P.P.C. on the report of brother of accused against son of complainant, possibility could not be ruled out that case against accused could be a counter-blast of same---Accused were admitted to bail, in circumstances.

Abdul Hussain Bhutta for Petitioners.

Mahmood ul Hassan Qureshi for Respondent:

Bilal Ahmad, S.I.

YLR 2006 LAHORE HIGH COURT LAHORE 545 #

2006 Y L R 545

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD ASLAM and others---Petitioners

Versus

GHULAM FATIMA and others---Respondents

Criminal Revision No.1096-D of 1994, heard on 29th June, 2005.

Civil Procedure Code (V of 1908)---

----S. 115 & O. XVII, R.3---Failure of defendants to produce evidence---Effect---Plaintiffs had concluded their evidence but defendants, despite providing them seven opportunities had failed to produce their evidence---Defendants were given last opportunity for the purpose, but they did not avail the same---Trial Court proceeded to close evidence of defendants and decreed suit which was upheld by the Appellate Court---Such concurrent findings, not suffering from any illegality, jurisdictional error or material irregularity, could not be interfered with in revision.

Sultan v. Yara and others 1995 MLD 1078 and 'Fateh Sher v. Muhammad Zubair 2003 SCMR 797 ref.

Malik Javaid Akhtar Vains for Petitioners.

Ch. Ghulam ud Din Aslam for Respondents.

Date of hearing: 29th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 549 #

2006 Y L R 549

[Lahore]

Before Muhammad Nawaz Bhatti, J

GHULAM RASOOL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SAHIWAL and another---Respondents

Writ Petition No.4946 of 2004, heard on 27th April, 2005.

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

----Ss.8 & 9(6)---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Ex parse decree, setting aside of---Limitation---Service of process---Press publication in newspaper having limited circulation---Wife filed appeal against judgment and decree passed by Family Court---In compliance of the provisions of S.8 of West Pakistan Family Courts Act, 1964, Appellate Court got proclamation published in newspaper having very limited circulation which was not read in the village of husband---Appellate Court on the basis of such press publication decided the appeal ex parte on 18-2-2000, and decree was passed in favour of wife---Husband came to know about the decree on 23-2-2001, who filed application to set aside ex parte decree on 13-3-2001---Appellate Court dismissed the application being barred by limitation---Validity---Service in family matters was very necessary---Husband was neither served at Family Court nor at Appellate Court---Proclamation was published for the service of husband in such newspaper which was neither widely published nor reached or read in the village of husband---No summons for the service of husband was sent to the Chairman of Union Council where he resided---Appellate Court before proceeding ex parte against the husband had not complied with the mandatory requirements of the law as provided in S.8 of West Pakistan Family Courts Act, 1964---Application for setting aside of ex parte decree under S.9 of West Pakistan Family Courts Act, 1964, could be filed within reasonable time of passing of such decree---Application for setting aside of the decree filed by husband was within reasonable time---Lis should not be knocked out on technical grounds but endeavours of the Court should be to decide the matter, involving valuable rights of the parties, on merits and party to litigation should not be non-suited on mere technical grounds---Appellate Court was wrong in proceeding ex parte against husband---High Court in exercise of Constitutional jurisdiction set aside judgment and decree passed ex parte and the matter was remanded to Appellate Court for decision afresh---Petition was allowed in circumstances.

Manager, Jammu and Kashmr, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Muhammad Afzal v. Small Business Finance Corporation and 4 others 1997 CLC 1080; Mst. Khurshid Begum v. Majeed Ahmad Khan through Legal Heirs and others 2001 YLR 2612; Metropolitan Corporation of Lahore through Administrator and another v. Lease Pak Limited 2001 CLC 200 and Pakistan Burmah Shell Ltd. v. Tariq Brothers 1997 CLC 761. rel.

Messers Ahmad Autos and another v. Allied Bank of Pakistan Limited PLD 1990 SC 497 and Mirza Shahid Baig v. Mst. Lubna Riaz and 2 others 2004 CLC 1545 ref.

Muhammad Arif Alvi for Petitioners.

Tariq Zulfqar Ahmad Chaudhry for Respondent No.2.

Date of hearing: 27th April, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 554 #

2006 Y L R 554

[Lahore]

Before Sh. Abdul Rashid, J

Shahzada ASHRAF DURRANI---Petitioner

Versus

PROVINCE OF PUNJAB through Chief Secretary and another---Respondents

W.P. No.17574 of 2004, decided on 14th July, 2005.

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

----O.I, R.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Impleading a party to proceedings---Principles---Applicants filed application under 0.1, R.10, C.P. C. to be impleaded as party to constitutional petition---Validity---Before any person could be impleaded as a party to proceedings, such person had to show that he was either necessary party or proper party---Applicants in their review petition before Board of Revenue had failed to establish their claim that they were successors-in interest of the original lessee and order passed by Board of Revenue holding petitioner to be the only living grandson of the original lessee attained finality---Applicants were not necessary party to the proceedings---Application was dismissed in circumstances.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 ref.

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

----S.19---Qanun-e-Shahadat (10 of 1984), Art.114---Constitution of Pakistan (1973), Art.199---Constitutional petition---Enforcement of proprietary rights--- Principle of estoppel---Applicability---Reasonable price, determination of---Disputed land was leased out to grandfather of petitioner and according to the decision of Board of Revenue, dated 29-9-1992, petitioner was entitled to proprietary rights of the land---Provincial Government did not implement the order of Board of Revenue on one pretext or the other---Plea raised by petitioner was that proprietary rights be conferred upon him at the rates prevailing at the time of expiry of lease in year 1956---Validity---In view of the earlier stance of Provincial Government and Board of Revenue, the authorities were estopped to challenge the claim of petitioner for grant of proprietary rights of lease land---Examination of lease deed dated 30-11-1891 and letter dated 29-9-1877, made it clear that after expiry of first generation of the original lessee, the authorities were under obligation to sell the land with first right of refusal to petitioner---Sale under the lease instrument was to be at a reasonable price, which was distinct from market price---Order of Board of Revenue had attained finality and according to that order petitioner was the only living grandson of the original lessee, who was entitled to proprietary rights of subject land under the instrument dated 30-11-1891---No reason was available on record as to why the order of Board of Revenue could not be implemented---First judicial order which recognized the right of petitioner for grant of proprietary rights was passed by Board of Revenue on 29-9-1992, therefore, it would be fair that petitioner be charged with the price prevailing in the year, 1992, under the schedule of rates issued by Provincial Government for such lands for grant of proprietary rights in the lease land---High Court directed the authorities to implement the order passed by Board of Revenue and confer proprietary rights of the land in favour of petitioner ,on payment of reasonable price prevailing in the year 1992, under the schedule of rates issued by Provincial Government for such lands---Petition was allowed accordingly.

----Art.199---Constitutional petition---Maintainability---Enforcement of proprietary rights---Scope---Obligation arising out of lease deed dated 30-11-1891, duly recognized in a judicial order was enforceable in constitutional jurisdiction under Art.199 of the Constitution---Petition was maintainable in circumstances.

Muhammad Iqbal Shah v. Board of Revenue 1995 CLC 583; Government of Pakistan through Collectorate of Customs and another v. Amar Mehmood 1999 SCMR 2268; Muhammad Afzal v. Shahzad Asghar Dar and another 2003 SCMR 280 and Messrs Ramna Pipe and General Mills (Pvt.) Ltd. v. Messrs Sui Northern Gas Pipe Lines (Pvt.) and others 2004 SCMR 1274 rel.

Muhammad Ahmad Qayyum for Petitioner.

Syed Ijaz Qutab, Mian Hanif Tahir, Muhammad Anzak Raja and Najeeb Faisal Chaudhry, Addl. A.-G. for Respondents.

Date of hearing: 29th April, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 569 #

2006 Y L R 569

[Lahore]

Before Muhammad Nawaz Bhatti, J

Professor Dr. SHAMIM HASSAN---Petitioner

Versus

VICE-CHANCELLOR, UNIVERSITY OF HEALTH SCIENCES

and another---Respondents

Writ Petition No.2946 of 2005, decided on 22nd June, 2005.

(a) University of Health Sciences Lahore Ordinance (LVIII of 2002)---

----S.10---University of Health Sciences Lahore Regulations, Reglns.2, 3 & 5 (i)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Locus standi---Appointment as examiner---Policy matter---Petitioner being professor in medical college was debarred by syndicate, under Regln. 5(i) of University of Health Sciences Lahore Regulations, to be appointed as examiner on the ground of violating the regulations---Petitioner was aggrieved of the order passed by the syndicate---Validity---Petitioner had no locus standi to file constitutional petition as he could not claim himself to be appointed as examiner---Petitioner had not made any representation before competent authorities nor had filed a petition under S.10 of University of Health Sciences Lahore Ordinance, 2002---Authorities had rightly disqualified the petitioner in accordance with Regln. 3 of University of Health Sciences Lahore Regulations---High Court had no jurisdiction to disturb the schedule of examination while exercising power under Art.199 of the Constitution, as the matter pertained to the policy, which was a prerogative of authorities---Petition was dismissed in circumstances.

Government of Pakistan v. Zameer Ahmad Khan PLD 1975 SC 667 and Zameer Ahmad Khan v. Government of Pakistan 1978 SCMR 327 rel.

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

----Art.199---Constitutional petition--- Public functionaries---Duties and

obligations---Departmental representation, non-deciding of---Grievance of the petitioner was that his departmental representation was not decided by the authorities---Validity---Public functionaries were bound to decide applications of citizens keeping in view the parental jurisdiction---High Court directed the authorities to decide the representation of the petitioner within five weeks---Petition was disposed of accordingly.

Board of Intermediate and Secondary Education through Chairman and another v. Muhammad Younis 1998 SCMR 682 fol.

Muhammad Ramzan Khalid Joyia for Petitioner.

Muhammad Asif Ismail for Respondents.

Dates of hearing: 22nd, 15th and 16th, June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 576 #

2006 Y L R 576

[Lahore]

Before Muhammad Nawaz Bhatti, J

ABDUL REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2597-B of 2005, decided on 10th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Bail, grant of---No evidence of sale of Charas had been brought on record---Quantity of Charas allegedly recovered did not put case of accused in prohibitory clause of S.497, Cr. P. C. ---Accused was a previous non-convict---Investigation was complete and Malian had been submitted in the Court---No useful purpose would be served to put accused behind the bars indefinitely---Accused was admitted to bail, in circumstances.

Zafar Iqbal v. The State PCr.LJ 678, and Zakir Ali v. The 2004 PCr.LJ 1670 ref.

Muhammad Amir Bhatti for Petitioner.

Wajid Nawaz Bhatti for the State. Muhammad Akram, S. -I.

YLR 2006 LAHORE HIGH COURT LAHORE 579 #

2006 Y L R 579

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

TAFSEEL HUSSAIN alias MANTO---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8162-B of 2005, decided on 1st December, 2005.

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

----Ss. 9 & 51(2)---Criminal Procedure Code (V of 1898), S. 497---Bail, grant of---Quantity of narcotic substance recovered from accused not alarmingly big---Non receipt of report of Chemical Examiner regarding recovered substance being narcotic substance---Absence of antecedents or credentials of accused being a dealer in narcotics---No-registration of case of present nature against accused previously--Such facts were the special circumstances , within contemplation of S.51(2) of Control of Narcotic Substances Act, 1997---Accused was released on bail in circumstances.

Ch. Muhammad Ishtiaq for Petitioner.

Rana Munir-ul-Hassan for the State with Tanvir Ahmad, S.I. with Record.

YLR 2006 LAHORE HIGH COURT LAHORE 582 #

2006 Y L R 582

[Lahore]

Before Muhammad Sair Ali, J

ALAM SHER and others---Petitioners

Versus

SULTAN AHMAD and others-Respondents

Civil Revision No.2596 of 2001, heard on 1st December, 2005.

Limitation Act (IX of 1908)---

----S.3---Civil Procedure Code (V of 1908), S.115---Question of limitation---Determination of---Duty of Court---Plaintiffs filed suit wherein issue regarding limitation was decided in their favour but suit was dismissed--Defendants did not file appeal or cross-objections on the issues decided in favour of plaintiffs---First appellate Court decided entire case under the influence that suit was within time---Contention of defendants was that they were not obliged to file an appeal on issues like limitation as suit of plaintiffs had been dismissed---Whether the question of limitation could be raised in revision---Held, defendants had raised the question of limitation of suit before first appellate Court and the same was overlooked---Court was duty bound in terms of section 3 of Limitation Act, 1908 to notice the matter of limitation in a suit, whether plea of limitation was raised or not, and that a waiver of question of limitation was not permissible, even where the period of limitation was prescribed by special or local law--Being oblivious of question of limitation, first appellate Court decided the issues on merits and thus committed material irregularity---In order to provide a level field to both the parties, High Court set aside impugned judgment and decree---Revision was accepted and case was remanded to first appellate Court for re-hearing the parties.

Haji Rehmdil v. The Province of Balochistan and another 1999 SCMR 1060 and Muhammad Buta v. Habib Ahmad PLD 1985 SC 153 ref.

Mian Humayoon Aslam for Petitioners.

Hafiz Khalid Ahmed for Respondents.

Date of hearing: 1st December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 609 #

2006 Y L R 609

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD ALEEM and others---Appellants

Versus

DISTRICT RETURNING OFFICER, and others---Respondents

W.P. No.2726 of 2005, decided on 9th August, 2005.

Punjab Local Government Elections Rules, 2005---

----R. 14---Punjab Local Government Ordinance (XIII of 2001), S.152---Anti-Terrorism Act (XVII of 1997), Ss. 11-B, 11-D & 11-EE---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Scrutiny of nomination papers---Previous statement of candidate recorded in a criminal case---Disqualifying petitioner to contest election for being a member of banned organization on basis of his such statement---Validity---Such statement would not be attributed to present activities of candidate---In absence of notification in terms of S.11-EE of Anti-Terrorism Act, 1997, mere association of a person in the past with any organization proscribed under S.11-B thereof or any directive issued by Federal Government under S.11-D thereof, no person could be said to be involved in activities prejudicial to ideology, interest, security, unity, solidarity, peace and integrity of Pakistan and its people and good order and harmony of society as prescribed by S.152(r) of Punjab Local Government Ordinance, 2001---Chief Election Commissioner had no authority to debar or disqualify any activist and worker of a proscribed banned organization---Returning Officer and District Returning Officer had no authority to debar petitioner by inserting a disqualification of their own---High Court accepted constitutional petition, set aside impugned orders and directed Returning Officer to include petitioner's name in the list of validly nominated candidates and allot him symbol.

Sardar Mehmud Iqbal Khakwani for Appellants.

Mr. Nadeem Iqbal Chaudhry for Respondent No.7

Rana Rizwan Ahmad for Respondents Nos.3 and 4.

Wajid Aftab Masson for Respondent No.5.

Date of hearing: 9th August, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 616 #

2006 Y L R 616

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ALI and 2 others---Petitioners

Versus

ABDUL SATTAR and others---Respondents

C.R. No.279-D of 1995, heard on 5th December, 2005.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession---Islamic Law---Inheritance---Deceased left behind three sons and one daughter---Out of said three sons one was last male owner of suit-land measuring 49 Kanals and 3 Marlas---Petitioners were children of one of the brothers who died after death of last male owner---Mutation of inheritance was attested wherein a pedigree-table was drawn up duly showing names of petitioners, but despite that they were excluded---Petitioners being children of one of deceased brothers who claimed 19 Kanals and 13 Marlas share in said 49 Kanals and 3 Marlas estate of their uncle/last male owner, filed suit for possession---First respondent, who was other uncle of petitioners/brother of last male owner, filed a consenting written statement praying that suit be decreed---Trial Court decreed suit holding that petitioners were entitled to inherit 19 Kanals, 13 Marlas out of estate of their deceased uncle/last male owner, but had observed that petitioners suit would stand dismissed against second respondent, who was sister of last male owner and that it was only first respondent who would contribute his excess share while adjusting claim of petitioners---Appellate Court on appeal modified said decree inasmuch as sister of last male owner was also found to be liable and that first respondent got 13 Kanals 12 Marlas of land in excess while second respondent got 6 Kanals, 11-1/2 Marlas in excess and those were to be accordingly adjusted to make up share of petitioners i.e. 19 Kanals and 3 marlas---Alienations made by both the respondents which were in excess of their respective shares in suit-land, were illegal, void and ineffective upon the rights of petitioners---Suit filed by petitioners was accordingly decreed and they were declared to be owners of 19 Kanals and 3 Marlas of land of deceased last male owner and alienation made by first respondent and further alienation made by other five respondents were declared to be ineffective on the rights of petitioners---First respondent would restitute excess area from his other land.

Mirza Aziz Akbar Baig for Petitioners.

S.M. Jehangir Iqbal Bokhari for Respondents Nos.10 to 16.

Remaining ex parte vide order dated 10-10-2005.

Date of hearing: 5th December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 619 #

2006 Y L R 619

[Lahore]

Before Muhammad Muzammal Khan, J

Messrs NOBLE ENTERPRISES through Mian Muhammad

Shafiq---Petitioner

Versus

STATE BANK OF PAKISTAN through Chief Manager and another---Respondents

Writ Petition No.10517 of 2004, decided on 10th November, 2005.

Constitution of Pakistan (1973)---

----Arts. 3, 18, 25, 30(2), 38 & 199---Constitutional petition---Maintainability---Responsibility with respect to principles of policy---Notification granting franchise on Currency Exchange Companies was challenged on the ground that such franchise could not be introduced to facilitate private individuals---Validity---Regularization of business of money changers was a policy matter protected under Art.30(2), of the Constitution---Petitioner, who was a defaulter of a considerable amount, deliberately remained away to seek franchise in spite of his association in formulating the policy and sought protection of constitutional jurisdiction under a fake cover---Impugned policy, which offered better controlled system of foreign exchange business, having already been acted upon and accepted by 90 per cent of the persons of the trade, was not open to any exception, even on merits---Authorities being organs of the State, no action against them was maintainable even under constitutional jurisdiction---Petition being without merit was dismissed by High Court.

Arshad Mehmood v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Shaukat Ali v. Government of Punjab through Secretary, Industries and Mineral Department and 8 others PLD 1992 Lah. 277; Messrs Firdous Spinning and Weaving Mills Limited and others v. Federation of Pakistan and 2 others 1984 Kar. 522; Malik Muhammad Saeed v. Pakistan Water and Power Development Authority through Chairman, WAPDA and 22 others 2002 CLC 1198; Ahmad Abdullah and 62 others v. Government of the Punjab and 3 others PLD 2003 Lah. 752; Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others PLD 1997 SC 11 and Shafiq Ahmad and others v. Federation of Pakistan and others 1997 CLC 697 ref.

Khawaja Saeed-uz-Zafar for Petitioner.

Sher Zaman Khan; Deputy Attorney General.

YLR 2006 LAHORE HIGH COURT LAHORE 627 #

2006 Y L R 627

[Lahore]

Before Muhammad Nawaz Bhatti, J

GHULAM HUSSAIN---Petitioner

Versus

GHULAM HAIDER and others---Respondents

C.R. No.227 of 1996, decided on 20th July, 2005.

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2-A [as inserted by West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, (XIII of 1983), Preamble---Succession---Original owner of property in question died in 1934 leaving behind, two widows, two sisters and one daughter and after death of original owner mutation in respect of property left by him was attested in favour of two widows---One year after death of original owner, one of widows, contracted second marriage and because of said marriage, her property was mutated in favour of daughter of the deceased; thereafter other widow of deceased died in 1937 and after her death; property in dispute was transferred in favour of the daughter of deceased owner---Said daughter of deceased also died in 1942 and after her death, property in question was transferred in favour of her husband and two sisters of deceased original owner---One of said sister also died---Petitioners who claimed to be collaterals of deceased original owner, filed suit for declaration claiming that they were entitled to inherit property in question---Said suit was decreed by Trial Court, but on filing appeal by respondents against judgment of Trial Court, Appellate Court below set aside judgment of decree of Trial Court and petitioner had filed revision against judgment of Appellate Court below---Custom was prevalent at the time of attestation of mutation of inheritance of daughter of original owner of property in dispute and custom was that after death of wife, her property was to be inherited by her husband---Since family of parties was governed by custom, there was no illegality in sanction of mutation in favour of husband of deceased daughter of original owner after her death---Appellate Court below was right in observing that mutation was rightly sanctioned in favour of husband of deceased daughter of original owner in view of custom which was prevalent at the time of sanction of said mutation---Revision against judgment of Appellate Court below, was dismissed.

Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407; Ismail and another v. Ghulam Qadir and others 1990 SCMR 1667 and Sharu and 2 others v. Mst. Fatima and others 1993 CLC 625 ref.

Khizar Hayat Khan Punian and Sardar Muhammad Rafique Khan for Petitioner.

Mian Irshad Ali Qureshi for Respondents.

Date of hearing: 20th July, 2005.

2006 Y L R 638

[Lahore]

Before Maulvi Anwarul Haq, J

SABIR ALI---Petitioner

Versus

KHALIDA PERVEEN and 18 others---Respondents

Civil Revision No.1089 of 2005, heard on 30th November, 2005.

Civil Procedure Code (V of 1908)---

----O.IX, Rr.7 & 13---Ex parte proceedings---Application for setting aside ex parte proceedings---Limitation---Where proceedings had been ordered ex parte against defendant, he could join the proceedings at any subsequent stage, if he did not want the setting aside of the proceedings taken in his absence, for provisions of O.IX, R.7, C.P.C. were attracted only, if the defendant wanted the setting aside of such proceedings---Order IX, R.7, C.P.C. did not debar defendant from participating in the proceedings from the stage at which he rejoined because it was the right of defendant and also according to principles of natural justice that defendant was given a chance of hearing before any order was passed against his interest---Order IX, R.7, C.P.C. provided no limitation for application under O.IX, R.7, C.P.C. and Art.181, Limitation Act, 1908 would be applicable---Application having been filed within period of limitation, contention that application could have been filed on next day to which the case was adjourned was fallacious in circumstances.

Manzoor Ahmad Bhatti, Advocatev. Road Transport Corporation, West Pakistan through Secretary of the Corporation and another PLD 1973 Lah. 659 Police Department through Deputy-Inspector-General of Police and another v. Javid Israr and 7 others 1992 SCMR 1009 ref.

Muhammad Ramzan Khalid Joya for Petitioner.

Sardar Riaz Karim for Respondent No.1.

Nemo for other Respondents.

Date of hearing: 30th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 641 #

2006 Y L R 641

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. KHURSHIDAN BIBI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.4419 of 2002, decided on 8th November, 2005.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Qanun-e-Shahadat (10 of 1984), Arts.95 & 113---Specific Relief Act (1 of 1877), S.42---Constitution of Pakistan (1973), Art.199---Constitutional petition---Withdrawal of suit by counsel in absence of party---Application under S.12(2), C.P.C. for setting aside of order of withdrawal of suit was dismissed---Question was as to whether plaintiff was lawfully non-suited by Courts below---Held, counsel had got an authority to withdraw suit or to enter into a compromise and there was a legal presumption with regard to such authority, yet such presumption was always rebutable---If the party challenged the authority of his counsel, party was at liberty to prove the same by producing evidence---Petitioner having specifically asserted that she never authorized her counsel to withdraw the suit, unless she failed to prove such a plea by way of dislodging such presumption through cogent evidence, she could not have been non-suited by Courts---Application under S.12(2), C.P.C. would not have been dismissed without allowing opportunity to the parties to lead evidence in support of their respective pleas.

Abdul Razzaq v. Muhammad Islam 1999 SCMR 1714; Allah Wasaya and others v. Irshad Ahmad and others 1992 SCMR 2184 and Muhammad Jamil v. Municipal Committee, Mandi Bahaduddin through Chairman Municipal Committee and another 2001 MLD 568 ref.

Sardar Muhammad Hussain for Petitioner.

Muhammad Umair Mohsin for Respondents Nos.2 and 3.

Date of hearing: 8th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 643 #

2006 Y L R 643

[Lahore]

Before Maulvi Anwarul Haq, J

Sardar GHULAM ABBAS KHAN---Petitioner

Versus

DISTRICT RETURNING OFFICER, LAYYAH and another ---Respondents

Writ Petition No.5807 of 2005, decided on 25th November, .2005.

(a) Punjab Local Government Ordinance (XIII of 2001)---

---S. 2(xli)--- "Worker"- Meaning---"Worker" as used in section 2(xli) of Punjab Local Government Ordinance 2001, S. 2(11) of Punjab Local Government Election Ordinance 2000 and S.3 of Punjab Local Government Ordinance 1979, included a worker as defined in Industrial Relation Ordinance, 1969---Such person has to be directly engaged in personal labour or to be dependent upon personal labour for his subsistence.

(b) Punjab Local Government Ordinance (XIII of 2001)---

----S. 2(xli)---Word "arid"---Meaning and scope---Word "and" as used in S.2(xli) of Punjab Local Government Ordinance, 2001 whether it was deemed to be conjunctive or disjunctive would make little difference---Accepted rule of interpretation was that in a interpretation clause in a statute, the word "means" is employed to restrict the meanings of the word or stated in the relevant provision while the word "includes" is employed to widen the said meaning---Under application of said rule by the word "and" legislature had intended to Ordinance.

----S. 2(xli)--- "Worker "; "workman " and "employer"--- Connotations--- Person employed mainly in managerial or in a administrative capacity stands excluded from the definition of "worker" and "workman"-Similarly term "employer" has been given a wider meaning so as to place a person responsible for the direction, administration, management and control of establishment within its meaning---Admittedly the candidate being employed as a Labour Supervisor in the Administration Department of the Mill, stood ousted from the definition of a "worker" and "workman "---Certificate relied upon by candidate narrated that he was a Labour Supervisor, District Returning Officer wrongly found that definition of "worker" and "workman" included a Labour Supervisor as a "workman".

Rana Mukhtar Ahmad v. Punjab Labour Appellate Tribunal and 2 others PLD 1992 SC 118 = 1992 PLC 154; Messrs Ihsan Sons Ltd. v. Abdul Razak Habib and 2 others 1987 PLC 390; Ganga R. Madhani v. Standard Bank Ltd. and others 1985 SCMR 1511; Muhammad Aqil v. Sind Labour Appellate Tribunal and another PLD 1978 Kar. 649; Muhammad Hussain v. The Additional District Judge, Lahore and others PLD 1966 (W.P.) Lah. 128; Ishwar Singh Bindra and others v. State of U.P. AIR 1968 SC 1450; Abdullah Husain Haroon v. The Provincial Election Authority, Sindh and 3 others PLD 1984 Kar. 472 and Master Said v. Ch. lftikhar Hussain, District Judge, Jhang and others 2002 CLC 54 ref.

(d) Punjab Local Government Ordinance (XIII of 2001)---

----S.152(1), (i)---Punjab Local Government Elections Rules, 2005, R.14 and Form XIX---Constitution of Pakistan (1973), Art.199---Constitutional petition---Declaration of asserts---Concealment of certain assets---Substantial amount of salary, a residential house, a jeep, some gold jewellery ornaments and 120 Acres of land owned by candidate was not disclosed by him in the declaration of assets along with the nomination papers---Effect---All assets were not declared in compliance with R.14 of Punjab Local Government Election Rules, 2005, which the candidate was obliged to disclose in Form XIX---Where actual assets of candidate were at variance with his declared assets, the candidate was not qualified to be elected as a member of Local Government in view of S.152(1), (i) of Punjab Local Government Election Ordinance, 2001---Principles.

Abbas Khan and another v. Appellate Authority, District and Sessions Judge, Attock and others 2002 SCMR 398 rel.

Ch. Abdul Sattar Goraya, Rao Jamshed Ali Khan and Mian Muhammad Arshad Latif for Petitioner.

Zafar Ullah Khan Khakwani, A.A.-G. (on Court Call).

M. Arif Alvi for Respondent No.2.

Date of hearing: 22nd November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 649 #

2006 Y L R 649

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. RASOOLAN BIBI and others---Petitioners

Versus

NIZAM UD DIN and others---Respondents

C.R. No.132 of 2000, decided on 16th November, 2005.

Civil Procedure Code (V of 1908)---

----O.XLI, R.23---Specific Relief Act (1 of 1877) Ss.42 & 54--Suit for declaration and permanent injunction---Remand of case by Appellate Court--- Suit filed by petitioners was decreed by Trial Court, but on filing appeal against judgment and decree of Trial Court, Appellate Court remanded the case-Prima facie, reasons advanced by Appellate Court for remanding case, neither were in line with the settled lain nor were supported by record---Appellate Court, just to avoid exercise of scanning the evidence and recording his findings, although he might be against the findings of Trial Court, thought it easy and proper to remand case to Trial Court, which exercise of Appellate Court, could not be approved with appreciation, being contrary to law declared ---Order passed by Appellate Court was set aside by High Court---Appeal would be deemed to be pending before Appellate Court which would be decided after notice to parties and giving them proper hearing afresh strictly in accordance with law and in the light of evidence produced by parties.

Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Fazal Bibi v. Syed Jind Wadda Shah and others 2005 MLD 1906; Ashiq Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10 and Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152 ref.

M. A. Rashid Chaudhry for Petitioners.

Nemo/ex parte for Respondents.

Date of hearing: 16th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 652 #

2006 Y L R 652

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. MUKHTARAN MAI---Petitioner

Versus

AMANAT ALI---Respondent

C.R. No.251-D of 2002, heard on 21st November, 2005.

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

----Ss.5 & 12(2)---Civil Procedure Code (V of 1908), S.115---Revision---Time-barred---Condonation of delay---Time spent in obtaining copy of trial Court judgment---Exclusion---Principle---Where law required that in order to avail remedy in a superior Court, copies of record were to be furnished, time consumed in obtaining the same was also deducted in terms of 5.12(2) of Limitation Act, 1908---Party challenging the decision of two Courts below in revision, would be entitled to the exclusion of time required for obtaining the copies of judgments and decrees of the said Courts.

Tahir Ali and others v. Chief Judge, Karachi Small Causes Court and another PLD 1963 SC 147 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

---S.13(1)---Suit for pre-emption--Performance of Talbs--Proof---Words indicating intention to exercise right of pre-emption were sufficient for purpose of Talb-e-Muwathibat---After receiving the knowledge of the sale statement of lady that she would file a pre-emption suit was sufficient to prove first Talb---Copy of notice of Talb-e-Ishhad attested by witnesses had proved that the notice was sent well within time prescribed by law---No evidence was on record to support the presumption drawn by appellate Court that vender being the relative of the plaintiff ever carne into contact with plaintiff in matter of the sale---Fact that information was received and first Talb was made on the same day when mutation was attested was a substantial point ignored by Courts below---Courts, in circumstances, had not read and appreciated the evidence on record properly.

---S.21---Improvement made by vendee---Proof---Where no particulars or value of improvement was, stated in pleadings nor the same was proved by cogent evidence, claim regarding such improvement on suit-land could not be taken into consideration by Court---Neither there was proper pleadings nor an iota of evidence in support of defendant's contention that some improvements were effected by him on pre-empted land findings of Courts below being result of non-reading and misreading of evidence, were set aside by High Court.

Mian Bashir Ahmad Bhatti for Petitioner.

Ch. Abdul Ghani for Respondent.

Date of hearing: 21st November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 656 #

2006 Y L R 656

[Lahore]

Before Ali Nawaz Chowhan, J

INAYAT ULLAH KHAN & Co---Petitioner

Versus

SECRETARY FOOD, GOVERNMENT OF THE PUNJAB and 2

others---Respondents

Writ Petition No.2353 of 2004, decided on 19th October, 2005.

(a) Void order---

---- "Void" and "voidable order"---Distinction highlighted.

(b) Review---

----Review being a substantive right could not be exercised in absence of a statutory right.

Appeal-------Appeal is a substantive right.

Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 ref.

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

--S.21---Principles of S.21 of General Clauses Act, 1897---Applicability---Such principles would apply to the Acts of Legislatures as well as to statutory orders passed in exercise of powers conferred by subordinate legislation.

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

----S.21---Power of authority, to amend, vary or rescind previous order---Scope---Previous order could be amended, varied or rescinded while same was an incomplete transaction---Previous order, if communicated to other party and acted upon, would create a valuable right to such party rendering its author incompetent to vary, rescind or cancel the same---Law would not allow volte face to authority.

Bapurao Dhondiba Jagtap v. State AIR 1956 Born. 300; 1956 Cr.L.J. 598, 58 Born. LR 418 (DB); Syed Muneeb Nazir Shah v. Azad Kashmir Government through Chief Secretary and another PLD 1985 Azad J&K 12; Shameer v. Board of Revenue and others 1981 SCMR 604; Abdul Rauf and others v. Capital Development Authority, Islamabad 1988 MLD 1523; Pakistan through the Secretary, Ministry of . Finance v. M.H. Farukhi 1969 SCMR 76; Muhammad Bilal v. Principal National College of Textile Engineering Faisalabad 1991 MLD 1605 and Sardar Hidayatullah Khan Mokal v. Government of Punjab, through Secretary, Labour Department 1991 PLC (C.S.) 532 rel

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

----S.21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Rectification of previous order by successor Provincial Secretary in view of audit objection---Validity---Matter was not re-opened at relevant time by either party on allegation of fraud---Previous order had been given effect to and acted upon---Successor Secretary could not review or reopen previous order---Predecessor

Secretary while passing previous order, if not followed policy given by him on behalf of the Government, then Government would suffer and not the petitioner---High Court accepted constitutional petition declaring impugned order to be of no legal effect.

1991 SCMR 590 ref.

Khawaja Aamir Farooq for Petitioner.

Ch. Khurshid Anwar Bhinder Addl. A.-G. along with Ashiq Hussain Aulakh, Deputy Secretary Food for Respondents.

Date of hearing: 5th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 664 #

2006 Y L R 664

[Lahore]

Before M. Bilal Khan, J

LAEEQ AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Misc. No.8665/B of 2005, decided on 12th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324/427/ 337-A(i)/ 337-A(ii)--- West Pakistan Arms Ordinance (XX of 1965), S.13---Bail, grant of-Accused was in custody for the last eight months---Section 324, P.P.C. initially had not been invoked by the police, but the same had been added by the police after the observation by the Judicial Magistrate during the course of hearing of bail application of the accused that S.324, P.P.C. was fully made out in the case---Such observation was uncalled for as it had the tendency to prejudice the case of accused---Although the accused was allegedly armed with a lethal firearm, yet keeping in view the facts and circumstances of the case and the damage caused by he accused, applicability of S.324, P.P.C. needed further probe---Rest of the penal sections invoked in the F.I.R. did not attract the prohibitory clause of S.497(1), Cr.P.C.-Accused was admitted to bail in circumstances.

Khizer Hayat and others v. Inspector General of Police Punjab, Lahore and others PLD 2005 Lah 470 ref.

Syed Hashim Raza Shamsi for Petitioner.

Abdul Majeed Chishti with Abdul Islam A.S.-I. for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 666 #

2006 Y L R 666

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. RUKHSANA BIBI---Petitioner

Versus

MUHAMMAD ANSAR---Respondent

Civil Revision No.1016 of 2005, decided on 25th October. 2005.

Civil Procedure Code (V of 1908)---

----O. XVI, R. 1(2), O. XVIII, R.4 & O.XXXVII, Rr. 2 & 3---Suit for recovery of amount---Non-filing of list of witnesses---Effect---Plaintiff who had failed to file list of witnesses within statutory period of seven days after settlement of issues, was granted adjournment on payment of Rs.200 as cost---Even on the adjourned date of hearing list of witnesses was not filed---Application subsequently filed by plaintiff to produce witness was dismissed---Question was as to whether Trial Court had jurisdiction to allow examination of witness not mentioned in the list of witnesses---Powers of Court to allow the examination of witness not included in list of witnesses was available under O.XVI, R.1, C.P.C., subject to showing good cause and it was sufficient cause that plaintiff being a lady was not aware of technicalities qua the submission or non-submission of list of witnesses within prescribed time---Order XVI, R.1, C.P.C. had clearly debarred plaintiff from summoning her witnesses due to non-submission of list of witnesses but O. XVIII, R. 4, C.P.C. did not deprive plaintiff of her right to produce evidence and under the said rule Court was bound to record the evidence of witnesses in attendance---Where, in a case, Court was to follow one of the two provisions the one which favoured the administration of justice should be followed---Principles.

Haji Muhammad Tufail v. Muhammad Iqbal 2005 MLD 688; Umar Hayat v. Additional District Judge and others 2004 SCMR 1367 and Mst. Musarat Bibi and 2 others v. Tariq Mahmood Tariq 1999 SCMR 799 ref.

Javed Majeed Ansari for Petitioner.

Makhdoom Ijaz Hussain Bukhari for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 669 #

2006 Y L R 669

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD MUSHTAQ---Petitioner

Versus

ABDUL RAUF and 3 others---Respondents

Writ Petition No.19332 of 2005, decided on 19th December, 2005.

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

---O. VI, R.17---Amendment of pleadings---Allowing or declining amendment---Principles.

The principles for allowing or declining amendment in pleadings are that amendment may be allowed at any stage, if it does not change the cause of action of suit; that amendment may be allowed to add additional relief available to plaintiff even before High Courts of jurisdiction such-like High Court and Supreme Court; and amendment may also be allowed for allowing a suit from one relief to another i.e. if suit was filed for declaration, it can be converted into a suit for possession etc.

M.V. Kaptan Yousuf Kakkavan v. Semco Salvage Pvt. Ltd. 1992 CLC 143; Ghulam Haider v. Muhammad Ayoub 2001 SCMR 133 and Hidayatuallah and 2 others v. Haqnawaz and another 1990 CLC 1095 rel.

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

----O. VI, R.17---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Amendment of plaint---Prayer for changing figures of share in land after recording parties' evidence---Amendment refused by Trial Court for being sought at late stage but was allowed by Revisional Court---Validity---Mere filing of application at belated stage would not be a ground to reject the same--New cause of action had neither been set up nor accrued to plaintiff nor a contradictory stand had been taken---Such amendment had been sought on the basis of original cause of action---Amendment could be allowed at any stage of proceedings even in High Court and Supreme Court---Impugned order was neither perverse, nor void or without lawful authority---High Court dismissed constitutional petition in circumstances.

Munir Ahmad and 7 others v. Additional District Judge, Kasur and 14 others PLD 2001 Lah 149; Mst. Rahim Noor v. Mst. Salim Bibi and 2 others PLD 1992 SC 30 and Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518 rel.

----O. VI, R.17---Amendment of plaint sought on basis of original cause of action not changing nature/substance of suit or causing prejudice to other side could be allowed---Principles.

The amendment of plaint is the right of a party, when the same relates to the cause of action on which the suit is based. Once the Court decides that the amendment is necessary for the purpose of determining the real question as envisaged under Order VI, rule 17, C.P.C., the Court is required by law not only to allow the application, but is also bound to allow amendment for such purpose. The amendment is subject to the condition that the cause of action does not change the main substance and nature of the suit or cause prejudice to other side.

Mumtaz Baig and 5 others v. Sarfraz Baig 2003 CLC 713 and Dharamdas and others v. Member Board of Revenue and others 1999 MLD 2968 rel.

Sardar Abdul Majeed Dogar' for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 673 #

2006 Y L R 673

[Lahore]

Before Muhammad Muzammal Khan, J

Malik ATTA MUHAMMAD---Petitioner

Versus

SECRETARY, LOCAL GOVERNMENT and another---Respondents

Writ Petition No.2754 of 1999, heard on 19th December, 2005.

Punjab Local Government Ordinance (VI of 1979)---

----Ss.39, 153, 156 & 166---Punjab Local Councils (Contract) Rules, 1981, R.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Auction of Cattle Markets---Non-execution of lease agreement by contractor---Refusal of Zila Council to return earnest money to contractor---Acceptance of contractor's appeal by Director directing council to refund of earnest money---Provincial Secretary Local Government in revision filed by Zila Council reversed appellate order---Validity---No specific provision existed in Punjab Local Government Ordinance, 1979 conferring revisional jurisdiction on the Secretary---Government under S.153 of Ordinance, 1979 could exercise supervision/control over Local Councils in order to ensure compliance of provisions thereof, but could not exercise revisional powers not conferred by legislature---Powers under S.I56 of Punjab Local Government Ordinance, 1979 could be exercised, if an act done by Local Council was not in conformity with law---Parties had not entered into lease agreement under auction---No enforceable contract existed inter parties for confiscation of earnest money by Zila Council---Such appellate order would be final by virtue of S.166 or Ordinance, 1979---Secretary had no jurisdiction either under S.153 or 156 of the Ordinance, to adjudge such appellate order---High Court accepted constitutional petition and declared impugned order to be illegal, without jurisdiction and void.

Dr. M. Mohyuddin Qazi for Petitioner.

Fauzi Zafar for Respondent No.2.

Date of hearing: 19th December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 675 #

2006 Y L R 675

[Lahore]

Before Sh. Abdur Rashid, J

AZHAR IQBAL and 2 others---Petitioners

Versus

DISTRICT POLICE OFFICER, MANDI BAHA-UD-DIN and

3 others---Respondents

Writ Petition No.17595 of 2005, decided on 1st December, 2005.

Penal Code (XLV of 1860)---

----Ss.302/34/109---Constitution of Pakistan (1973), Art.199-- Constitutional petition---Quashing of F.I.R.---Material collected during police investigation was, prima facie, inadmissible in evidence---F.I.R. allegedly recorded in the case had neither been read over to the first informant, nor he had signed the same in token of its correctness, as such the F.I.R. did not meet the requirement of S.154, Cr.P.C. and there was no legally valid F.I.R. on record---Statements of prosecution witnesses recorded under S.161, Cr.P.C. regarding alleged joint extra judicial confession made by the accused were also inadmissible in evidence---Even otherwise, the said prosecution witnesses had submitted their affidavits before the Court as well as before the police standing that they neither had made any statement under S.161, Cr.P.C., nor they knew anything about the occurrence---Prosecution, thus apparently had no legal material on the file for proceeding against the accused and it would be an abuse of process of law if rite accused were tried on a murder charge for the death of the deceased who was their daughter and grand daughter---Proceedings against the accused before the Trial Court were quashed in circumstances.

Ch. Imran Raza Chadhar for Petitioners.

Najeeb Faisal Chaudhary A.A.-G for the State.

Tufail Mirza S.P. Investigation, Mandi Bahauddin and Muhammad Tariq, S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 677 #

2006 Y L R 677

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD YOUSAF---Petitioner

Versus

LAL DIN and 2 others---Respondents

Writ Petition No.18773 of 2005, decided on 21st December, 2005.

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

----S.12(2) & O.XXIII, R.3---Decree on basis of parties statements recorded in presence of their counsel---Non-challenging decree before Appellate/Re visional Court--Filing of two successive applications for setting aside such decree; first through applicant's son and second by applicant himself-Pleas taken in such applications were different and contradictory---Applicant in both applications did not deny his statement and its thumb b marking before Court---Applicant in his own application admitted receipt of cheque and its deposit in his account, but did not explain as to who had opened his account in Bank---Fraud and misrepresentation was, not established by applicant.

Pirzada Mumtazuddin v. Farukh Sultana PLD 1960 (W.P.) Kar.409; Gurpreet Singh v. Chautur Bhuj Goel AIR 1988 SC 400 and Andleeb Sahir Butt v. Raja Naveed Hussain 2000 YLR 2831 ref.

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

----S.12(2)---Setting aside of decree, application for---Allegation of fraud and misrepresentation---Procedure to determine such allegation---Ordinarily determination of such allegations would involve investigation into question of fact---Discretion of Court to adopt any mode for disposal of such application, but would not be under obligation in every case to frame issues, record evidence and follow procedure prescribed for decision un a suit.

Nazir Ahmad v. Muhammad Sharif 2001 SCMR 46 and Mst. Nasira Khatoon v. Mst. Aysha Bai 2003 SCMR 1050 rel.

----Art.199---Civil Procedure Code (V of 1908), S.115---Constitutional petition---Concurrent findings of Trial Court and Revisional Court---Such findings being not perverse, coram non judice and without lawful authority---High Court dismissed constitutional petition.

Sardar Abdul Majeed Dogar for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 680 #

2006 Y L R 680

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD AZAM---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, GUJRAT/APPELLATE AUTHORITY

and 2 others---Respondents

Writ Petition No.19361 of 2005, heard on 20th December, 2005.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----S.152(1) (c) (i)---Punjab Local Government Elections Rules, 2005, R.12(4) & Form XIX---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election---Declaration in Form XIX with nomination papers, filing of-Nondisclosure of house on agricultural land---Rejection of objection by Returning Officer and dismissal of appeal by District Returning Officer---Validity---Value of house or land with house as declared in present and earlier declarations was same---Respondent on such ground could not be deprived of his right to contest election---Question, whether value of assets would be more than declared if house was included in assets, would require recording of evidence---Petitioner Wright take up such matter before Election Tribunal by filing election petition---High Court dismissed constitutional petition in circumstances.

Abbas Khan and another v. Appellate Authority, 2002 SCMR 398 ref.

(b) Punjab Local Government Ordinance (XIII of 2001)---

----S.152(I) (e)---Election of Nazim---Academic qualification of candidate---Diploma in Technical Education from a Government Institution in year 1982--Nonissuance of Equivalence Certificate to candidate by Inter Board Committee of Chairman (I. B. C C.)---Effect---Candidate would not be required to obtain Equivalence Certificate for having got such Diploma much earlier than establishment of I. B. C. C. in 1990---Candidate had studied and passed in subjects of English, Urdu, Pakistan Studies, Mathematics, Physics, Chemistry, Technical Drawing, Trade Theory and Trade Practical---Requirements of S.152(1)(e) of Punjab Local Government Ordinance, 2001, were, sufficiently

fulfilled.

Abbas Khan and another v. Appellate Authority 2002 SCMR 398 rel.

S.M. Masud for Petitioner.

Syed Ijaz Qutab for Respondents.

Date of hearing: 20th December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 684 #

2006 Y L R 684

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. ZUBAIDA BEGUM---Petitioner

Versus

Syed SAEED-UL-HASSAN HASHMI---Respondent

Civil Revision No.209 of 2003, decided on 19th July, 2005.

Civil Procedure Code (V of 1908)---

----O. VII, R.11 & Ss. 11 ---Res judicata---Rejection of plaint---Petitioners had sought rejection of plaint on the ground that earlier suit for partition in respect of same property and between the same parties was finally decided by the Court of competent jurisdiction and scone was dismissed on merits---Petitioners had asserted that present suit being not maintainable, plaint in suit was liable to be rejected on basis of principle of res judicata---Trial Court rejected plaint as prayed for by petitioners, but Appellate Court set aside order of Trial Court and remanded same for decision afresh in accordance with law---Said order of Appellate Court was challenged by petitioners in revision---Held, incompetent suits, no doubt must be buried at its inception, but to hold suit as incompetent there should be some evidence on record and for that purpose bare reading of contents of plaint, had to be taken into consideration for the purpose of invoking provisions of O. VII, R.11, C. P: C. ---In the present case, it was not Wade out from bare perusal of plaint that suit was prima facie hit by principle of res judicata under S. 11, C.P. C. ---Impugned order of Appellate Court was maintained.

S. M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moir) through Legal Heirs 2002 SCMR 338; Muhammad Saleem and others v. Rashid Ahmed and others 2004 SCMR 1144; Muhammad Yasin and another v. Civil Judge Ist Class, Kabirwala and 2 others 2003 CLC 185; Amanullah and others v. Dilbar Khan and others 1998 MLD 461; Khair Muhammad v. Government of Sindh through Deputy Commissioner, Hyderabad and 8 others 1997 MLD 2745 and Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826 ref.

Mian Amir Ahmad for Petitioner.

Date of hearing: 19th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 687 #

2006 Y L R 687

[Lahore]

Before Sh. Javaid Sarfraz, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION through Chairman and 4 others-Petitioners

Versus

SHAHID JAVED SHAHEEN and 2 others---Respondents

Civil Revision No.669-D of 2000, heard on 13th October, 2005.

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

----S. 9---Punjab Bawds of intermediate and Secondary Education Act (XIII of 1976). S.29 - Punjab Boards of Intermediate and Secondary Education Rules, 1976, R 24(VI)-- Specific Relief Act (I of 1877) S.42 - Allegation of malpractice - Cancellation of intermediate certificate Jurisdiction of Court -Board of Intermediate and Secondary Education issued shown cause notice, intimating the candidate/plaintiff that his handwriting in the answer book did not match and someone else had written the same---Candidate denied all allegations but Discipline Committee of the Board cancelled the Certificate and appeal filed by the candidate was dismissed by the Committee - Candidate filed snit for declaration relating to the validity of the Certificate---Suit was decreed and decree was upheld in appeal---Contention of the Board was that under S.29 of Punjab Boards of Intermediate and Secondary Education Act, 1976, no act or order made by the Board could be called in question before Count --Validity -Rule 24(VI), of Punjab Boards of intermediate and Secondary Education Rules, 1976, ' had conferred vast powers to Discipline Committee of the Board to quash result and cancel certificate before or after the result any title but such powers were subject to solid evidence---No opinion of the handwriting expert was available on record to prove that handwriting of the candidate was different and there was no allegation that invigilators or staff was involved in alleged cheating---Civil Court was competent to decide that there was no material before the Board to have initiated impugned action against the candidate to see as to whether any act so done was in accordance with law---Contention of' the Board that jurisdiction of' Civil Court was barred by S.29, of the Punjab Boards of Intermediate and Secondary Education Act, 1976 thus had no force.

Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 and Muhammad Jamil Asghar v. The Improvement Trust. Rawalpindi PLD 1965 SC 698 ref

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

----S. 115---Revision---Scope---Question of fact and law---Concurrent findings of Courts below based on evidence, available on record could not be interfered with in revisional jurisdiction---No misreading or non-reading of evidence or illegality or irregularity committed by Courts below having been pointed out, findings on question of fact and law so recorded by Court of competent jurisdiction did not warrant any interference by High Court in revisional jurisdiction---Revision was, therefore, dismissed and judgments and decrees passed by Courts below were maintained.

Muhammad Rafiq v. Aamir Shahzad and others 1999 YLR 610; Abdul Rahim and another v. Mst. Janat Bibi and others 2000 SCMR 346; Anwar Zaman and 5 others v. Bahadar Sher and others 2000 SCMR 431 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293 ref.

Haji Muhammad Aslam Malik for Petitioners.

Rao Liaqat Ali Khan for Respondents.

Date of hearing: 13th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 692 #

2006 Y L R 692

[Lahore]

Before Muhammad Jehangir Arshad, J

FAIZ BUX---Petitioner

Versus

MUHAMMAD SADIQ and others---Respondents

Writ Petition No.4640 of 2005, decided on 16th November, 2005.

Civil Procedure Code (V of 1908)---

----O.IX, Rr.9, 13 & O.XVII, R.2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal of suit for default---Fresh suit in respect of same cause of action qua the same property---Ex parte decree---Application for setting aside of ex pane decree was accepted but suit was dismissed far lack of cause of action and being barred by law---Suit was restored in appeal---Question was as to whether fresh suit was wrongly construed by Appellate Court---Validity---Dismissal of suit under O.IX, R.9, C.P.C. was contemplated at a stage when Trial Court had not recorded any evidence in the fresh suit---Law permitted consideration of only averments made in the plaint for purpose of deciding whether the suit should have been dismissed or not for failure to disclose cause of action or the suit being barred under some provision of law---Trial Court could not dismiss the fresh suit or refuse to restore the subsequent suit without going into the contents of plaint---Appellate Court, therefore, committed no illegality or irregularity by setting aside decree of Trial Court.

Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826 ref.

Ch. Irshad Ahmad Jaja for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 695 #

2006 Y L R 695

[Lahore]

Before Sh. Javaid Sarfraz, J

Mirza MUSHTAQ AHMED---Petitioner

Versus

MUHAMMAD HUSSAIN and 2 others---Respondents

Writ Petition No.5987 of 1997 and Civil Miscellaneous Nos. 1071 and 1072 of 2005, decided on 20th November, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Dismissal in default---Application for restoration was filed after about ten months of its dismissal with an application for condonation of delay---Petitioner had contended that counsel appointed- by hint having been appointed as Additional District Judge, did not appear before Court which resulted in dismissal of his constitutional petition---Validity---Practising lawyer appointed by petitioner as his counsel was appointed as Additional District Judge in March 2002, whereas case was fixed on 19-7-2004 which was dismissed in default---Period between appointment of his counsel as Additional District Judge and date of dismissal of constitutional petition was about 2 years and five months---Petitioner had appeared in person on 18-4-2001 when case was partly heard and was adjourned---Froth 18-4-2001 till 19-7-2004 petitioner did not take any interest in the matter and did not attend the office of his counsel to ascertain about position of his constitutional petition---Just by engaging a counsel, parties were not absolved of the responsibility to check the progress of his case---Petitioner, in the present case had not acted vigilantly over the matter and did not pursue the petition and even was not aware regarding the appointment of his counsel as Additional District Judge---No cogent reason had been given for delay in filing restoration application and reason mentioned by him was very vague and was not supported by any evidence---No ground having been made out for condonation of delay and restoration of constitutional petition, applications for restoration and condonation of delay, were dismissed.

Muhammad Sadiq v. Muhammad Munir Ahmad PLD 2000 SC 820; Haider Shah v. Zar Badhshah and others 2003 YLR 295; Ijaqz Baig v. Irshad Baig 2003 CLC 1805 and Province of Punjab through Ministry of Communication and Works v. Regd Firm Nisarul Haq Associates 1998 MLD 589 ref.

Malik Mehmood Akhtar Khan for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 697 #

2006 Y L R 697

[Lahore]

Before Muhammad Jehangir Arshad, J

Malik SAEED AHMAD---Petitioner

Versus

ADDI'T'IONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.644 of 2003, decided on 14th November, 2005.

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

----S. 19---Civil Procedure Code (V of 1908), S.35-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Husband's suit for jactitation of marriage was dismissed and wife's suit for dower and maintenance was decreed by Courts below-Concurrent findings of fact---Existence of a valid marriage between parties and birth of both minors out of said wedlock was found by Courts below concurrently after appraisal of evidence in minute details---Such concurrent findings of facts supported by oral as well as documentary evidence not suffering from any misreading or non-reading of evidence were immune from interference by High Court under constitutional jurisdiction---Person coning the Court with unclean hands could not invoke constitutional jurisdiction---High Court, therefore, burdened husband with special and compensatory costs for denying his matrimonial ties with wife and for refuting minors paternity which might have been proved harmful to their future life.

Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28: General Manager, Pearl Continental Hotel, The Mall, Lahore/ Rawalpindi v. Farhat Iqbal PLD 2003 SC 952; Secretary to the Government of the Punjab. Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 and Syed Raunaq Ali's case PLD 1973 SC 236 ref.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---High Court, while exercising constitutional jurisdiction does not sit over findings of Tribunals being not a Court of appeal or revision nor can appraise evidence to substitute its own findings for the .findings of facts recorded by Courts/Tribunals below.

Raja Muhammad Suhail Iftikhar for Petitioner.

Shabir Ahmad Afghani for Respondents Nos.3 to 5.

Date of hearing: 14th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 701 #

2006 Y L R 701

[Lahore]

Before Muhammad Akhtar Shabbir, J

Khawaja EHSAN ELAHI and another---Petitioners

Versus

SUB-REGISTRAR, LAHORE and others---Respondents

Writ Petition No.18926 of 2005, decided on 5th December, 2005.

Civil Procedure Code (V of 1908)---

----S. 21---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Objection to jurisdiction of Court---Forum for determination---Respondent filed application before Sub-Registrar wherein he had challenged the validity of registered sale-deed---Notice was issued to petitioner who submitted reply and proceedings started but later on the jurisdiction of Sub-Registrar was challenged through constitutional petition---Question was as to whether objection to jurisdiction to place of suit could be raised before a superior forum---Validity---Appropriate forum, before proceeding or taking cognizance of the matter, should first decide its own jurisdiction---Objection to the jurisdiction of Court should be raised at the initial stage before the forum where the matter was pending---Petitioner should have, first of all, raised objection of jurisdiction before Sub-Registrar as no final order prejudicing the right of petitioner had been passed by the authority---Constitutional petition being devoid of force was dismissed in limine.

Messrs Muslim Commercial Bank Limited v. Tahir Edible Oil (Pvt.) Ltd. and others 2003 CLC 416; Amanullah and others v. The State PLD 2003 Quetta 11; Abbas Hussain and another v. The State and another 1992 SCMR 320; Abdul All v. Haji Bismillah 2002 SCMR 203; The State through Federal Investigation Agency S.I.U., Islamahad v. Ch. Shujaat Hussain and another 1995 PCr.LJ 701 and Arshad Aziz. Managing Director, Imran Corporation (Pvt.) Limited and another v. Bank of Oman Ltd. and another PLD 1995 Lah.6 ref.

Muhammad Akram Khawaja for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 703 #

2006 Y L R 703

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD RAMZAN---Petitioner

Versus

Rana LIAQAT ALI and another---Respondents

Civil Revision No.523-D of 1998, heard on 26th October, 2005.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13--Suit for pre-emption---Superior right of pre-emption---Performance of Talb-i-Muwathibat and Talb-i-Isshad---Proof---Person claiming superior right of pre-emption being Shaft Sharik, Shaft Khalit and Shaft Jar has to prove the performance of Talb-i-Muwathibat and Talb-i-Ishhad before making Talb-i-Kl;usumat---Statement of witnesses had proved that plaintiffs, after coming to know of the sale, made Talb-i-Muwathibat and after six days, they made Talb-i-Ishhad by sending a notice in writing to defendant, attested by four witnesses under registered cover/acknowledgement due---Two out of four attesting witnesses were produced as per requirement of law---Postal receipt and acknowledgement receipt available on record had nullified the defendant's contention that plaintiffs had not performed the Talbs within time---Courts below rightly found that plaintiffs had successfully proved performance of Talbs according to law.

Muhammad Ramzan v. Lal Khan 1995 SCMR 1510; Haji Syed Abdul Ilaleem Shah v. Walt Dad and 6 others PLD 1993 SC 391; Zafar Ali v. Zainul Abidin and another 1992 SCMR 1886; Gul Husain Shah v. Mulazim Hussain Shah 1996 SCMR 294; Ghulam Jilani and 3 others v. Ghulam Muhammad and 7 others 1991 SCMR 2001; Mst. Husna Bano v. Faiz Muhammad Magsi and another 2000 CLC 709; Riaz v. Muhammad Salim and 4 others 1989 SCMR 1491; Imam Din v. Mst. Aisha alias Asia 1989 SCMR 457; Mst. Taj Bibi and another v. Muhammad Akbar and 6 others 1987 SCMR 1851 and Zafar ul Haq v. Waris Iqbal and another PLD 1979 Lah.793 ref.

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

----S. 115-Revision-Scope-Concurrent findings of fact by the Courts below---While exercising revisional jurisdiction it had to be seen whether the Courts below had misread the evidence or ignored any material piece of evidence on record or the findings were perverse---Concurrent findings of Courts below need not be disturbed in exercise of revisional jurisdiction unless it was established that such findings were based on error of law or error in procedure which might have affected the decision of the case on merits---No misreading or non-reading of evidence had been pointed out-Defendants jailed to establish that Courts below had exercised jurisdiction illegally or with material irregularity---Revision being without merit was dismissed in

circumstances.

Muhammad Anwar v. Muhammad Siddiq Hashim PLD 1992 SC 838 and Sughran Bibi v. Mst. Aziz Begum and 4 others 1996 SCMR 137 ref.

M. Mumtaz Malik for Petitioner.

Ch. Abdul Sattar Goraya for Respondents.

Date of hearing: 26th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 708 #

2006 Y L R 708

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD YUSUF and another---Appellants

Versus

MUHAMMAD ARSHAD and 2 others---Respondents

Regular Second Appeal No.69 of 1997, heard on 24th May, 2004.

Punjab Pre-emption Act (IX of 1991)----

---S. 13---Suit for pre-emption---Superior right of pre-emption on the basis of Shaft-Shriek, Shafi-Khalit and Shaft-jar--Performance of statutory Talbs---Proof--Dismissal of suit---Discrepancy of evidence---Validity---Plaintiff stated that he was informed about the sale on 16-8-1991 at plaintiff's Dera whereas the informer stated that he informed the plaintiff regarding the sale on 28-7-1991 when plaintiff carne to see him at informer's Dera---Vendor and tenant from whom defendant had taken the possession of suit land were brother and paternal uncle of the plaintiff respectively---Defendant obtained the possession of suit land a few days after the sale and it was pertinent that suit land was right in front of the Dera of the plaintiff---Plaintiff, in his cross-examination stated that ever since the defendants had taken possession, they were in self cultivation-Plaintiff's first cousin, who was also a witness in the present case, also purchased some land from same vendor on the same day---Informer, in cross-examination, stated that plaintiff's cousin had told the informer as well as plaintiff that land in dispute had been purchased by the defendant the day the sale was registered---Plea taken in the plaint, therefore, had been proved to be false in the evidence of plaintiff---Courts below committed no misreading of evidence in dismissing the suit.

Malik Saeed Hassan and Taki Ahmad Khan for Appellants.

Nemo for Respondents.

Date of hearing: 24th May, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 711 #

2006 Y L R 711

[Lahore]

Before Mian Saqib Nisar, J

Sheikh MEHBOOB AHMED---Appellant

Versus

Mst. ZAHIDA BEGUM and 6 others---Respondents

Regular Second Appeal No.111 of 1999, decided on 13th December, 2004.

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

----O.XX, R.5---Issue-wise decision--Contention was that Appellate Court had not decided the issues by giving separate findings-Validity-When all the issues were inter linked, discussion and finding upon one issue would settle the other issues as well.

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

----O. VII, R.2---Limitation Act (IX of 1908), Art.57---Suit for recovery of money---Limitation---Cause of action accrued in the suit from date of refusal to return money---Suit having been filed within three years from date of refusal, was within time.

----S.100---Second appeal---Scope---Plea of misreading and non-reading of evidence---Material evidence having been duly considered and appreciated by two Courts below, their findings could not be interfered with in the second appeal.

Muhammad Sadiq Bhatti for Appellant.

Muhammad Yaqub Chaudhary for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 712 #

2006 Y L R 712

[Lahore]

Before Khawaja Muhammad Sharif, J

RIAZ AHMAD---Petitioner

Versus

GOHAR AYUB and another---Respondents

Criminal Miscellaneous No.5375-BC of 2005, decided on 8th September, 2005.

Criminal Procedure Code (V of 1898)---

---Ss.497(5) & 498---Pre-arrest bail, cancellation of---Accused was named in F.I.R.---Delay in lodging F.I.R. had been explained---Three Investigating Officers had found accused guilty and recovery of pistol was yet to be' effected from him---Order passed by Trial Court, while granting bail before arrest, was not legal one---Considerations for grant of bail before arrest and after arrest, were totally different---Order passed by. Trial Court for grant of bail before arrest to accused, was withdrawn by High Court, in circumstances.

Nazeer v. The State 2003 PCr.LJ 418 ref.

Ch. Imtiaz Ahmad Kamboh for Petitioner.

Ch. Muhammad Hanif Khatana Addl. A.-G. with Muhammad Yaqoob A.S.-I. for Respondent No.1.

Ch. Imtiaz Ahmad Loona for Respondent.

Abdul Majid Chishti for the State.

Date of hearing: 8th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 715 #

2006 Y L R 715

[Lahore]

Before Mian Saqib Nisar, J

ABDUL SATTAR---Petitioner

Versus

EHSAN ULLAH and others---Respondents

Civil Revision No.1742 of 2000, heard on 9th July, 2004.

West Pakistan Redemption and Restitution of Mortgaged Lands Act, (XIX of 1964)---

----S. 17---Limitation Act (IX of 1908), Art.148---Specific Relief Act (1 of 1877), S.42---Mortgage deed was executed in 1912---Suit for declaration claiming ownership on account of prescription---Petition for restitution was allowed and the order was implemented during pendency of the suit---No amendment in the plaint was made to challenge the order---Suit was dismissed but was decreed in appeal---Question was as to whether the jurisdiction of Civil Court was barred under section 17 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964---Validity---Order passed by Assistant Commissioner for restitution of property, even if ex parte, should have been challenged by plaintiffs under the law, when it came to their notice, even though it was during the pendency of the suit, but this was not dote---Order in question was not even challenged in the same suit by seeking appropriate amendment of the plaint---Once the order was implemented, Civil Court, without such order having been set aside by competent forma, could not have passed the decree for prescription---One of the witnesses had admitted that property was redeemed in 1943 hence no question of prescriptive right would arise at all---Present case being a clear case of bar of jurisdiction, impugned appellate judgment and decree were set aside and those of Trial Court restored by High Court.

Taqi Ahmed Khan for Petitioner.

Anwar ul Haq Pannu for Respondents.

Date of hearing: 9th July, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 717 #

2006 Y L R 717

[Lahore]

Before Syed Jamshed Ali, J

MUHAMMAD HASSAN---Appellant

Versus

NAZAR MUHAMMAD alias NAZIR KHAN through Legal Heirs---Respondents

Regular Second Appeal No.133 of 1986, heard on 8th September, 2004.

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

----O. XXIII, R. 1(3)---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement of sale---Plaintiffs withdrew the suit without getting permission to file a fresh suit under a mistaken belief as to its non maintainability-Fresh suit was decreed by Courts below but second appeal against the decree was disposed of with the consent of parties who agreed to framing of an additional issue as to the effect of withdrawal of the first suit by plaintiffs---Case was remanded to Trial Court who dismissed the suit with finding that as the first suit was withdrawn without getting the permission to file a fresh suit same was barred under O.XXIII, R.1(3), C.P.C.---Appeal against decree was of no avail---Second appeal was filed on the ground that while withdrawing the first suit plaintiffs were misled by a judgment of High Court which had laid down that Civil Courts had no jurisdiction on evacuee property (suit property was evacuee property)---Question was as to whether in such circumstances suit of plaintiff was barred under O.XXIII, R.1(3), C.P.C.---Validity---Being oblivious of such fact that only Civil Court could adjudicate the suits of specific performance, plaintiffs chose to decide the question of jurisdiction of Civil Court in the matter themselves without waiting for the decision in their suit---Even if a suit was withdrawn under a mistaken belief as to its maintainability, the second suit would have been hit by the bar of sub-rule (3) of rule 1 of O.XXIII, C.P.C. unless the permission was granted for filing a fresh suit, on the same cause of action, subject of course, to law of limitation.

Muhammad Hassan v. Syed Mumtaz Hussain PLD 1965 (W.P.) Lah. 35 ref.

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

----O. XXIII, R. 1(3)---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Withdrawal of suit without getting the permission to file a fresh suit---Whether second suit was barred by O.XXIII, R.1(3), C. P. C.-Contention was that permission to withdraw the suit would necessarily carry with it the permission to file a fresh suit---Validity---If a plaintiff did seek to withdraw the suit with permission to file a fresh suit, such indivisible prayer was required to be disposed of explicitly rejecting or accepting it as a whole-If however, the Court permitted withdrawal without an express permission for filing fresh suit, it would be deemed to be in-built in the order permitting withdrawal, if permission to file a fresh suit was prayed for either in an oral statement before the Court or in a written application---In absence of any indication that plaintiff was withdrawing the suit with the intention to file a fresh suit, the provision of sub-rule (3) of R.1 of O. XXIII, C. P. C. barred the fresh suit on same cause of action---Agreement in question was more than 42 years old, it was not reasonable to grant a decree for specific performance in favour of plaintiffs---Appeal was dismissed accordingly.

S. Nisar Ali v. Feroze Din Rana and another 1969 SCMR 933; Karim Gul and another v. Shahzad Gul and another 1970 SCMR 141; Moula Bakhsh v. Muhammad Zahid and another PLD 1990 SC 596; Muhammad Mansha and others v. Sabir Ali 1999 SCMR 1782 and Haji Mohammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979 ref.

Tahir Mahmood Khokhar for Appellant.

Irfan Khaleel Qureshi for L.Rs. of Respondent No.7.

Respondents Nos.2 to 6 ex parte.

Date of hearing: 8th September, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 721 #

2006 Y L R 721

[Lahore]

Before Mian Saqib Nisar, J

NAWAB and 3 others---Petitioners

Versus

QAISER ABBAS---Respondent

Civil Revision No.1902 of 1997, heard on 17th September, 2004.

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

----S.42---Suit for declaration---Inheritance---Preferential right---Determination of---Dismissal of suit and appeal---Contention was that deed allegedly executed by deceased to divorce his wife, admittedly, mother of the defendant, duly mentioned therein that defendant was not real son of the deceased had proved lack of relationship as it had been accepted in evidence under another judicial proceeding---Validity---When a document was admitted in evidence, it would mean that at the time of decision such document would be considered and read by the Court---By any stretch of imagination or application of law, it could not be held that such document had conclusively proved the fact only on account of its being accepted in evidence---Said document was witnessed by two persons but they had not been examined and there was no cogent reason for such an omission---Merely the admission of the said document in evidence by itself was of no legal significance.

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

----Art. 119---Specific Relief Act (I of 1877), S.42---Suit for declaration---Question of legitimacy---Burden of proof---Where the question of legitimacy of a minor was involved, strict onus of proof was on the person who had denied such relationship, which otherwise prima facie was established, but in the present case, the strict and positive evidence needed in that behalf, was absent, therefore the Courts below had rightly found that defendant was the son of deceased---No misreading and non-reading of evidence was found calling for interference in revisional jurisdiction by High Court.

Ch. Muhammad Afzal Wahla for Petitioners.

Saif-ul-Malook for Respondent.

Date of hearing: 17th September, 2004.

2006 Y L R 729

[Lahore]

Before Syed Zahid Hussain and Muhammad Akhtar Shabbir, JJ

PROVINCE OF PUNJAB through Member Board of Revenue Punjab, Lahore and 3 others---Petitioners

Versus

Haji AHMAD ALI---Respondent

Regular First Appeal No.82 of 1997, heard on 1st October, 2003.

(a) Land Acquisition Act (I of 1894)---

----S.18---Qanun-e-Shahadat (10 of 1984), Art. 114---Acquisition of land--Compensation-Quantum of compensation was challenged by land owner---Collector's award was enhanced by Referee Court on the report of Local Commissioner as the same was not disputed by the authorities---Order of enhancement of compensation was, subsequently, assailed---Estoppel, doctrine of---Applicability---Valuation statement prepared by Local Commissioner was self-explanatory and decisive of the mater---Authorities had no justification to assail the impugned order enhancing the quantum of compensation---Authorities were bound by their own word and conduct and had no right to appeal---Appeal was dismissed.

(b) Land Acquisition Act (I of 1894)---

----S. 18---Acquisition of land---Contention was that proceedings commenced on reference made by land-owner under S.18 of Land Acquisition Act, 1894 being barred by time, were of no legal effect---Validity---Question of limitation was neither raised before Court below nor it was mentioned in the memorandum of appeal before High Court---Contention was repelled.

----S. 28---Acquisition of land---Payment of compensation---Award of interest at bank rates---Validity---Award of interest at the bank rates prevailing from time to time was not warranted by law---Interest at the rate of 8% was legally permissible therefore the interest had to be calculated and paid at the rate of 8% in terms of S. 28 of Land Acquisition Act, 1894.

Asif Mahmood Cheema, A.A.-G. with Ch. Abdul-ur-Rehman Madni for Petitioners.

Malik Ghulam Siddiq Await for Respondent.

Date of hearing: 1st October, 2003.

JDUGMENT

SYED ZAHID HUSSAIN, J---On a reference filed by the respondent under section 18 of the Land Acquisition Act, 1894 qua an award of the Land Acquisition Collector dated 9-2-1988, the learned Senior Civil Judge, Kasur has vide his judgment dated 31-7-1995 revised the quantum of compensation, which judgment has been assailed through this first appeal.

We have heard the learned counsel for the parties and perused the record with their assistance. Facts forming the background of reference are elaborately stated in the judgment, repetition of which is being avoided. Suffice it to state that the Land Acquisition Collector had awarded compensation of Rs.16,208 for the tube-well, machinery and the structure, being dissatisfied the respondent had assailed the quantum of compensation. During the proceedings in the Reference before the Court, Muhammad Ibrahim, Sub-Divisional Officer (P.W.1) had been appointed to assess the compensation, who submitted his report. He had calculated the amount of compensation of Rs.55,600, as against the claim of the respondent for Rs.4,63,000. The said report of the Sub-Divisional Officer has not been disputed by the appellants nor any evidence led to the contrary, rather paragraph 4 of Memo, of appeal reads like this:-

"4. That the assessment of compensation is based on the report (Exh.A.2) of local commis?sion who was appointed on the request of the respondent through his application dated 20-4-1991 wherein he requested for the appointment of the Civil Engineer. The report??????????? was????? self-explanatory and decisive on the subject."

(Underlined for relevance.).

It was thus that compensation assessed by the Sub-Divisional Officer at Rs.55,600 was found to be just and fair by the Court and the award was revised to that extent. Since the appellants have, as noted above, considered the said report as "self-explanatory and decisive on the subject" we fail to understand on what basis the appellants can assail the order of the Court, whereby the Court allowed the difference of assessed amount of Rs.39,392. No legitimate exception can thus be taken to that part of the judgment of the learned Senior Civil Judge.

The contention of the ' learned counsel for the appellants that the reference filed by the respondent was time-barred is untenable in the circumstances inasmuch as there was no issue claimed before the Court below and even the memorandum of appeal before this Court is silent in this regard.
The contention of the appellants, however, as to the rate of interest payable to the respondent in terms of the judgment of the learned Senior Civil Judge remain to be considered. We notice that the learned Senior Civil Judge awarded the interest "at the bank rates prevailing from time to time", which was not warranted by law inasmuch as provisions of section 28 of the Act leave no ambiguity about the rate of interest awardable in such a case. Interest at the rate of 8% is legally permissible in terms of section 28 of the Act.

YLR 2006 LAHORE HIGH COURT LAHORE 730 #

2006 Y L R 730

[Lahore]

Before Rustam Ali Malik, J

SAJID ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5317-B of 2005, decided on 27th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979), S.10---Bail, grant of-Further inquiry---Prosecution story revealed that occurrence was witnessed by two prosecution witnesses and on seeing said witnesses, accused allegedly fled away---Neither ' said prosecution witnesses nor victim herself had informed complainant at the relevant time---F.I.R. showed that occurrence had taken place one and a half or two months before registration of F.I.R.---Alleged victim was medically examined and after examination Lady Doctor found pregnancy of victim girl as old as seven months---Deeper appreciation of evidence, though was not possible at the bail stage, but even on tentative assessment, it was clearly a case of further inquiry into the guilt of accused---Accused, in circumstances, was entitled to concession of bail.

Shaharyar Sheikh for Petitioner.

Ms. Sabahat Rizvi for the State. Nawaz, S.I.

YLR 2006 LAHORE HIGH COURT LAHORE 731 #

2006 Y L R 731

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAFIQUE-UR-REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.702 of 2005, decided on 12th October, 2005.

Juvenile Justice System Ordinance (XXII of 2000)---

----S. 7---Age of accused, determination of-Jurisdiction of Juvenile Court---Medical Board which had examined accused had given its report about age of accused after about 4 months of the occurrence---Report of Medical Board showed that age of accused was 17 to 19 )ears---Police report indicated that age of accused at the time of his arrest was 15 to 16 years and according to birth certificate accused was below 16 years of age---All said three documents were in favour of accused as according to said documents accused was less than 18 years of age at the time of occurrence---Impugned order passed by the Trial Court was set aside with observation that accused should be tried by Juvenile Court.

Muhammad Zakir v. State 2004 SCMR 121 ref.

Zafar Iqbal Chohan for Petitioner.

Zia Ullah Khan Niazi for Complainant.

Ch. Muhammad Hanif Khatana, Addl.A.-G.

Najeeb Ullah A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 733 #

2006 Y L R 733

[Lahore]

Before Muhammad Khalid Alvi, J

Ch. MUHAMMAD ARSHAD MEHMOOD and another---Petitioners

Versus

ELECTION TRIBUNAL/DISTRICT JUDGE, KHANEWAL and 6

others---Respondents

Writ Petition No.1705 and C.M. No.2 of 2004, decided on 4th May, 2004.

Punjab Local Government Elections Rules, 2000---

----Rr. 43 & 73---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suspension of operation of order of Election Tribunal---Application for---Applicant had prayed that operation of order passed by Election Tribunal and oath taken by respondents be suspended---Had respondents not taken oath, considering good prima facie case of applicant, it would have certainly suspended operation of impugned Notification, but since respondents had already taken oath and were performing their duties, it was not appropriate to suspend Notification as prayed for by the applicant.

2002 SCMR 1551 ref.

Mian Abbas Ahmad for Petitioners.

Muhammad Arif Alvi for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 734 #

2006 Y L R 734

[Lahore]

Before Rustam Ali Malik, J

ZAHID-UR-REHMAN---Petitioner

Versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous No.1203-M of 2004, decided on 24th May, 2005.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), S.324---Quashing of order---Case remanded---Magistrate had discharged the accused on police report---Complainant had asserted that the Magistrate was not bound to act mechanically on the basis of the police report submitted under S.173, Cr.P.C. and that if he had applied his judicial mind to the material on record, he could take a different view---Impugned order was set aside in circumstances and the case was sent back to the Magistrate with the direction to afford fresh opportunity of hearing to both the parties and thereafter to pass a fresh order on the police report submitted under S.173, Cr.P.C. in accordance with law---Petition was accepted accordingly.

Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187 and Jamshed Khan and 4 others v. The State and 3 others 1999 PCr.LJ 1891 (SC) AJ&K ref.

Shehryar Sheikh for Petitioner.

Ghulam Asghar Qadri for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 736 #

2006 Y L R 736

[Lahore]

Before Nazir Ahmed Siddiqui, J

Mrs. RUBEENA WAHLA and another---Petitioners

Versus

DISTRICT RETURNING OFFICER and 4 others---Respondents

Writ Petition No.4733 of 2005, decided on 29th July, 2005.

Punjab Local Government Elections Rules, 2000---

---Rr. 16 & 18---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Rejection of nomination papers---Petitioner appended declaration of assets with her nomination papers without giving any detail and annex was showing word 'NIL' written in each column---Respondents had shown a number of documents to establish that petitioner was owner of valuable movable/immovable properties---Other petitioner very frankly conceded that there were number of shares in his name which had not been mentioned by him in his declaration of assets appended with his nomination papers---Rupees 7,00,000 was outstanding against second petitioner on account of Income Tax, duly determined by Income Tax Commissioner-Petitioners, in circumstances were not entitled to any relief, what to talk of an equitable relief under the Constitution---Impugned order not suffering from any jurisdictional defect, petition stood dismissed.

Mian Abbas Ahmad for Petitioners.

M.R. Khalid Malik, Addl. A.-G.

Malik M. Rafiquc Rajwana and Mahmud Ashraf Khan for Respondents Nos.3 and 4.

YLR 2006 LAHORE HIGH COURT LAHORE 737 #

2006 Y L R 737

[Lahore]

Before Mian Humid Farooq, Muhammad Muzammal Khan and

Syed Shabbar Raza Rizvi, JJ

Mst. ABIDA PARVEEN CHATHA---Petitioner

Versus

CHIEF ELECTION COMMISSIONER---Respondent

Writ Petition No.15701 of 2005, decided on 13th September, 2005.

Punjab Local Government Elections Rules, 2005---

----Rr. 36, 70 & 76---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Petitioners who contested election of Nazim/Naib Nazim of Union Council, had complained that election was subjected to most corrupt and illegal election practices and had prayed for order for recounting of ballot papers---Challenge to local bodies election on the basis of pre or post election disqualifications; illegal/corrupt election practices or its rigging; consolidation of result or any correction therein; recount of ballot papers or re-poll (in part or in full) after transmission of result by Returning Officer; exclusion or inclusion of names from the list of successful candidates or fresh election, legally could be done by Election Tribunal constituted for that purpose on an election petition, in accordance with law applicable---Besides, disputed grounds raised by petitioner, in the present case, did not furnish lawful basis for intervention by High Court in constitutional jurisdiction---Constitutional petition filed by petitioners was dismissed being not maintainable.

Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863 ref.

Rai Bashir Ahmed for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 739 #

2006 Y L R 739

[Lahore]

Before Nazir Ahmed Siddiqui, J

ALLAH DAD---Petitioner

Versus

DISTRICT RETURNING OFFICER and others---Respondents

Writ Petition No.4767 of 2005, decided on 29th July, 2005.

Punjab Local Government Elections Rules, 2000---

----Rr. 16 & 18---Constitution of Pakistan (1973), Art. 199-Constitutional petition---Nomination papers, rejection of---Nomination papers of petitioner were rejected on the ground that he was wilful defaulter of "Lila Council as well as Municipal 'Committee---Petitioner had not paid even a single penny out of outstanding amount---Petitioner's nomination papers filed in last local bodies election were also rejected on that very ground and he did not challenge said orders---Petitioner did not deserve any indulgence qua impugned orders.

Mian Abbas Ahmad for Petitioner.

M.R. Khalid Malik, Addl. A.-G. for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 740 #

2006 Y L R 740

[Lahore]

Before Mian Saqib Nisar, J

QURBAN ALI CHOHAN---Petitioner

Versus

DISTRICT RETURNING OFFICER/ DISTRICT AND SESSIONS JUDGE, VEHARI and 2 others---Respondents

Writ Petition No.5747 of 2005, decided on 21st September, 2005.

Punjab Local Government Elections Rules, 2000---

----R. 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Rejection of Nomination papers---Nomination papers filed by petitioner for a special seat reserved for "Peasant" were rejected by Returning Officer holding that petitioner was Director of a Ghee Mills, was owner of 55 Kanals, 10 Marlas and was also ex-MNA---Special seat for "Peasant" was meant to give representation to the class with small holdings, but it stood established that petitioner was a businessman and not merely a Peasant, having status as being ex-M.N.A. ---Holding of petitioner, preceding five years, being more than five acres, on that account too, petitioner did not qualify to be elected as a member, his nomination papers had rightly been rejected---No case for interference in constitutional jurisdiction having been made out, petition was dismissed.

Muhammad Zawar Shah for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 741 #

2006 Y L R 741

[Lahore]

Before Jawwad S. Khawaja, J

ATTA ULLAH---Petitioner

Versus

MUHAMMAD MUMTAZ---Respondent

Civil Revision No.3042 of 2004, heard on 9th June, 2005.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Suit for pre-emption--Making of Talbs---Plaintiff made Talb-e-Muwathibat on next day of receiving information of sale of suit-land---Talh-e-Muwathibat, in circumstances was not in accordance with provisions of S.13 of Punjab Pre-emption Act, 1991---Apart from said material discrepancy, significant contradictions between testimony of witnesses produced by plaintiff had appeared which had shown that two witnesses of Talb-e-Ishhad were not truthful witnesses---Since onus of proof of issue with regard to fulfilment of requirements of Talbs in accordance with law was on plaintiff, any material contradiction in the testimony of his witnesses, could not be brushed aside---Plaintiff was bound to discharge onus of proving timely Talbs---Requirement of making Talb-e-Muwathibat, immediately upon getting knowledge of sale, was clear from express wording of S.13 of Punjab Pre-emption Act, 1991 and it was not necessary for defendant to produce evidence on said issue of Talbs; when plaintiff's own witnesses had not been consistent in pinpointing exact time when information of sale was given to plaintiff--Serious misreading of evidence was made by Courts below who also misapplied the law---Judgments and decrees of two Courts below decreeing the suit, were set aside by High Court and in consequence suit stood dismissed.

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

----S. 115---Revisional jurisdiction---Scope---Where there had been misreading of evidence or where an important aspect of case had not been taken into consideration by Courts below, such laps would constitute material irregularity in exercise of jurisdiction by them---Such irregularity was always amenable to correction through exercise of revisional jurisdiction.

----Arts. 132 & 133---Cross-examination---Purpose of-One of important purposes of Cross-examination was to elicit the correct facts from a witness and also to question the probity of a witness.

Mian Hamayoon Aslam for Petitioner.

Muhammad Yaqoob Sidhu for Respondent.

Date of hearing: 9th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 744 #

2006 Y L R 744

[Lahore]

Before Maulvi Anwarul Haq and Ijaz Ahmad Chaudhry, JJ

JAM MANZOOR HUSSAIN---Appellant

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD

through Secretary and 3 others---Respondents

I.C.A. No.172 of 2005 in W.P. no.5056 of 2005, decided on 8th September, 2005.

Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(e)---Election of Nazim and Naib Nazim---Disqualification front contesting election for not possessing requisite educational qualification---All respondents including the appellant, who were elected Nazims and Naib Nazims from different Union Councils, were declared to be disqualified front contesting the election and holding said posts as they did not possess requisite qualification of Matriculation---Appellant claimed to have obtained "Sanad-ul-Faragh, Dars- e-Nizami" " issued by Madrissa Arabia which, according to appellant, was equivalent to M.A., but he failed to name any subjects studied by him and what was literature thereof---Appellant even could not read out name of one subject mentioned in alleged Sanad and also failed to translate Arabic text of said Sanad---Appellant stated that he was cultivator by profession, but he failed to satisfy Court as to how he developed interest at 39 years of his age to obtain religious education fob. about two years---Prima facie appellant had manoeuvred the said Sanad in order to fulfil qualification prescribed for contesting elections of Nazim and Naib Nazim and produced same before Returning Officer, otherwise he never went to said institution for a single day---Appellant appeared to be guilty of forgery for purpose of cheating and knowingly had used said forged document as genuine---Such type of peoples were liable to be dealt with iron hands---Carousel for appellant having opted not to press Intro-Court Appeal on merits, same was dismissed, accordingly.

Malik Muhammad Tariq Rajwana and Maulvi Soltan Alam Ansari for Appellant.

M.R. Khalid Malik, Addl.A.-G.

Mian Abbas Ahmad for Respondent No.4.

YLR 2006 LAHORE HIGH COURT LAHORE 746 #

2006 Y L R 746

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD BASHIR through his Legal Representatives---Petitioners

Versus

MUHAMMAD IQBAL and another---Respondents

Civil Revision No.1871 of 1997, heard on 13th September, 2005.

Specific Relief Act (I of 1877)---

----S. 8---Quanun-e-Shahadat (10 of 1984), Art.118---Suit for possession---Suit was dismissed but decreed in appeal---Ownership of suit-land---Proof---In absence of evidence to establish the title of lamberdar who had allegedly alienated disputed land in favour of plaintiff, the latter could not claim suit property and mere fact that plaintiff had raised constructions over land in question did not mean that he was or had been owner of said property---Defendant, who was admittedly in possession would be deemed to be owner of suit property unless otherwise proved in terms of Article 118 of Qanut-e-Sltahadat, 1984---If property in dispute was originally an evacuee property then lambardar could not alienate the same---Plaintiff failed to establish his title, therefore, findings of Appellate Court being neither legally proper nor supported by any evidence were set aside by High Court---Judgment and decree of Trial Court were restored.

Ch. Muhammad Abdullah for Petitioners.

Ch. Amanat Ullah for Respondents.

Date of hearing: 13th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 749 #

2006 Y L R 749

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MAQSOOD AHMED---Petitioner

Versus

MUHAMMAD IRFAN and 2 others---Respondents

Criminal Miscellaneous No.8676-BC of 2005, decided on 19th December, 2005.

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

--S. 497(5)-Penal Code (XLV of 1860), Ss.337-F(v), (F-1), (A-2) (L-2), 148 & 149---Bail, cancellation of-Accused was admitted to bail by Trial Court on plea' of alibi---Impugned order had revealed that on the date when case was registered against accused, he remained admitted to hospital in connection with Renal Colic disease---Counsel for applicant/complainant, to that extent was not in a position to place on record any certificate from competent officer/Doctor to say that accused had never remained admitted in hospital in said period---Co-accused had not caused any injury to any of prosecution witnesses and allegation against said co-accused was that at the relevant time he was armed with Carbine and had made firing---Record showed that said co-accused was a man of advanced age and possibility of his involvement because of his relation with other co-accused, could not be ruled out---Trial Court in granting bail to accused persons having rightly exercised discretionary relief in their favour application for cancellation of bail, was dismissed.

Munir Ahmed Khan Zai for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 750 #

2006 Y L R 750

[Lahore]

Before Mian Saqib Nisar, J

ABDUL WAJID RASOOL---Petitioner

Versus

DISTRICT RETURNING OFFICER, MUZAFFARGARH and 2

others---Respondents

Writ Petition No.5752 of 2005, decided oil 22nd September, 2005.

Punjab Local Government Elections Rules, 2005---

---R. 12(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Concealing assets by candidate---Rejection of nomination papers---Petitioner/ candidate, despite being owner of 162 Kanals and 15 Marlas of land, did not disclose same in statement of assets accompanying nomination papers--Contention of petitioner, that he was under the impression that as he was contesting election for seat of worker, disclosure of assets was not required, was absolutely misconceived---Nomination papers of petitioner were not complete without true statement of assets, on that reasoning too, nomination papers were liable to be rejected---Nomination papers of petitioner were rightly rejected on ground that he was guilty of concealing assets which he had to disclose in statement to be filed along with nomination papers---In absence of any error in impugned order, same could not be interfered with by High Court in exercise of its constitutional jurisdiction.

Abdul Aziz Khan Niazi for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 751 #

2006 Y L R 751

[Lahore]

Before Muhammad Sayeed Akhtar, J

RASHEED AHMAD---Appellant

Versus

HOUSE BUILDING FINANCE CORPORATION through District

Manager---Respondent

Regular First Appeal No.433 of 1998, heard on 23rd October, 2003.

House Building Finance Corporation Act (X VIII of 1952)---

----S. 30---West Pakistan National Calamities (Prevention and Relief) Act (XXXIII of 1958), S.3---Loans through assignment and partnership deed---Breach of terms and conditions---Application for sale of the mortgaged house, was accepted---Contention was that suit house had collapsed during flood and was declared as calamity affected area therefore, being not fit for habitation, it could not be sold---Notification dated 29-10-1988 issued under West Pakistan National Calamities (Prevention and Relief) Act, 1958-Applicability--Notification proved that it was not applicable to the House Building Finance Corporation instead it did apply to Agricultural Development Bank of Pakistan to defer the recovery of agricultural loans already granted to the affected farmers---Neither there was any evidence to show that the house was actually damaged by the flood nor an application by appellant for re-evaluation of the house as alleged was available on record---Admittedly loans were availed by the appellant, therefore appeal had no merit and the same was dismissed by High Court.

Mian Ghulam Rasool for Appellant.

Syed Fazal-ur-Rehman Gillani for Respondent.

Date of hearing: 23rd October, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 752 #

2006 Y L R 752

[Lahore]

Before Syed Shabbar Raza Rizvi, J

GUL SHER---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6793-B of 2005, decided on 28th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324---Bail, grant of---Further inquiry---Contents of F.I.R. revealed that when accused raised Lalkara, complainant raised his arms and requested accused not to fire or cause injury to him, but accused fired with .30-bore pistol and bullet of the pistol pierced through the shirt of complainant while his arms were in raised condition---Such kind of stork, prima facie was not believable---Even otherwise, if the facts and circumstances as, were narrated in F.I.R., non-repetition of accused of firing, raised question and made the version of complainant doubtful---Record showed that no injury was caused by accused and he did not repeat the fire; it was, in circumstances not safe to believe that accused had intention to kill complainant---Whether 5.324, P.P.C. was attracted or not, would be considered and seen by the Trial Court on the basis of evidence adduced by the parties---Challan had already been submitted and accused was not required anymore for investigation---Case of accused fell in a category where further inquiry was required to establish guilt of accused---Accused was admitted to bail, in circumstances.

Munir Ahmad Khan Zai for Petitioner.

Shahid Qayyum Lodhi for the State.

Younis, A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 754 #

2006 Y L R 754

[Lahore]

Before Muhammad Nawaz Bhatti, J

BASHIR AHMAD and another---Petitioners

Versus

Mst. MUSSARAT SHAHEEN and 4 others---Respondents

Writ Petition No.4967 of 2003, decided on 5th October, 2005.

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

----S.5, Sched.---Civil Procedure Code (V of 1908), O. XXI, Rr. 58, 59 & 62---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of maintenance allowance---Attachment proceedings---Objection petition against attachment---Suit for recovery of maintenance allowance having been decreed, decree-holders filed execution proceedings and sought attachment of Tractor in question which was ordered to be attached---Petitioners in their objection petition had claimed that the Tractor which was owned by them had no concern with the judgment-debtor---Such objection petition having been dismissed by Executing Court and even in revision, petitioners had filed constitutional petition---Record showed that one petitioner and one respondent were joint owners of the tractor in question which was mortgaged with Bank---Petitioners admittedly had acquired rights of ownership and title in tractor before order passed by Executing Court regarding attachment of tractor and even before passing of decree in the suit for recovery of maintenance allowance---Trial Court had not cared to investigate claim of petitioners as required by O.XXI, Rr.58, 59 & 62, C.P.C. and by not applying judicial mind had haphazardly dismissed objection petition filed by petitioners---Impugned orders passed by Courts below were set aside by High Court in constitutional petition and remanded case to Executing Court for adjudication afresh on merits in accordance with law.

Mehr Meharban Ranjha for Petitioners.

Nemo for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 756 #

2006 Y L R 756

[Lahore]

Before Maulvi Anwarul Haq, J

ARSHAD ASLAM KHAN and another---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary

and 4 others---Respondents

Writ Petition No.5170 of 2005, heard on 5th September, 2005.

Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(1)(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Disqualification of candidate on ground of being less than 25 years of age---Respondents filed nomination papers for election on seats of Nazim and Naib Nazim---Objection was raised by petitioners before Returning Officer that one respondent being less than 25 years of age was not qualified to contest election in terms of S.152(1)(b) of Punjab Local Government Ordinance, 2001---Matriculation certificate relied upon by said respondent was itself showing his date of birth as 1-11-1980 and according to said date the respondent was less than 25 years of age---Objection raised by petitioners was rejected with reference to birth certificate wherein year of birth of respondent was recorded as 1976---Contents of Matriculation certificate showing date of birth as 1-11-1980 according to which respondent was less than 25 years of age, were based on information provided by respondent himself-Orders accepting nomination papers of the respondent passed by Returning Officer and rejecting objection of petitioners, were declared to be without lawful authority and set aside as respondent was not qualified to contest election on the day of filing of nomination papers being less than 25 years of age.

Mian Abbas Ahmad for Petitioners.

M. Ramzan Khalid, Addl. A.-G.

Rao Jamshaid Ali for Respondent No.5.

Date of hearing: 5th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 757 #

2006 Y L R 757

[Lahore]

Before M. Bilal Khan, J

NEELOFAR HAYAT---Petitioner

Versus

STATION HOUSE OFFICER and 3 others---Respondents

Writ Petition No.15452 of 2004, decided on 20th October, 2004.

Penal Code (XLV of 1860)---

----Ss.419, 420, 463, 468, 471 & 109---Constitution of Pakistan (1973), An. 199---Constitutional petition---Quashing of F.I.R.---Offences with which accused was charged, though were not compoundable, but both parties were highly educated and according to complainant incident had taken place on account of some misunderstanding---Complainant present in the Court, had stated that she had been duly compensated and her money had been returned to her---Continuation of proceedings, after said compromise between parties, would only add to miseries of parties and would further embitter their relationship---Accused and her co-accused had assured complainant that matter had come to an end and they would not resort to any sort of litigation either civil or criminal---Complainant had also assured that matter was over and site would not further raise any dispute of any kind against accused persons---State counsel had also not seriously opposed quashing of F.I.R. ---F.I.R. was quashed, in circumstances.

Ghulam Ali v. The State and another 1997 SCMR 1411 ref.

Muhammad Ameer Khan Niazi for Petitioner.

Muhammad Aslant Malik vice Fazal-e-Miran Chohan, Addl. A.-G. for the State.

Akhtar Hussain with Mst. Shazia Naureen for the Complainant.

Date of hearing: 20th October, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 759 #

2006 Y L R 759

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD RAMZAN---Petitioner

Versus

Mst. SATTAN and another---Respondents

Civil Revision No. 53 of 2000. decided on 16th December, 2005.

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

----Art.181-Document executed by practising fraud and misrepresentation on Pardanasltin lady---Limitation to challenge such document shall commence from the date of attaining the knowledge of such document by Pardanashin lady.

Khawas Khan through L.Rs. v. Sabir Hussain Shah and others 2004 SCMR 1259 ref.

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

----Art. 117 & I18---Document allegedly executed by illiterate Pardanashin lady and illiterate person---Party placing reliance upon such document would have to prove that the person who had put his thumb-impressions and signatures in execution of document, was made to understand the contents of document by reading it over to hint the contents and true purport of the instrument---In case of Pardanashin lady the defendants being the beneficiary of document had to prove that transaction was bona fide, genuine, having no reflection of any fraud, undue influence etc., and that ladies had the benefit of the independent advice of ct male member of her fancily---Defendants failed to discharge the outs and execution of document in question was thus, not proved.

Ali Muhammad v. Wali Muhammad 1993 MLD 666 ref.

----O.II, R.2-Withdrawal of suit before filing of fresh suit---Where a suit had been withdrawn before the filing of a fresh one, the subsequent suit was not hit by the provisions of O.II, R.2, C.P. C.

Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 ref.

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

----S.42---Suit for declaration---Lack of consequential relief of possession---Effect---Where plaintiffs and defendants were co-sharers when upon intervening can alleged sale-deed which affected their joint ownership, the plaintiffs while seeking declaration were not bound to ask for consequential relief of possession because when the sale-deed in question was declared to be null and void, the original position of plaintiffs as the co-sharers stood restored and they were to be considered to he in joint possession of suit property---1f one party had denied the very execution of sale-deed and the other party claimed it to be valid then the plea of denial of such execution and plea of fraud and misrepresentation at the same time taken by plaintiffs were not inconsistent because the elements of fraud and misrepresentation necessarily is an in-built issue, which required resolution by Court---Court of fact has prerogative to appreciate the evidence and such appreciation cannot be interfered with in the revisional jurisdiction for the reason that on the basis of same evidence, some other conclusion could have been drawn---Courts below had committed no error of jurisdiction or material irregularity in passing the impugned decisions.

Mumtaz and 3 others v. Mian Khan PLD 1973 Lah 47 ref.

Syed Muhammad Kaleem Ahmad Khurshid for Petitioner.

Ras Tariq Chaudhry for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 763 #

2006 Y L R 763

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD SAEED (deceased) through Legal Heirs and others---Petitioners

Versus

RIASAT ALI---Respondent

Civil Revisions Nos.2034 to 2036 of 2001, heard on 13th October, 2005.

Tort---

----Suit for damages---Trial Court's awarding of damages of plaintiff's plea that irrigation source for his land and water bed thereof passing through the land of defendants was illegally and unlawfully demolished by defendants and thus plaintiff was deprived of sowing Kharif crop--Validity-Admittedly there was no sanctioned Khaal but basic question was as to whether, in absence of sanctioned Khaal, modification including demolition of private Khaals by defendant gave any cause of action to plaintiff to seek recovery of damages which was not settled by Courts below---In absence of Khasra Girdawari to show cultivation or non-cultivation of crop on disputed land, Courts proceeded on mere presumption that had the crop been cultivated, it would have earned certain returns on Acre wise basis---Plaintiff opting not to join the proceedings of revision petition, despite service, had supported defendant's version that in absence of sanctioned Khaal they were entitled to change or modify the private Khaals falling within their land---Failure of appellate Court to re-analyze and re-appreciate the evidence on record rendered the impugned judgment and decree unsustainable in law---Findings of Courts below were, therefore, set aside by High Court.

Mehdi Khan Chowhan for Petitioners.

Respondents Ex parte.

Date of hearing: 13th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 766 #

2006 Y L R 766

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

NAZAR and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.349-J of 2000 and Criminal Revision No.769 of 2000, decided on 1st December, 2004.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Five persons were named as accused in complaint and Lalkara was attributed to accused which had attracted prosecution witnesses---First shot with .12-bore gun was alleged to have been fired by accused which hit deceased, but no seat of injury whatsoever had been given in the complaint as to where the shot fired by accused hit the deceased---Clear conflict existed between ocular account and medical evidence---No role of firing any shot on the person of injured prosecution witness was attributed to accused in the complaint as well as the F.I.R. but it was so introduced while appearing before the Trial Court and a fire-shot was attributed to accused on person of injured prosecution witness---No crime empty of .12-bore gun was recovered from the spot---Mere recovery of fire-arm on pointation of accused would not support the 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 electric bulbs were shown--Such was also a dishonest improvement on the part of prosecution---Identification of accused, who fired at deceased, had not been proved---Ocular account was not corroborated by Medical evidence---Report of Fire-arms Expert was not positive---Participation of accused in the case was of doubtful nature---Extending benefit of doubt to accused, his conviction and sentence were set aside, and he was released.

Zafar Iqbal Chohan for Appellants.

Sardar Abdul Majeed Dogar for Complainant.

Riasat Ali for the State.

Date of hearing: 1st December, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 769 #

2006 Y L R 769

[Lahore]

Before Jawwad S. Khawaja, J

FATEH SHER and 2 others---Petitioners

Versus

KHALIQ DAD and another---Respondents

Civil Revision No.1519-D of 1984, heard on 20th October, 2005.

Punjab Pre-emption Act (I of 1913)---

----S. 30---Qanun-e-Shahadat (10 of 1984), Arts.117 & 118---Suit for pre-emption---Limitation---Defendants/vendees' contention that defendats' suit for pre-emption was tune-barred because disputed sale had been effected two years prior to the institution of said suit was supported by deposition of witnesses and Khasra Girdawari wherein the name of defendant was duly recorded as the possessee of suit-land during previous Rabi, a crop sown in the month of October of each year---Onus of proving that plaintiff's suit was rime-barred lay on defendant who successfully discharged the same but appellate Court relied on an application moved by a tenant for correction of the Khasra Girdawari and thus committed serious misreading of evidence by ignoring the fact that said application had been rejected by District Collector---Appellate judgment and decree being not sustainable, was set aside and that of Trial Court was restored.

Malik Noor Muhammad Awan for Petitioners.

Ch. Khurshid Ahmad for Respondents.

Date of hearing: 20th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 772 #

2006 Y L R 772

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Bashir A. Mujahid , JJ

AHMED HASSAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.1726, 1582, 1622 of 2001 and Criminal Revisions Nos.754 and 784 of 2001, decided on 30th June, 2004.

Penal Code (XLV of 1860)---

----Ss. 302(b), 337-L(ii), (iii), 337-A(i) & 34---Appreciation of evidence---None of the parties in the case had come with clean hands and had deliberately concealed the true facts---Witnesses in both the cases while deposing before Trial Court had not explained injuries received by opposite party at their hands---Front the facts available on record it was difficult to fund out the reasons which had ignited the whole affair and the genesis of the crime was shrouded in mystery---Findings of Investigating Officer was that it was a case of free fight between the parties in which both sides had used weapons and caused injuries to their adversaries---Triad Court, in circumstances of case, had rightly observed that neither of the party had waylaid the other and it was an open fight which took place near their place of residences---Trial Court while keeping in view the role of each accused, had rightly convicted them---Trial Court, however, while awarding sentence, had taken a little bit harsh view---Except injuries on the person of deceased, all injuries on the person of witnesses in both cases were not serious in nature or dangerous to human life---Appellants/accused were facing the agony of case for the last more than five years and according to record, except one accused, rest of accused persons had also already undergone substantial portion of their sentence---Sentences of imprisonment of accused persons, except said one accused, were reduced to the period already undergone by them---As for said one accused, his sentence on charge under Ss.302(c) & 34, P.P.C. was reduced to imprisonment for ten years with benefit of S.382-B, Cr. P. C.; his conviction and sentence under S.337-L(ii), P.P.C. was however maintained---All sentences of said accused would run concurrently---Appeals and revision were disposed of accordingly.

Abdul Rauf Farooqi for Appellants.

Zafar Iqbal Chohan for the Complainants.

Date of hearing: 30th June, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 775 #

2006 Y L R 775

[Lahore]

Before Syed Hamid Ali Shah, J

SAJJAD ALI---Petitioner

Versus

MUHAMMAD KHAN- -Respondent

Civil Revision No.26 of 2005, decided on 28th October, 2005.

Punjab Pre-emption Act (IX of I99I)---

----S. 13---Pre-emption suit---Requirements of Talb-i-Muwathibat- -Performance of Talb-i-Muwathibat, even otherwise is not rigidly required to be fulfilled on the basis of specific mention of details, particulars, time, date and place, in the plaint and names of persons ,n whose presence such Talb was made---Plaintiff had specifically referred in the plaint to the two Talbs having been made-Copy of notice of Talbi-Ishhad had been produced in evidence on which no cross-examination had been directed nor any objection had been raised by the defendant---Facture of Talbs had been proved---Plaintiff could not be non-suited merely on ground that time and place of Talb-i-Muwathibat was not stated by witnesses---Concurrent judgments and decrees being erroneous and suffering from misreading and non-reading of material evidence, were set aside by High Court and suit of plaintiff was decreed in circumstances.

Qaiser Mansoor Malik v. Mst. Jhando through Legal Heirs and 13 others 2004 YLR 537; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Nadir Khan v. Itebar Khan 2001 SCMR 539 ref.

Muhammad Ahsan Bhoon for Petitioner.

Ch. Muhammad Akram Sindhu for Respondent.

Date of hearing: 10th May. 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 778 #

2006 Y L R 778

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD ASHRAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.510 of 2003, decided on 3rd October, 2005.

Customs Act (IV of 1969)---

---S.156(1) (8) ---Appreciation of evidence---Sentence, reduction in---Complainant along with recovery witnesses, while supporting prosecution case, had narrated before Trial Court the circumstances under which accused was arrested and a huge quantity of gold was recovered front him---All said witnesses stood the test of searching cross-examination and remained steadfast---Accused had argued that during relevant days import of gold was free and that accused being a dealer in the gold had imported gold which was allegedly recovered from his possession---Accused, however, had failed to point out any solid, cogent, positive evidence to show that he used to deal in business of gold---Even otherwise if it was presumed that accused being a dealer in gold had imported gold, but allegation against him was of smuggling gold out of Pakistan---Accused could not show any policy of Government authorizing any person to Jake gold out of country without any legal permission---Accused was apprehended about two and a half K.Ms. away from Indo-Pak Border which place was far away from inhabited area of village concerned---Accused and his co-accused were apprehended at 1-30 a.m. and at said odd hours of night, procurement of witnesses from public was not possible---Even otherwise Government officials, Police officials etc. were as good witnesses as filly other person from public unless it was proved that they had any malice or grouse against accused---Huge quantity of gold i.e. 4500 Tolas was recovered from accused and his co-accused and plantation of such a huge quantity at the instance of Ranger authorities could not be believed---No illegality was found in conduct of raiding party at relevant time as essential requirement of law before conducting personal search was also complied with by raiding party---Prosecution, in circumstances had succeeded is proving charge against accused---Accused was facing agony of case since 1991 and had suffered a lot---Lenient view qua quantum of sentence would definitely meet the ends of justice---Appeal against conviction was dismissed, but sentence of imprisonment of fourteen years' R.1., was reduced to ten years' R.I. with benefit of S.382-B, Cr.P.C.. accordingly.

Abdul Karim Malik for Appellant.

Ch. Muhammad Ahad Batalvi for the State.

Date of hearing: 3rd October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 785 #

2006 Y L R 785

[Lahore]

Before Muhammad Khalid Alvi, J

Mst. BARKAT BIBI and others---Appellants

Versus

AMEER ALAM MUNIR and 2 others---Respondents

Regular Second Appeal No.60 of 2005, decided on 25th November, 2005

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O.IX, R.8---Suit for specific performance of agreement to sell--Execution of agreement to sell---Proof --Deceased, who was issuless, was the husband of defendant and brother of appellants---Plaintiffs were nephews of deceased's widow---Plaintiffs after death of deceased, filed a suit for specific performance of agreement against widow of deceased alleging that before his death deceased had entered into an agreement to sell with them qua the suit property and that they had paid considerable amount lo deceased as earnest money but he died before the registration of agreement-Widow of deceased had conceded the claim of plaintiffs but appellants who were real sisters of the deceased had filed appeal against the decree---Validity- --Photocopy of stamp paper register placed on record had clearly showed the date on which stamp was sold which had been changed by overwriting and disputed entry was forged---Admittedly deceased was issuless and plaintiffs were nephews of deceased's widow, who had a strong reason to support them so as to deprive the appellants from property they being the sisters of her deceased husband. although deceased's widow had conceded the receipt of earnest money by deceased but she failed to account for the said amount as it had come on record that deceased was having a little amount of money in two different bank accounts at the time of his death---Was not credible that no receipt of payment of a huge amount was obtained from deceased---Statements of witnesses were contradictory---Although appellants had not specifically denied the signatures of deceased but denial of exec thorn of disputed document being a total dental included denial of signatures as well. Denial of litigation by appellants between deceased and appellants, which was dismissed under O.IX, R. 9 about 19 years ago, was not material-Courts below having ignored the material aspects of case, High Court accepted the appeal.

Ch. Bashir Hussain Khalid for Appellants.

Rana Rashid Akram Khan for Respondents.

Date of hearing: 23rd November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 789 #

2006 Y L R 789

[Lahore]

Before Nazir Ahmad Siddiqui, J

SHAUKAT ALI---Petitioner

Versus

CHIEF ELECTION COMMISSIONER OF PAKISTAN and 6

others---Respondents

Writ Petitions Nos.4489 and 4503 of 2005, decided on 27th July, 2005.

Punjab Local Government Ordinance (XIII of 2001)---

----S.157--Electoral Rolls Act (XXI of 1974), S.20---Constitution of Pakistan (1973). Art. 199--- constitutional petition- --Electoral rolls---Omission of petitioner's name from electoral rolls prepared for Local Government elections. though available in electoral rolls prepared in year 2002 for general elections---Prayer of petitioner to include his name in electoral rolls to be used in coining Local Government elections---Validity---Electoral rolls prepared in year 2002 for general elections could not be used in coming Local Government elections, for which electoral rolls already prepared in year 2000-01 for Local Government elections held in May, 2001 would he used---Petitioner had not bothered to check his name in electoral rolls prepared in year 2000.01, when Election Commission of Pakistan had invited claims, objections and applications for its correction within specified period--Election schedule for corning Local Government elections had been announced. Thus correction of subsequent list by including petitioner's name would be barred under S.20 of Electoral Rolls Act. 1974---No indulgence could be shown to petitioner in this behalf--High Court dismissed constitutional petition in limine.

Amin-ud-Din Khan for Petitioner.

M. R. Khalid Malik. A.A.-G.

Ch. Saghir Ahmad Standing Counsel along with Sh. Jalil Ahmad. Deputy Election Commissioner, Multan.

Malik Muhammad Rafiquc Rajwana and Malik M. Tariq Rajwana for Respondents Nos.6 and 7.

YLR 2006 LAHORE HIGH COURT LAHORE 792 #

2006 Y L R 792

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD HANIF alias MEHDI---Appellant

Versus

THE STATE -Respondent

Criminal Appeal No.520 of 2003, decided on 13th September, 2005.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Case of prosecution as set up in F.I.R., was that deceased was lying on a cot under the tree near his cattle-shed when accused along with his son and brother launched attack on deceased and gave Kassi blow on his neck and head and thereafter they dragged him to sugarcane field and threw there---Doctor had not observed any mark of dragging on the person of deceased- - One of the prosecution witnesses stated that the place where deceased allegedly was done to death and place where his dead body was thrown was 10/12 Karams---If deceased was dragged to such a long distance, presence of marks of dragging must have been on his person---Absence of such marks on the ready of deceased, had belied the story of prosecution---Dead body of deceased as stated by complainant was recovered from the field owned by deceased, whereas stand taken by Part wart as prosecution witness was that said field was of some other person---Investigating Officer never recovered any blood-stained earth from place where allegedly deceased was done to death---Said lacunas in prosecution case, accumulatively were sufficient to show that occurrence never took place in the manner as narrated by eve-witnesses and their presence at the spot was not free from doubt---Accused, in circumstances, was acquitted extending him benefit of doubt.

Ch. Imtiaz Hussain Bhatti with Muhammad Azam for Appellant.

Mirza Abdullah Baig for the State.

Date of hearing: 13th September. 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 795 #

2006 Y L R 795

[Lahore]

Before Nazir Ahmad Siddiqui, J

MUHAMAMD ASIF YAR and another---Petitioners

Versus

DISTRICT RETURNING OFFICER/ APPELLATE AUTHORITY, DISTRICT MULTAN and 4 others---Respondents

Writ Petition No.4759 of 2005, decided on 3rd August, 2005.

Punjab Local Government Election Rules, 2000----

-----Rr. 16 & 18---Constitution of Pakistan (1973), Art.199---Constitutional petitions---Acceptance of nomination papers of Nazim ,and Naib Nazim---Nomination papers submitted by respondent for the seat of Nazim was concurrently accepted by Returning Officer and District Returning Officer-Said acceptance of nomination papers of respondent had been challenged by petitioners on ground that respondent had not passed his Matriculation examination---Certificate annexed by respondent with his nomination papers indicated that respondent did qualify all courses of Matric Programme, except elective Course Code 222 i.e. Applied Food and Nutrition---Result card issued by Allama Iqbal Open University showed the respondent as `Fail' in Code 222 as he was absent in practical of tine same---Respondent was under an obligation to complete all courses prescribed for said examination---Respondent was required to qualify Course. Code 222, but he desisted from said programme and all chances to pass the same had finished---Certificate produced by respondent, could not be equated to that of Matric---Respondent having not filed his nomination papers with clean hands, impugned orders whereby his nomination papers were accepted, were declared to be without last Jul authority and of no legal effect, resulting in rejection of his nomination papers along with his joint candidate for the seat of Naib Nazim.

Malik M. Rafique Rajwana and Malik M. Tariq Rajwana for

Petitioners.

M. R. Khalid Malik A.A.-G.

Syed M. Ali Gillani for Respondent No.3

Syed Qaiser Abbas. Assistant Director, Allama Iqbal Open University.

YLR 2006 LAHORE HIGH COURT LAHORE 797 #

2006 Y L R 797

[Lahore]

Before Nazir Ahmad Siddiqui, J

MUHAMMAD FAYYAZ and another---Petitioners

Versus

RETURNING OFFICER, UNION COUNCIL NO.20. LODHRAN ' and 4 others---Respondents

Writ Petition No.4837 of 2005, decided on 3rd August, 2005.

Punjab Local Government Election Rules, 2000---

----R. 20---Oath Act (X of 1873), Ss. 8. 9, 10 & 11---Withdrawal of nomination papers through Counsel---Denial of candidate to have authorized the Counsel---Offer of candidate to dismiss his case, if Counsel took oath on the Holy Qur'an that he had been given such authority by candidate---Counsel not only stated at the Bar that he had been given such authority, but repeated his statement after reciting "Kalma "---Validity---Statement of Counsel made at the Bar should be taken to be correct on the touchstone of well-settled traditions and norms of legal practice---Counsel's statement was believed in circumstances.

(b) Counsel and client---

----Statement of Counsel made at the Bar should be taken to be correct on the touchstone of well-settled traditions and norms of legal practice.

Ch. Abdul Sattar Goraya for Petitioners

M. R. Khalid Malik A.A.-G

Malik M. Rafique Rajwana and Malik M. Tariq Rajwana for Respondent No.3.

Rao Muhammad Ramzan for Respondent No.4.

YLR 2006 LAHORE HIGH COURT LAHORE 800 #

2006 Y L R 800

[Lahore]

Before Ali Nawaz Chowhan and Umar Ata Bandial, JJ

KHALID HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.134 of 2004, heard on 25th January, 2006.

Control of Narcotic Substances Act (XXV of 1977)---

----Ss.9(c) & 21---Appreciation of evidence---Sentence, reduction in---Nonconformity with the procedure as laid under S.21of the Control of Narcotic substances Act, 1997, in the facts and circumstances of the case, would amount to an irregularity which was not fatal to prosecution case---Record did not suggest any malice on the part of the official witnesses in involving the accused in the crime, nor the accused could impeach their credibility---Poppy straw, after the extraction of opium juice from it, was purchased by Hakeems and village apothecaries/"Pansaries" for using it in Ayurvedic medicines since remote antiquity not only in Pakistan but also in neighbouring countries, where it was still so being used---Abrupt change in law without making any proper amendment had already caused a turmoil resulting in incarceration of many Hakeems and apothecaries confronting maximum sentence under the provisions of S.9 of the Control of Narcotic Substances Act, 1997, which required reconsideration---Extenuating circumstances, thus, were available in the case---Sentence of death awarded to the accused was reduced to imprisonment for life accordingly with substantial reduction in fine---Benefit of 5.382-B, Cr. P. C. was also given to the accused.

State through A.-G. Sindh, Karachi v. Hemjoo 2003 SCMR 881; Nasrullah v. The State PLD 2001 Pesh.152; Taj Wali and 6 others v. The State PLD 2005 Kar.128; Raees Khan v. The State 2005 PCr.LJ 76; Khan Muhammad v. The State PLD 2004 Kar.681 and I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041 ref.

Azam Nazeer Tarar for Appellant.

Inyat Ullah Cheema for Respondent.

Date of hearing: 25th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 807 #

2006 Y L R 807

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

MUHAMMAD BOSTAN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.121 of 2000, Criminal Revision No.66 of 2000 and Murder Reference No.202 of 2000, heard on 6th June, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b), 148 & 149---Appreciation of evidence---Both eye-witnesses were closely related to deceased and previous background of enmity existed between the parties---No independent witness was produced to prove the story set up by prosecution---Even complainant, who had alleged in F.I.R. that he along with others had gone to village concerned to attend the funeral ceremony of a deceased person, could not give, before Trial Court, correct name of deceased person whose funeral he had gone to attend in said village---Other material contradictions were also found in the statements of two prosecution witnesses---Lot of difference existed between site plans, one prepared by Investigating Officer at his first visit of the place of occurrence and other prepared by draftsman on the pointation of eye-witnesses which also created doubts about the veracity of prosecution story---One of prosecution witnesses deposed before the Trial Court that he had seen all the accused persons in the Police Station three days after the occurrence---Recovery of pieces of butt of gun remained unproved for the reason that one of the recovery witnesses, who was real uncle of deceased, did not utter a single word about the recovery of pieces of butt while other witness was given up by prosecution---Gun recovered on pointation of one of the accused, though was received in the office of Fire-arms Expert, while pieces of the butt which were taken into possession from the spot by police on the day of occurrence, were never sent to Fire-arms Expert and remained with police---Hatchet recovered on the pointation of accused, was not found to be blood-stained as per report of Serologist---Two co-accused were found to be innocent by the police; discharge report prepared by police was presented before Magistrate concerned who did not agree with police report---When parties were pitched against each other, to award or maintain conviction on a capital charge, there must be some independent corroboration and one tainted piece of evidence, could not corroborate other tainted piece of evidence---Prosecution had not been successful in proving its case against accused as defence had created dents in prosecution story---Conviction and sentence awarded to accused by the Trial Court, were set aside giving them benefit of doubt and they were acquitted of the charge and were released.

2001 SCMR 241; 2002 SCMR 1842; 2004 SCMR 1703 and PLD 1972 SC 77 ref.

Sardar Muhammad Ishaq for Appellants.

Tariq Chaudhry for the Complainant.

Tanvir Iqbal, A.A.-G. for State.

Date of hearing: 6th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 814 #

2006 Y L R 814

[Lahore]

Before Muhammad Jehangier Arshad, J

LIAQAT ALI and 3 others---Petitioners

Versus

DEPUTY COMMISSIONER/COLLECTOR, LODHRAN and 3 others---Respondents

Writ Petition No.9590 of 1998, heard on 10th October, 2005.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----Ss.2 & 3---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Respondent in her application filed before District Collector had complained that she was owner of house in-question which was allotted to her mother and on death of her mother she along with her sister had become owners of said house and that petitioner had illegally occupied the house as he was never transferred the same---Respondent prayed in her application that petitioner be dispossessed from the house and possession of said house be got transferred to her and her sister---District Collector without issuing any notice to petitioner or affording him opportunity of hearing, directed that entry in the name of petitioner in the Revenue Record be scored off-Validity-On report submitted by Inquiry Officer, District Collector proceeded to pass impugned order without issuing notices to parties and affording them opportunity of hearing---Said order was passed by District Collector without application of mind and without considering as to whether he had jurisdiction to take cognizance of complaint filed by respondent---Property in question was neither owned by Government nor was a colony land---District Collector, in circumstances, had no jurisdiction to resolve private dispute between the parties---District Collector had also no jurisdiction to declare petitioner as unauthorized occupant which could only be so declared by Civil Court---Even otherwise, after repeal of Settlement Laws, no findings could be recorded by District Collector about genuineness or otherwise of entry in R.L.II---High Court, accepting constitutional petition, declared order passed by District Collector as illegal and set aside the same accordingly.

Muhammad Ameer Bhatti for Petitioners.

Athar Rehman Khan for Respondents Nos.3 and 4.

Date of hearing: 10th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 816 #

2006 Y L R 816

[Lahore]

Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ

Mian NAZIR AHMAD---Appellant

Versus

WAPDA through Chairman and 5 others---Respondents

Regular First Appeal No.490 of 1996, heard on 5th July, 2004.

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

----O. XLI, R.22-Damages-Suit was partly decreed---No appeal or cross objection---Question was as to whether finding of Trial Court could be challenged by defendant in appeal filed by plaintiff---Without there being a cross appeal or cross objection this was not permissible for defendant to challenge the finding of Trial Court---If such challenge was permitted that might result either in dismissal or modification of the decree---Defendants therefore, could only defend that part of the decree, in which claim had not been allowed to the plaintiff as they were precluded under law to challenge the decree, which had been awarded to the plaintiff.

Khairati and others v. Allem-ud-Din and others PLD 1973 SC 295 ref.

(b) Malicious prosecution---

----Suit for damages---Plaintiff claimed damages for malicious prosecution, nonfeasance, malfeasance, misfeasance and defamation---Suit was partly allowed--Plaintiff filed appeal on the ground that Trial Court had not appreciated the evidence on record adequately otherwise the amount of damages would have been far more than the one awarded by the Trial Court---Reasoning given by the Trial Court, revealed that damages had been awarded on the basis of the finding that action of defendants in disconnecting the electricity supply and levelling allegation of theft and getting the case registered was illegal and mala fide, therefore, the Court had rightly granted the damages to the extent of Rs.5,00,000, otherwise, the appellant under each head, i.e. for illegal trespass, wrongful disconnection, for nonfeasance, misfeasance and defamation had not been able to prove the exact amount of the damages and he had to offer the criteria which would have been followed by the Court in awarding the damages under different heads---No misreading and non-reading of evidence or any illegality in the order having been found by the High Court appeal was dismissed.

----S. 34---Interest---Refund of detection bill paid by plaintiff under protest was decreed---Contention that the Court while passing the decree of amount of refund of detection bill, failed to award the interest to plaintiff under S.34, C.P.C.---Validity---Specific amount of damages, to the tune of Rs.5,00,000 had been granted to the plaintiff, therefore equity did not warrant for the grant of interest on the amount of refund-No error or illegality having been found appeal was dismissed.

Khawaja Haris Ahmad for Appellant.

Tariq Kamal Qazi for Respondents.

Date of hearing: 5th July, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 818 #

2006 Y L R 818

[Lahore]

Before Maulvi Anwarul Haq, J

AHMAD alias AHMAD YAR---Petitioner

Versus

AHMAD and 2 others---Respondents

Civil Revision No.3484 of 1994, heard on 16th April, 2004.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.59---Suit for declaration on basis of non-registered sale-deed of land in dispute---Suit was dismissed by Trial Court but decreed on appeal---Plaintiff moved application for comparison of defendant's thumb-impression appearing on impugned document-Question was as to whether Appellate Court had rightly presumed that had the thumb-impressions been sent for comparison, the report would have been against the defendant---Validity---No evidence was available on record to prove execution of impugned sale-deed by defendant in favour of plaintiff-One of the two attested witnesses of disputed document did not state anything about execution of the same by defendant while the other witness had not been produced by plaintiff and no reason was given for his unwarranted absence---Scribe of impugned document, in his statement, admitted than he did not personally know the defendant---Merely on filing of application for comparison of thumb-impressions of defendant the observation of appellate court that had the prints been sent for comparison the report would have been against defendant was perverse-Impugned judgment and decree passed by appellate court was set aside and that of Trial Court was restored by High Court.

Mian Muhammad Athar for Petitioner.

Allah Yar Malik for Respondent No.1.

Shamim Abbas Bokhari for Applicant in C.M. No.2 of 2002.

Date of hearing: 16th April, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 820 #

2006 Y L R 820

[Lahore]

Before Jawwad S. Khawaja, J

MANSOOR AHMAD---Petitioner

Versus

Mst. BASHIRI HAZOOR and others---Respondents

Civil Revision No.981 and Writ Petition No.7602 of 2002, decided on 11th May, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.12(2)---Suit for declaration---Consent decree, challenge to---Consent decree passed in favour of respondent had been challenged by petitioner in his application filed under S. 12(2), C.P.C. on ground that it was obtained by fraudulently---Said application of petitioner was concurrently dismissed by Trial Court and Appellate Court and petitioner had challenged concurrent judgments of Courts below in revision---Petitioner had claimed that he was owner of 5 Marlas of suit-land which he had purchased from same vendor from whom respondent had purchased---Claim of petitioner was that he had purchased 5 Marlas from its vendor vide unregistered sale-deed for consideration---Respondent had denied title of petitioner in respect of land purchased by hum---Petitioner in proof of his case had produced sale-deed itself and also produced marginal witness of said sale-deed and grandson of scribe of said sale-deed---Testimony of marginal witness, which was clear, remained unshaken in cross-examination---Grandson of scribe of sale-deed had stated that his deceased grandfather had written said deed and he recognized his handwriting---Said grandson from register of his grandfather had proved that said transaction was noted in the register---Testimony of said two witnesses had not been considered or properly discussed by two Courts below and instead had proceeded on certain conjectures, which did not qualify as evidence---Scribe of sale-deed having died, his grandson was competent to identify the handwriting and signature of his grandfather---Reason given by Appellate Court for not relying on testimony of grandson of scribe of deed, was that petitioner had not obtained permission from the Court for proving deed in-question, was without any legal basis because deed in-question was produced in original and there was no occasion for seeking permission to prove it through secondary evidence---Respondent was plaintiff in the suit and it was for her to prove affirmatively that she had acquired title in 1961 through an oral sale made by vendor in her favour---Evidence on record was not sufficient for the purpose of discharging the onus of proof placed on her, considering; firstly that petitioner and before hint his father were in possession of suit-land and; secondly because of unexplained omission as to why alleged oral sale was not incorporated in Revenue Record by respondent---No valid basis was available for applying one standard to sale claimed by petitioner and another standard to sale claimed by respondent---Witnesses produced by petitioner having given credible testimony to prove document of sale in favour of petitioner, concurrent orders of Courts below were set aside to the extent of petitioner.

Sh. Umar Draz for Petitioner.

Syed Fayyaz Ahmad Sherazi for Respondent No.1.

Remaining Respondents ex parte.

Date of hearing: 11th May, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 824 #

2006 Y L R 824

[Lahore]

Be/ore Muhammad Khalid Alvi, J

DOST MUHAMMAD and others---Appellants

Versus

GHULAM NOOR (deceased) through Legal Heirs and others---Respondents

Regular Second Appeal No.43 of 1996, heard on 3rd October, 2005.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 5, 2(c)(d) & (d)(iii)-Suit for preemption---Question involved in the present case was whether transaction in dispute was, in fact, sale or exchange---Such question was a pure question of fact which had been concurrently found by two Courts below to be one of sale---Such concurrent findings on question of fact, could not be interfered with in second appeal except where some material aspects were overlooked by Courts below which was needed to be proved through reappraisal of evidence.

Mst. Kapoori and 4 others v. Man Khan and 6 others 1992 SCMR 2298 ref.

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

----Ss. 54 & 118-"Sale" and "exchange"-Distinction- Distinguishing features between the two types of transactions was that if money was paid or promised or partially paid then transaction was one of "sale" and if no such payment in cash had been made and only two properties had changed hands, then it was an "exchange ".

----Ss. 5, 2(c), (d) & (d)(iii)---Suit for preemption---Nature of transaction---Question was as to whether transaction in-question was sale or exchange---Statements of plaintiff's witnesses that they only witnessed passing of sale consideration and negotiations regarding transaction had not taken in their presence, did not give rise to an inference of sale---On the contrary nature of disputed property (121 Kanals) was admittedly Barani while property given in exchange (38 Kanals, 17 Marlas) was Nehri and value of both being approximately same supported the version of defendant that transaction in-question was of exchange.

(d) Punjab Pre-emption Act (IX of 1991)---

----S. 5, 2(c) & (d)---Oaths Act (X of 1873), S.4---Civil Procedure Code (V of 1908), S.100---Second appeal---Special oath---Failure to take---Inference---Failure of vendee to accept plaintiff's offer for special oath would not necessarily require an adverse inference to be drawn against vandee because a person, despite being truthful, might not like to take special oath for resolving dispute---Some of the aspects of case having not been attended to by Courts below, second appeal was accepted and concurrent findings were set aside by High Court.

Sher Azam v. Fazle Azim Shah 1972 SCMR 649 ref.

Aamer Raza A. Khan for Appellants.

Shamim Abbas Bokhari for Respondents.

Date of hearing: 3rd October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 828 #

2006 Y L R 828

[Lahore]

Before Syed Hamid Ali Shah, J

ALTAF HUSAIN and 7 others---Appellants

Versus

HANIF HASSAN and 2 others---Respondents

F.A.Os. Nos.4 and 28 of 2005, decided on 31st October, 2005.

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

----O. XL, R.1, O. XXX1X, Rr.1, 2 & S.97-Specific Relief Act (1 of 1877), Ss.8, 42, 44, 52 & 53---Suit for declaration, possession, injunction, partition and rendition of accounts---Application for appointment of Receiver---Dismissal of application---Failure to appeal from preliminary decree within prescribed period of limitation---Effect---Property in dispute had been found to be joint property by Trial Court in preliminary decree---Respondents having not challenged finding of Trial Court in that respect in appeal, said order had attained finality and respondents were precluded from challenging the same in appeal.

(b) Co-sharer---

----Co-sharer who raises any construction on joint property without the consent of other co-sharers and without permission of the Court, is not entitled to any compensation and enhancement in value as such properly is for common advantages of all the co-sharers.

Afsar Khan and others v. Mst. Khanum Jan and others 1983 SCMR 273 ref.

----O. XL, R.1---Specific Relief Act (I of 1877), Ss.8, 42, 44, 52 & 53---Appointment of Receiver---Justification---Appointment of receiver was justified when there was a prima facie case, applicant had a title to the suit property; property was in danger of being wasted and it was just and convenient to appoint a Receiver---Respondent, in the present case, was enjoying the fruits of joint property to the total exclusion of other co-sharers---Parties were involved in litigation and were not on speaking terms, therefore, it would be just and convenient to appoint Receiver---Impugned order of Trial Court was set aside by High Court.

Fazal and others v. Ghulam Muhammad and others 2003 SCMR 999; Mazhar Hussain and 4 others v. Jan Muhammad and 13 others 2003 YLR 2056; The Crown v. Bar Association of Sukkur PLD 1956 Sindh 84; Ghulam Hussain v. M. Riaz-ud-Din 1983 CLC 1111; Sarvana Madhas v. Sinzarvelin Mudaliar AIR 1938 Mad.730 and Basant Ram v. Dasondth Mall and others AIR 1929 Lah 497 ref.

Mirza Hafeez-ur-Rehman for Appellants.

Abdul Latif for Respondents Nos.1 and 2.

Nemo for Respondent No.3.

Date of hearing: 27th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 831 #

2006 Y L R 831

[Lahore]

Before Mian Saqib Nisar, J

Mst. BAKHAN---Petitioner

Versus

AHMAD YAR---Respondent

Civil Revisions Nos.1037-D and 1038-D of 1989, decided on 22nd September, 2004.

(a) Islamic Law---

----Inheritance---Succession---Co-sharer---Adverse possession---Rights of females---Pardanasltin muslim lady---Sale was alleged to have been made by pardanashin illiterate ladies---Onus to prove payment of sale consideration, execution of sale-deed by the ladies and their appearance before the Sub-Registrar for purpose of registration, was on defendants which they failed to discharge---Out of two marginal witnesses one Lamberdar, who allegedly identified the ladies (plaintiffs) was not the Lamberdar of concerned village and despite service did not appear---Second witness, who was allegedly the attesting witness of the sale-deed in dispute was also a party to suit and allegations of fraud and misrepresentation were made against him---Such aspects had conspicuously escaped the eyes of Appellate Court, and thus, it being a case of misreading and non-reading, the judgment could not sustain and was liable to be set aside and that of Trial Court was restored by High Court---Qanun-e-Shahcadat (10 of 1984), Art. 119 Specific Relief Act (I of 1877), S.42.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC I ref.

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

----Art. 31---Specific Relief Act (1 of 1877), S. 42---Suit for declaration---Inheritance---Admission of co-defendant---Plaintiffs were alleged to have executed ca sale-deed in favour of defendants---One of the defendants admitted the sale---Question was as to whether the admission of a co-defendant could affect the claim of plaintiffs---Validity---Admission of a co? defendant was not binding upon the other---Suit to the extent of co-defendant was dismissed.

----O. XLI, R.27---Specific Relief Act (I of 1877), S.42---Suit for declaration relating to alleged sale-deed---Non-appearance of plaintiffs---Report of Finger Print Expert---Additional evidence---Question was as to whether plaintiffs had thumb-marked the sale-deed or not---Validity---Question had become irrelevant for the reason that the defendants neither before the Court of appeal nor before High Court ever agitated for the additional evidence---Non?appearance of plaintiffs did not matter at all.

Muhammad Farooq Qureshi Chishti for Petitioner.

Mian Dilawar Mehmood along with Muhammad Sadiq, S.-I., Finger Print Bureau for Respondent.

Date of hearing: 7th September, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 836 #

2006 Y L R 836

[Lahore]

Before Tanvir Bashir Ansari and Abdul Shakoor Paracha, JJ

MUKHTAR AHMED and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman, Rawalpindi and others---Respondents

Writ Petition Nos.2660 of 2003, 216 of 2004 and 2533 of 2003 in NAB Reference No.86 of 2003, decided on 22nd June, 2004.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9, 18 & 26---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Reference to Accountability Court---Grant of bail---Allegations against one of the petitioners was that he, being a Deputy Secretary, inn connivance with another accused dishonestly awarded contract to a construction company on higher rate; that the petitioner who was also appointed as arbitrator for settlement of claim had given the award in collusion with the approver---Charge against the petitioner on both counts could not be proved unless and until substantial evidence was brought on the record---Efficacy of the statement of an approver, would depend upon circumstances of each case and no implicit faith could be reposed in such a statement till such time that said statement was put to test in accordance with law---Charge against the petitioner that he being sole arbitrator had dishonestly proceeded to award amount to the contractor, could not be decided without referring to the circumstances which led to award to become rule of the court---Representative of the government had appeared before the Civil Court and objections to the award having not been pressed, court made said award the rule of the court---Within the mechanism of Arbitration Act, 1940, award would remain ineffective till made rule of the court and decree was passed accordingly---Such facts had indicated that the case was of further inquiry which could not be decided one way or the other without recording of detailed evidence by the prosecution---Petitioner was allowed bail, in circumstances---Allegations against two co-accused were identical---One of co-accused was Chairman while other was a Member of Escalation Committee and legality of proceedings of Escalation Committee could not be prejudged at bail stage---Once it was found that in all government contracts, Finance Division had been recognizing the right of genuine escalation based upon on unforeseen increase in the building material, whether or not such escalation was commensurate with the actual rise in the price or not, same would be a case of further inquiry---Said co-accused were also allowed bail accordingly.

Malik Rab Nawaz Noon and Dr. Babar Awan for Petitioners.

Sardar Asmat Ullah Khan and Additional Deputy Prosecutor General, NAB for Respondents.

Date of hearing: 26th April, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 841 #

2006 Y L R 841

[Lahore]

Before Mian Hamid Farooq, J

SAIF-UL-HAQ ZIAY---Petitioner

Versus

Mst. RAFIA KHANUM and others---Respondents

Writ Petition No.15628 of 2004, decided on 24th September, 2006.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment application---Closing the right of tenant to produce witnesses---Petitioner/tenant having not produced his witnesses, Rent Controller passed order by which right of petitioner to produce witnesses was closed---Validity---Impugned order passed by Rent Controller, for all intents and purposes, was an interlocutor) order as lis was pending before Rent Controller and he had yet to render its final verdict and legislature had made such an order as non-appealable by specifically making a provision in that respect by virtue of second proviso to S.15 of West Pakistan Urban Rent Restriction Ordinance, 1959---Constitutional petition was not maintainable because when Legislature had specifically prohibited filing of an appeal against an interim order, if constitutional petition was allowed to be filed against such order, it would tantamount to defeating and diverting intent of the legislature---If ejectment petition would ultimately be decided against petitioner, he would have a right to file appeal under S.15 of West Pakistan Urban Rent Restriction Ordinance, 1959, wherein all questions/grounds raised by petitioner in constitutional petition would be available to him before Court of appeal---Impugned order of Rent Controller would merge into final order which could be assailed before Courts of appeal, if final order/judgment would ultimately be passed against petitioner---Petitioner having alternate remedy, constitutional petition could not be entertained.

Jindwadda and others v. Abdul Hamid and another PLD 1990 SC 1192 and Qutab-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109 ref.

Petitioner in person.

YLR 2006 LAHORE HIGH COURT LAHORE 843 #

2006 Y L R 843

[Lahore]

Before M. Bilal Khan, J

Dr. NAZIR AIIMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9334-B of 2005, decided on 18th January, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Bail, grant of---Accused aged about 56/57 years, a married man and a qualified M.B.,B.S. Doctor, was not expected to have made a forcible sexual assault on the sixteen years old niece of the complainant, in his clinic in the presence of complainant, his wife and a large number of patients waiting for their turn---Admittedly the complainant was running a medical store across the clinic of the accused and the assertion of the accused that he had reprimanded the complainant for selling spurious drugs which had prompted the complainant to implicate /tint in the false case, could not be summarily brushed aside at this stage---Some patients present at the clinic of the accused at the relevant time had filed their affidavits regarding falsehood of the allegation---Report of Chemical Examiner regarding vaginal swabs and Shaiwar of prosecutrix was in negative---Case of accused, in circumstances, required further inquiry within the meaning of subsection (2) of S. 497, Cr. P. C. ---Accused was admitted to bail accordingly.

Rana Mashhood Ahmad Khan for Petitioner.

Raja Zulqarnain for Complainant.

Abdul Majeed Chishti for the State with Muhammad Nawaz, S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 845 #

2006 Y L R 845

[Lahore]

Before Maulvi Anwarul Haq, J

BINYAMEEN SAJID---Petitioner

Versus

DISTRICT RETURNING OFFICER, MULTAN and 7 others---Respondents

Writ Petition No.4800 of 2005, heard on 29th September, 2005.

Punjab Local Government Ordinance (XIII of 2001)---

--S. 152(e)-Constitution of Pakistan (1973), Art.199---Constitutional petition---Qualification of candidates---Requisite academic qualification-Contention of petitioner was that at lower forum candidate's Sanad was challenged on ground that it was not equal to matriculation, a requisite academic qualification, while in constitutional petition plea was taken that said Sanad was bogus---Whether constitutional jurisdiction was available in the case wherein a point was raised for the first time in High Court---To determine genuineness of a document was a pure question of law and a question of law could be raised at any time by a party and Court was bound to consider the same---Constitutional petition being within jurisdiction of High Court was accepted and impugned orders were set aside by High Court.

C.P. No.1569-I of 2005; Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822 and Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan, through Secretary to Government of West Pakistan Home Department Lahore PLD 1964 (W.P) Kar 478 ref.

M. Irshad Khan for Petitioner.

M.R. Khalid Malik A.A.-G, \Muhammad Ali Gillani and Mrs. Nasim Akhtar Chaudhry for Respondent No.3.

Chaudhry Imran Khalid for Respondents Nos. 7 and 8.

Date of hearing: 29th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 850 #

2006 Y L R 850

[Lahore]

Before Maulvi Anwarul Haq, J

Haji Malik MUHAMMAD NAWAZ and another---Petitioners

Versus

DISTRICT RETURNING OFFICER, MULTAN and 4 others---Respondents

Writ Petitions Nos.5221, 5132 and 5549 of 2005, decided on 28th September, 2005.

Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(1) (b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election of Nazim and Naib Nazim---Disqualification of candidates on the ground of being under-age---Question was whether Returning Officer had any authority to accept the nomination papers of an underage contesting candidate---Held, in view of admitted position that candidates' respective matriculation certificates were filed and relied upon by the candidates themselves, inference had to be drawn that entries of dates of birth were based on the information provided by themselves in forms filled and signed by them as per rules of respective Board of Intermediate and Secondary Education---Orders passed by Returning Officer accepting nomination papers of underage candidates were, therefore, without lawful authority and were set aside.

C.P. No.2137 of 2005; W.P. No.5221 of 2005 and W.P.No.5659 of 2005 ref.

Pir Masood-ul-Hassan Chishti for Petitioners.

Mehmood Ashraf Khan for Respondents Nos.4 and 5.

YLR 2006 LAHORE HIGH COURT LAHORE 853 #

2006 Y L R 853

[Lahore]

Before Muhammad Muzammal Khan, J

PERVAIZ AKHTAR---Petitioner

Versus

ZAHID HUSSAIN and others---Respondents

Writ Petition No.17394 of 2001, heard on 14th December, 2005.

Penal Code (XLV of 1860)---

----Ss.420/467/468/471---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Parties had already taken their dispute regarding the power of attorneys in-question to Civil Court, where the matter was sub judice---Civil Court being the Court of ultimate jurisdiction was the only legal forum to determine the validity or otherwise and execution or non-execution of any document, where the contesting parties had availed their respective right to prove their cases---Criminal proceedings, therefore, could not be permitted to continue equipping the police to decide the fate of the same documents out of pre-emptory exercise of powers which even did not vest in them under the law---Case in the Civil Court was now ripe for final hearing--Instead of quashing the criminal case, proceedings there under were stayed in circumstances and made subject to the final verdict of the Civil Court, whereunder if the power of attorney was held to be fake or fictitious, the impugned F.I.R. would have its legal course, otherwise it would die its natural death under the judgment of Civil Court---Constitutional petition was disposed of accordingly.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 and Abdul Haleem v. The State and others 1982 SCMR 988 ref.

Mansoor Alamgir Qazi for Petitioner.

Ahmad Waheed Khan with M. Ashgar S.-I. for Respondents.

Date of hearing: 14th December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 855 #

2006 Y L R 855

[Lahore]

Before Jawwad S. Khawaja, J

MAZHAR IQBAL and 2 others---Petitioners

Versus

ALLAH DITTA---Respondent

Civil Revision No.601 of 2005, decided on 1st June, 2005.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Suit was dismissed by Trial Court on the ground that plaintiff had failed to prove Talbs---Appellate Court allowing appeal filed by defendant, reversed findings of Trial Court recorded on question of Talbs---Witness produced by plaintiff appearing on 21-6-2000, had deposed that he had informed plaintiff of the sale about four to five years earlier---If dates of sale and information of said witness were calculated, testimony of said witness would show that the had informed plaintiff of sale in 1995 or 1996---Said discrepancy was noted by Trial Court while holding that Talbs had not been proved through credible witnesses---Appellate Court however, had proceeded to hold that witnesses were illiterate and were not expected to give dates with exactitude---Validity---One of witnesses produced by plaintiff had stated with certainty the time and date when the had informed plaintiff of disputed sale---Said statement, which had set out exact moment, in time when information of sale was given to plaintiff, was contrary to findings of Appellate Court as being illiterate, said witness was not expected to give date and time with exactitude---Appellate Court in circumstances had not applied a consistent standard in appraising testimony of witnesses produced by plaintiff-Appellate Court had exercised its jurisdiction with material irregularity---Appellate decree being not legally sustainable, was set aside; as a consequence, dismissal of suit filed by plaintiff vide decree of Trial Court, was upheld.

Hafiz Khalil Ahmad for Petitioners.

Nemo for Respondent.

Date of hearing: 1st June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 856 #

2006 Y L R 856

[Lahore]

Before Muhammad Akhtar Shabbir, J

AMAN ULLAH---Petitioner

Versus

HAMEED ULLAH and others---Respondents

Civil Revision No.2001 of 1999, heard on 26th January, 2004.

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

----O. XXX1X, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.52 & 53---Suit for injunction---Co-sharer---Possession of co-sharer over the portion of undivided property-Interim injunction against co-sharer, refusal of-Every co-sharer in joint Khata was to be deemed a sharer of every inch of the property and he had the right to defend his possession and title over the same, therefore, injunction against a co-sharer could not be legally issued on the application of other co-sharer---Courts below rightly refused to grant the injunction and such concurrent findings called for no interference by High Court.

Noor Rehman v. Muhammad Yousaf 2000 CLC 1138 and Muhammad Yousaf Khan v. Board of Revenue and 12 others 2002 CLC 739 ref.

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

----O. XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.52 & 53---Temporary injunction, grant of-Essentials-If any of the three ingredients i.e. prima facie case; balance of convenience; and irreparable loss was hissing, plaintiff was not entitled to temporary injunction---Plaintiff, in the present case, having failed to make out his case, in the absence of any illegality and material irregularity concurrent findings of Courts below could not be disturbed by High Court.

Muhammad Farooq Qureshi Chishti for Petitioner.

Mubeen-ud-Din Qazi for Respondents.

Date of hearing: 26th January, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 864 #

2006 Y L R 864

[Lahore]

Before Muhammad Akhtar Shabbir, J

SARJAH---Applicant

Versus

Mst. BAIGI and another---Respondents

C.M. No.359 of 2005 in C.R.No.449 of 2002, decided on 17th October. 2005.

Civil Procedure Code (V of 1908)---

----O. XX, R.14---Decree in pre-emption suit--- Decree-holder/ respondent had deposited 1/3rd of the ostensible sale price of property as determined by Trial Court and such determination was not challenged by respondent in revision petition before High Court---Findings of Trial Court with regard to sale price of suit-land had attained finality and the decree of Trial Court merged into the decree passed by High Court---Respondent had already filed execution petition, therefore, present petition was disposed of with the direction to respondent to deposit the remaining sale consideration within 30 days from that day.

Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241 ref.

Ch. Haider Bukhsh for Applicant.

Ghulam Farid Sanotra for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 865 #

2006 Y L R 865

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

MUHAMMAD AZAM and 2 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.1185 of 2000 and Murder Reference No.674 of 2000, decided on 29th September, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b)/34 of 337-F (iii) --Appreciation of evidence---Presence of eye-witnesses at the crime spot was established, but they had not told the truth and had deliberately concealed some true facts---Court in such circumstances could form its own opinion with regard to the mode and the manner of the occurrence---Both the parties had grappled with each other before the fatal injury was caused to the deceased and during this scuffle the deceased as well as the eye-witness had received abrasions and contusions on different parts of their bodies---What had prompted the parties to start quarrelling and grappling, was shrouded in mystery---None of the accused was armed with any conventional or dangerous weapon, meaning thereby that they had not come at the spot with the intention to commit the murder---Main accused had caused only a single injury to the deceased and did not repeat the same which had belied the prosecution version that the murder was preplanned---Conviction of accused under S.302(b)/34, P.P.C. was consequently maintained but his death sentence awarded thereunder was reduced to imprisonment for life in circumstances---Co-accused had not caused any injury to the deceased and the injury attributed to him sustained by the eye-witness was neither on any vital part of his body nor was grievous in nature---Conviction of co-accused under S.337-F(iii). P.P.C., therefore, was also maintained, but his sentence was reduced to the imprisonment already undergone by hint to meet the ends of justice.

Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 ref.

Mian Abdul Qadus and Muhammad Asif Alvi for Appellants.

Abdul Rehman Ch for the Complainant.

Ch. Muhammad Ahad Batalvi for the State (in Criminal Appeal No.1185/2000).

Malik Muhammad Aslam for the State (in Murder Reference No.674/2000).

Date of hearing: 29th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 870 #

2006 Y L R 870

[Lahore]

Before Mian Saqib Nisar, J

Mst. AMINA (deceased) through Legal Heirs and others---Appellants

Versus

Mst. JAMEELA BEGUM and 3 others---Respondents

F.A.O. No.141 of 2004, decided on 8th September, 2004.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 52--- Suit for declaration with injunction---Lis pendence, doctrine of---Applicability---Injunction was refused by Trial Court---Grant of injunction---Essential ingredients---All three ingredients i.e. prima facie case, irreparable loss and balance of convenience must co-exist entitling the plaintiff to seek the relief-Alleged sale of property was effected in 1991 and was being challenged in the year 2003 and that too after the death of plaintiffs' mother who was the first legal heir of the property and who also did not challenge the alleged sale in her life time---Plea that plaintiffs were kept in dark, was a question of fact, but of vital importance, which needed proof; it could not be prima facie assumed that for such a long period of time, the plaintiffs remained unaware of the alleged transaction---No prima facie case existed in favour of plaintiffs---Grant of injunction was rightly refused---High Court, however, directed that in case of alienation of suit property defendant would have to inform the purchaser in writing about the pendency of the suit so that riglus of plaintiffs were protected under rule of lis pendence.

Messrs Bain Bak Industries (Pvt.) v. Friends Associates (Regd.) and others 2003 SCMR 238; Mst. Izzat v. Allah Ditta PLD 1981 SC 165; Mir Haji Khan and others v. Mir Ajjaz Ali and others PLD 1981 SC 302 and Mst. Zarifan v. Mst Rehmati 1987 SCMR 66 ref.

Abdul Wahad Chaudhry for Appellants.

Sajjad? Murshad Gill for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 881 #

2006 Y L R 881

[Lahore]

Before Mian Saqib Nisar, J

PROVINCE OF PUNJAB through Secretary to Government of Punjab, Communication and Works Department---Appellant

Versus

AWAN ENGINEERING ENTERPRISES---Respondent

Civil Revision No.2514 of 1989, decided oh.30th May, 2005.

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

----Ss. 17, 20, 30 & 31---Limitation Act (1X of 1908), S.5 & Art.158---Filing of objections to award---Limitation---Jurisdiction of Court---Specific time had been prescribed for purposes of filing of objections under Art.158 of Limitation Act, 1908---Court had no authority and jurisdiction under the law to extend said prescribed period of limitation---Court, however, could, in certain circumstances, condone the delay under S.5 of Limitation Act, 1908, if an application in that regard was moved and a case for "sufficient cause" was made out---No application under S.5 of Limitation Act, 1908 having been filed in the case, plea of condonation of delay was irrelevant.

Rashad Ehsan and others v. Bashir Ahmad and another PLD 1989 SC 146 and Dr. Abdul Waris v. Javed Hanif and others 1983 SCMR 716 ref.

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

----Ss. 13 & 29---Power of arbitrator to grant interest---Arbitrator had no power to grant any interest on amount due to a claimant.

Muhammad Awais for Appellant.

Muhammad Shahid Piracha for Respondent.

Date of hearing: 30th May, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 883 #

2006 Y L R 883

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

GHULAM NABI and others---Petitioners

Versus

MUKHTAR-UL-HASSAN and others---Respondents

Civil Revision No.1181 of 2000, heard on 23rd December, 2005.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration based on oral gift---Suit was decreed but decree was set aside in appeal on ground that plaintiff could not prove factum of oral gift by any cogent evidence---Validity---No cogent' evidence was available on record to prove that at the time of marriage of deceased lady/mother of plaintiffs, her grandfather had actually transferred or delivered possession of suit-land in her favour by way of gift---Gap of 4 to 5 years between the transaction of mortgage incorporated in the mutation in-question and marriage of deceased lady/donee did not support the case of plaintiffs---Plaintiffs were to prove that mortgage was entered in view of some custom preventing the alienation of property by way of Hiba to deceased lady/donee but he failed to prove the existence of any custom at the time of marriage of deceased lady/donee---Appellate judgment, in absence of illegality or infirmity could not be interfered with by High Court.

Ch. Muhammad Aslam Sandhu for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 886 #

2006 Y L R 886

[Lahore]

Before Jawwad S. Khawaja, J

SHAHNAZ BIBI---Petitioner

Versus

MUHAMMAD IQBAL KHAN---Respondent

Civil Revision No.634 of 2001, decided on 5th May, 2005.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.6---Pre-emption suit---Shafi Sharik and Shaft Jar---Pre-emptor was admittedly sister of vendor and co-owner of land contiguous to disputed land---Pre-emptor's superior right of pre-emption thus stood clearly established---Suit was decreed in circumstances.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.13---Pre-emption suit---Denial of defendant to have received notice of Talb-i-Ishhad---Validity---Testimonies of witnesses informing pre-emptor about sale did not suffer from material contradictions or inconsistencies---Pre-emptor through her own testimony and evidence of postal clerk had proved acknowledgement receipt signed by defendant,` whereby he had acknowledged receipt of registered letter---Signatures of defendant on acknowledgement receipt and on his written statement were found by Court to be identical---Testimony of one witness about notice of Talb-i-Ishhad to the effect that witnesses had signed such notice, while testimony of other witness that he had thumb- marked such notice did not contain material contradictions---Giving of notice of Talb-i-Ishhad was proved---Disputed land was part of joint Khata and was cultivated at the time of sale, thus, there was no means of taking separate possession of disputed land prior to cultivation of crop---Suit was decreed in circumstances.

----Mere relationship would not render testimony of a witness doubtful, if his testimony otherwise was not undermined in cross-examination

(d) Punjab Pre-emption Act (IX of 1991)---

----S.27---Pre-emption suit---Determination of price---Suit-land measuring 2 Kanals, 3 Marlas---Sale price in mutation was mentioned as Rs.1, 32, 000---Pre-emptor claimed Rs. 1,70,000 as sale price---Aust Bai for previous year disclosing average sale price of 'Rs.22,136 per Kanal---Defendant alleged sale price of Rs.40,000, but during cross-examination admitted that vendor had demanded Rs. 2, 000 per Malra, to which he had agreed---Held, no reliance could be placed on sale price mentioned in mutation---Total sale price of disputed land. Would come to Rs.86,000, view o defendant's admission---Suit was decree", subject to deposit of Rs.86,000 (les amounts, if any already deposited) with specified time.

Mehdi Khan Chohan for Petitioner.

Nemo for Respondent proceeded against ex parte.

Date of hearing: 5th May, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 889 #

2006 Y L R 889

[Lahore]

Before Umar Ata Bandial, J

MUHAMMAD YOUSAF and others---Petitioners

Versus

Mst. BILQEES BEGUM and others---Respondents

Civil Revision No.923 of 2005, decided on 13th September, 2005.

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

----S. 4---Succession---Daughter of pre-deceased son of propositus---Entitlement to inherit---Question was whether being the sole daughter of predeceased son of propositus she was entitled to inherit full property of her father---Grandchild was not entitled to more than what could be inherited by him/her from the parents according to Islamic Law---Findings of .Courts below that plaintiff was entitled to inherit full property of her father were not in consonance of law by the Supreme Court---Plaintiff was entitled to only half of share under Islamic Law of Inheritance---impugned decree was accordingly.

Mst. Zainab v. Kamal Khan alias Kamala PLD 1990 SC 1051 ref.

Rao Munawar Hussain for Petitioners.

Rana Muhammad Anwar for Respondent No.1.

YLR 2006 LAHORE HIGH COURT LAHORE 896 #

2006 Y L R 896

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD YOUNUS---Appellant

Versus

MUHAMMAD AKRAM and others---Respondents

Regular Second Appeal No.61 of 1991 and Civil Revision No.1600 of 1991, heard on 16th September, 2005.

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

-----O. XLI, R.1---Limitation Act (IX of 1908), Art.152---Specific Relief Act (I of 1877), S.12-Specific performance of agreement to sell was declined by Trial Court---Dismissal of appeal on ground that appeal was time-barred because appellant had failed to file certified copy of impugned decree with the memorandum of appeal---Validity---Inquiry report revealed that the original application form for a certified copy had been destroyed as part of the old record and statements of witnesses including staff of copying agency proved that allegation of appellant, that the copy applied for by hint had been taken by the clerk of respondent's counsel had not been established---Appellate Court therefore, rightly found that appellant's appeal was time-barred---No justification was available for interference by High Court, in

circumstances.

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

---O. XLI, R.22---Specific Relief Act (I of 1877), S.12---Specific performance of agreement to sell---Dismissal of cross-objections on ground that same were barred by time---Validity---Provision of O.XLI, R.22, C.P.C. allowed respondent to file cross-objections within one month from the date of service of notice and not within one month of filing of appeal---Order sheet of concerned Court had proved that cross-objections were filed within time---Findings of appellate Court was clearly contrary to law and, therefore, not sustainable and same was set aside by High Court.

----S.19---Contract Act (IX of 1872), S.23---Specific Relief Act (I of 1877), S.12---Specific performance of agreement of sale was refused 'on ground that impugned agreement was violative of provisions of S.19 of Colonization of Government Lands (Punjab) Act, 1912---Validity---Impugned agreement noted that proprietary rights had not been transferred to vendor till then and it was agreed that land would be conveyed to vendee/appellant after grant of such rights to the vendor---Since no such conveyance was made through the agreement, finding of Trial Court was a clear misinterpretation of S.19 of Colonization of Government Lands (Punjab) Act, 1912-Agreement which was merely executory in nature and did not amount to a conveyance was not violative of section 19 of the Act---Contention that object of agreement was unlawful under S.23 of Contract Act, 1872 because the same would defeat provisions of S.19 of Colonization of Government Lands (Punjab) Act, 1912 was repelled having no force.

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

----S. 22---Colonization of Government Lands (Punjab) Act (V of 1912), S.19--Specific performance of agreement was declined by Courts below-Contention of appellant was that since the execution of agreement had been proved, there was no equity or legal impediment to justify refusal of specific relief sought by the appellant---Validity---Relief by way of specific performance was discretionary and it was not incumbent upon Courts below to grant such relief even where it was lawful to do so but impugned judgment slowed that such relief was only declined on ground that the agreement was violative of S.19 of Colonization of Government Lands (Punjab Act, 1912---Trial Court did not deliberate on its discretion to refuse specific performance, therefore, its finding was reversed by High Court and appellant was held to be entitled to a decree for specific performance of agreement.

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

---O. VI, R.7---Specific Relief Act (I of 1877), S.12---Specific performance of agreement to sell---Contention of respondent was that vendor was a lady and appellant had taken advantage of said fact by having her executed the agreement, receipt and power of attorney---Question was as to whether respondent was precluded by his own words and actions---Validity---Respondent's case was not that vendor lady had been taken advantage of or that there was any undue benefit obtained by appellant, on the contrary, respondent had expressly denied the execution of the document therefore respondent could not be allowed to take a new plea at that stage, particularly when such plea was contrary to the stance of respondent---Respondent being an attesting witness of impugned document, contention was wholly without merit.

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

----S. 12---Suit for specific performance of agreement to sell---Execution of documents had been proved but instead of enforcing the agreement specifically, Court decreed the suit for the sum paid by plaintiff as earnest money---Order was challenged by plaintiff---Contention of defendant was that plaintiff had himself prayed in the alternate for return of amount paid by him and when such prayer had been granted by Courts below plaintiff, should not have grudged the order---Validity---Plaintiff had expressly prayed for specific performance of agreement and was entitled to such relief having proved the agreement and ?consideration---Alternate prayer for monetary compensation was not, by itself, a good reason for refusing specific performance of a contract---Contention of defendant was not legally tenable and plaintiff was entitled to a decree for specific performance of agreement and his suit accordingly was decreed as prayed for---Findings of Courts below were set aside by High Court.

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

----S. 12---Suit for specific performance of agreement of sale of agricultural land---Lis pendens, rule of---Applicability---Sale of suit property to third person during pendency of suit---Plea of bona fide purchase---Contention of vendee that he had acquired title from vendor prior to filing of the suit was misconceived because suit was filed in 1974 while alleged title of vendee came into existence in 1975, as such vendee could assert no case better than that of defendants---Rule of lis pendens was not applicable to the case---Appeal filed by vendee was dismissed by High Court.

Muhammad Farooq Qureshi Chishti for Appellant.

Ch. Muhammad Yaqoob Sandhu for Respondents Nos. 1 and 2.

Zahid Hussain Khan for Respondent No.3.

Date of hearing: 16th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 903 #

2006 Y L R 903

[Lahore]

Before Asif Sneed Khan Khosa, J

JAMAT ALI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.1012 and 240-J of 2002, decided on 10th June, 2005.

Penal Code (XLV of 1860)---

----Ss. 302, 460 & 34---Appreciation of evidence---Alleged murder of deceased had remained unwitnessed---Extra judicial confession allegedly made by accused was joint confession, which was inadmissible in evidence---No weapon had been recovered from accused persons during investigation---Bloodstained Chhurries had allegedly been recovered from other co-accused---Even said recoveries had been expressly disbelieved by Trial Court and evidence produced by prosecution in that respect was ruled out of consideration---Different motives set up by prosecution at different stages of case had also been expressly disbelieved by Trial Court---Only remaining piece of evidence left in the field was medical evidence which could not, by itself, point accusing finger towards any of accused---Prosecution having failed w prove its case against all accused beyond reasonable doubt, conviction and sentence recorded by Trial Court against accused, were set aside and they were acquitted of charge, in circumstances.

Gauhar Razzaq Awan for Appellants (in CrI. A. No. 1012/2002).

Ishfaque Ahmad Chaudhry (Defence Counsel) (at State Expenses for Appellants (in Crl. A. No.240-J/2002).

A.H. Masood for the State (in both Appeals).

Date of hearing: 10th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 905 #

2006 Y L R 905

[Lahore]

Before Jawwad S. Khawaja, J

GHULAM RASOOL and another---Petitioners

Versus

GHULAM QADIR---Respondent

Civil Revision No.1267 of 1999, decided on 15th April, 2005.

Specific Relief Act (I of 1877)---

----S.8---Transfer of Property Act (IV of 1882), S.54---West Pakistan Land Revenue Act (XVII of 1967), S.42---Suit for possession against illegal occupant---Plaintiff alleging defendant to be illegal occupant did not state in plaint as to how and when defendant took possession of suit-land---Defendant pleaded to have constructed house on suit-land orally purchased by their grandfather from plaintiff's grandfather hundred years back---Plaintiff during evidence admitted construction of house and taking over possession of land by defendant 100 years back but produced Jamabandi showing him as owner of land, about which he came to know about two years before filing suit---Effect---Continuance in Revenue Record title to suit-land in plaintiff's name, would not be sole determining factor to establish title---Revenue Record would not create or confer title---Earlier oral sale of suit-land located in village, if not recorded in Revenue Record, would be valid as registered conveyance was not necessary in respect thereof---Purchase of suit-land by forefather of defendant was established from plaintiff's failure to give proper explanation as to how defendant took possession thereof---Defendant was in possession of suit-land for a period of more than 12 years---Suit was dismissed in circumstances.

Riasat Ali Chaudhry for Petitioners.

Nemo for Respondent proceeded against ex parte.

Date of hearing: 15th April, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 907 #

2006 Y L R 907

[Lahore]

Before Muhammad Sair Ali and Sh. Azmat Saeed, JJ

COMMISSIONER OF INCOME TAX/WEALTH TAX, COMPANIES ZONE, FAISALABAD---Petitioner

Versus

M/s J. K. TEK LTD.---Respondent

I.T.A. No. 389 of 1999 and C.M. No.609 of 2005, decided on 26th October, 2005.

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

----O.XLI, R.19---Re-admission of appeal---Dismissal of appeal on applicant's default in depositing process fee and supplying address of respondent despite repeated orders---Plea of applicant was that address and process fee dropped in "Drop Box" had been misplaced by Court's office---Validity---Such ground was too general and unspecified to be acceptable as sufficient cause---Court had already rejected such plea while dismissing appeal---Applicant being a State organ had a higher responsibility of vigilance and compliance with law and Court's orders than to justify or hid its default behind its status as State organ or a governmental arm---Applicant's vigilance, bona fides and good cause was absent in the present case---High Court dismissed application being merit less.

Muhammad Haleem and others v. H. H. Muhammad Naim and others PLD 1969 SC 270 and Municipal Committee, Rawalpindi v. Raja Muhammad Sarwar Khan PLD 1968 SC 817 ref.

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

----O.XLI, R.19---Re-admission of appeal---Equitable and discretionary relief-Lenient view preferable---Entitlement of applicant to such relief-Principles.

Normally a lenient view in such matters should be taken. Discretionary indulgence and equitable relief can only be extended to an applicant found to have shown a preventing and sufficient cause disabling him to comply with the orders of Court despite his vigilance.

Muhammad Haleem and other v. H. H. Muhammad Nairn and other PLD 1969 SC 270 and Municipal Committee, Rawalpindi v. Raja Muhammad Sarwar Khan PLD 1968 SC 817 rel.

Mian Yusuf Umar for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 909 #

2006 Y L R 909

[Lahore]

Before Jawwad S. Khawaja, J

SULTAN AHMED---Petitioner

Versus

MUHAMMAD ILYAS---Respondent

Civil Revision No.1474 of 2001, decided on 26th May, 2005.

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

-----S. 117-West Pakistan Land Revenue Rules, 1968, Rr. 64 & 67-A---Land Record Manual, paras.4.1 & 4.4---Land Settlement Manual, paras.255, 256 & Appendix VII---Specific Relief Act (I of 1877), S.8---Suit for possession---Plaintiff claimed to be owner of land situated in Mauza 'G', while defendant claimed to be owner of two Khasra Nos. in different Mauza "R"---Properties respectively owned by parties were situated on boundary line dividing said two Mauzas---Case of plaintiff was that out of his land, defendant had encroached 14 Marlas---Defence set up by defendant was that he was only in occupation of land which he owned in said two Khasra numbers and no excess land was with him---Plaintiff based his claim on report prepared by Naib-Tehsildar---Defendant had alleged that not only report of Naib Tehsildar was invalid due to fact that it was made without notice to defendant, but also because Naib-Tehsildar had taken into account record of only Mauza 'G' when preparing said report, while dispute between parties was of anature which involved land comprised in both Mauzas---Contention of the defendant was that in such situation Revenue Officer was required to follow law laid down in 5.117 of West Pakistan Land Revenue Act, 1967 and Rr.64 & 67-A of West Pakistan Land Revenue Rules, 1968---Validity---Parties agreed that proper course for plaintiff would be to approach appropriate Revenue Forum so that "Thak Bast" relating to two Mauzas was made in accordance with law---On basis of present evidence plaintiff's suit could not be decreed---Trial Court was not justified to decree the suit---Appellate Court had rightly set aside decree passed by Trial Court and dismissed suit seeking possession of suit-land---Revision petition against judgment of Appellate Court below could not be allowed, in circumstances.

Noor Hussain Chaudhry for Petitioner.

Taqi Ahmad Khan for Respondent.

Date of hearing: 26th May, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 910 #

2006 Y L R 910

[Lahore]

Before Nasim Sikandar, J

IQBAL HAIDER and 3 others---Petitioners

Versus

P.C.B.L through Chairman and 14 others---Respondents

Petition No.139-C of 2005, decided on 26th October, 2005.

Punjab Undesirable Co-operative Societies (Dissolution) Act (I of 1993)---

----S. 11---Civil Procedure Code (V of 1908), O.IX, R.7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal of application for setting aside ex parte proceeding against the petitioner on the ground of his intentional disappearance from Court when witness was in witness-box---Validity---Impugned order was set aside by the High Court as it was in the interest of justice to afford an adequate opportunity to the petitioner---High Court directed the Judicial Officer to start proceedings from the date on which impugned action was taken against the petitioner and refused the grant of unnecessary adjournments.

Pir Syed Shahid Ali Shah for Petitioners.

2006 Y L R 921

[Lahore]

Before Jawwad S. Khawaja, J

BOOTA and 2 others---Petitioners

Versus

MUHAMMAD SIDDIQUE and 4 others---Respondents

Civil Revision No.721 of 2001, decided on 31st May, 2005.

West Pakistan Land Revenue Act (XVII of 1979)---

----S. 53---Civil Procedure Code (V of 1908), S.115---Mutation---Suit for declaratory decree---Suit taking exception to mutation in dispute, was dismissed by Trial Court, but Appellate Court had decreed the same---Validity---Appellate Court had proceeded on erroneous premises that because land owned by three brothers was into two Khatas, each brother could only have sold land up to his entitlement in each Khata separately---Revenue Record and division of land into Khatas in a revenue estate was only meant for certain procedural and revenue purposes---Land in two Khatas was part of one compact block---Cultivation of said Khatas were wholly irrelevant as between the parties---Even partition of separate possession of three brothers, had shown that there was a private partition of said two Khatas between them---Said three brothers and after them their legal representatives were adhering to the partition for a period spanning more than five decades---After partition creating separate possession, distinct Khasra numbers had come to vest individually in respective co-sharers even though previously each co-sharer was joint owner in such Khatas---Appellate Court having proceeded on erroneous premises, its judgment and decree were not legally maintainable---Same were set aside and those of trial Court were restored.

Muhammad Yaqoob Chaudhry for Petitioners.

Muhammad Hussain Naqshbandi and Ch. Abdul Rehman for Respondents.

Date of hearing: 31st May, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 924 #

2006 Y L R 924

[Lahore]

Before Nasim Sikandar, J

Kh. ZIA ULLAH and 5 others---Petitioners

Versus

P.C.B.L. through Chairman and 3 others---Respondents

Petition No.166-C of 2005, decided on 26th October, 2005.

Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 11---Civil Procedure Code (V of 1908), O.XVIII, R.17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for recall of witness for cross-examination was refused on ground that said application was moved after period of more than one year and that said witness had already been subjected to lengthy cross-examination---Validity---Impugned order was set aside by High Court in order to fulfil requirements of justice and to afford an adequate opportunity to petitioner, with direction to start proceedings from the cane on which the order was passed by Judicial Officer and unnecessary adjournments were ordered to be refused.

Pir Syed Shahid Ali Shah for Petitioners.

Ch. Safdar Mehmood for P.C.B.L.

YLR 2006 LAHORE HIGH COURT LAHORE 925 #

2006 Y L R 925

[Lahore]

Before Nazir Ahmad Siddiqui, J

ZULFIQAR ALI---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD through

Secretary and 3 others---Respondents

Writ Petition No.5158 of 2005, decided on 29th August, 2005.

Punjab Local Government Elections Rules, 2000---

----Rr. 42 & 73---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Correction in election result---Petitioner being candidate of General Councillor of Union Council concerned had sought necessary correction in election result at one Polling Station contending that three votes had been incorporated against name of the rival candidate---Validity---Held, petitioner could approach Chief Election Commissioner or Election Tribunal for redressal of his grievance---Constitutional petition was disposed of accordingly.

Malik M. Tariq Rajwana for Petitioner.

M. R. Khalid Malik, A.A.-G. for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 926 #

2006 Y L R 926(1)

[Lahore]

Before Nazir Ahmad Siddiqui and Muhammad Nawaz Bhatti, JJ

Moulvi ABDUL GHAFOOR---Appellant

Versus

CHIEF ELECTION COMMISSION OF PAKISTAN, ISLAMABAD

and others---Respondents

I.C.A. No.203 in W.P. No.5115 of 2005, decided on 5th October, 2005.

Punjab Local Government Elections Rules, 2005---

----R. 71---Constitution of Pakistan (1973), Art.199---Law Reforms Ordinance (XII of 1972), S.3---Challenging success of returned candidate---Intra-Court appeal was directed against judgment of Single Judge of High Court whereby constitutional petition filed by respondent challenging success of appellant in election, was allowed---Appellant was not served with any notice before passing impugned judgment---Impugned judgment, in circumstances was violative of principle of natural justice and had no legal sanctity---Intra-Court appeal was allowed with the result that constitutional petition would be deemed to be pending and same would be put up for disposal before same Single Judge of the High Court.

Malik M. Tariq Rajwana for Appellant.

M. R. Khalid Malik, A.A.-G.

Mirza Manzoor Ahmad for Respondent No.9.

YLR 2006 LAHORE HIGH COURT LAHORE 928 #

2006 Y L R 928

[Lahore]

Before Muhammad Khalid Alvi, J

PROVINCE OF THE PUNJAB through District Officer, Revenue Bhakkar

and another---Petitioners

Versus

MUHAMMAD YOUNIS---Respondent

Civil Revision No.1843 of 2000 and C.M. No.283 and 2-C of 2005, decided on 6th October, 2005.

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

-----S. 115-Revision-Application for summoning the respondent in person---Appeal filed by petitioner was pending disposal before Appellate Court---During pendency of said appeal, petitioner filed application requesting Appellate Court to summon respondent in person---Application was dismissed---Validity---Contention of petitioner was that in fact attorney of respondent had forged some documents and prepared a forged allotment in name of respondent who was a non-existing person---Validity---Question whether respondent was an actual living being and interested in pursuit of case was a question, which could only be resolved by his personal appearance in the Court---No justification in circumstances, existed to dismiss application of petitioner for personal appearance of respondent in the Court---Revision petition was allowed and order of Appellate Court to the extent of refusing personal appearance of respondent was declared to be illegal and without lawful authority.

Rana Ameer Ahmad Khan, A.A.-G.

Ch. Bashir Ahmad Khalid for Petitioners.

Mian Humayoun Aslam for Applicants.

M. Mohsin Raza for Applicants (in C.M. No.238 of 2005).

2006 Y L R 947

[Lahore]

Before Muhammad Khalid Alvi, J

ABDUL AZIZ alias GHASEETAY KHAN through Legal

Representatives and 3 others---Petitioners

Versus

MUHAMMAD LATIF KHAN through Legal Representatives and 7 others---Respondents

Civil Revision No.294 of 2001, decided on 19th September, 2005.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Transfer of Property Act (IV of 1882), S.122---Suit for possession and declaration---Execution of gift, proof of-Real brother of plaintiff died leaving behind a daughter and a widow---Daughter of deceased had landed property which was allegedly mutated by her through gift mutation attested in favour of predecessor in-interest of defendant who was maternal uncle of daughter of deceased---Plaintiff through suit for declaration with possession, had challenged alleged mutation of gift and claimed his share of inheritance being real paternal uncle of executant/daughter of his deceased brother---Trial Court decreed the suit, which was set aside in appeal---Plaintiff had filed revision petition against judgment of Appellate Court---Defendant, who was real beneficiary of the impugned mutation, was required under the law to have established both incidents separately i.e. firstly as to when alleged gift was offered and accepted coupled with delivery of possession and secondly, the attestation of mutation before Tehsildar---Defendant himself did not specify the time when alleged gift was offered to him and was accepted by him and two witnesses produced by defendant had categorically denied the fact of attestation of mutation and offer of gift---Further neither the officials regarding completion of mutation had been produced nor two attesting witnesses had supported version of defendant ---Such evidence could not form a basis for a finding in favour of defendant---Endorsements made by Revenue Officers without their production in witness-box, could also not be relied upon---Defendant, in circumstances, had failed to establish both aspects of the case i.e. fact of gift and attestation of mutation--Judgment and decree passed by Appellate Court was set aside and that of the Trial Court was restored.

Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832 and Tooti Gul and 2 others v. Irfanuddin 1996 SCMR 1386 ref.

M. Farooq Qureshi Chishti for Petitioners.

S.M. Tayyab for Respondents.

Date of hearing: 19th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 950 #

2006 Y L R 950

[Lahore]

Before M. Bilal Khan, J

RUKHSAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9333-B of 2005, decided on 16th January, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Emigration Ordinance ()NIII of 1979), Ss.18/22---Prevention and Control of Human Trafficking Ordinance (LIX of 2002), Ss.3/4---Bail, grant of--Accused according to F.I.R. had sent abroad four out of seventeen deportees---Said four deportees had appeared before the Trial Court and deposed that the accused was not the person who had defrauded them, and while appearing in the High Court they also took the same stand---During investigation no nexus of the accused was found with co-accused, which prima facie had ruled out the possibility of the accused being in league with the coaccused---Case of accused, thus, needed further inquiry within the contemplation of S.497(2), Cr.P.C.-Accused was allowed bail in circumstances.

Muhammad Ahsan Bhoon for Petitioner.

Muhammad Riaz, PC/FIA, Gujranwala with Record.

YLR 2006 LAHORE HIGH COURT LAHORE 952 #

2006 Y L R 952

[Lahore]

Before Jawwad S. Khawaja, J

JAMIL & COMPANY---Appellant

Versus

DISTRICT COUNCIL and others---Respondents

R.S.A. No.44 of 2004, decided on 14th June, 2005.

Punjab Local Councils (Lease) Rules, 1990---

----Ss. 7 & 8---Specific Relief Act (1 of 1877), S.42---Suit for declaration---Auction of rights for collecting tax on transfer of immovable property---Failure to deposit 1 /10th of bid amount---Forfeiture of deposit amount-Appellant was highest bidder at auction of rights for collecting tax on transfer of immovable property in the District ---Bid made by appellant was for Rs.1,11,00,000 and according to R.7 of Punjab Local Councils (Lease) Rules 1990, 1/10th of total amount which came to Rs.11,10,000, was to be deposited by appellant but appellant initially deposited a sum of Rs.5,00,000 and thereafter' Rs.3,45,000, appellant, in circumstances had deposited total amount of Rs.8,85,000 which fell short of 1/10th amount as required under R. 7(1) of Punjab Local Councils (Lease) Rules, 1990---Appellate court, in circumstances had rightly dismissed suit filed by appellant as it had failed to meet its commitment of depositing 1 /10th of bid amount which was Rs.11,10,000 as required by R.7 of Punjab Local Councils (Lease) Rules, 1990---Appellant by its own acts and omission, had rendered deposited amount of Rs.8,45,000 liable to forfeiture under R.8 of Punjab Local Councils (Leass) Rules, 1990.

Muhammad Akram Gondal for Appellant.

Kh. Muhammad Saeed for Respondents.

Date of hearing: 14th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 956 #

2006 Y L R 956

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

MUHAMMAD HUSSAIN and others---Petitioners

Versus

THE STATE---Respondent

Criminal Appeals Nos.59/J, 233 and Murder Reference No.92 of 2000, heard on 16th February, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 458---Appreciation of evidence---Matter was reported to police after four and half hours of occurrence though distance between place of occurrence and Police Station was 12 miles---Name of accused persons was not mentioned in F.I.R.---Even no description of accused was stated in F.I.R.---Occurrence had taken place at 3 a.m. in the month of September when there was dead dark and no source of light was stated in F.I.R.---Complainant during the trial did not state that it was accused who fired first shot and that second shot was fired by co-accused at the deceased, but only stated 'that both accused fired on the person of deceased---Complainant, who was star witness of prosecution, was inmate of the house where occurrence had taken place-Conviction could neither be awarded nor maintained on such shaky evidence---identification of accused had taken place five months after occurrence and after such a long time, it was not possible for prosecution witnesses to have identified accused when in F.I.R. no description was given---Carbine was alleged to have been recovered from co-accused, but no crime empty having been taken into possession from the spot by Investigating Officer, mere recovery of fire-arm, would not advance the case of prosecution any further---Carbine was allegedly recovered from co-accused after more than nine months of his arrest, which smacked of mala fides on the part of prosecution---Other eye-witness who was first cousin of complainant could not give any plausible explanation for his presence at the spot at the relevant time when he had his own house in same locality---Evidence of said witness was disbelieved being not resident of the house where occurrence had taken place---Prosecution having miserably failed to prove its case against accused persons beyond any reasonable doubt conviction and sentence recorded against accused, were set aside extending then benefit of doubt and were ordered to be released.

Miss Sabhat Rizvi (In Criminal Appeal No.59(J) of 2002).

Miss Afshan Naz (In Criminal Appeal No.233 of 2000).

Naveed Ahmad Khawaja for the State.

Date of hearing: 16th February, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 961 #

2006 Y L R 961

[Lahore]

Before Sh. Abdur Rashid, J

ZULFIQAR HAIDER---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Petition No.7504-B of 2005, decided on 30th November, 2005.

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

---S.497---Penal Code (XLV of 1860), S.489-F---Bail, grant of-Cheque in question was allegedly issued by the accused on 13-1-2005 which was presented for encashment on 20-6-2004 and was dishonoured by the Bank---Said cheque was not included in the cheques mentioned in the F.I.R. which the accused had allegedly issued to the complainant in lieu of pecuniary liability---Cheque was initially issued on 13-1-2002, but subsequently the figure 2 had been converted into 4 with same initials---On the initial date of issue of the cheque the offence under S.489-F, P.P.C. was not on the Statute Book as the same was created on 25-10-2002---Purpose for which the cheque in question had been issued by the accused to the complainant was a matter of further inquiry---Accused was admitted to bail in circumstances.

Shehar Yar Sheikh and Pervez I. Mir for Petitioner.

Tariq Waheed Khan for the State.

Manzoor Ahmad, S.-I. with Record.

YLR 2006 LAHORE HIGH COURT LAHORE 963 #

2006 Y L R 963

[Lahore]

Before Mian Saqib Nisar, J

TALIB HUSSAIN KHAN---Appellant

Versus

MUKHTAR AHMED ---Respondent

Regular Second Appeal No.22 of 1997, heard on 17th September, 2004.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiff purchased a plot out of the land in a specific Khasra---Defendant had purchased some share in the said Khasra which had been challenged by first owner but later on the same was compromised---Defendant, on the basis of said compromise decree, sold plot in dispute to some other persons---Suit for declaration filed by plaintiff was decreed and decree upheld by Appellate Court---Question arose as to whether the defendant was co-sharer of the land of the said Khasra and whether he sold the disputed plot within his entitlement---Validity---Nothing was available on record to show that defendant was co-sharer before the compromise decree, was passed and thus lie had no right to sell the plot in question which had already been sold to plaintiff vide registered sale-deed---Impugned judgments and decrees of the Courts below being not contrary to law, appeal was dismissed by High Court.

Malik Noor Muhammad Awan for Appellant.

Malik Khizar Hayat Khan and Malik Falak Sher Farooqa for Respondent.

Date of hearing: 17th September, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 965 #

2006 Y L R 965

[Lahore]

Before Jawwad S. Khawaja, J

MOULA BAKHSH---Petitioner

Versus

ALFAZ HUSSAIN and 4 others---Respondents

Revision No.134 of 2003, decided on May, 2005.

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

----Ss. 58 & 60---Specific Relief Act (1 of 1877), Ss. 12 & 42---Agreement constituting a mortgage by conditional sale---Suit for specific performance of agreement and declaration---Petitioner and Predecessor-in-interest of respondents had entered into an agreement constituting a mortgage by conditional sale---Stun of Rs.25,000 was advanced by petitioner to predecessor-in-interest of respondents by way of mortgage money and mortgage was to be redeemed within a period of two years from date of said agreement---Respondents having failed to repay mortgage money and to redeem mortgaged property within agreed two years, petitioner filed suit for specific performance of agreement-hi the alternate petitioner had prayed for a declaration that on account of failure of respondents to redeem the mortgage, he would become owner of mortgaged property and prayed that in alternate he would claim return of sum which he had advanced by way of mortgage money---Application filed by petitioner seeking amendment of plaint was allowed---Petitioner in the amended plaint had confirmed his relief to declaration that he had become full and absolute owner of property in dispute as respondents had failed to redeem mortgaged property---Respondents in written statement offered to pay amount of Rs.25,000 advanced by petitioner to them---Two Courts below dismissed suit filed by petitioner in its entirety---Validity---Denial of declaratory relief sought by petitioner was unexceptionable because law did not recognize a clog on the equity of redemption---Petitioner at least was entitled to decree of Rs.25,000 advanced by him, even though he could not have been entitled to declaration as prayed for by him---Respondents/mortgagors would be fully entitled to redemption of property upon payment of mortgage money---Petition was allowed to that limited extent and impugned decree was modified accordingly.

Ch. Muhammad Masood Jahangir for Petitioner.

Malik Noor Muhammad Awan for Respondents.

Date of hearing: 12th May, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 967 #

2006 Y L R 967

[Lahore]

Before Muhammad Nawaz Bhatti, J

GHULAM YASEEN---Petitioner

Versus

Mst. NASREEN and 4 others---Respondents

Writ Petition No.2394 of 2005, decided on 14th July, 2005.

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

----S. 9---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Maintenance for wife---Compromise between parties in earlier round of litigation---Violation of terms and conditions of compromise---Separate living by wife---Entitlement to maintenance allowance---Validity---Islamic Law provided that it was duty of wife to live with her husband and then to claim maintenance however, there were certain exceptions---Law recognized the validity of express stipulations entered into marriage contract by parties---Since petitioner had agreed, vide compromise deed, to live along with his wife in a separate house provided by her wife's parents, he could not take the plea that wife was not entitled to get her maintenance allowance as she was not living with him in his house---Constitutional Petition, having no force, was dismissed by High Court.

Muhammad Iqbal v. Addl. District Judge, Liaquatpur and others PLJ 2005 Lah.1258 ref.

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

----Art. 199-Muslim Family Laws Ordinance (VIII of 1961), S. 9--- Constitutional petition---Suit for maintenance---Concurrent findings of fact---Validity---Finding on question of fact would not be open to interference in writ jurisdiction---Forum which had jurisdiction to decide a question of fact, might decide the same rightly or wrongly and its erroneous decision would not be open for interference in constitutional jurisdiction---No illegality or irregularity by two Courts below in arriving at concurrent findings, had been pointed out---Petition was dismissed.

Zahid Hussain and others v. Mst. Robina Begum and others 2005 CLC 423 and Aman Ullah v. Mst. Jatti and others 1999 MLD 899 ref.

Malik Junaid Farooq Wajdani for Petitioner.

Muhammad Muharban Ranjha for Respondent No.1.

YLR 2006 LAHORE HIGH COURT LAHORE 969 #

2006 Y L R 969

[Lahore]

Before Jawwad S. Khawaja, J

IRSHAD HUSSAIN and others---Appellants

Versus

Mst. KANEEZ FATIMA and others---Respondents

Regular Second Appeal No.106 of 2000 decided on 13th April, 2005.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42--- Suit for declaration of title and possession---Entire documentary evidence comprising relevant Revenue Record had shown that defendants were in possession of suit-land since long and were not paying any lagan to plaintiffs---Pleas of plaintiffs that land in dispute originally comprised in Shamlat and plaintiffs had become owners thereof, after Shamlat land had been partitioned and also that possession of defendants was permissive, were extraneous to the contents of plaint filed by plaintiffs wherein there was no mention of any Shamlat or permissive possession of defendants---Appellate Court below had justifiably concluded that title of defendants had matured through adverse possession---Findings of Appellate Court below, could not be interfered with in second appeal, in circumstances.

Muhammad Farooq Qureshi Chishti for Appellants.

Hafiz Khalil Ahmad for Respondents.

Date of hearing: 13th April, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 970 #

2006 Y L R 970

[Lahore]

Before M.A. Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

MUHAMMAD ARIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.1704 of 2000 and 737 of 2001, Criminal Revision No.295 of 2001 and Murder Reference No.624 of 2000, decided on 11th July, 2005.

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

-----S. 302(b)-Appreciation of evidence--Duration between death and post-mortem examination, fully corroborated the time and occurrence given in F.I.R.---Postmortem examination report had shown that deceased had sustained four fire-arm wounds---Medical evidence was not in conflict with ocular account of occurrence in any manner and fully corroborated date and time of occurrence as well as weapon used in the commission of crime---Place of occurrence was the house of deceased who was living there with his brothers and wife---All three eye-witnesses were inmates of the house---F.I.R. was promptly lodged and presence of two natural witnesses at relevant time, could not be doubted in any manner---All three witnesses who being inmates of house were natural witnesses, were present at the spot at relevant time, and had given consistent account of occurrence---From the statements of prosecution witnesses and accused, it was established that accused had feelings of ill-will against deceased and had a motive to kill deceased---Trial Court, in circumstances had rightly placed reliance on ocular account of occurrence furnished by prosecution witnesses which was fully corroborated by motive and supported by medical evidence---Prosecution, in circumstances had established its case against accused beyond reasonable doubt---Conviction of accused recorded by Trial Court against accused under S.302(b), P.P.C., was upheld---Incident could not be an outcome of sudden and grave provocation as claimed by accused, but could only be described as a planned cold-blooded murder-High Court refused to exercise its discretion to reduce sentence awarded to accused by Trial Court---Death sentence recorded against accused by Trial Court, was confirmed and murder reference was answered in positive.

S.M Nazim for Appellant (in Criminal Appeal No.1704 of 2000).

Ch. Abdul Rashid for Appellant (in Criminal Appeal No.737 of 2001 and in Criminal Revision No.295 of 2001).

A.H. Masood for the State (in Murder Reference No.624 of 2000).

Ijaz Ahmad Bajwa for the State (in Criminal Appeal No.737 of 2001).

Masood Sadiq Mirza for the State (in Criminal Appeal No.1704 of 2000).

Date of hearing: 11th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 978 #

2006 Y L R 978

[Lahore]

Before Mian Saqib Nisar, J

Ghulam Hussain and 4 others---Appellants

Versus

RAI MUHAMMAD ABDULLAH and 9 others---Respondents

Regular Second Appeal No.70 of 1995, heard on 7th October, 2005.

Specific Relief Act (1 of 1877)-

----S. 12---Suit for specific performance of agreement to sell---Suit was decreed but decree was set aside in first appeal---Execution of agreement---Proof---In order to prove valid execution of agreement statement of attorney/defendant wherein he had conceded the claim of plaintiff had no evidentiary value as he was a party in litigation and against him other defendants had alleged that he along with plaintiff was instrumental in preparing the . ante-dated sale agreement---One of marginal witnesses had died while other was unable to give exact date of execution of agreement and admitted that he knew plaintiff for last many years but was a chance witness of the disputed agreement---Scribe of document was not a registered Waseeqa Navees and register produced by him belonged to some other person wherein various pages and serial numbers were missing---Record of stamp vendor about purchase of stamp paper on which the disputed agreement was executed was not produced by plaintiffs without any justification---Receipt of the sale price critically shadowed the validity/ genuineness of sale agreement and knocked the bottom out of the case of plaintiffs because when the receipt was alleged to have been executed, the stamps which the receipt contained, were not in vogue---Plaintiffs had failed to prove valid execution of agreement on particular date.

Muhammad Atif Amin for Appellants.

S.M. Masud and Hafiz Khalil Ahmad for Respondents.

Date of hearing: 7th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 986 #

2006 Y L R 986

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

SAEED AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1268 of 2000, decided on 19th May, 2005.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Case of unseen occurrence which rested upon evidence of recovery of incriminating articles, motive, last seen and extra judicial confession of accused---As for recovery evidence and motive for commission of offence, case of prosecution had already been disbelieved on valid and sound reasoning by the Trial Court---Counsel for complainant had also not addressed on that point challenging the legality of impugned judgment---Regarding last seen, evidence not only that the evidence in that respect was always considered to be a very weak type of evidence, but conduct of both witnesses, who furnished last seen evidence, seemed to be very unnatural---Both said witnesses being clients of father of deceased who was a practising lawyer, possibility that their evidence was tailored during investigation, could not be ruled out---Evidence of said two witnesses of last seen, in circumstances, had become doubtful---Statedly accused had confessed his guilt before a prosecution witness and he asked said witness for help/support---Bare perusal of statement of said witness had shown that his conduct was also very unnatural and he made no promise to accused for extending any sort of help---Evidence of said witness of alleged extra judicial confession being not free from doubt, it could easily be said that whatever was stated by him, was nothing but an afterthought and nothing was on record to corroborate that piece of evidence---Prosecution, in a case of circumstantial evidence, must produce series of circumstances which could interlink with each other forming a complete chain which touched the dead-body and neck of accused but that had not been done in the case---Evidence relied upon by prosecution was not worth-reliance and case was nothing, but a pack of lies---High Court accepting appeal of accused, set aside his conviction and sentence and acquitted him of the charge.

Sarfraz Khan v. The State 1996 SCMR 188 ref.

Muhammad Afzal Siddiqui for Appellant.

Mian Muzaffar Ahmed for the Complainant.

Tahir Mahmood A.A.-G for the State.

Date of hearing: 19th May, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 991 #

2006 Y L R 991

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD RAFIQ and others---Petitioners

Versus

IMTIAZ AHMAD and others---Respondents

Civil Revision No.107 of 1999, heard on 7th September, 2004.

Specific Relief Act (I of 1877)---

----Ss. 8 & 39---Civil Procedure Code (V of 1908), O.XXI, Rr.35 & 36---Qanun-e-Shahadat (10 of 1984), Art.120---Suit for possession and cancellation of power of attorney---Suit was dismissed by Trial Court but was decreed on appeal---Burden of proof---Onus---Question was as to on whom the burden of proof shifted regarding the valid execution of power of attorney---When a transaction/alienation was made/claimed on the basis of a power of attorney the valid execution of the power of attorney was to be proved by the beneficiary of transaction when disputed---Inconsistencies of statements in the present case, were of trivial nature and did not have much significance---Overall impact of evidence was that the executor of alleged power of attorney was not the same person---Alleged executor had committed murder of his brother and was in jail where he died---Alleged executant thus was in jail when the alleged power of attorney was purported to have been executed by him in the name of father of defendant---Onus to prove lost its importance and the efficacy and the whole of evidence in its entirety needed to be taken into consideration for forming a view as to the existence or non-existence of power of attorney---Father of defendant (attorney) was alive, yet he was not produced nor he came forward to support the due execution of power of attorney in his favour which gave rise to an adverse inference---Alleged Attorney had transferred suit-land in favour of his son (defendant) without any justification or obtaining permission from the alleged executor of power of attorney, if at all he was acting as his attorney---Appellate Court, in circumstances, had rightly concluded that execution of power of attorney had not been proved---Petition being without merit was dismissed by High Court.

Jamil Akhtar and others v. Las Inaba and others PLD 2003 SC 494; Muhammad Aslam v. Mst. Razia Begum and others 1999 YLR 620 and Muhammad Akram and 2 others v. Sikandar through his Legal Heirs and others 1994 CLC 185 ref.

Mian Maqsood Ahmad for Petitioners.

Khalid Habib Elahi for Respondents.

Date of hearing: 7th September, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 994 #

2006 Y L R 994

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najum-uz-Zaman, JJ

TAHIR MEHMOOD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.513-J and Murder Reference No.688 of 2000, decided on 9th June, 2005.

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

---S. 302(b)-Appreciation of evidence--Sentence, reduction in---Mitigating circumstance---Complainant was real father of accused while deceased was first cousin of accused---Evidence of last seen was furnished by prosecution witnesses who, though were distantly related to deceased, but had no enmity with him to falsely involve him---Accused, after his arrest, got recovered blood-stained "Chhuri" and his blood stained clothes---Prosecution witnesses, who furnished evidence of extra-judicial confession, had given all details of such confession---Though there was no eye-witness in the case, but no reason was shown as to why prosecution witnesses would falsely involve accused in the case who were closely related to him---No question of substitution or false implication of accused, would arise in circumstances as prosecution witnesses had no enmity with the accused---Question regarding tender age of accused having not been raised before trial Court could not be gone into at a later stage---Question of mitigating circumstance however was present in the case because prosecution had failed to state regarding motive which was shrouded in mystery---Benefit of that aspect of case was granted to accused and maintaining his conviction, his sentence of death was converted into imprisonment for life accordingly.

Babar Bilal (at State expense) for Appellant.

Tanvir Iqbal Khan, A.A.-G. for the State.

Date of hearing: 9th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 997 #

2006 Y L R 997

[Lahore]

Before Syed Zahid Hussain, J

AMANAT ALI and 21 others---Petitioners

Versus

ALLAH RAKHA and 119 others---Respondents

Criminal Revisions Nos.650 and 989 of 2000, heard on 24th September, 2004.

(a) Punjab Tenancy Act (XVI of 1887)---

----S. 114(2)(b)---Specific Relief Act (I of 1877), S.42---Suit for declaration with consequential relief---Defendants were occupancy tenants over suit-land and were paying the share-produce equal to half of the crop to its owners i.e. the plaintiffs---Courts below on perusal of the entries in Jamabandi of 1949/50 recorded finding that plaintiffs were entitled to 1/2 share of the land in accordance with the provisions of S.114(2) (b) of Punjab Tenancy Act, 1887---Contention was that orders passed by the Revenue authorities qua entries in the Revenue Record and applicability of the relevant clause of 5.114 of Punjab Tenancy Act, 1887, had not been given due weight by the Courts---Validity---When Amending Act, namely Punjab Tenancy (Amendment) Act, 1952 carne into force, the determinative and decisive entries were Jamabandi/record of rights of the year 1949-50 and not as in accordance with the Amending Act---Entries in the Jamabandi of 1949-50 in circumstances were to be taken into consideration for the purpose as prevailing prior to the amending Act.

(b) Punjab Tenancy Act, (XVI of 1887)--------

---S. 114(2)(b)-Specific (b)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Applicability of S.114(2) (b) of Punjab Tenancy Act, 1887 (as amended in 1952)---Suit was decreed by Trial Court and decree upheld in appeal---Contention was that the relevant entries in the Jamabandi for the year 1949-50 had not been correctly construed by Courts below---Validity---So far as the construction of the relevant entry of the Jamabandi of 1949-50 by Tehsildar was concerned that was consistent with the interpretation and construction placed by the Appellate Court, however, Tehsildar went wrong in relying upon the other entries in the Revenue Record of previous years---Entries of Jamabandi of 1949-50 were correctly understood and appreciated by the Courts below as amendment made by Punjab Tenancy (Amendment) Act, 1952 was not applicable to the present case---Evidence on record fully justified and supported the view taken by Appellate Court---No valid justification was available to interfere with the concurrent findings of Courts below.

Bahadur Khan v. Junaid Khan PLD 2000 Lah.299 ref.

Jehangir for Petitioners.

Muhammad Ali Sulehri for Respondents.

Date of hearing: 24th September, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1001 #

2006 Y L R 1001

[Lahore]

Before Asif Saeed Khan Khosa and M.A. Shahid Siddiqui, JJ

ZULFIQAR ALI alias ZULFI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1048 and Murder Reference No.459 of 2001, decided on 1st June, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence---F.I.R. had not been lodged at the Police Station---Place of occurrence was at a distance of about 8/9 Kilometers from Police Station and place where Investigating Officer recorded statement of complainant was about 2-1/2 kilometers from place of occurrence---Investigating Officer could not specify the time when he left Police Station nor he could specify the purpose for which he had left Police Station---F.I.R., in circumstances had lost its intrinsic 'worth and it could be inferred that it had been registered after consultation and preliminary investigation at the spot---One of prosecution witnesses who was related to deceased was resident of area which was at a distance of 25 kilometers from place of occurrence---Other prosecution witness was also not resident of the locality---Prosecution witnesses could not explain purpose of their visit at place of occurrence at relevant time---Testimony of prosecution witnesses with regard to injuries attributed by them to co-accused had been disbelieved by Trial Court, firstly on the ground that co-accused had been found innocent by all Investigating Officers and secondly on the ground that no weapon of offence was recovered from his possession---Accused was also found innocent by Range Crime Branch---Gun was allegedly got recovered from the spot, but no empty was recovered from the spot and sent to Forensic Science Laboratory for comparison---No other evidence was to show that gun allegedly recovered was used in commission of crime---Recovery of said gun, was of no legal consequence in circumstances---Prosecution had also not been able to prove motive for the offence---In absence of any independent corroboration, eye-witnesses could not be relied upon---Not safe to place implicit reliance on ocular account which was not corroborated by any evidence--Prosecution, in circumstances had failed to prove its case beyond reasonable doubt against accused---Accused, in circumstances was entitled to benefit of doubt---Accused was acquitted of charge and was ordered to be set at liberty.

Ghulam Sikandar and another v. Mumaraz Khan and others PLD 1985 SC 11; Sarfaraz alias Sappi and 2 others v. The State 2000 SCMR 1758 and Iftikhar Hussain and another v. State 2004 SCMR 1185 ref.

Munir Ahmad Bhatti for Appellant.

M. Saleem Shad for the State.

Malik Muhammad Imtiaz Mahal for the Complainant.

Date of hearing: 1st June, 2005.

2006 Y L R 1016

[Lahore]

Before M. Bilal Khan, J

Mst. SAEEDA---Petitioner

Versus

ISHFAQUE JAVAID MUKHI and 3 others---Respondents

Criminal Miscellaneous No.576-H of 2005, decided on 15th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas Corpus petition---Minor girl whose custody was sought by petitioner was only four/five years of age and being a girl her hizanat belonged to petitioner/mother of minor girl---Father of minor had not even joined proceedings and had not bothered to contest the matter---High Court was fully competent while exercising its jurisdiction under S.491, Cr.P.C. to go into question of welfare of minor---Even otherwise, minor, who was a Japanee National, her stay in Pakistan was not legal, especially when case of her custody was pending at Japan, where father of minor was also stationed---Allowing petition, custody of minor was handed over to the mother unconditionally---If respondents were interested in custody of minor, they could file proceedings before Guardian Court.

Malik Saeed Hassan, assisted by Ms. Imrana Baloch and Ms. Iffat Saeed Khan for Petitioner.

Ch. Aamir Reitman, A.A.-G. and Ahmad Awais for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 1019 #

2006 Y L R 1019

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM SARWAR and 6 others---Petitioners

Versus

MUSHTAQ AHMAD and others---Respondents

Civil Revisions Nos.222-D, 111, 112 and 223 of 2005, decided on 17th February, 2006.

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

---O. XIII, R.4---Qanun-e-Shahadat (10 of 1984), Arts. 74 & 75---Tendering in evidence certified copy of document, execution of which was disputed---Not shown as to why original document was, withheld and not produced---No prayer and no order on record for producing secondary evidence---Such document was not admissible in evidence and thus, was discarded by Court.

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

----S. 42---Suit for declaration by sisters against brother---Sale of sisters' land by brother on basis of registered power of attorney got executed from them on some other pretext---Proof---Neither Sub-Registrar nor scribe of document deposed that executants thereof were known to them---Attesting witness of document was the ultimate beneficiary, while identifier was his son---None of such witnesses deposed that document was read over to ladies---Held, brother had failed to prove valid execution of power of attorney by sisters.

Abdul Rahim v. Mukhtar Ahmad and 6 others 2001 SCMR 1488; Mst. Ghulam Fatima v. Muhammad Din and others 2004 SCMR 618; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494 and Qutab Din v. Ali Hasan and others NLR 1992 AC 25 ref.

Muhammad Boota through L.Rs. v. Mst. Bano Begum and others 2005 SCMR 1885 rel.

Ch. Muhammad Hussain Jahanian for Petitioners.

Mian M. Arshad Latif for Respondents.

Dates of hearing: 25th, 26th January, 16th and 17th February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1024 #

2006 Y L R 1024

[Lahore]

Before Khawaja Muhammad Sharif, J

AZRA PARVEEN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.311 of 2003, decided on 19th July, 2005.

Penal Code (XLV of 1860)---

-------S. 302(b)---Appreciation of evidence---No other evidence was on record except statement of prosecution witness, who was son of deceased---Dead body was recovered on pointation of co-accused who had been convicted and sentenced, but /re had not filed any appeal against his conviction---Neither any extra judicial confession nor any incriminating article was recovered from accused during investigation---Accused, who was arrested one month after occurrence, could not be termed as a proclaimed offender---Even no proceedings under Ss.87 & 88, Cr.P.C. were initiated against the accused---Prosecution had failed to prove case against accused beyond any shadow of doubt and on basis of such a shaky evidence, conviction and sentence awarded to accused could not be maintained because saute had not come through unimpeachable sources, was untrustworthy, unreliable and could not stand the test of judicial scrutiny---Impugned judgment was set aside and accused was acquitted.

Muhammad Zaman Khan Vardag for Appellant.

Nemo for the Complainant.

Tariq Waheed Khan for the State.

Date of hearing: 19th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1027 #

2006 Y L R 1027

[Lahore]

Before Mian Saqib Nisar, J

LAHORE DEVELOPMENT AUTHORITY through Director-General---Appellant

Versus

TAUSEEF CORPORATION (PVT.) LTD. and 2 others---Respondents

F.A.O. No.303 of 2004, heard on 14th February, 2006.

Arbitration Act (X of 1940)---

----S. 20---Dispute between parties covered by arbitration clause of contract---Filing agreement in Court for referring matter to arbitration---Repudiation of contract---Findings of trial Court in respect of issues on agreements that they were valid and could not be cancelled as same were authorizedly executed on behalf of Development Authority were not sustainable because such matters were to be conclusively decided by arbitrators and Court while rendering its decision upon an application under S.20 of Arbitration Act, 1940, could not adjudicate the disputes between parties falling within the domain of arbitration---Impugned findings were set aside however conclusion of Court below that matter should be referred to arbitration according to the agreement, was affirmed.

Union of India v. Messrs Chaman Lal Loona & Co. PLD 1958 SC (India) I; Pakistan Chrome Mines Ltd. Karachi v. Phibro Asia Ltd., New York and 3 others PLD 1975 Kar 861; Manzoor Construction Co. Ltd. v. University of Engineering & Technology, Taxila 1984 CLC 3347 and Project Director, Balochistan Minor Irrigation and Agricultural Development Project, Quetta Cantt. v. Messrs Murad Ali & Company 1999 SCMR 121 ref.

Muhammad Ghani for Appellant.

Abid Hassan Minto for Respondents.

Date of hearing: 14th February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1029 #

2006 Y L R 1029

[Lahore]

Before Syed Hamid Ali Shah, J

RASHID LATIF---Petitioner

Versus

RETURNING OFFICER, UNION COUNCIL NO.48, TOBA TEK SINGH and others---Respondents

Writ Petition No.14438 of 2005, decided on 10th August, 2005.

Punjab Local Government Elections Ordinance (V of 2000)---

-- S. 14(e)(g)---Punjab Local Government Elections Rules, 2000, Rr.16 & 18---Punjab Local Government Ordinance (XIII of 2001), S.152---Punjab Agricultural Produce Market Ordinance (XXIII of 1978), S.17---Constitution of Pakistan (1973), Art.199---Constitutional petition--Election for the seats of Nazim and Naib Nazim---Disqualification of candidates---Respondents were joint candidates of Nazim and Naib Nazim who filed their nomination papers---Petitioner filed objection on nomination papers on the ground that one candidate/respondent being Administrator of Market Committee and drawing salary in that capacity, was disqualified to contest election---Regarding the other respondent it was alleged that he was not Matric as he had failed in two subjects in the said examination---Returning Officer refused to entertain objection of petitioner and accepted nomination papers of respondents---Appeal against order of Returning Officer having also been-dismissed, petitioner had filed constitutional petition---One respondent admittedly being Administrator of Market Committee, was disqualified to be elected, as under S.17 of Punjab Agricultural Produce Market Ordinance, 1978, every person employed by Market Committee and every member of the Committee would be deemed to be public servant---Other respondent was required to obtain in all subjects 33% or more of total marks allocated to each subject under "no pass, no fail" scheme---Respondent who had not secured "E" grade and above in the said two subjects in which he failed, could not be deemed as having passed S.S.C. Examination---Both respondents were not eligible candidates---Impugned orders were set aside and nomination papers of respondents were rejected.

Zafar Iqbal Chohan for Petitioner.

Najeeb Faisal Chaudhry, A.A.-G. for Respondents.

Ch. Muhammad Aslam Zia for Respondent No.3.

Date of hearing: 10th August, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1039 #

2006 Y L R 1039

[Lahore]

Before Sardar Muhammad Aslam, J

Mst. NOORAN MAI and another---Petitioners

Versus

AHMAD BUKHSH and .3 others---Respondents

Civil Revision No.86 of 2002, heard on 22nd November, 2004.

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

-------S. 12---Qanun-e-Shahadat (10 of 1984), Art. 17---Suit for specific performance on the basis of oral agreement to sell---Plaintiffs claimed that petitioner had transferred her property in their favour by way of mutation but later on got the same cancelled---Suit was dismissed but decreed as appeal---Validity---Question which fell for determination in revision was as to whether mere entry of mutation could be termed as an "agreement to sell "---Mere entry of mutation would not prove the sale---Article 17 of Qanun-e-Shahadat, 1984 provided attestation by at least two marginal witnesses---No marginal witness of entry of mutation having been plaintiff had failed to prove the agreement to sell.

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

----Art. 17---Specific Relief Act (I of 1877), S.12---Suit for specific performance on the basis of oral agreement to sell---Burden of proof---Plaintiff had failed to prove the agreement to sell---Suit was dismissed by the Trial Court but Appellate Court was of the view that once mutation was entered at the instance of defendant and was cancelled, the onus shifted on the defendant to prove non-existence of an agreement---Validity---Plaintiffs had failed to prove agreement of sale in their favour by defendant---Proof in regard to payment of consideration amount remained lacking---Execution of agreement to sell was denied by the defendant---Onus heavily lay on the plaintiffs to prove the same--Appellate Court wrongly found that the onus was to be discharged by the defendant instead of plaintiffs---Defendant was not required in law to prove the negative.

Malik Noor Muhammad Awan for Petitioners.

Kh. Ibrar Majal for Respondents.

Date of hearing: 22nd November, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1046 #

2006 Y L R 1046

[Lahore]

Before Muhammad Sair Ali, J

AMANAT ALI---Petitioner

Versus

MUHAMMAD DIN and another---Respondents

Civil Revision No.1853-D of 1996, heard on 22nd February, 2005.

Civil Procedure Code (V of 1908)---

---- O.XXVI, R.9---Specific Relief Act (I of 1877), S.8---Recovery of possession-Identification of disputed land---Local inspection---Trial Court on the basis of report of local commission, partly decreed the suit---Appellate Court reversed the findings of Trial Court and dismissed the suit---High Court in exercise of revisional jurisdiction appointed another local commission to inspect disputed land---Validity---Site plan prepared by local commission appointed by High Court was not deficient in any manner, which was as per scale had contained boundaries as well as specific measurements of properties in respective possession of the parties---Local commission appointed by High Court carried out commission proceedings in accordance with law as well as in accordance with directions of High Court---In absence of any specific objection from defendants, High Court declined to disbelieve the measurements carried out by local commission appointed by it and report given by him---Objections filed by plaintiff were rejected by High Court resultantly judgment and decree passed by Appellate Court was set aside and that of Trial Court was restored.

Ustad Muhammad Iqbal for Petitioner.

Talat Farooq Sheikh for Respondents.

Date of hearing: 22nd February, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1052 #

2006 Y L R 1052

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD LATIF and 2 others---Petitioners

Versus

INAYAT ALI---Respondent

Civil Revision No.1613-D of 1997, heard on 10th February, 2005.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance---Oral agreement to sell---Defendant denied to have entered into such agreement or having received price, rather asserted that plaintiff's possession over suit property was as lessee and not under agreement---Proof---Defendant during cross-examination firstly acknowledged receipt of money through bank drafts from plaintiff for supplying him Khal and Binola, but later on denied to have been in such business or to have known any of its trader in market---Such testimony of defendant proved falsity of his denial to have received consideration from plaintiff for sale of suit-land--Defendant in his testimony firstly deposed that suit-land was given on lease to another person, but later on denied that such person had any legal status therein or was its lessee---Defendant by such testimony contradicted his stance taken in written statement that suit-land was given on lease to plaintiff-Defendant's entire testimony was full of contradictions showing his lack of probity---Plaintiff, by producing oral and documentary evidence, had established oral agreement---Defendant had set up a false defence and failed to prove same and to rebut plaintiff's evidence---Suit was decreed in circumstances.

Malik Muhammad Akram Khan Awan for Petitioners.

Rana Tahir Mehmood for Respondent.

Date of hearing: 10th February, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1056 #

2006 Y L R 1056

[Lahore]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

ZULFIQAR ALI alias BILLA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.366 of 2004, decided on 20th February, 2006.

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

---S. 9(c)---Criminal Procedure Code (V of 1898), S.156(2)---Appreciation of evidence---Both prosecution witnesses gave details of incident---Total effect of the evidence of both the witnesses, was .that each packet of Charas was weighed at the time of recovery and weight of each packet was 1 kg. and that the slabs lying in each packet were not counted---Had there been discrepancy between the evidence and the Mashirnaina of recovery, then said discrepancy could have been brought on record by defence counsel in the cross-examination, but no question with regard to such discrepancy had been brought on record---Even otherwise said discrepancy would not be fatal to the case of prosecution---One sentence in an evidence, could not be read in isolation---Entire evidence of a witness was to he taken into consideration and total effect of said statement was to be given---In statement of prosecution witness Mashir did not disclose that each packet contained two slabs or one slab, but he was silent with regard to number of slabs in each packet---Total weight of 8 packets was 8020 grants and net weight of slabs was 7900 grants---No discrepancy, in circumstances was found in the property sealed at the place of incident and property received by Chemical Analyzer---Complainant, in his statement had stated that he had received permission for investigating case through D.S. P. C.I.A.---However, if investigation was conducted by an officer, who was not authorized by law to do so, then under S.156(2), Cr.P.C. investigation could not be questioned---After investigation, the Court having taken cognizance, if any illegality was committed during investigation, same was cured and said illegality had not vitiated the trial---Defence taken by accused, appeared to be afterthought and had been prepared to save accused from the case---Prosecution, in circumstances had proved case against accused beyond any reasonable doubt---Accused was rightly convicted and sentenced, in circumstances.

Zeeshan Kazmi v. State PLD 1997 SC 406; Jeejal v. State 2005 MLD 1261; Zareef Khan v. State 2005 MLD 501 and State v. Bashir PLD 1997 SCMR 408 ref.

A. Q. Halepota for Appellant.

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

Date of hearing: 31st January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1060 #

2006 Y L R 1060

[Lahore]

Before Jawwad S. Khawaja, J

FATEH MUHAMMAD through Legal Heirs and others---Petitioners

Versus

ZAHOOR UL HAQ and 3 others---Respondents

Civil Revisions Nos.2318 and 2319 of 2000, heard on 21st February, 2005.

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

----S. 41---Qanun-e-Shahadat (10 of 1984), Art.114---Specific Relief Act (1 of 1877), S.42---Transfer by ostensible owner, protection of---Scope---Principle of estoppel---Applicability---Two suits were filed by both the parties claiming their right over suit property---Petitioners claimed to be the owners on the basis of purchase of land front ostensible owners for valuable consideration---Trial Court decreed the suit of petitioners and dismissed that of the respondents---Appellate Court reversed the findings of Trial Court and dismissed the suit filed by petitioners on the ground that the respondents along with successor-in-interest of petitioners, were also legal heirs of the deceased issueless owner and were also entitled to inheritance---Validity---Payment of consideration and exercise of due diligence through examination of revenue record was proved by the witness produced by respondents---Testimony of that witness remained un-rebutted---Record showed that petitioners were able to prove the four essential ingredients set out in S.41 of Transfer of Property Act, 1882---Purchase of suit properly could not be defeated---Having accepted the ostensible owner as exclusive and absolute owner of the suit property, the respondents were estopped from adopting a contrary stance by denying the title of petitioners, who were merely successors-in-interest of the ostensible owner---Appellate Court rendered its finding by ignoring the provisions of 5.41 of Transfer of Properly Act, 1882, and its implications and thus had exercised its jurisdiction illegally and with material irregularity---Judgments and decrees passed by Appellate Court in both the cases were set aside and those of the Trial Court were restored in circumstances.

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

--S. 39---Mutation- Scope--- Mutation merely constitutes a record of title created otherwise.

S. M. Masud for Petitioners.

Syed Kaleem Ahmed Khurshid and Muhammad Sharif Chohan for Respondents.

Date of hearing: 21st February, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1067 #

2006 Y L R 1067

[Lahore]

Before Syed Jamshed Ali, J

Mst. MEIJI and 4 others---Petitioners

Versus

MAHFOOZ ALI and others---Respondents

Civil Revision No.1128-D of 1992, heard on 7th February, 2005.

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

----Arts. 117 & 120---Onus of proof shifting of---Principles---When initial burden to prove a fact was discharged by plaintiff, it was for defendant to disprove it.

(b) West Pakistan Muslim Personal Law (Shariat Application) (Removal of Difficulties) Act (XXV of 1975)---

----S. 3---Specific Relief Act (1 of 1877), S.42---Declaration of title---Limited estate---Widow of the original owner of suit property became limited owner, under custom and after her death mutation of inheritance was attested on 27.9.1966, in favour of her daughter and sister---Plaintiffs claiming to be the collateral of the husband of widow had assailed mutation of inheritance---Trial Court decreed the suit in favour of plaintiffs which was maintained by Appellate Court---Plea raised by defendants was that the suit was barred by limitation---Validity---On the death of the original owner of suit property, his widow, in presence of brother of the deceased owner, came into possession of the suit land---Such transfer of possession could not have been possible, except under custom---On termination of life estate of the widow, the plaintiffs, as collaterals of original owner, became co-sharers---Plaintiffs had filed suit within one year from the order of Board of Revenue---Law of limitation, in case of a suit by a co-sharer, could not be altered by S.3 of West Pakistan Muslim Personal Law (Shariat Application) (Removal of Difficulties) Act, 1975---High Court in exercise of revisional jurisdiction, declined to interfere in the judgments and decrees passed by the Courts below---Revision was dismissed in circumstances.

Gobardhan Das v. Dau Dayal AIR 1932 All. 273; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Dr. Ansar Hassan Rizvi v. Syed Mazahir Hussain Zaidi and 3 others 1971 SCMR 634 and Muhammad Bibi v. Ghulam Muhammad and others PLD 1978 Lah. 483 ref.

Muhammad Shahzad Shaukat for Petitioners.

Hassan Ahmad Khan Kanwar for Respondents.

Date of hearing: 7th February, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1071 #

2006 Y L R 1071

[Lahore]

Before Syed Jamshed Ali, J

MUHAMMAD RIAZ and another---Petitioners

Versus

MUMTAZ ALI through Legal Heirs and others---Respondents

Civil Revisions Nos.755 and 756 of 1996, heard on 25th January, 2005.

Specific Relief Act (1 of 1877)---

----Ss.8, 9 & 42---Recovery of possession---Co-sharers---Un-partitioned joint land---Dispute between the parties was with regard to possession of un-partitioned land of co-sharers---Petitioners sought recovery of possession under S.8 of Specific Relief Act, 1877, as they claimed to have been dispossessed by respondents, while respondents sought declaration of title--Trial Court decreed the ' suit filed by petitioners and dismissed that of' the respondents---Appellate Court allowed the appeals filed by respondents and reversed the judgments and decrees passed by Trial Court---Plea raised by petitioners was that their suit be treated as one under S.9 of Specific Relief Act, 1877--- Validity---Both the parties were co-sharers in the joint unpartitioned Khata and their remedy was to seek partition in accordance with law by imp leading all other co-sharers in Khata---If a co-sharer was dispossessed by another co-sharer his remedy was for partition of joint property or a suit under S.9 of Specific Relief Act, 1877, for possession but a regular suit under S.8 of Specific Relief Act, 1877, was not maintainable---Suit filed by petitioners could not be treated to be one under S.9 of Specific Relief Act, 1877, as there was no specific averment that they were illegally or forcibly dispossessed from the land in dispute---No satisfactory evidence was produced by the petitioners showing that they had been dispossessed within six months of the suit filed by them---No independent witness was produced by petitioners in support of their contention---Petition was dismissed accordingly.

Mst. Resham Bibi and others v. Lal Din and others 1999 SCMR 2325 fol.

Hamid Ali Mirza for Petitioners.

Falak Sher for L. Rs. Respondent No.1.

Date of hearing: 25th January, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1081 #

2006 Y L R 1081

[Lahore]

Before Sardar Muhammad Aslam, J

GHULAM SARWAR BODLA and another---Petitioners

Versus

MUHAMMAD ASHRAF and 8 others---Respondents

Writ Petitions Nos.2208 and 2210 of 2006, decided on 14th March, 2006.

(a) Punjab Local Government Elections Rules, 2005---

----R.71 (a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Date of birth---Determination---Pendency of civil suit against Board of Intermediate and Secondary Education-Non-framing of issues---Effect---Election Tribunal accepted election petition and rejected nomination papers of returned candidate---Plea raised by returned candidate was that Election Tribunal did not frame issues for deciding election petition and there was a suit pending against the Board with regard to correction of date of birth in Matriculation Certificate---Validity---Main controversy requiring resolution was with regard to age of returned candidate on tine date of filing of nomination paper---Parties were fully aware of the controversy and had annexed documents with their pleadings in support of their stance-Non-framing of issue and recording of evidence did not cause prejudice---Returned candidate argued the matter and did not raise any objection to procedure adopted by Election Tribunal---No application was ever moved before Election Tribunal requiring hint to frame preliminary issue and grant lrim opportunity of production of evidence---Such grievance was voiced only after decision had been rendered against the candidate---Pendency of civil suit against the Board for correction of age was of no avail to the candidate---No order, even of intercom nature was in favour of returned candidate who according to date of birth recorded in Matriculation Certificate, was less than 25 years on the date of filing of nomination paper---Election Tribunal rightly disqualified returned candidate and de-seated him---Order passed by Election Tribunal did not call for any interference by High Court---Petition was dismissed in limine.

Syed Asghar Ali Shah v. Election Tribunal 2004 MLD 1912; Fazal Muhammad Bhatti and another v. Mst. Saeed Akhtar and another 1993 SCMR 2018; Kaura and another v. Allah Ditta and another 2000 CLC 1018; Allah Wasaya v. Irshad Hussain and another PLD 1986 Lah.29 and Abdul Khaliq and another v. Maulvi Muhammad Noor PLD 2005 SC 962 ref.

(b) Punjab Local Government Elections Rules, 2005---

----R.71---Constitution of Pakistan (1973), Art.199---Constitutional petition---Reelection---Rejecting nomination papers of returned candidate---Effect---Returned candidate and other received 3259 votes, whereas the petitioner received 2123 votes---Election Tribunal accepted election petition, rejected nomination papers of returned candidate and directed for reelection---Plea raised by petitioner was that instead of re-election, Tribunal should have declared him as returned candidate---Validity---Petitioner could not be declared as returned candidate in view of large number of difference of votes---Votes polled in favour of returned candidate could not be considered as throw away votes---Disqualification of returned candidate was not notorious so as to alert and put at notice voters in the constituency---Petition was dismissed.

Shaukat Ali and another v. District Returning Officer PLD 2006 SC 78 rel.

Muhammad Ramzan Ch. for Petitioners.

Ch. M. Amin Javaid for Respondents Nos. 1 and 2.

YLR 2006 LAHORE HIGH COURT LAHORE 1084 #

2006 Y L R 1084

[Lahore]

Before Jawwad S. Khawaja, J

Raja MUHAMMAD YOUSAF through Legal heirs---Petitioners

Versus

Mst. SHARIFAN BIBI and 3 others---Respondents

Civil Revision No.1897 of 2001, heard on 13th September, 2005.

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

----Ss. 42, 12, 52 & 53---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for specific performance of oral agreement to sell, declaration and injunction---Suit was decreed by Courts below---Nothing was produced on record by plaintiffs to substantiate their averment that defendant did not execute and register a sale-deed because there was some interim injunction issued by a Court---No receipt was available to 'show that an amount of Rs.45,500 was paid by plaintiffs to defendant---Contents of plaint in respect of said receipt were ambiguous---Witnesses produced by plaintiffs did not inspire confidence as they had given contradictory statements in material particulars---Contents of plaint showed that when the bargain was allegedly struck, there were no differences between one of the plaintiffs and her husband but it was surprising that latter was not an active participant in striking bargain for disputed property---Jamabandi for the year 1984-85 showing suit property to be G/fair Mumkin Makan clearly refuted the version of plaintiffs that they had purchased vacant land from defendant some time around 1986-87---Courts below having committed material error by brushing aside serious contradictions in the case put forth by plaintiffs, impugned judgments and decrees were not legally sustainable.

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

----S. 3 & Art.113---Specific Relief Act (I of 1877), Ss.42, 12, 52 & 53---Civil Procedure Code (V of 1908), S.115---Suit for declaration, injunction and specific performance of oral agreement to sell---Limitation---Contention of plaintiff was that defendants had not raised any objection as to limitation either in written statement or in grounds of appeal, therefore, objection as to limitation could not be raised at revision stage---Submission of defendants that question of limitation was to be attended to by Court itself even where no objection to such effect had been raised by defendants, was-well founded---Validity---Whether period of limitation was to commence from 1987 or 1993, suit was clearly time-barred in both ways---Impugned judgments and decrees of Courts below were set aside by High Court in revision.

Hakeem Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153 ref.

Abdul?? Wahid? Chaudhry for Petitioners

Sheikh? Abdul?? Aziz????? for Respondents.

Date of hearing: 13th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1089 #

2006 Y L R 1089

[Lahore]

Before Asif Saeed Khan Khosa, J

TAHIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3922-B of 2005, decided on 28th June, 2005.

Criminal Procedure Code (V of 1898)--

-----S. 497(2)-Penal Code (XLV of 1860), Ss. 302 & 34---Bail, grant of---F.J.R. itself alleged that murder was unwittessed---Name of co-accused had not figured in F.I.R. in any capacity whatsoever, but' had surfaced for the first time after about a month and a half after registration of F.I.R. through a supplementary statement made by complainant---According to said supplementary statement, accused was one of the two unknown persons mentioned in F.I.R. who had been seen by complainant running away from place of occurrence along with nominated accused---Two prosecution witnesses, /tad got their statements recorded under S.161, Cr. P. C. and had claimed therein that they had seen accused and others taking deceased away just before his minder---Even in those statements no specific role had been attributed W accused and allegations levelled against him were couched in generalized and collective terms---During investigation a rope had allegedly been recovered at the instance of accused and his co-accused, but it was admitted that such recovery was a joint recovery and its evidentiary value appeared to be quite suspect---Nothing was available on record to connect recovered rope with alleged murder---No other direct or indirect evidence was available on record so as to incriminate accused---Challan had already been submitted after completion of investigation---Continued custody of accused in jail was not likely to serve any beneficial purpose---Case against accused calling for further inquiry into his guilt within purview of subsection (2) of 5.497, Cr. P. C., he was admitted to bail, in circumstances.

Sher Afgan Asadi for Petitioner.

Miss Aaliya Neelum for the Complainant.

Malik Mubarak Ali for the State.

Date of hearing: 28th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1090 #

2006 Y L R 1090

[Lahore]

Before Jawwad S. Khawaja, J

MAHMOOD ALI---Petitioner

Versus

ABDUL LATIF and another---Respondents

Civil Revision No.809 of 2003, heard on 31st May, 2004.

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

----S. 42---Suit. for declaration that gift deed being void ab initio was of no legal effect---Suit was dismissed by Trial Court--Defendants, who were brothers, after dismissal of . the suit, transferred their shares in suit property in favour of one brother by means of registered sale-deed---Appeal against dismissal of suit was allowed---Contention was that said sale had been effected with the consent of plaintiff---Validity---Matter of transfer of shares Wright not have relevance in proceedings, except to the extent that one defendant had become successor-in-interest of the other two defendants (brothers).

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

----Art. 91---Specific Relief Act (1 of 1877), S.42---Declaratory suit---Suit was dismissed but decreed in appeal---Limitation---Plaintiff himself had admitted execution of the document in question 6 or 7 years prior to the filing of tine suit---Article 91 of the Limitation Act, 1908 prescribed the limitation of period of three years to cancel or set aside any disputed instrument-Suit, in circumstances, was clearly time-barred.

-----S. 42--Suit for declaration---Registered gift deed---Allegation of fraud---Suit was dismissed but appeal was allowed on the ground that marginal witnesses of gift deed had not been produced to prove execution thereof---Whether presumption of truth was attached to gift deed in question---Plaintiff had stated that about 6 or 7 years back, he had gone to the Court for executing a document---Registered gift deed thins had stood fully proved through the testimony of plaintiff himself who appeared as witness coupled with the fact that gift deed in question was a duly registered document and a presumption of authenticity as to its execution was attached to it---Appellate judgment and decree were set aside and that of Trial Court were restored by High Court.

Abdul Wahid Chaudhry for Petitioner.

Respondent ex parte.

Date of hearing: 31st May, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1094 #

2006 Y L R 1094

[Lahore]

Before Jawwad S. Khawaja, J

RASHEED AHMAD ---Petitioner

Versus

NASAR DIN---Respondent

Civil Revision No.926 of 2004, heard on 1st June, 2004.

Punjab Pre-emption Act (IX of 1991)---

---S. 13(3)---Qanun-e-Shaluulat (10 of 1984), An. 3---Suit for pre-emption---Perform ance of Talb-i-Ishhad---Proof---Suit was decreed by Trial Court and Appellate Court upheld the decree---Question was as to whether plaintiff had performed Talb-i-Ishhad in accordance with law---Validity---Plaintiffs stated that he had sent notice of Talb-i-Ishhad one and a half month after the knowledge of the sale--.-Contention that said statement was not valid because plaintiff's counsel was a witness in the case, had no force---Subsequent self-contradictory testimony read, by plaintiff rendered him as an incredible witness---Notice of Talb-i-Ishhad was not given within time prescribed by law but this fact escaped notice from Courts below---Held, impugned judgments and decrees were not legally sustainable which were set aside by High Court.

Ch. Shaukat Ali Javed for Petitioner.

Ch. Abdur Rehman Madni for Respondent.

Date of hearing: 1st June, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1096 #

2006 Y L R 1096

[Lahore]

Before Syed Zahid Hussain , J

JAHAN KHAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MIANWALI and 5 others ---Respondents

Writ Petition No.5874 of 2004, decided on 9th September, 2004.

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

------S. 9-Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Constitution of Pakistan (1973), Art; 199---Constitutional petition---Unlawful dispossession front property---Suit for restoration of possession---Suit was decreed by Trial Court and Appellate Court affirmed the decree---Question was as to whether plaintiffs were in possession of suit-land and whether they were dispossessed forcibly by defendant---Plaintiffs claimed land in dispute in their possession from their forefathers---Khasra Girdawari showed that grandfather of plaintiffs had been in possession of disputed land till Kharif 1997 whereafter name of defendant was entered in the record but this entry was assailed by plaintiffs and correction thereof was ordered by the department---Revision was also dismissed by Board of Revenue---Said documentary evidence substantiated the assertion of plaintiffs that they had been in possession of suit property since long and that plaintiffs had been dispossessed by defendant forcibly---Section 9, Specific Relief Act, 1877, was applicable in circumstances.

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

----Art. 199---Specific Relief Act (1 of 1877), S. 9---Constitutional jurisdiction---Scope---Findings recorded by Courts below on due appreciation and appraisal of evidence on record, could not be reopened as re-appreciation and reappraisal of evidence was not the function of High Court in constitutional jurisdiction---Decision of Courts below with respect to possession of respondent/plaintiff and their dispossession by petitioner/defendant was purely a question of fact, interference with which was not called for in constitutional jurisdiction---Scope of writ jurisdiction was restricted and limited, which could not be converted into an appellate forum to appreciate the evidence over-again or to substitute the findings of the lower forum--No illegality had been committed by either of Courts below, in the matter which could warrant interference by High Court---Constitutional petition was dismissed.

Abdul Ghafoor v. Nazir Ahmad and others 1987 CLC 826; Raja Sher All v. District Judge, Jhelum and 9 others 1989 CLC 219; Abdul Wahid Mirza v. Vth Additional District Judge, (South) Karachi and 3 others 1989 CLC 957 and Mst. Resham Bibi and others v. Lal Din and others 1999 SCMR 2325 ref.

Raja Ghulam Hassan Khan for Petitioner.

Awan Muhammad Hanif Khan for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 1098 #

2006 Y L R 1098

[Lahore]

Before Jawwad S. Khawaja, J

SHER MUHAMMAD ---Petitioner

Versus

MUHAMMAD NAWAZ---Respondent

Civil Revision No.957 of 2004, heard on 25th May, 2004.

Punjab Pre-eruption Act (IX of 1991)---

----S. 6---Suit for pre-emption---Superior right of pre-emptor---Determination---Suit was dismissed but decreed in appeal---Question was as to whether plaintiff had got superior right of pre-emption qua the defendant---Validity---Aks Shajrah showed that plaintiff's land was not, in any manner, contiguous to suit-land, on the other hand defendant was an owner in the Khata on the basis of an earlier purchase of land---Mere fact that said land was also under attack in another pre-emption suit, did not detract from defendant's title in said land---Appellate Court committed error in law by holding to the contrary, therefore, its judgment and decree were set aside and those of Trial Court restored by High Court.

Muhammad' Ashfaq Mughal for Petitioner.

Ch. Zaigham Ullah Sansi for Respondent.

Date of hearing: 25th May, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1101 #

2006 Y L R 1101

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD MUMTAZ HUSSAIN---Petitioner

Versus

RETURNING OFFICER, UNION COUNCIL No.50, KOT LAKHANA, JHANG, DISTRICT JHANG and others---Respondents

Writ Petition No.14214 of 2005, decided on 22nd August, 2005.

Punjab Local Government Elections Ordinance (V of 2000)---

---S. 14(b)---Punjab Local Government Elections Rules,. 2000, Rr.16, 18 & 65--Constitution of Pakistan (1973), Art.199---Constitutional petition---Rejection of nomination papers---Nomination papers filed by petitioner for contesting election for seat of Member General Councillor, were accepted by Returning Officer, but on filing appeal by respondent on ground that petitioner was not 25 years old, Returning Officer rejected nomination Papers of petitioner---Petitioner had filed constitutional petition against rejection of his nomination papers and on last date of hearing, petitioner was directed to produce his Matriculation Certificate, which was produced by him---Since no time was left as election was due after few days, issue whether Matriculation Certificate produced by petitioner was genuine or bogus, would be decided by Election Tribunal, if matter was raised and provisions of R.65 of Punjab Local Government Elections Rules, 2000 were invoked---Order of District Returning Officer rejecting nomination papers of petitioner, was set aside accordingly.

Zafar Iqbal Chohan for Petitioner.

Muhammad Waseem Ashraf for Respondent No.3.

Date of hearing: 22nd August, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1102 #

2006 Y L R 1102

[Lahore]

Before Mian Saqib Nisar, J

Mst. IMAM SAIN and 4 others---Petitioners

Versus

Dr. SHAHID MEHMOOD and another---Respondents

Civil Revisions Nos.169 of 2000, 413 and 735 of 2004, heard on 17th January, 2005.

Muhammadan Law---

----Gift---Oral gift---Essential ingredients to prove oral gift---Immovable property could be gifted through oral mode but for such a transaction, very strict and positive evidence was needed---Donee being the beneficiary of the gift, had to prove in unequivocal and specific terms the date, day and time, when the gift was made, consideration of gift and also persons in whose presence it was made---Mere construction raised by plaintiff over the land cud occupation of the same and installation of the amenities could not be considered as proof of the plaintiff's ownership---Such material could only help the plaintiff to prove the case of being licensee but not in the nature of the gift---Acknowledgment allegedly executed by vendor, was denied by defendant but no effort was ever made by the plaintiff to prove the acknowledgement deed as required under the law, hence the document was not received in evidence, and the plaintiff could not take any benefit of the same---Non-production of general power-of attorney which was not challenged by the plaintiff, did not matter---Essential ingredients to prove oral gift were conspicuously missing---Gift, therefore, was not proved---In absence of any misreading of evidence, concurrent findings of Courts below could not be interfered with' in revision by High Court.

Syed Kabeer Mehmood for Appellants.

Syed Ejaz Qutab for Respondents.

Date of hearing: 17th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1105 #

2006 Y L R 1105

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

ALLAH JAWAYA---Petitioner

Versus

THE STATE---Respondent

Crl. Miscellaneous No.5750-B of 2005, decided on 13th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497-Penal Code (XLV of 1860), 5.489-F---Bail, refusal of---Since the trial of case had already commenced, it was not proper stage to dilate upon the factual aspect of the case, lest it should prejudice case of either party pending before the Trial Court---Even otherwise photo-copy of cheque in question produced on record had revealed that same was issued in the name of complainant---Petition for grant of bail, was dismissed with direction to the Trial Court to proceed with the matter expeditiously and conclude same within specified period.

Hassan Ahmed Khan Kanwar for Petitioner.

Mian Muhammad Hussain Chotia for the Complainant.

Muhammad Azam for the State.

Date of hearing; 13th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1106 #

2006 Y L R 1106

[Lahore]

Before Jawwad S. Khawaja, J

AMIN ALI and others---Petitioners

Versus

MUHAMMAD SHAKEEL and others---Respondents

Civil Revision No.1651 of 2002, heard on 20th September, 2005.

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

----Ss. 42 & 55---Pakistan (Administration of Evacuee Property) Act (XII of 1957), S.10(3) (b)---Punjab Development of Damaged Areas Act (XIV of 1952), S.6---Suit for declaration relating to entitlement of plot which included evacuee property---Dismissal of suit and appeal---Contention of plaintiffs was that Courts below proceeded on erroneous legal and factual premises while deciding the case---Property in dispute had been acquired by Development Authority with approval of Federal Government for purpose of implementing a Scheme sanctioned by Provincial Government under section 6, Punjab Development of Damaged Areas Act, 1952---Validity---Record showed that disputed property was exempted in favour of plaintiffs vide registered agreements to sell---Transfer of such property to defendants by Rehabilitation Authority under Pakistan (Administration of Evacuee Property) Act, 1957 was illegal---Observation of Appellate Court, that an agreement to sell alone did not create any right in favour of plaintiffs unless a sale-deed was executed in their favour, was not proper as father of plaintiff had paid entire amount due to the Development Authority in 1964---Execution of a sale-deed was a mere ministerial act and did not, in any manner, deprive plaintiffs of their right in disputed property---Only the Development Authority had right to raise such contention but it had not taken any objection on that score---Development Authority having acknowledged, that the title in disputed plot vested in plaintiffs there was no need for plaintiffs to seek specific performance of agreement to sell against the Development Authority nor the suit for declaration filed by plaintiffs was time-barred but Appellate Court wrongly found that plaintiffs were obliged to file a suit for specific performance instead of declaration and that declaratory suit filed by plaintiffs was time barred---When testimony of the functionary of Development Authority was that disputed plot was included in the Scheme, Courts below wrongly found that there was no documentary evidence to prove that the disputed plot was included in the Scheme.

Sh. Muhammad Sadiq v. Chief Settlement Commissioner and another PLD 1963 Lah. 499 ref.

(b) Pakistan (Administration of Evacuee Property) Act (XII of 1957)---

--S. 10(3)(b)---Specific Relief Act (1 of 1877), Ss.42 & 55---Punjab Development of Damaged Areas Act (XIV of 1952), S.6---Civil Procedure Code (V of 1908), S.9-Suit for declaration---Jurisdiction---Record showed that disputed plot had ceased to be part of compensation pool, therefore, no objection could be taken on the jurisdiction of Civil Court because it was for the Civil Court to decide on declaration of title sought by plaintiffs---Impugned judgments and decrees of Courts below being erroneous were set aside by High Court.

Muhammad Shahzad Shaukat for Petitioners.

Ch. Muhammad Nasrullah Warraich and M. R. Jan for Respondents.

Date of hearing: 20th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1112 #

2006 Y L R 1112

[Lahore]

Before Muhammad Nawaz Bhatti, J

MAZHAR HUSSAIN---Petitioner

Versus

D.I.-G. and another---Respondent

Writ Petition No.3235 of 2005, decided on 6th June, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), Ss. 337-A(ii), 337-F(i) & 34---Constitutional petition---Maintainability---Transfer of investigation---Local police, during course of investigation, had already recorded cross-version of petitioner---Power of judicial review available to High Court under Art. 199 of the Constitution would not extend to investigation into questions of fact or appraisal of evidence touching issues falling within authority of Administrative Tribunal or executive functionaries---Factual controversies could not be resolved through constitutional petitions---Petitioner, otherwise had got an adequate remedy available to hint, in presence of which no interference was called for---Constitutional petition being without any substance, was dismissed---Petitioner could avail remedy under law, if so advised.

Muhammad Yaqub v. Zahir Alam and others PLD 1976 Quetta 77; Khadim Hussain v. Assistant Collector PLD 1977 Lah. 194 and Muhammad Ashfaq v. Martial Law Administrator PLD 1979 Kar. 465 ref.

Ch. Muhammad Iqbal for Petitioner.

2006 Y L R 1126

[Lahore]

Before Mian Saqib Nisar, J

FATEH MUHAMMAD NAEEM---Petitioner

Versus

Mst. IMAM SAIN and 10 others---Respondents

Writ Petition No.410 of 2006, heard on 17th January, 2006.

Civil Procedure Code (V of 1908)---

----O.X, R.4 & O,XVII, Rr.2 & 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal of suit for non-production of evidence---Application for restoration was allowed---Contention of defendant was that trial Court, after dismissing the suit, had become functus officio, and, therefore, was left with no jurisdiction to restore the suit---Validity---Court had become conscious of its error that it should have proceeded ex parte instead of dismissing the suit for non-production of evidence and that was why, when plaintiff moved application for restoration of suit, which in substance was a review application, it allowed the application---Mere fact that application for restoration was not captioned as 'review application' and that Court had also not kept the review provisions into view while passing the order, would not make much difference because quoting a wrong provision would not disentitle a party to the grant of correct relief which was the duty of the Court---Court though had not given enough reasons to reflect that it was exercising its review power but legal position undoubtedly remained that Court was not functus officio, rather it has retained the power to set aside its earlier order under O,XVII, R.3 C.P.C.---Plaintiff being negligent in pursuing the matter, constitutional petition was accepted with costs.

Syed Arshad Naeem and 5 others v. Atta Rabbani and 2 others 1999 MLD 2267 ref.

Syed Ijaz Qutab for Petitioner.

Syed Kabeer Mahmood for Respondents.

Date of hearing: 17th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1128 #

2006 Y L R 1128

[Lahore]

Before Asif Saeed Khan Khosa and M. A. Shahid Siddiqui, JJ

ZULFIQAR ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1801 of 2000, Murder Reference No.9 of 2001 and Criminal Revision No.85 of 2002, decided on 14th July, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence--Sentence, reduction in---Accused had not challenged his conviction, but had only prayed for reduction of his sentence---F.I.R., had been lodged with reasonable promptitude and accused had been specifically nominated therein as sole perpetrator of murder of deceased---Case was one of a single accused and nothing was available on record which could prompt eye-witnesses to substitute accused for real culprit---Complainant was real brother of deceased and place of occurrence was situated near the Dhari wherein complainant and deceased used to reside together---Both eye-witnesses had made absolutely consistent statements before Trial Court and had unhesitatingly pointed their accusing fingers towards accused as a murderer of deceased---Said eye-witnesses had received full support from medical evidence inasmuch as date and time of occurrence, weapon used, and locale of injury stated by said witnesses had all been confirmed by medical evidence--Prosecution, in circumstances had succeeded in establishing guilt of accused beyond reasonable doubt---Accused, in circumstances was quite justified in not challenging his conviction under S.302(b), P.P.C. recorded against him by Trial Court---Number of mitigating circumstances, however, had been found floating on surface of record---Motive set up by prosecution had remained far from being established---Case of prosecution itself was that it was the complainant party which had surprised accused at the spot and had challenged him by raising Lalkara and it was in that backdrop that accused had fired at deceased after he had been threatened by complainant party itself---Occurrence had taken place inside a field and at a time after darkness---Accused could have apprehended that complainant party might be armed and was ready to launch an assault upon him---No crime-empty had been recovered from place of occurrence and nothing was on record to conclusively establish that accused had fired at deceased twice and not once as alleged by prosecution---Despite alleged immorality of accused, case was not one of cold-blooded, pre-meditated and calculated murder, but had come about in circumstances which had developed all of a sudden---Conviction of accused was upheld, but his death sentence was reduced to imprisonment for life, accordingly.

?Sed Shakir Ali Rizvi (in Criminal Appeal No.1801 of 2000) and M.D. Tahir for Appellant (in Criminal Revision No.85 of 2002).

Ch. Nazir Ahmad for the State (in Murder Reference No.9 of 2001).

Ch. Muhammad Nazir (in Criminal Appeal No.1801 of 2000).

M. D. Tahir for the Complainant (in Criminal Appeal No.1801 of 2000).

Maqbool Ahmad Qureshi for the State (in Criminal Revision No.85 of 2002).

Date of hearing: 14th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1133 #

2006 Y L R 1133

[Lahore]

Before Farrukh Latif, J

SAFDAR ALI and others---Petitioners

Versus

MUHAMMAD NAWAZ and others---Respondents

Civil Revision No.2115 of 2000, heard on 23rd July, 2004.

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

----S.11---Specific Relief Act (I of 1877), S.42---Land Reforms Regulation, 1972 (M.L.R. No.115), Para. 28---Suit for declaration that specific rotation was illegal and void---Both suit and appeal were dismissed---Whether second suit challenging the same mutation was hit by principles of res judicata---Contention was that in earlier round of litigation/controversy related to Martial Law Regulation No.115 and the Civil Court had no jurisdiction to try the matter under M.L.R. No.115---Validity---On the bald assertion of the plaintiffs which was not supported by any evidence, it could not be assumed that in previous litigation, controversy related to M.L.R. No.115 and it was adjudicated upon by the Civil Court---Jurisdiction of Civil Court was invoked by plaintiffs themselves and after having failed, it did not lie in their mouth to turn around and to say that the Civil Court had no jurisdiction.

1989 CLC 1705 ref.

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

----O. II, R. 2 & S. 11---Suit for declaration relating to mutation---Dismissal of suit and appeal---Whether subsequent suit brought by the plaintiffs was barred by 0. 11, R. 2, C.P.C.---Plaintiff, in the previous suit, admittedly, had challenged the validity of mutation in question to the extent of land measuring 12 Marlas only---Plaintiffs did not assail the mutation to the extent of retraining land, which was allegedly purchased by them through oral sale and also omitted to assert that shares of defendants were not correctly reflected in said mutation although the said grounds were available to plaintiffs in previous suit, hence claim which was omitted and relinquished by them in their previous suit was not only barred by 0.11, R.2 C.P.C. but was also hit by the principles of constructive res judicata under Explanation IV of S.11, .C.P.C.---No misreading or non-reading of evidence was pointed out--Impugned judgment was reasonable and did not call for any interference by the High Court.

Ch. Shahid Saeed for Petitioners.

C. M. Latif Rawn for Respondents.

Date of hearing: 23rd July, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1139 #

2006 Y L R 1139

[Lahore]

Before Maulvi Anwarul Haq, J

UMAR DRAZ---Appellant

Versus

IFTIKHAR AHMAD---Respondent

Regular First Appeal No.216 of 2004, decided on 7th September, 2004.

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

----O. XXXVII, Rr. I & 2---Negotiable Instruments Act (XXVI of 1881), S.4---Suit for recovery of money on the basis of pro note---Leave to appear and defend was granted---Suit was decreed by Trial Court---Question was whether promissory note having not been attested by two witnesses, was inadmissible in evidence---Essentials of pro note---Section 4 of the Negotiable Instruments Act, 1881 provided the conditions of a valid pro note---Promissory note was not at all required to be attested by two witnesses or for that matter even by one witness---Document in the present case, was on printed form with receipt and pro note executed on the same and receipt stood attested by two witnesses---Both of the witnesses were examined and nothing derogatory had been found in cross-examination---Manner in which disputed pro note and receipt were executed did fulfil the standard laid down in that respect---Appeal was dismissed in limine by High Court.

Muhammad Nawaz v. Abdul Sattar 2000 YLR 2927 ref.

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

----O. VII, R. 2---Suit for recovery of money on basis of promissory note---Leave to appear and defend was granted--Defendant, in the written statement denied the execution of pro note or receipt of any money but in cross-examination the stated that he was paid Rs. 1, 00, 000 by plaintiff whereas he returned Rs. 1, 34, 000---Said evidence was ignored not appreciated by Trial Court and suit was decreed---Question was as to whether judgment could not be based upon plea not raised in the pleadings---Validity---Said evidence had been very correctly discarded by the Trial Court as there was no such plea in the written statement and a party was not allowed to prove what it had not pleaded---Appeal having no force was accordingly dismissed in limine.

Muhammad Iqbal-IV for Appellant.

YLR 2006 LAHORE HIGH COURT LAHORE 1141 #

2006 Y L R 1141

[Lahore]

Before Muhammad Muzammal Khan and Syed Shabbir Raza Rizvi, JJ

MUHAMMAD AKRAM---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No.535 of 2005, decided on 9th June, 2005.

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

----S. 9(b)---Appreciation of evidence---Trial Court, found allegations and charges against accused confidence-inspiring and consistent which deserved to be believed---Trial Court believed ocular account, recovery evidence and held that prosecution had succeeded to prove its case without any doubt and convicted accused under S.9(b) of Control of Narcotic Substances Act, 1997' and sentenced him to 10 years' R.I. with fine and with benefit of S. 382-B, Cr. P. C. ---High Court agreed with conclusion of Trial Court and did not find any serious defect with evidence adduced against accused---Allegation against accused was that 250 grams Chants was recovered from his possession---High Court maintaining conviction of accused reduced sentence awarded to accused by Trial Court to the period already undergone by him considering that it would meet the ends of justice.

Muhammad Islam Sheikh for Appellant.

Hashim Sabir Raja, A.A.-G. along with Muhammad Rafique for the State.

Date of hearing: 9th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1143 #

2006 Y L R 1143

[Lahore]

Before Muhammad Muzammal Khan, J

ABDUR RAZZAQ---Petitioner

Versus

GHULAM MUSTAFA and another---Respondents

Civil Revision No.2148 of 2000, heard on 12th July, 2004.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13(2)---Pre-emption suit---Performance of Talb-e-Muwathibat---Proof -Time and place of knowledge or Majlis in which plaintiff gained the knowledge of sale was neither mentioned in plaint nor in his statement---Statement of witnesses demonstrated that plaintiff attempted to improve his case during evidence and besides the fact that one of the witnesses was his real son, plaintiff did not examine Lamberdar who was stated by all the witnesses to be present at the time of gaining of knowledge of sale by plaintiff---Scan of evidence showed that story of making, of Talb-e-Muwathibat was an afterthought and that was tine reason that all the necessary information was not incorporated in the plaint.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13(2) & 32---Pre-emption suit---Performance of Talb-e-Muwathibat---Public notice of---Proof---Defendant had stated that mutation in question was not kept secret---Validity---Sanctioning of mutation in a public meeting, its notice to public at large was to be presumed, unless and until notice under section 32 of the Punjab Pre-emption Act, 1991 was denied to have been given in the prescribed manner---Plaintiff did not assert in the notice of Talb-e-Ishhad or in plaint that the sale was effected secretly and provisions of section 32 of the Punjab Pre-emption Act, 1991 were not complied with---Such failure went to lend support to the stance of defendant of sanctioning mutation in Havaili of plaintiff, and also at the same time, it would create a presumption that plaintiff was aware of sanctioning of mutation from the very first day.

Rahim Dad and 3 others v. Abdul Kareem and 3 others 1992 MLD 2111; Ghulam Ali Shah and another v. Abbas Ali and 5 others 1995 CLC 1977 and Sher Muhammad and others v. Fateh Muhammad 1999 CLC 846 ref.

----S. 13(3) ---Qanun-e-Shahadat (10 of 1984), Art. 76---Pre-emption suit---Performance of Talb-e-Ishhad---Proof---Notice of Talb-e-Ishhad sent through registered post acknowledgement due--Vendee denied to have received such notice---Plaintiff produced Branch Post Master and photocopies of such notice in evidence---Validity---Under law a document had to be proved by producing the original which was to be confronted to marginal witnesses of the scone but neither original notice to the defendants was produced nor on their refusal, any application for secondary evidence was moved---As to whether registered letter dispatched through postal receipt, really contained notice or empty envelopes were sent to the defendants was also not proved---Original notices having not been produced on record and not proved by the marginal witnesses, performance of Talb-e-Ishhad was not proved---No misreading or non-reading of evidence having been proved interference of High Court was not warranted.

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 Ahmad and another PLD 2004 Lah 125 ref.

Noor-ul-Hassan for Petitioner.

Nemo for Respondents.

Date of hearing: 12th July, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1147 #

2006 Y L R 1147

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD BAKHSH---Petitioner

Versus

Al-Haj MUHAMMAD ZIA ULLAH KHAN---Respondent

Civil Revision No.1918 of 2004, decided on 28th September, 2004.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3 & O.XXXVII, R.1---Suit for recovery on the basis of pro note---Leave to defend the suit was granted to the defendant---Non-production of evidence by defendant---Closing of evidence---Question was as to whether Trial Court was justified in closing evidence of defendant---Validity---Defendant failed to produce evidence on three consecutive dates---Plaintiff did not object to the adjournment of case on each occasion---Adjourning the case to the date on which right to lead evidence of defendant was struck, was a routine order, on the basis of which right to lead evidence could not have been struck---At the time of closing of evidence, the party concerned, should have been asked to make at least his own statement and to produce whatever evidence was available with him at that time but no such exercise was undertaken at the time of passing the impugned order---Defendant filed list of witnesses within statutory time of 7 days which was dismissed after closing of evidence of defendant whereas it shall have been decided before invocation of provisions of O.XVIL R.3 of C.P.C.---Application of defendant for summoning of witnesses required to produce document was also dismissed by the Court---Technicalities should not have come in the way of justice---Leave to defend granted to defendant was a prima facie proof of plausible defence available with the defendant---Closure of evidence had resulted in injustice as plaintiff was granted a money decree for a huge amount claimed in the plaint, without contest---Impugned judgment and decree were illegal and unauthorized, hence were set aside by High Court.

Syed Tasleem Ahmad Shah v. Sajawal Khan and others 1985 SCMR 585 ref.

Mansoor-ur-Rehman Khan Afridi for Petitioner.

Muhammad Yaqoob Sindhu for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 1151 #

2006 Y L R 1151

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD HUSSAIN---Appellant

Versus

Maulvi NAZIR AHMAD through Legal Heirs---Respondents

Regular Second Appeal No.60 of 2001, heard on 10th November, 2005.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for pre-emption---Suit was decreed but decree was set aside in first appeal---Missing of necessary particulars of Talb-e-Muwathibat in the plaint---Effect---Plaintiffs had failed to prove the making of Talb-e-Muwathibat as no day, date, month and year, etc. had been given in the plaint---Omission of such particulars only could be overlooked if same were proved through evidence but necessary particulars had not been given nor proved by witnesses---Even the notices of Talb-e-Ishhad had not been proved and one of the two witnesses, was not produced by plaintiffs and such omission was not explained---Contention of plaintiffs that appeal should have been decided according to the opinion of referee had no force as nothing was on record to prove the alleged agreement through which the appointment of referee was made by the parties---In absence of any illegality the appellate findings could not be interfered with by High Court in second appeal.

Ch. M. Abdus Saleem for Appellant.

Hafiz Khalil Ahmed for Respondents.

Date of hearing: 10th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1153 #

2006 Y L R 1153

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ILYAS and 4 others---Petitioners

Versus

WALAYAT HUSSAIN---Respondent

Civil Revision No.741 of 2005, decided on 28th October, 2005.

(a) Punjab Pre-emption Act (IX of 1991)----

---S. 13---Civil Procedure Code (V of 1908), S.115---Suit for pre-emption---Suit was dismissed but decreed in appeal---Reappraisal of evidence---Revisional jurisdiction---Reappraisal of evidence was not permissible in re visional jurisdiction of High Court but in order to verify the claim of a party of its misreading by appellate Court, scan of statements of witnesses became inevitable.

(b) Punjab Pre-emption Act (IX of 1991)----

-----S. 13--Suit for pre-emption---Contradictions about place of knowledge and time of performance of Talb-e-Muwathibat---Effect---Contradictions about place of knowledge and time of performance of Talb-e-Muwathibat in plaint and statement of witnesses were not so minor to be ignored because anyone of said two pointed contradictions., would have led to conclusion that all the narration of performance of Talb-e-Muwathibat was concoction and was not proved---Minor discrepancies in statements of the witnesses could be ignored in entirety especially when the witnesses were illiterate---Witness in the present case was neither illiterate, nor pointed contradictions were minor, as witness being the son of pre-emptor was supposed to have acted with more care/caution---Performance of Talb-e-Muwathibat having not been proved as per S.13 of the Punjab Pre-emption Act 1991, notice of Talb-e-Ishhad also lost any favourable effect in favour of plaintiff---Conclusions drawn by trial Court were correct but those were erroneously reversed by appellate Court by grading major contradictions as minor which were destructive to the main stance of plaintiff, hence the appellate judgment was not sustainable being opposed to record and settled canons known for administration of justice.

Baleegh-uz-Zaman for Petitioners.

Iqbal Ahmad Awan for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 1157 #

2006 Y L R 1157

[Lahore]

Before Tanvir Bashir Ansari, J

RAHAT AFZA---Petitioner

Versus

Bao MUHAMMAD RAFIQUE alias BABA GOGI SAIN through

Legal Heirs---Respondents

Civil Revision No.3052-D of 1996, heard on 28th September, 2004.

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

----S. 8---Civil Procedure Code (V of 1908), O.XXI, Rr.35 & 36---Suit for possession---Determination of title---Plaintiff claimed title in disputed plot on the basis of registered sale-deed while defendant claimed title in the same on basis of an oral gift made by original owner in his favour prior to the alleged execution of the sale-deed---Suit was decreed but decree was set aside in appeal---Validity---Alleged oral gift of property was being used for religious purposes since last many years---Plaintiff produced, in evidence, a duly registered sale-deed and four witnesses to prove the same including an attesting witness of the sale-deed whereas defendant failed to prove the factum of oral gift---No cogent material was available on record to support the version of defendant, therefore, the change or alteration in nature of suit property, if any, was unauthorized---Defendant's long time possession over the suit property would not have taken anything away from the efficacy of title of plaintiff created through a duly registered saledeed---Notwithstanding the fact that plot in question was being used for religious purposes, the change of purpose for which the disputed plot might be used by plaintiff would not ipso facto detract from ownership of plaintiff.

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

----Art. 142---Specific Relief Act (I of 1877), S.8---Suit for possession---Limitation---Registered sale-deed was executed on 16-11-1972, while it was alleged that defendant had taken possession of suit property about 6/7 years prior to the filing of the present suit on 9-10-1991---Documentary evidence produced by defendant was not sufficient to establish his possession prior to 1984, suit thus was not barred by limitation---Appellate judgment and decree being unjustified, were set aside and that of Trial Court restored by High Court.

Abdul Wahid Khan for Petitioner.

M. A. Sabir Nishtar for Respondents.

Date of hearing: 28th September, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1161 #

2006 Y L R 1161

[Lahore]

Before Sardar Muhammad Aslam and Rustam Ali Malik, JJ

MUHAMMAD TARIQ alias Tara and another---Appellants

Versus

THE STATE---Respondents

Criminal Appeal No.703 and Murder Reference No.335 of 2000, decided on 1st June, 2005.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 34---Appreciation of evidence---Complainant though was real brother of deceased and other injured prosecution witness was real uncle of deceased, but said close relationship of prosecution witnesses was no ground to discard their evidence, especially when one of said witnesses had received fire-arm injuries on his person---Presence of said prosecution witness at the spot was natural---Incident was broad-daylight occurrence---Identity of accused persons was not doubtful---F.I.R. was promptly lodged without any loss of time, which had ruled out any fabrication---Both eye-witnesses were consistent in their statements and had remained unshaken during cross-examination---Statements of said eye-witnesses which inspired confidence, implicit reliance could be placed thereon---Report of Fire-arm Expert was positive in respect of weapon of offence---Crime empties matched with fire-arm recovered from accused---Recovery of weapon, in circumstances furnished corroboration to prosecution case---Medical evidence had fully corroborated prosecution case---No reason existed for real brother of deceased and injured prosecution witness to substitute accused for real culprits---Occurrence had taken place in broad-daylight in a busy Bazar---No evidence in defence was led by accused to prove their plea of substitution---No witness was produced by accused before Investigating Officer in support of their plea of substitution and accused also did not produce any witness in their defence in the Court---Prosecution having proved its case against accused beyond reasonable doubt, they were rightly convicted and sentenced---Death sentence recorded by Trial Court against accused, was confirmed and murder reference was answered in affirmative.

Ch. Abdul Saleem Khan for Appellants.

Azhar Hameed for the Complainant.

Mian Abdul Qayyum Anjum for the State.

Dates of hearing: 31st May and 1st June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1166 #

2006 Y L R 1166

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD ASGHAR and another---Petitioners

Versus

MUHAMMAD ASHRAF and 6 others---Respondents

Civil Revision No.259 of 2005, heard on 14th November, 2005.

Civil Procedure Code (V of 1908)---

----O.XVII, R.3---Dismissal of suit for non-production of evidence---Appeal against dismissal was accepted---Question was as to whether appellate Court acted illegally and with material irregularity by allowing appeal---Validity---Perusal of order sheet had made it abundantly clear that on five consecutive and successive adjournments, plaintiffs failed to produce the evidence although they were warned and given the final and last opportunity for the purpose---Such was clear misuse and abuse of process of the Court for which no indulgence could have been shown to plaintiffs---Appellate Court was thus, not justified to allow further latitude in the matter---Judgment of appellate Court was therefore, set aside and that of trial Court was restored.

Wali Muhammad Chaudhry for Petitioners.

Asif Munir Malik for Respondents.

Date of hearing: 14th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1167 #

2006 Y L R 1167

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD AKRAM---Petitioner

Versus

Rao MUHAMMD TAHSEEN KHAN---Respondent

Civil Revision No.2246 of 2004, heard on 15th November, 2005.

Malicious prosecution---

----Ingredients to be established by the plaintiff before a decree for malicious prosecution could be awarded---Missing of any of the ingredients---Effect.

Following are the ingredients to be established for decree for malicious prosecution:

(i) That the plaintiff was prosecuted by the defendant;

(ii) That the prosecution ended in plaintiff's favour;

(iii) That the defendant acted without reasonable and probable cause;

(iv) That the defendant was actuated by malice;

(v) That the proceedings had interfered with plaintiff's liberty and had also affected his/her reputation;

(vi) That the plaintiff had suffered damage.

All the six ingredients must coexist and failing in one, no case for malicious prosecution would be established---Plaintiff, in the present case, was neither prosecuted by any Court of law nor had ever been arrested---Merely on account of preliminary inquiry, suit for malicious prosecution was misconceived---Judgments and decrees of Courts below being not sustainable in law, were set aside by High Court.

Abdul Rauf v. Abdul Razzak and others PLD 1994 SC 476 and Subedar (Retd.) Fazal-e-Rehim v. Rabnawaz 1999 SCMR 700 quoted.

Syed Ghayyur Hussain Shah v. Gharib Alam PLD 1990 Lah 432 and Naseer Ali Shah v. Abdul Ghani PLD 2004 Lah 7 ref.

Dr. Muhammad Akmal Saleemi for Appellant.

Rao Jala-ud-Din for Respondent.

Date of hearing: 15th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1169 #

2006 Y L R 1169

[Lahore]

Before Muhammad Muzammal Khan, J

FECTO SUGAR MILLS LTD. through Director---Petitioner

Versus

SECRETARY FOOD and another---Respondents

Writ Petitions Nos.14573, 14574 of 2003 and 2457 of 2004, decided on 2nd November, 2005.

Punjab Sugarcane (Development) Cess Rules, 1964---

---R. 5(1)-West Pakistan Finance Act, (XXXIV of 1964), S.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Payment of sugarcane cess to another Province from where the sugarcane was purchased---Question was as to whether the mills which were located within the area of Punjab Province and had been paying Sugarcane Cess to N.-W.F.P. Government from the sugarcane was purchased, was complying with the relevant provisions of law---Held, section 12 of West Pakistan Finance Act, 1964 had provided that the cess was payable on actual sugarcane crushed by the sugar mills and not on sugarcane purchased/collected or brought to the stills---Sugarcane brought from whatever place would have been liable to cess at the time of its crushing and rate of cess would have been determined according to the rate chargeable within the area where it was being crushed---Purchasing and bringing of sugarcane from N.-W.F.P. was, therefore, of immaterial considerations---If the petitioners had paid cess to N.-W.F.P. Government under misunderstanding, order of functionaries of the Punjab Province would not inject any validity to such deposit without lawful sanction behind same---West Pakistan Finance Act, 1964 or Rules framed thereunder did not contain any provision equipping officials to direct deposit of the cess payable to one Province to some other Province---Petitioners having taken monetory advantage of difference of rate of cess in the two provinces, were rightly served with show-cause notice by Sugarcane Commissioner Punjab, with imposition of penalty---Impugned orders being reasoned, in accordance with law and having been passed within the ambit of conferred jurisdiction, could not be interfered in constitutional jurisdiction---Constitutional petitions being devoid of any merit were dismissed by High Court.

M.A. Zafar for Petitioner.

Sh. Naveed Masood for Petitioner (in W.P. No.2457 of 2004).

Ch. M. Sadiq A.A.-G. with Abdul Majeed Qamar Superintendent (Cane) C/o Cane Commissioner and Fazal-e-Akbar, Assistant, from the office of Secretary Food Department.

Date of hearing: 6th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1172 #

2006 Y L R 1172

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. GHULAM FATIMA---Petitioner

Versus

Mst. MURADAN and 10 others---Respondents

Civil Revisions Nos.782-D and 783 of 2001, heard on 12th October, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of1908), 5.115---Suit for declaration relating to inheritance mutation---Dismissal of suit and appeal---Question of maternity---Nonreading of evidence---Appellate judgments were recorded in a sterieo typed manner and not a single piece of evidence either oral or written had been discussed---Matter in dispute was though decided by first appellate Court for reasons given in trial Court's, judgment but while appraising lower Court judgment, appellate Court had completely ignored such significant aspect of case as previous statement of star witness for opposite party and admission thereof by said witness---Appellate Court, therefore, failed to exercise the jurisdiction vesting in it as a Court of first appeal---Appellate judgments and decrees were set aside.

Sardar Riaz Karim for Petitioner.

Muhammad Naveed Hashmi for Respondents.

Date of hearing: 12th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1174 #

2006 Y L R 1174

[Lahore]

Before Asif Sneed Khan Khosa and M.A. Shahid Siddiqui, JJ

SHAUKAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1048 of 2000 and Murder Reference No.476 of 2000, decided on 30th May, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Appreciation of evidence---F.1.R. though had been lodged with some delay, but said delay had satisfactorily been explained by complainant in F.I.R. itself---Ocular account furnished by complainant and prosecution witness, had inspired confidence---Both said eve-witnesses were natural witnesses who lived in the same house where deceased had received Fire-arm injuries and time when such injuries were given to deceased was such that both said eye-witnesses were expected to be present inside that house---Complainant was son of deceased and other eye-witness was the widow of deceased-Presence of said eye-witnesses in the house of deceased at the relevant time was nothing but natural and probable---Apart front being closely related to deceased, both said eye-witnesses were closely related to accused as well and it was, in such circumstances unlikely that said closely related eye-witnesses would falsely implicate accused for murder of deceased---Both said eye-witnesses had made straightforward and consistent statements before Trial Court---Motive set up by prosecution stood fully established in the case and same provided corroboration to ocular account---Alleged recovery of carbine and five cartridges from possession of accused during investigation was legally inconsequential as no crime-empty had been recovered from place of occurrence so as to connect recovered carbine with offence in issue---Such lack of corroboration from alleged recovery, however, would not in any manner react against 'ocular account which had received corroboration from motive---Ocular account had received ample support from Medical evidence inasmuch as date and time of occurrence, weapon used and locale of injuries stated by eye-witnesses had all been confirmed by Medical evidence---Defence witnesses had been produced by accused before Trial Court only by way of an afterthought---Defence evidence produced by accused which was not confidence-inspiring was liable to be discarded and rejected---Prosecution in circumstances had succeeded in establishing guilt of accused to the hilt---Accused having committed a cold-blooded murder of his innocent father-in-law with the use of fire-arm for no ostensible reason, such conduct of accused had portrayed his desperate character---Normal wages of crime of murder was death and in peculiar circumstances of case accused deserved no` less---Conviction and sentence of accused recorded by Trial Court were upheld and maintained---Murder reference was answered in affirmative and sentence of death was confirmed.

Hafiz Khalid Ahmad and Gauhar Razzaq Awan for Appellant.

Mian Abdul Qayyum Anjum for the State (in Cr. Appeal No.1048 of 2000).

M. Saleem Shad for the State (in Murder Reference No.476 of 2000).

2006 Y L R 1183

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

IBRAHIM and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1625-B of 2005, decided on 16th March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.458, 398 & 393---Bail, grant of--Accused were not known to the complainant party, but complainant party came to know about co-accused from identity card which was found lying at the spot and about accused some unknown persons had informed complainant---Record of case was absolutely silent about source through which complainant had come to know about the identity of accused---Accused, according to prosecution case, along with other co-accused had trespassed into the house of complainant for the purpose of committing robbery, but strange enough accused leaving Shalwar and shoes at the spot managed to escape---Bare perusal of F.I.R. revealed that prosecution had concealed true facts while lodging F.I.R.---After their arrest accused were never put to the test of identification to rule out the possibility of their false involvement---Investigation to the extent of accused was complete and they were no more required for said purpose---Accused were admitted to bail, in circumstances.

Muhammad Amir Khan Niazi for Petitioners.

Sajid Ali Shad for the State.

Date of hearing: 16th March, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1185 #

2006 Y L R 1185

[Lahore]

Before Tassaduq Hussain Jillani, J

GHULAM ABBAS---Petitioner

Versus

UNIVERSITY OF THE PUNJAB through Vice-Chancellor and

4 others---Respondents

Writ Petition No.7933 of 2003, decided on 1st October, 2003.

Educational Institution---

----Examination under Composite Scheme---Result was delayed for three years---Discontinuation of scheme meanwhile---Failure of examinee in four papers---Examinee was allowed to re-appear in failed papers but not under the composite scheme as the said scheme had ceased to exit---Examinee sought a direction to the University from the High Court under its constitutional jurisdiction that he be allowed to appear in the Supplementary Examination under composite examination system---Validity---Delay of three years in announcing the result was not on account of any fault of the examinee---University authorities conceded that delay in issuance of result was due to the negligence of clerical staff of the University---Examinee therefore, could not be condemned for the fault of clerical staff of the University and he was not bound to appear under an entirely different system of examination---High Court directed the University that examinee should be given a chance to appear in Supplementary Examination under the composite Scheme---Constitution of Pakistan (1973), Art.199.

Malik Muhammad Imtiaz Mahal for Petitioner.

Dr. A. Basit for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 1186 #

2006 Y L R 1186

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. IRSHAD BEGUM---Petitioner

Versus

STATE LIFE INSURANCE CO. through Chairman and another---Respondents

Writ Petition No.16995 of 2005, decided on 15th November, 2005.

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

----S. 24-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Principles of natural justice---Exercise of powers under enactment---Scope and. extent---Provisions of S.24-A of the General Clauses Act, 1897 had made it obligatory for functionaries of the State to substantiate their conclusions with reasons---Insurance Company repudiated the claim of petitioner by a printed, cyclostyled order wherein it only filled name of petitioner, policy number and name of deceased along with his relationship---Such order being sketchy and unreasonable, was not sustainable at law---Order passed by Insurance Company without affording an opportunity to hearing to the petitioner was also violative of principles of natural justice, therefore, same was set aside by High Court.

State Life Insurance Corporation of Pakistan v. Mst. Begum Jan PLD 1983 SC 421; State' Life Insurance Corporation v. Mamoor Khan 1993 CLC 790 and Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 ref.

(b) Insurance Ordinance (XXXIX of 2000)---

----S. 80---Insurance Act (IV of 1938), 5.45----Constitution of Pakistan (1973), Art.199---Constitutional petition---Right of insurer to question policy of life insurance for avoiding contract of insurance---Time limit---Repudiation of policy after stipulated period---Effect---Provisions of S.80 of Insurance Ordinance, 2000 and those of 5.45 of Insurance Act, 1938, conferred a right on insurer to dispute the policy purchased by him only within two years from the date of its commencement, even on the ground that policy holder suppressed some facts---Insurance company in instant case could not produce any proof of ailment of the deceased within period of two years of the purchase of policy, therefore, order of repudiation of policy after stipulated period was void and non-existent in the eye of law, therefore and as such was set aside by High Court.

Liaqat Ali Butt for Petitioner.

Ibrar Ahmed and Tariq Nasim for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 1188 #

2006 Y L R 1188

[Lahore]

Before Maulvi Anwarul Haq, J

Haji BUX ELAHI and another---Petitioners

Versus

MANZOOR ELAHI and 4 others---Respondents

Civil Revision No.368-D of 1996, decided on 20th April, 2004.

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----Ss. 4 & 5---Specific Relief Act (1 of 1877), S. 42---Limited female owner under custom---Succession---Will---Admittedly the testator, father of deceased plaintiff and legatee-in-enjoyment, executed a will in favour of his daughter stating that site will enjoy the usufruct of the suit-land till her death and thereafter same would revert to the plaintiff---When the lady expired plaintiff sought declaration claiming the absolute ownership of suit-land---Suit was decreed and decree upheld in appeal---Question was as to whether defendants who were husband and daughter of legatee-in enjoyment had nothing to do with suit-land after lady's death---Validity---Section 5 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 provided that on the death of legatee-in-enjoyment, the inheritance of the testator would devolve upon such persons as would be found entitled to succeed him under Muslim Personal Caw upon testator's death, thus by application of the said law the operation of the will ceased on the death of the lady and succession to the estate of testator opened accordingly but this escaped notice from Courts below---Impugned judgment and decree were set aside by High Court accordingly.

Rana Muhammad Sarwar for Petitioners.

Izhar-ul-Haq Sheikh for Respondents.

Dates of hearing: 19th and 20th April, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1191 #

2006 Y L R 1191

[Lahore]

Before Ali Nawaz Chowhan and Umar Ata Bandial, JJ

ALOZIE MARTINS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1881 of 2004, decided on 2nd June, 2005.

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

----S. 9(b)---Sentence, reduction in---Case against accused was established as prosecution witnesses had successfully stood the test of cross-examination---Counsel for accused did not assail order of conviction of accused, but laid emphasis on the reduction of sentence stating that accused was not previous convict and could be a carrier misled by a principal and in circumstances he deserved leniency---Sentence of five years was reduced to three years and fine from Rs.1 lac to Rs.25,000 accordingly.

Aftab Ahmad Bajwa for Appellant.

Muhammad Sharif for the State.

Date of hearing: 2nd June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1192 #

2006 Y L R 1192

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD MUMTAZ---Petitioner

Versus

SALEHOON through L.Rs.---Respondents

Civil Revisions Nos.1668 to 1672 of 1999, heard on 14th September, 2004.

Punjab Pre-emption Act (IX of 1991)---

----S. 13(2)---Suits for pre-emption---Talb-i-Muwathibat---Proof---Suits were allowed by Courts below---Period of interregnum---Despite the self-contradictory statements of witnesses, Appellate Court proceeded to hold that since the suits were filed during the interregnum, it was not at all necessary to make and prove Talb-i-Muwarhibat---Perusal of record showed that mutations, subject-matter of the suits, were attested after the expiry of interregnum---Finding of Courts below being result of misreading of evidence, was not sustainable in law--Impugned judgment and decree of Courts below were set aside by High Court.

Aman Ullah Malik for Petitioner.

Nemo for Respondents.

Date of hearing: 14th September, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1194 #

2006 Y L R 1194

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD ASAM SHAH---Petitioner

Versus

AMANULLAH KHAN---Respondent

Civil Revision No.1552 of 2000, heard on 4th May, 2004.

Punjab Pre-emption Act (IX of 1991)---

----S. 13(2)---Qanun-e-Shahadat (10 of 1984), Art.129---Suit for pre-emption---Talb-i-Muwathibat--- Proof--- Suit was allowed by Trial Court but was dismissed in appeal---Presumption of fact---Applicability---Presumption that pre-emptor must have acquired knowledge of the sale because he was paternal uncle of vendor and that he was also Shaft jar, could not be legally drawn and there was no evidence to that effect---Evidence to the effect that relationship between the parties were cordial or othervise was also not forthcoming---No legitimate inference could be drawn that plaintiff acquired knowledge of sale on account of having contiguous land---Allegation that plaintiff already had knowledge of the sale lacked support from record---Non-production of informer was not fatal to pre-emptor as plaintiff's version regarding performance of Talb-i-Muwathibat was fully corroborated by witnesses---Reasoning of Appellate Court having been based on supposition was not sustainable in the eyes of law, its judgment was set aside and that of Trial Court was restored by High Court.

Malik Muhammad Qasim Joyia for Petitioner.

Rab Nawaz Khan Niazi for Respondent.

Date of hearing: 4th May, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1196 #

2006 Y L R 1196

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

MUHAMMAD YOUSAF and 5 others---Petitioners

Versus

KARAM ELAHI---Respondent

Civil Revisions Nos.1105 to 1107 of 2003, heard on 7th May, 2004.

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

----S. 172---West Pakistan Land Revenue Rules, 1968, Rr.67-A & 67-B---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2, O. VII, R.11---Specific Relief Act (1 of 1877), Ss. 52, 53 & 54---Suit for permanent injunction---Maintainability--Rejection of plaint---Ownership of land---Question was as to whether jurisdiction of Civil Court was barred---Validity---Revenue Record revealed that defendants were owner of the properly and the same was encroached upon by the plaintiffs---Defendants filed application under Rr. 67-A & 67-B, West Pakistan Land Revenue Rules, 1968 for carrying out demarcation proceedings and eviction of plaintiffs---Plaintiffs filed suit only as a counter-blast, otherwise they could raise their pleas before Revenue Courts---Jurisdiction of Civil Court was barred under 5.172, West Pakistan Land Revenue Act, 1967---Issue that plaintiffs failed to prove their ownership before Civil Court was a separate issue but it was clear that plaintiffs had not approached the Court with clean hands, therefore, they were not entitled to any discretionary relief--Impugned judgment of Appellate Court being not sustainable, was set aside and that of Trial Court was restored by High Court.

Ch. Muhammad Abdullah for Petitioner.

Dr. M. Mohyuddin Qazi for Respondent.

Date of hearing: 7th May, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1198 #

2006 Y L R 1198

[Lahore]

Before Sh. Abdul Rashid, J

FAROOQ NADIM and 4 others---Petitioners

Versus

S.H.O. POLICE STATION and 2 others---Respondents

Writ Petition No.1134/Q of 2005, decided on 27th June, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), Ss.420, 468 & 471---Constitutional petition---Quashing of F.1.R., contents of F.I.R. showed that complainant/respondent had given a loan of Rs.8,00,000 and he had received a part payment to the tune of Rs.82,000 and petitioner/accused had executed a promissory note in favour of complainant for remaining amount Rs.7,18,000---Liability between parties, in circumstances was that of civil nature and no material or the facts alleged in F.I.R. constituted any of the offences stipulated in F.I.R.-Petitioners did not offer any kind of dishonest inducement to complainant and secured a pecuniary benefit as a result of that and it had not been alleged that petitioners had forged any document---Facts stipulated in F.I.R. did not reveal any information constituting Commission of a cognizable offence---F.I.R. had been registered in violation of law---Remedy of complainant was to file suit for recovery of amount stipulated in Promissory note---F.I.R. was quashed, in circumstances.

Aftab Ahmad Bajwa for Petitioners.

Ch. Nazir Muhammad for Respondents.

Javed Anwar with Muhammad Iqbal, S.-I. and Muhammad Siddique, A.S.-I. with record.

YLR 2006 LAHORE HIGH COURT LAHORE 1200 #

2006 Y L R 1200

[Lahore]

Before Muhammad Muzammal Khan, J

KAMAL DIN---Petitioner

Versus

MUHAMMAD SHARIF---Respondent

Civil Revision No.351 of 2004, heard on 22nd June, 2004.

Specific Relief Act (I of 1877)---

----S. 10---Suit for recovery of earnest money---Oral agreement to sell---Breach of contract---Appellate Court affirmed the decree passed by the Trial Court---Question was as to whether parties entered into an oral agreement to sell or not---Plaintiffs did not mention any date, time and place of agreement to sell in plaint nor the same was proved through evidence---No receipt of payment of Rs.15,000 (earnest money) was available on record--Contradictions in the statements of witnesses went to the roots of the case to negate the stand taken by the plaintiffs---Impugned judgments and decrees of the Courts below were contrary to evidence on record and tainted with illegalities/irregularities and were set aside by High Court.

Syed Mushtaq Ahmed Zaidi for Petitioner.

A.D. Naseem for Respondent.

Date of hearing: 22nd June, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1202 #

2006 Y L R 1202

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

ATTAULLAH and another--- Appellants/Petitioners

Versus

THE STATE---Respondent

Crl. M. Appeal No.2738-B of 2005, decided on 27th April, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 34 & 109---Bail, grant of---No allegation existed against accused with regard to causing injury to deceased---Only role attributed to accused was that of making ineffective firing at the relevant time---During investigation nothing was recovered from accused persons and both of them had been declared innocent-Names of both accused persons had been placed in Column No.2 of the challan---Accused were admitted to bail, in circumstances.

Muhammad Ameer Khan Niazi for Petitioners.

Qazi Zafar Iqbal for the State.

Date of hearing: 27th April, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1203 #

2006 Y L R 1203

[Lahore]

Before Muhammad Muzammal Khan, J

SARDAR KHAN---Petitioner

Versus

GULZAR AHMAD and another---Respondents

Civil Revision No. 312-D of 1998, heard on 30th June, 2004.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13(2)---Suit for pre-emption---Suit was decreed and Appellate Court upheld the same---Performance of Talb-i-Muwathibat---Proof---Plaint showed that witness had informed the plaintiffs about sale of land in dispute---One of the plaintiffs while making his better statement had stated that it was the Lamberdar who informed the plaintiffs regarding the sale of land---Such material contradiction demolished the entire structure raised by plaintiffs in connection with performance of Talb-i-Muwathibat which escaped notice of both the Courts below---Plaintiffs had failed to prove performance of Talb-i-Muwathibat, in accordance with law.

Mst. Fattan Bi and 2 others v. Fateh Muhammad and 6 others PLD 1974 Lah 458 and Syed Mohsan Raza Bokhari and 4 others v. Syed Azra Zainab Bokhari 1993 CLC 31 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 7---Pre-emption, right of---Superior right---Determination of---Plaintiffs had two other brothers and all four of them jointly owned land in the Killa to the extent of 1 /4 share each---Joint share of the plaintiffs amounted to 4 Kanals while that of the defendant in the Killa was 9 Kanals---Both defendant and plaintiffs were Shaft Khalif and Shaft Jar, thus the land of defendant being in excess in area, to the land of the plaintiffs, the latter had no superior pre-emptive right against the former but Courts below without staking any calculation erroneously found that the plaintiffs had a superior pre-emptive right---By misreading of evidence the Courts below committed illegalities and irregularities in exercise of jurisdiction vested in them---Impugned judgments and decrees were set aside, in circumstances.

Rana Muhammad Sarwar for Petitioner.

Zahid Hussain Khan for Respondents.

Date of hearing: 30th June, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1206 #

2006 Y L R 1206

[Lahore]

Before Abdul Shakoor Paracha, J

FAIZ ULLAH---Petitioner

Versus

GHULAM RASUL---Respondent

Civil Revision No.847 of 2004, heard on 31st August, 2004.

Civil Procedure Code (V of 1908)---

----O. XVII, R.3---Punjab Pre-emption Act (IX of 1991), Suit for pre-emption---Nonproduction of evidence by plaintiff---Closing of evidence---Dismissal of suit and appeal---Taking penal action under O.XVII, R.3, C.P.C.---Scope---For taking such action it was necessary that case on preceding date should have been adjourned on the request of party being penalized---Where case was adjourned in routine and not at the behest or request of a party, then penal action under O.XVII, R.3, C.P.C., could not be taken---Mere pendency of the case for a long period was no ground to invoke the penal provision under O.XVII, R.3, C.P.C.-Case of parties could not be decided by trapping them into the technicalities of the procedure---Impugned judgment and decree of Courts below were set aside by High Court.

Sheikh Khurshid Mehboob Alam v. Mirza Hashum Baig and another 2004 YLR 818; Shah Muhammad and '8 others v. Shaukat Ali and 17 others 1999 CLC 850; Muhammad Siddique v. Syed Zulfiqar Haider and others 1995 CLC 431 and Syed Tasleem Ahmed Shah v. Sajawal Khan and others 1985 SCMR 585 ref.

Ch. Riasat Ali for Petitioner.

Khan Muhammad Bajwa for Respondent.

Date of hearing: 31st August, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1208 #

2006 Y L R 1208

[Lahore]

Before Syed Jamshed Ali, J

Mst. NAZIR BEGUM alias NAZIRAN BEGUM---Petitioner

Versus

PROVINCE OF PUNJAB through Collector, Sargodha and

9 others---Respondents

Civil Revision No.567 of 2001, heard on 12th November, 2004.

Colonization of Government Lands (Punjab) Act, 1912---

----Ss. 19-A, 20 & 21---Succession---Statement of conditions---Gallantry Awards Scheme---Allotment was made in favour of wife of Shaheed for the act of gallantry of her husband---Plaintiffs, being the legal heirs of Shaheed claimed the disputed land, that since the wife of Shaheed had re-married she had lost her right to retain the land aforesaid under sections 19-A, 20 & 21 of the Colonization of Government Lands (Punjab) Act, 1912---Plaintiffs' suit for declaration was dismissed as the Trial Court was of the view that the grant was not in the nature of a limited estate so as to terminate on the re-marriage of petitioner, however appeal was accepted---Appellate Court relied upon the provision from the Regulations for Pay and Allowances of the Pakistan Army, 1982 that on re-marriage a widow lost the right to the allowances---Validity---Regulations for pay and allowances of the Pakistan Army were not applicable as the provision relied upon by the Appellate Court was with respect to allowances and not a 'grant' under the Gallantry Awards Scheme and merely because entitlement of the widow to the allowances was restricted up to her re-marriage, it could not be said that the grant made to her had also to subsist till her re-marriage---'Grant' in question was governed by a specific statement of conditions which did not have any such restriction that a widow had no right to the 'grant' on re-marriage---Note of the provisions of Army Regulations was applicable in the case of the widow---Impugned judgment and decree by Appellate Court based on wholly irrelevant and inapplicable considerations were set aside and that of the Trial Court were restored.

Malik Muhammad Akram Khan Awan and Muhammad Sharif Butt for Petitioner.

Mian Ghulam Rasool for Respondents Nos.3 to 10.

Aamir Rehman, Addl.A.-G. with Zahid Iqbal, Colony Clerk D.O(R) Sargodha with Record.

Date of hearing: 12th November, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1211 #

2006 Y L R 1211

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD YAQOOB and others---Petitioners/Appellants

Versus

THE STATE ---Respondent

Criminal Appeal No.511 of 2005, decided on 21st June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.324, 337-F(iii) (10), 148 & 149---Suspension of sentence---Sentences awarded to applicants/accused were short---Accused had undergone a substantial portion of their sentences and unserved portion of sentence was brief within which it was not likely that appeal filed by accused would be taken up for regular hearing---If accused served out sentences before appeal was heard, same would be rendered infructuous---Sentences awarded to accused were suspended in circumstances.

Ch. Muhammad Abdul Salem and Ch. Riasat Ali for Petitioners/Appellants.

M. Aslam Bhatti for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 1212 #

2006 Y L R 1212

[Lahore]

Before Ch. Ijaz Ahmad, J

ALLAH YAR and 14 others---Appellants

Versus

CHIEF ADMINISTRATOR AUQAF, PUNJAB, LAHORE and

2 others---Respondents

F.A.O. No.263 of 2003, decided on 2nd April, 2004.

Civil Procedure Code (V of 1908)---

-------O. XXXIX, Rr. 1 & 2---Punjab Waqf Properties Ordinance (IV of 1979), S.11---Specific Relief Act (1 of 1877), Ss.52 & 53---Watt' property---Notification of taking over administrative control and management-Petition against notification along with an application for interim injunction---Refusal of injunction---Contention was that appellants were in possession of suit-land since generations and all three ingredients for grant of injunction were in favour of appellants therefore refusal of injunction was not in the interest of justice---Validity---Notification was issued by the competent Authority on 31-12-2002 and respondents had taken possession of the land in question on 17-1-2003---Since the possession had already been taken from the appellant, impugned order was valid and in accordance with settled law---Appeal having no merit, the same was dismissed by Nigh Court.

Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan PLD 1970 SC 139 ref.

Seerat Hussain Naqvi for Appellants.

Saeed Ashraf Warraich for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 1214 #

2006 Y L R 1214

[Lahore]

Before Muhammad Sair Ali, J

Mst. IJAZ BEGUM---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary of Law, Justice and

Human Rights Division, Islamabad and 3 others---Respondents

Writ Petition No.19343 of 2002, heard on 13th October, 2004.

Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)-----

----Art. 32---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Representation before President of Pakistan---Maxim: 'Audi alteram partem'---Applicability---Authorities filed representation against order passed by Wafaqi Mohtasib before the President of Pakistan which was accepted without notice to the petitioner and without affording him opportunity of hearing---Impugned order adversely affected petitioner, who was vested with a right of participation in proceedings against her as necessary party but was condemned unheard---President of Pakistan, while performing his functions under Art.32 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, was to act in a quasi judicial and not in an administrative capacity, which was totally distinguishable from the administrative actions---Principles of natural justice having been violated in the case, order passed by the President of Pakistan was without lawful authority and of no legal effect and was set aside by High Court---Questions of law and facts involved in the case, were not touched by the High Court and were left to be re-decided hence representation would have to be deemed to be pending.

Federation of Pakistan v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2744; Federation of Pakistan v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2189; Messrs. Eastern Leather Company (Pvt.) Limited v. Federation of Pakistan and others Vol. 7 No.12 Tax Forum 52 and PLD 2004 Lah.83 ref.

Liaqat Ali Butt for Petitioner.

M. Pervaiz Akhtar, D.A.-G. for Respondents Nos. 1 and 2.

Tariq Nasim and Ibrar Ahmad for Respondents Nos.3 and 4.

Date of hearing: 13th October, 2004.

JUDGENT

MUHAMMAD SAIR ALI, J.--Petitioner's Complaint No.L/5015/01/2498 was decided by the learned Wafaqi Mohtasib (Ombudsman) through decision dated 29-4-2002 in favour of the petitioner.

Against the above decision, respondent No.3 i.e. the Chairman, State Life Insurance Corporation of Pakistan, Karachi filed a representation before Honourable the President of Pakistan under Article 32 of the Establishment of the Office of Wafaqi Mohtasib Order 1983.
By an Office Memorandum dated 11-10-2002, the petitioner was informed by the Section Officer, Government of Pakistan, Law, Justice and Human Rights Division that upon acceptance of the representation of respondent No.3, the decision of the learned Wafaqi Mohtasib (Ombudsman) was set aside by Honourable the President of Pakistan.
Through this petition, the above order has been challenged by the petitioner.

Reply has been filed on behalf of respondents Nos.3 and 4. Mr. M. Pervaiz Akhtar, Deputy Attorney General has appeared for respondent No.1. Respondents Nos.3 and 4 are represented through Messrs Tariq Nasim and Ibrar Ahmad, Advocates who could not deny the fact that the petitioner was not heard by Honourable the President of Pakistan.

Having heard the learned counsel for the petitioner, this Court has no option but to accept this constitutional petition. Examination of the impugned order shows that the petitioner has been denied notice and the right of hearing on the respondent's representation against her. The petitioner has been condemned unheard. Though the impugned order adversely affects the petitioner yet the same has been passed without an opportunity of hearing to the petitioner who was vested with a right of participation in the proceedings against her as a party thereto. Question of absence of proper hearing on a representation to the honourable President of Pakistan was settled by the august Supreme Court of Pakistan in the case of "Federation of Pakistan v. Muhammad Tariq Pirzada and 2thers" 1999 SCMR 2744 and "Federation of Pakistan v. Muhammad Tariq Pirzada and 2 others" 1999 SCMR 2189. In the case reported as 1999 SCMR 2189, the Honourable Supreme Court of Pakistan was pleased to settle the law on the nature of the jurisdiction vesting in the President under Article 32 of the above referred Order of 1983. It was held that:--

"the jurisdiction vested in the President under Article 32 partakes of appellate jurisdiction

And that;--

"Under the scheme of the Order, the President exercises the same nature of functions as are performed by the Ombudsman. Thus visualized, the President while performing his functions under Article 32 of the Order acts in quasi-judicial and not in administrative capacity, which is totally distinguishable from administrative actions."

This Court in judgment dated 28-10-2003 passed in Writ Petition No.5893 of 2003 titled "Messrs Eastern Leather Company (Pvt.) Limited v. Federation of Pakistan and others" reported as Vol. 7 No.12 Tax Forum 52 and PLD 2004 Lahore 83 has also held that the law and the principles of natural justice oblige Honourable the President to decide a representation before him after due opportunity of hearing to the parties before him.
In the present case the representation has been decided without hearing the petitioner. Wherefor, this petition is accepted for the reasons set out in above judgment dated 28-10-2003 in Writ Petition No.5893 of 2003 titled "Messrs Eastern Leather Company (Pvt.) Limited v. Federation of Pakistan etc." reported as Vol. 7 No.12 Tax Forum 52 and PLD 2004 Lahore 83. The impugned order conveyed to the petitioner through memo. dated 11-10-2002 is declared to be without lawful authority and of no legal effect.

YLR 2006 LAHORE HIGH COURT LAHORE 1216 #

2006 Y L R 1216

[Lahore]

Before Tassadduq Hussain Jillani, J

IFTIKHAR HUSSAIN and 2 others---Petitioners

Versus

LAHORE SCHOOL OF ECONOMICS and 41 others---Respondents

Writ Petition No.4146 of 1998, heard on 18th June, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Allegation was that private educational institutions, in absence of any regulatory system, were neither honest to mandate of their charter nor they were imparting quality education---Validity---Since an alternate competent forum, Higher Education Commission, a regulatory authority to monitor the functioning of private institutions, was available to the petitioner, High Court on account of limitations of its authority under Art.I99 of the Constitution, could not undertake such an exercise---Constitutional petition was disposed of accordingly.

Muhammad Javed Iqbal Jafri for Petitioners.

Ch. Khurshid Anwar Bhindher, Additional Advocate-General, Punjab, for Respondents.

Muzammal Akhtar Shabbir for Respondent No. 1.

Bashir Ahmad Ranjha for Respondents Nos.3 and 4.

Date of hearing: 18th June, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1217 #

2006 Y L R 1217

[Lahore]

Before Ali Nawaz Chowhan and Umar Ata Bandial, JJ

MUHAMMAD YASEEN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.570 of 2005, decided on 8th June, 2005.

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

----Ss. 6, 9 & 15---Criminal Procedure Code (V of 1898), S.265-K---Application under S.265-K, Cr.P.C. for acquittal---Trial Court had misread the F.I.R. as it was nowhere given in F.I.R. that Charas in question was purchased from the accused---Accused Wright be an absconder, but abscondence was not per se a fact to be recorded against accused and alleged abscondence would remain an allegation until it was linked with necessary mens rea---Order dismissing application of accused filed under 5.265-K, Cr.P.C., was infirm, sketchy and did not properly meet arguments which had been addressed---impugned order was set aside and case was remitted to Trial Court with direction that Trial Court would consult record, weigh the possibilities of ultimate result of case ending in conviction or acquittal of accused.

M. Bashir Malik for Appellant.

Ch. Ghulam Shabbir for the State.

Date of hearing: 8th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1219 #

2006 Y L R 1219

[Lahore]

Before Sheikh Azmat Saeed, J

MUHAMMAD IQBAL and another---Petitioners

Versus

GHULAM SAKEENA and 6 others---Respondents

Civil Revision No.901 of 1998, heard on 25th January, 2005.

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

----Ss.8 & 42---Registration Act (XVI of 1908), S.17---Possession and declaration of title---Interpretation of document---Unregistered document- Document disputed between the parties was relinquishment deed on the basis of which plaintiffs sought declaration of title and recovery of possession-Validity--Document in question claimed to be relinquishment deed was compulsorily registrable under S.17 of Registration Act, 1908 but it was unregistered document---Deed itself purported to be an agreement was identified as such in the body of the document---Such document could not create title in favour of plaintiffs sustaining a suit for declaration and possession.

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

----Ss.8 & 42---Qanun-e-Shahadat (10 of 1984), Art.72---Possession and declaration of title---Unregistered document, proof of--Disputed document was relinquishment deed on the basis of which plaintiffs sought declaration of title and recovery of possession---Suit was dismissed by Trial Court but Appellate Court decreed the same---Validity---Neither the marginal witnesses nor the Notary Public who had attested the document were produced before Trial Court---Even stamp vendor was not produced by plaintiffs---Document also had overwriting and no consideration was mentioned therein which too deludes the document of its legal effect---No cogent evidence was available for payment of consideration and scant oral evidence in such behalf was not only dubious but also inadmissible---Judgment and decree passed by Appellate Court was set aside and that of Trial Court was restored, in circumstances.

Sh. Naveed Shaharyar for Petitioners.

Nemo for Respondents.

Date of hearing: 25th January, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1221 #

2006 Y L R 1221

[Lahore]

Before M. A. Shahid Siddiqui, J

QAMMAR NASEER alias BAITU MASIH and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.1960-B and 2639-B of 2005, decided on 28th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302 & 34---Bail before arrest, grant of -Post-mortem examination report of deceased showed no injury on his body---Viscera was sent to office of Chemical Examiner and also to Bacterologist for detection of poison/drug administered to deceased---Nothing was on record to show that death of deceased was homicidal---Liberty of accused could not be allowed to be curtailed on mere allegations---Interim bail granted earlier to accused was confirmed, in circumstances.

Mian Shah Abbas for Petitioners (in Criminal Miscellaneous No.1960-B of 2005).

Ch. Sarfraz Ahmad Tarar for Petitioners (in Criminal Miscellaneous No.2639-B of 2005).

Ms. Samia Bashir for the State (in Criminal Miscellaneous No.1960-B of 2005).

Muhammad Asghar Watto for the State (in Criminal Miscellaneous No.2639-B of 2005).

Complainant in Person.

Date of hearing: 28th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1223 #

2006 Y L R 1223

[Lahore]

Before Bashir A. Mujahid, J

NOOR MUHAMMAD and 5 others---Petitioners

Versus

MUHAMMAD ISHAQ and another---Respondents

Civil Revisions Nos.355-D, 365-D of 1984, 2068 of 2004, Civil Miscellaneous Nos.760-C, 761-C of 2000 and 2 of 2004, decided on 20th September, 2004.

Civil Procedure Code (V of 1908)---

----Ss. 12(2) & 115---Allegation of fraud and misrepresentation against revisional order---Applications under S.12(2), C.P.C.---Lis pendens, principle of---Applicability---Doctrine of caveat emptor---Alienation of suit-land during pendency---Non-impleadment of bona fide purchaser---Question was as to whether section 12(2), C.P.C. was applicable in circumstances of the case---Validity---Applicants claimed to be bona fide purchaser of suit-land but according to the principle of "vandee beware" it was the duty of applicants to find out whether any litigation about the land was pending or not---Applicants were not the necessary party to be impleaded in the revision petition which was in continuation of suit filed prior to their purchase---Sale which was claimed in applicant's favour during the pendency of litigation was hit by the principle of /ispendens---No element of fraud or misrepresentation had been pointed out to invoke the jurisdiction under S,12(2), C. P.C. as tile revision petition was decided on law points after due contest and decree was not collusive---Applications were dismissed having no force.

Mst. Jameela Begum v. Muhammad Siddiquel998 CLC 1591; Abdul Sattar and others v. Ibrahim and others PLD 1992 Kar. 323; Jamil Akhtar v. Las Baba PLD 2003 SC 494 and Allah Bakhsh and others v. Province of Punjab and others 2002 SCMR 2002 ref.

Mehdi Khan Chohan for Petitioners.

YLR 2006 LAHORE HIGH COURT LAHORE 1226 #

2006 Y L R 1226(1)

[Lahore]

Before Sardar Muhammad Aslam, J

ABDUL HAQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1464-B of 2005, decided on 8th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail, refusal of---Fact of filing of previous bail application which was dismissed, was suppressed by accused---There were 4 or 5 bail applications where facts were suppressed by accused or their counsel front the High Court---Accused or his counsel failed to appear on date fixed for hearing of the present bail application---Bail application was dismissed and attitude of litigants and their counsel, was disapproved and condemned by the High Court.

Nemo for Petitioner.

Shahzadi Parveen for the State with Muhammad Hussain, A.S.-I.

Date of hearing: 8th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1230 #

2006 Y L R 1230

[Lahore]

Before Syed Shabbar Raza Rizvi, J

JAVAID IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5211/B of 2005, decided on 17th August, 2005.

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

---S. 497---Penal Code (XLV of 1860), Ss.324 & 34---Bail, refusal of---Function of the Court at bail stage was not to enter into a deep and detailed appreciation of evidence and facts---Court could take a tentative view of record---Enough material was on record in form of nomination of accused in F.I.R., medical report, statements under S.161, Cr.P.C. and on basis of said facts, material opinion of Investigating Officer---Prima facie, accused having committed offence alleged in F.I.R., his bail application was dismissed.

Malik Shahadat Ali Khokhar for Petitioner.

Muhammad Shahid Buttar for the Complainant.

Miss Sabahat Rizvi for the State. 2005.

Date of hearing: 17th August,

YLR 2006 LAHORE HIGH COURT LAHORE 1231 #

2006 Y L R 1231

[Lahore]

Before Maulvi Anwarul Haq, J

MUNAWAR JEHAN ---Petitioner

Versus

ALI NAWAZ and another---Respondents

Civil Revisions Nos.2204 and 2205 of 2000, heard on 11th June, 2004.

(a) Punjab Pre-emption Act (IX of 1991)----

---S. 13(2)---Suit for pre-emption---Talab-i-Muwathibat---Discrepancy in evidence with regard to time of making Talb---Dismissal of suit and appeal---Question was as to whether Courts below had not read the evidence in the mauler prescribed by superior Courts---Statement of plaintiff was that Talb-i-Muwathibat had been made at one place at 2 p.m. and at another place at 4. p.m. but this sentence picked up by Courts below was wholly out of context and either same was slip of tongue or pen as immediately before the said sentence plaintiff had stated that the moment she was told about the sale she made the Talb---Plaintiff would not have to derogate from her overall testimony which was in accord with duly pleaded facts in the plaint--Entire evidence should have been read, but Courts below had not read the evidence in the prescribed planner---Entire evidence, if properly read, went to show that Talb-i-Muwathibat was made at the time stated in the plaint---Findings of Courts below on the question of Talb were reversed by High Court in circumstances.

Abdul Qayum v. Mushk-e-Alam and another 2001 SCMR 798 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 6(a)---Suit for pre-emption--Determination of superior right of pre-emptor on ground of being co-sharer---Copy of Register Haqdaran Zamin had proved that plaintiff had been duly recorded as co-sharer in the suit-land---Defendant had himself admitted plaintiff as co-sharer in disputed land---Impugned judgments and decrees of Courts below were set aside and suit was decreed by High Court accordingly.

Pir Muhammad Kaleem Ahmad Khurshid for Petitioner.

Sadaqat Mehmood Butt for Respondents.

Date of hearing: 11th June, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1234 #

2006 Y L R 1234

[Lahore]

Before Sh. Abdur Rashid and M. Bilal Khan, JJ

UMAR HAYAT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2476-B of 2005, decided on 8th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9---Bail, grant of---Ziminis and statements of witnesses under S.161, Cr.P.C. which were shown to have been recorded by Investigating Officer concerned, in fact were not in his handwriting---Investigating Officer on inquiry had admitted that due to high sugar level he did not record Ziminis himself, but had dictated the same to one of his subordinates and he only signed same--Entire record appeared to have been prepared in a suspicious manner---Accused was admitted to bail, in circumstances.

1999 PCr.LJ 626 ref.

Tahir Naeem for Petitioner.

Sh. 'I'ariq Amin for the State.

Date of hearing: 8th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1235 #

2006 Y L R 1235

[Lahore]

Before Syed Hamid Ali Shah, J

AKHTAR ALI QURESHI---Appellant

Versus

Qari AMEER ALAM---Respondent

S.A.O. No.160 of 2004, heard on 9th February, 2005.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13(1) (6) ---Ejectment petition---Denial of relationship of landlord and tenant between parties---Issue regarding existence of such relationship, framing of---Tentative rent deposit order, passing of---Noncompliance of such order---Striking off defence of tenant---Validity---Rent deposit order could be passed only, when there was no ambiguity regarding such relationship--Where such denial was considered to be evasive, then there would be no need to frame specific issue in such respect---Framing of such issue would be indicative of fact that question of tenancy was yet to be determined---When such issue was framed and parties were asked to adduce evidence, then there was no justification for passing rent deposit order---High Court accepted appeal, set aside all impugned orders and remanded case to Rent Controller to decide issue regarding such relationship.

Muhammad Ismaeel v. Muhammad Ayyub and 4 others 2004 YLR 1140; Mst. Razia Begum v. Senior Civil Judge, Charsadda and 2 others PLD 1996 Pesh.8; Ghulam Hussain v. Abdur Rehman and 2 others PLD 1982 Lah.519; M. Irnamuddin v. Mst. Surriya Khanum PLD 1991 SC 317; Abdul Khaliq Qureshi v. Saeed Hassan Shah and 5 others 1979 CLC 118; Muhammad Ismail v. Israr Ahmad PLD 1961 Lah.601; Waheed-ur-Rehman v. Muhammad Ashraf and 2 others PLD 2001 Pesh.42; Tariq Ali Sheikh v. Rent Controller, Lahore and another 1998 CLC 460 and Ghulam Rasool v. Mian Khurshid Alunad 2000 SCMR 632 ref.

Ejaz Ahmad Bodla for Appellant.

Sher Zaman Khan for Respondent.

Date of hearing: 9th February, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1238 #

2006 Y L R 1238

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2549/B of 2005, decided on 26th April, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 109 & 34---Bail, refusal of---Accused had been specifically named with attribution of fire-arm injury on the leg of complainant which resulted in fracture of his bone during daylight occurrence---No probability existed of false implication of accused especially when he had not pointed out any reason for such act by complainant---Since deeper appreciation of evidence at bail stage was not permissible under law, lapse on part of injured to appear before Medical Board would be considered by Trial Court after recording of evidence---Accused had led to recovery of fire-arm weapon used by him in the occurrence which had been explained by Investigating Officer of as having look of a rifle---Prosecution was equipped with sufficient incriminating evidence connecting petitioner with alleged offence---Accused was not entitled to concession of bail as the challan of case had already been submitted and case was ripe for trial.

Ch. Azeem Sardar for Petitioner.

Tariq Waheed for the State.

Date of hearing: 26th April, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1240 #

2006 Y L R 1240

[Lahore]

Before Muhammad Khalid Alvi, J

Haji ALTAF AHMED---Appellant

Versus

Haji AHMED DIN---Respondent

S.A.O. No.64 of 2005, decided on 4th July, 2005.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13(3)(a)(ii) & 15---Ejectment of tenant on ground of personal bona fide need---Second appeal---Premises in question were obtained by father of appellant on rent from respondent through agreement of rent for a period of 11 months-One of the conditions in said rent agreement was that premises in question would not be got vacated from appellant by respondent's predecessor-in-interest or his legal heirs on the ground of personal need---After death of predecessor-in-interest of respondent, tenancy remained continued and various agreements/rent deeds were executed between the parties, but said condition was not mentioned in any of later rent deeds---Ejectment petition filed by respondent, was concurrently accepted by Rent Controller and appellate authority below---Validity---Agreement containing said condition stood terminated after expiry of stipulated period of 11 months---Said condition, in circumstances, ceased to exist between parties---Even otherwise such a condition, which by itself was inherently against provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 which had not given a right to landlord to seek eviction on the ground of personal need, could not be termed to be a legal condition---Even if by mutual consent such a condition was agreed upon, same could not have perpetual effect depriving landlord from seeking ejectment of tenant on ground of personal need, if at a later point of time such a need arose, especially when in subsequent agreements, said condition was not mutually agreed---Protection sought by appellant/tenant under first Proviso to S.13(3)(a)(i) of West Pakistan Urban Rent Restriction Ordinance, 1959, was also not available to appellant.

Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190; Dr. Arslan Razzaq v. Ali Hussain PLD 1993 Lah 97; Sardar Muhammad Anwar Khan v. Mian Asghar Ali 1988 CLC 402; Miss Shazia Umar Chaudhry v. Board of Intermediate and Secondary Education Fiasalabad through Chairman and 2 others 2000 CLC 1684; Aleem-ud-Din and another v. Muhammad Aslant and 2 others 1991 SCMR 850; Iqbal and 6 other v. Mst. Rabia Bibi and another PLD 1991 SC 242; Allah Yar and others v. Additional District Judge and others 1984 SCMR 741 and Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Specific Relief Act (I of 1877), S.12---Ejectment petition under West Pakistan urban Rent Restriction Ordinance, 1959 and suit for specific performance---Nature---Effect of ejectment order---Ejectment petition under the Ordinance and a suit for specific performance by a tenant, were two distinct proceedings---Effect of ejectment order, could not be diluted by mere pendency of a civil suit on the basis of an agreement to sell---If an ejectment order was passed against a tenant, same was necessarily required to be executed in letter and spirit---However, tenant if succeeded in his litigation, could get possession restored through execution of his decree---Neither the two proceedings were required to be consolidated nor the effect of ejectment order could be diluted on the ground of pendency of a civil suit filed by the tenant.

Ch. Imdad Ali Khan for Appellant.

M. Naeem Sadiq for Respondent.

Date of hearing: 4th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1245 #

2006 Y L R 1245

[Lahore]

Before Mian Saqib Nisar and Sayed Zahid Hussain, JJ

Messrs NAZIM POLYSACK LTD. and another---Appellants

Versus

Messrs ATLAS LEASE LTD. through Branch Manager and 3 others---Respondents

F.A.O. No.324 of 2004, heard on 31st January, 2006.

Civil Procedure Code (V of 1908)---

----S. 151---Limitation Act (IX of 1908), Art.181---Application dismissed in

default---Application for restoration---Limitation---Application for restoration under S.151, C.P. C. under Limitation Act, 1908 was attracted, therefore, the residuary Article 181 would be applicable, which prescribed period of three years---Appellants' application for restoration having been filed well within the period of three years, was not time-barred---Objection regarding the negligent conduct of appellants, if had any relevance to the matter, should have been raised before the forum below and not at appellate stage--Impugned order was set aside by High Court and case was remanded to trial Court for decision afresh with direction to decide the matter within the period of three months.

Sana Ullah for Appellants.

Asim Hafeez for Respondents.

Date of hearing: 31st January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1246 #

2006 Y L R 1246

[Lahore]

Before Umar Ata Bandial, J

MUDAI---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Industries, Production

and Special Initiatives, Islamabad and 4 others---Respondents

Writ Petition No.16903 of 2005, decided on 7th December, 2005.

Constitution of Pakistan, 1973---

----Art. 199---S.R.O. 839(1)/98 dated 23-7-1998---Constitutional petition---Sale of tractor---Service and warranty charges claimed by seller from customers over and above the notified price---Supplier company was in continuous breach of' its obligation under S.R.O. 839 (1)/98 dated 23-7-1998, for charging tractor prices exceeding those approved by the Federal Government--High Court directed the company to supply booked tractor to petitioner at approved Government price---Question regarding the legal validity and effectiveness of impugned service and warranty charges was deferred by High Court in order to allow the supplier company and Federal Government an opportunity to settle their outstanding disputes amicably within a period of two months.

Dr. Ehsan-ul-Haq Khan for Petitioner.

Saleem Sehgal for Respondents Nos.4 and 5.

Yawar Ali Khan for Dy. A.-G. for Federation/Respondents Nos. l and 2.

Iftikhar Ullah Malik for Respondent No.3/ZTBL.

YLR 2006 LAHORE HIGH COURT LAHORE 1248 #

2006 Y L R 1248

[Lahore]

Before Syed Hamid Ali Shah, J

ABDUL QAYYUM KHAN ARIF---Appellant

Versus

AGHA GUL---Respondent

F.A.O. No.76 of 2005, heard on 18h October, 2005.

Civil Procedure Code (V of 1908)---

----S. 20(c) & O. VII, Rule 10---Return of plaint for lack of jurisdiction---Validity---Cause of action had accrued to appellant at "Q" where criminal cases were registered against him by respondent who was a resident of same city---Appellant filed suit for damages in civil Court at "L" after his acquittal---No part of cause of action having arisen within the jurisdiction of civil Court of "L" trial Court had rightly returned the plaint to appellant for its presentation to the Court of competent jurisdiction---Institution of suit by appellant at "L" on basis of rescission of contract could not be said to have a direct nexus with F.I.Rs. lodged against appellant at "Q"---In absence of any infirmity or illegality, impugned order called for no interference by High Court.

Syed Iftikhar Ahmed for Appellant.

Ms. Yasmin Sehgal for Respondent.

Date of hearing: 18th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1253 #

2006 Y L R 1253

[Lahore]

Before Mian Saqib Nisar, J

PASSCO EMPLOYEES COOPERATIVE HOUSING SOCIETY through

President---Appellant

Versus

Messrs SEEWELL CORPORATION through Managing Partner---Respondent

F.A.O. No.174 of 2004, decided on 20th December, 2005.

Arbitration Act (X of 1940)---

----S. 20--Contract Act (IX of 1872), S.2(h)---Contract---Dispute arising out of contract to be referred to Secretary and thereafter to President of the Society---Respondent's application under S.20, Arbitration Act, 1940, before Trial Court seeking direction for the filing of arbitration agreement in Court and for appointment of arbitrator was allowed--Contention of appellant was that respondent had not fulfilled the prerequisites of arbitration clause in the agreement---Validity---Record had proved that respondent in terms of agreement, had approached the Secretary of the Society, in the first instance and thereafter the President of the Society but both refused to entertain the claim of respondent and he was left with no other option except to invoke the jurisdiction of Court---Appeal having no merit, was dismissed by High Court.

Muhammad Akram Khawaja for Appellant.

Riaz Karim Qureshi for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 1254 #

2006 Y L R 1254

[Lahore]

Before Muhammad Muzammal Khan, J

NAZIR HUSSAIN and 2 others---Petitioners

Versus

Mst. AZIZ FATIMA and 3 others---Respondents

Civil Revision No.2663 of 2002, heard on 25th January, 2006.

(a) Islamic Law---

----Gift---Allegation of fraud against transaction of gift---Onus to prove essential ingredients of a valid gift---Plaintiff had denied making of gift by her father in favour of her brothers (defendants)---Being the beneficiaries of gift, burden of proof was on defendants to prove the ingredients of valid gift but defendants failed to establish any lawful gift by their father as there was not an iota of evidence regarding offer of gift having been made by donor and its acceptance by defendants/donees or delivery of physical or symbolic possession---Donor with advanced age of 82 years and with ailing health was not believed to have been provided some independent advice, especially when the gift in question was aimed at to deprive some of the legal heirs---Evidence of defendants itself disproved their stance of rendering service to donor as they had admitted that they were residing at some distant place from donor's residence---Defendants had failed to explain as to when, where, why and how the gift was made in their favour---Appellate Court committed no illegality or irregularity in circumstances---Civil Procedure Code (V of 1908), S.115---Qanun-e-Shahadat (10 of 1984), Arts. 118 & 119.

1998 SCMR 2124 ref.

(b) Inheritance---

----Right of females in inheritance---Common practice prevails amongst the agriculturalists to deprive females from their rights of inheritance.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

Malik Noor Muhammad Awan for Petitioner.

M. Sarwar Awan for Respondents.

Date of hearing: 25th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1257 #

2006 Y L R 1257

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD ARSHAD and others---Petitioners

Versus

MUHAMMAD HANIF and others---Respondents

Civil Revision No.2423 of 2001, heard on 26th January, 2006.

Specific Relief Act (1 of 1877)---

----S. 9---Limitation Act (IX of 1908), Art.3---Qanun-e-Shahadat (10 of 1984), Arts 118 & 119---Suit for restoration of possession---Dismissal of suit and appeal---Limitation---Plaintiffs were under a legal obligation to prove that defendant had illegally, forcibly and unauthorizedly taken possession of suit-land in their absence one year before the institution of suit but they failed to do so because star witness produced by plaintiffs showed his lack of knowledge and he only referred to the construction made by defendants one year prior to the suit---Raising of construction could not be interpreted to mean that defendants' possession commenced from the date of construction---Evidently possession of suit-land was with defendants and they raised construction upon suit-land and maintained their residence without any obstruction and interference---1n absence of any misreading, non-reading, excess of authority or material irregularity, High Court could not interfere in impugned judgments and decrees in exercise of its revisional jurisdiction.

Zafar Iqbal Chaudhry for Petitioners.

Muhammad Sharif Khokhar for Respondents.

Date of hearing: 26th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1260 #

2006 Y L R 1260

[Lahore]

Before Muhammad Khalid Alvi, J

Mst. BAKHHO MAI and 3 others---Petitioners

Versus

SOHRAB and another---Respondents

Civil Revision No.2142 of 2001, heard on 19th January, 2006.

Specific Relief Act (1 of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Suit was dismissed but appeal was accepted---Question of fact---Reading the statement of plaintiff in continuation of sentences one after the other removed the discrepancy that plaintiff was, at the time of execution of receipt in question, physically at a place other than the one which was claimed by witness, such minor discrepancies did not materially affect the result of the case---Sentence uttered during cross-examination but never pleaded nor proved by party could only be taken as an attempt to make improvement in its case---Findings of appellate Court that since transaction had already become complete and final by vendor in favour of vendee/plaintiff, there was no title left with vendor to transfer same to the third party, were based on pure question of fact, which did not call for interference by High Court.

Muhammad Ashraf Nawaz Cheema for Petitioners.

Muhammad Akram Javed for Respondents.

Date of hearing: 19th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1262 #

2006 Y L R 1262

[Lahore]

Before Syed Shabbar Raza Rizvi, J

NADEEM REHAN---Petitioner

Versus

RETURNING OFFICER UNION COUNCIL NO.60, SHEIKHUPURA

and others---Respondents

Writ Petition No.14210 of 2005, decided on 10th August, 2005.

Punjab Local Government Elections Ordinance (V of 2000)---

----Ss. 2(11) & 14---Punjab Local Government Elections Rules, 2000, Rr.16 & 18---Punjab Local Government Ordinance (XIII of 2001), S.2(xli)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Rejection of nomination papers---Nomination papers of petitioner, were originally accepted by Returning Officer, but District Returning Officer rejected them on the ground that petitioner was not qualified to be called a 'Worker' as he became co-owner in shop left by his deceased father---According to the language of S.2(xli) of Punjab Local Government Ordinance, 2001 'Worker' was a person who was directly engaged in work or was dependant on personal labour for his subsistence and was living on the income he earned from that work---No prohibition existed that if such person owned a property, he would be excluded from the definition of 'Worker'---Petitioner was declared 'Worker' and order rejecting his nomination papers, was set aside and he was allowed to participate in election including allocation of Symbol.

Zafar Iqbal Chohan for Petitioner.

Zulfiqar Ali Khan for Respondent No.3.

Date of hearing: 10th August, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1263 #

2006 Y L R 1263

[Lahore]

Before Sheikh Azmat Saeed, J

MASJID GHOSIA JARANWALI, KHUSHAB---Petitioner

Versus

REHMAT ULLAH and others---Respondents

Civil Revision No.98 of 2005, decided on 6th April, 2005.

Civil Procedure Code (V of 1908)--

---S. 12(2)-Specific Relief Act (I of 1877), S.42---Suit for declaration had been filed by the petitioner challenging the validity of judgment and decree passed by Trial Court---Validity---Such suit was clearly barred by S.12(2) C.P.C.---Remedy, if any, available to plaintiff was by way of filing an application before the Court concerned and not by way of filing a separate suit.

Malik Muhammad Imtiaz Mahal for Petitioner.

Mian Zulfiqar Ali for Respondents Nos.4(i) to 4(vii).

Shafqat Hayat Bloach for Respondent No.6.

YLR 2006 LAHORE HIGH COURT LAHORE 1264 #

2006 Y L R 1264

[Lahore]

Before Muhammad Sayeed Akhtar, J

Mst. BALQEES FATIMA and another---Petitioners

Versus

Malik JAVAID BAZ KHAN and 2 others---Respondents

Writ Petition No.14840 of 2004, heard on 17th March, 2005.

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

----S. 9---West Pakistan Family Courts Act (XXXV of 1964), S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Grant of maintenance to wife and minor daughter---Petition for enhancing the amount of maintenance---Husband, in his written statement did not state a word against assertion of wife that he owned a market and received rent from the same---Such omission on the part of husband would be deemed as his admission---Husband, admittedly, was a practising lawyer hence Rs.1,000 per month each as maintenance allowance to wife and a school going daughter aged 4 years was too meagre an amount---Appellate judgment was declared to be without lawful authority and of no legal effect, case was remanded for decision afresh.

Malik Muhammad Imtiaz Mahal for Petitioners.

Imtiaz Hussain Baloch for Respondents.

Date of hearing: 17th March, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1267 #

2006 Y L R 1267

[Lahore]

Before Sheikh Azmat Saeed, J

Ch. GHULAM HUSSAIN---Appellant

Versus

GHULAM RASOOL and 2 others---Respondents

F.A.O. No.312 of 2004, decided on 15th December, 2005.

Specific Relief Act (I of 1877)---

----Ss.12 & 53---Civil Procedure Code (V of 1908), O.XXXIX, R.1 & 2---Suit for specific performance of agreement to sell and temporary injunction---Non-performance of obligations on the part of vendee--Rejection of prayer for injunction---Validity---Agreement between the parties was not disputed, admittedly a cheque towards the balance total consideration given by plaintiff to defendant on or about the date fixed for completion of transaction was dishonoured on presentation---No prima facie case did exist in favour of plaintiff and plaintiff's prayer for temporary injunction was rightly refused by trial Court---Appeal being wit/tout merit, was dismissed by High Court.

Nadeem Ahmad Sheikh for Appellant.

Muhammad Hanif Chaudhary for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 1268 #

2006 Y L R 1268

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL AZIZ and 7 others---Petitioners

Versus

PROVINCE OF PUNJAB through D.C.O., Dera Ghazi Khan

and 2 others---Respondents

C.R. No.176-D of 2005, heard on 23rd January, 2006.

Displaced Persons (Land Settlement) Act (XLVII of 1958)-----

----S. 4---Limitation Act (1X of 1908), S.13 & Art.148---Transfer of Property Act (IV of 1882), S.41---Transfer of mortgaged rights in favour of non-Muslims mortgagees who subsequently migrated to India in 1947-Redemption-Limitation-Mortgage created in 1898 and 1905---On the eve of independence the prescribed period of limitation for redemption i.e. 60 years had not expired---After 1947, Revenue estate in question was under consolidation and Misal Haqiat was prepared in 1963-64, wherein name of petitioner's father was recorded as mortgagor and of Central Government as mortgagee---Such entries continued till 1980-81---Names of petitioners were removed and Central Government was entered as owner of suit-land in 1984---Under Pakistan Administration of Evacuee Property Act, 1957, vesting of mortgagee rights in the Custodian would not at all impair the effect and application of S.13 of Limitation Act, 1908---So far as the bona fide purchase of suit-land was concerned only evacuee interest were the mortgagee rights which carne to vest in Federal Government and upon the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, said rights came to vest in the Province, therefore, only said rights could have been transferred to defendants which were obtained as bona fide purchasers---Factum of mortgage stood duly recorded in Revenue Records which, of course, was not checked up by defendants while purchasing the suit-land hence they could not be taken as bona fide purchasers within the meaning of S.41 of Transfer of Property Act, 1882---Impugned judgments and decrees were set aside by High Court.

Rana M. Nazir Saeed for Petitioners.

Muhammad Naveed Rana for Respondent No.3.

Nemo for others.

Date of hearing: 23rd January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1271 #

2006 Y L R 1271

[Lahore]

Before Mian Saqib Nisar, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, GUJRANWALA through Chairman---Appellant

Versus

SOHAIB ABBAS and 2 others---Respondents

Civil Revision No.2200 of 2004, heard on 20th January, 2006.

Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)---

----Ss. 29 & 31---Age of candidate, correction of---Jurisdiction of Civil Court---Scope---Provisions of Ss.29 & 31 of the Punjab Board of Intermediate and Secondary Education Act, 1976, clearly ousted the jurisdiction of the Civil Courts to determine the question about the errors and corrections in the dates of birth of candidates, in the record of Board---Where allegation was levelled with regard to mala fides and lack of good faith on part of Board's Committee, jurisdiction of civil Court could not be ousted despite the said provisions of Punjab Board of Intermediate and Secondary Education Act, 1976---Candidate having never approached the Board for purpose of correction of his date of birth, no allegations of mala fide or lack of good faith on part of the Board could be made out, bar would squarely apply and, therefore, both judgments and decrees of Courts below being nullity in the eyes of law were set aside.

Board of Intermediate and Secondary Education through Chairman and 3 others v. Javed Iqbal Bajwa 2005 YLR 2114; Board of Intermediate and Secondary Education, Lahore through Chairman v. lshrat Sultana 2001 YLR 66; Board of Intermediate and Secondary Education, Lahore through Secretary v. Mst. Sobia Chand 1999 CLC 1166 and Board of Intermediate and Secondary Education, Lahore through Secretary v. Miss Ghazala Roohi 2002 MLD 1966 ref.

Sheikh Shahid Waheed for Appellant.

Tariq Mahmood Mughal for Respondents.

Date of hearing: 20th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1273 #

2006 Y L R 1273

[Lahore]

Before Jawwad S. Khawaja, J

ABDUL AZIZ---Petitioner

Versus

Mirza BASHIR HUSSAIN and 4 others---Respondents

Revision Petition No.2402 of 2005, heard on 25th January, 2006.

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

----S. 41---Specific Relief Act (I of 1877), S.39---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118---Civil Procedure Code (V of 1908), O.XIII, R.2---Benami transaction--- Beneficial ownership--- Proof --Plaintiff challenging the sale-deed in suit for cancellation of the instrument alleged that defendant who was his real brother, was merely a Benami holder of title while plaintiff was real and beneficial owner of property comprised in sale-deed---Suit was dismissed and plaintiff's appeal was also dismissed---Validity---Plaintiff asserted that defendant in his written statement, filed in previous suit, had conceded the claim of plaintiff but defendant had denied to have ever appeared or having appointed counsel in the earlier suit---Such assertions could easily have been proved through testimony of the counsel who had been allegedly engaged by defendant in the earlier litigation but plaintiff failed to produce such testimony---Proceedings in application under O.XXI, R.32, C.P.C. were never adduced in evidence before trial Court nor was defendant confronted with the same thus such documents could not be pressed into service and relied upon at revision stage---Plaintiff did not choose to appear in witness box to support his claim and testimony of his son, as his attorney was not believed by Courts below---Essential requisites for establishing beneficial ownership in case of Benami transaction, had not been proved on record.

Ch. Muhammad Amin Javed for Petitioner.

Rana Nasrullah Khan and Muhammad Abdur Rehman Janjua for Respondents.

Date of hearing: 25th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1275 #

2006 Y L R 1275

[Lahore]

Before Muhammad Khalid Alvi, J

SARFRAZ KHAN through Legal Heirs-Appellants

Versus

MEHRAM and others---Respondents

Regular Second Appeal No.109 of 2004, heard on 1st December, 2005.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.17---Suit for specific performance of agreement to sell---Suit decreed and decree affirmed in appeal---Scribe as attesting witness---Scribe of a document before whom the attesting witnesses had signed the document could safely be treated as an attesting witness and words of scribe on foot of document that he himself inscribed the document could safely be termed as his signatures.

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

----S. 12---Civil Procedure Code (V of 1908), O. VI, R.4---Suit for specific performance of agreement to sell--Execution of agreement-Proof-Facts not pleaded in plaint---Evidentiary value---Plaintiff had not pleaded in plaint that second agreement executed between the parties was merely a continuation of some earlier transaction, therefore no amount of evidence regarding said earlier agreement could have been allowed to be led and even if led, could not have been taken into consideration---If evidence on file with regard to the earlier agreement was taken out of consideration, the entire case would demolish, because half payment of earnest money was made under first agreement which was not mentioned in the plaint---Actual payment had also not been properly pleaded in the plaint---Agreement was not proved in circumstances---Judgment and decree of courts below were set aside.

Muhammad Baleegh-uz-Zaman Chaudhary for Appellants.

Muhammad Arif Chaudhry for Respondents.

Date of hearing: 1st December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1277 #

2006 Y L R 1277

[Lahore]

Before Jawwad S. Khawaja, J

RESHAM BIBI and 2 others---Petitioners

Versus

RIAZ BIBI---Respondent

Civil Revision No.463 of 2000, heard on 8th November, 2005.

Islamic Law---

----Gift---Validity---Plaintiff, just twenty days after the gift mutation, challenging gift in suit for declaration asserted that he had not made any gift in favour of his one daughter/defendant excluding the two others---Suit was decreed but decree was set aside in appeal---Validity---Being beneficiary of gift and mutation defendant/donee was to prove that gift had been validly made in her favour but she failed to prove so and her absence from witness box produced an adverse inference upon her case---Reasoning regarding non-delivery of possession of gift property would have been sustained only if donee had been a minor or unmarried but neither she was minor nor unmarried daughter under the care of her father who was in continuous possession of suit property---Identifying witness of mutation in question was, without any reason, not produced---No justification was found on record as to why plaintiff selected defendant for gift while excluding his two other daughter and wife---Appellate Court accepted that there was no direct evidence of offer and acceptance of gift and delivery of possession but it proceeded on wrong premise by holding that plaintiff had not refuted the offer or acceptance---Appellate decree was, therefore, not legally sustainable.

Sh. Naveed Shaharyar for Petitioners.

Ch. Muhammad Rafiq Warraich for Respondent.

Date of hearing: 8th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1280 #

2006 Y L R 1280

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. GHULAM FATIMA---Petitioner

versus

MUHAMMAD SHAFI and another---Respondents

Writ Petition No.18911 of 2004, heard on 14th December, 2005.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), Ss.12(2) & 47, O. XXI, Rr.99 & 100---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for specific performance of agreement to sell---Suit decreed---Allegation of fraud levelled by third party---Application for setting aside of decree was dismissed---Execution of decree was resisted by third party on the basis of agreement to sell with judgment-debtor after passing of decree already finalized---Question was as to whether revisional Court committed any illegality in accepting objection petition against execution of decree---Validity---Mere agreement to sell neither created any right, title or interest in its holder, nor equipped him with any right to resist execution of decree already finalized---Such alleged agreement to sell by judgment-debtor to defeat decree against him, without determination by a Court of competent jurisdiction, had no legal value---Court, on satisfaction that the resistance or obstruction caused by any person other than judgment-debtor claiming in good faith to be in possession of property in his own rights could dismiss execution petition but in present case third party claimed agreement with judgment-debtor, thus was a person claiming under him and could not render resistance to execution of decree passed against his vendor---Dispossessed person with his own independent right/title not derived from judgment-debtor, could seek restoration of possession from the executing Court and on such petition executing Court should investigate the matter---Mere filing of application under S.12(2), C.P.C. would not stop the executing Court from undertaking the lawful process for execution---Any order by the executing Court under S.47 C.P.C. was appealable---Revisional Court therefore, committed grave illegality in accepting objection petition filed by a party who had no independent right in property in question.

Qazi Abdul Hameed for Petitioner.

Zafar Iqbal Chohan for Respondent No.1.

Date of hearing: 14th December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1283 #

2006 Y L R 1283

[Lahore]

Before Muhammad Muzammal Khan, J

ALI HASSAN---Petitioner

Versus

Mst. HAKIMAN and 4 others---Respondents

Civil Revision No.2506 of 2003, decided on 8th July, 2004.

(a) Arbitration---

---- "Referee " and "arbitrator/local commissioner"---Distinction---Referee as compared to arbitrator or local commissioner was supposed to make statement on the basis of his own knowledge and information.

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

----S. 42---Arbitration Act (X of 1940), S.21-Suit for declaration---Dispute between parties was referred to Referee by the Court with consent of the parties---Referee submitted his statement to the Court in respect of reference whereupon the suit of plaintiff was dismissed---Contention of plaintiff was that referee had made inquiry/investigation and gathered information about the claim of parties which was not permissible under law---Validity---Word used by Referee that "on the basis of information collected" referred to his own mental re-collection of information otherwise he did not collect any information, out of exertion---Statement made by Referee was according to his own knowledge and Courts below rightly decided the lis, on the basis of statement of Referee duly appointed by plaintiff himself.

----S. 31---Forum for challenging the status of Referee---Appointment or statement of Referee should have been challenged in proceedings where objector filed objections and statement of Referee was recorded---Objector could not be permitted to raise such objections in collateral proceedings---Plaintiff having not selected the right forum for the purpose, his suit was rightly dismissed by Courts below---No illegality or irregularity having been pointed out, petition was dismissed.

Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCMR 763; Ali Hussain v. Rafiquddin and 9 others PLD 1977 Lah.418 and Sher Zaman v. Noor Zaman Khan and another PLD 1977 Lah.672 ref.

Ch. Muhammad Aslam Sindhu for Petitioner.

Makhdoom Ghulam Shabbir for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 1286 #

2006 Y L R 1286

[Lahore]

Before Maulvi Anwarul Haq, J

NORAIZ-UL-HAQ and another---Petitioners

Versus

DISTRICT AND SESSIONS JUDGE, PAKPATTAN SHARIF and

10 others---Respondents

Writ Petition No.326 of 2006, heard on 6th March, 2006.

Punjab Local Government Elections Rules, 2005---

----R. 65(1)-Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioners and respondents were candidates in the election in which contesting petitioners were declared returned by competent authority---Respondents filed election petition on the ground that their application to Returning Officer for re-count, remained unattended---Election Tribunal, without framing issues and recording evidence of parties, proceeded to order a re-count---Validity---No specific allegations were made by respondents which could have been determined without recording any evidence nor any material was available on record to support the contention that respondents, before commencement of official result, had filed application to Returning Officer with object of re-count the votes---Election Tribunal had acted without lawful authority by proceeding to pass the impugned order without going through his file and taking notice of facts apparent on face of record---Impugned order of re-count was, therefore, set aside---Election Tribunal was asked to decide the matter after following the procedure prescribed by law.

Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCMR 1699 ref.

Ch. M. Iqbal Abid for Petitioners.

Tanvir Haider for Respondents Nos.2 and 3.

Date of hearing: 6th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1288 #

2006 Y L R 1288

[Lahore]

Before Muhammad Akhtar Shabbir, J

SHAUKAT ALI---Petitioner

Versus

SHAHZAD AHMAD---Respondent

Civil Revision No.671 of 2005, decided on 18th January, 2006.

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

----Art. 84---Signatures, comparison of---Powers of Court---Trial Court dismissed application for comparison of signatures observing that the Court itself was competent to form an opinion about the questioned signatures---Petitioners objecting to such procedure (adopted by the Court) by maintaining that signatures in question with admitted signatures should have been referred to Handwriting Expert---Validity---Court itself had powers to compare the disputed signatures or writing with some admitted signatures or writing---Even if the opinion of a Handwriting Expert was obtained with regard to the signatures or thumb-impression on some document which was in question, opinion of the Handwriting Expert being a weak piece of evidence could not be allowed to prevail against strong circumstances and strong evidence---Sufficient evidence and admitted facts were available on record to infer that petitioner had made signatures and affixed thumb-marks on the document in question---Trial Court had rightly passed the impugned order.

Syed Muhammad Umer Shah v. Bashir Ahmed 2004 SCMR 1859; Sirbaland v. Allah Loke and others 1996 SCMR 575; Mushtaq Ahmad Gurmani v. Z.A. Suleri and another PLD 1958 (W.P.) Lah 747; Syed Shabbir Hussain v. The State 1968 SCMR 1126 and Ghulam Siddique v. Mst. Ajaib and others 2002 CLC 1244 ref.

Sultan Mehmood Dar for Petitioner.

Mian Maqsood Ahmad for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 1290 #

2006 Y L R 1290

[Lahore]

Before Jawwad S. Khawaja, J

Mst. GHULAM FATIMA and 4 others---Petitioners

Versus

SAMI ULLAH and 4 others---Respondents

Civil Revision No.785 of 2005, heard on 18th January, 2006.

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

----S. 25---Specific Relief Act (1 of 1877), S.42---Limitation Act (IX of 1908), Arts.91 & 144---Suit for declaration---Limitation---Sale vide mutation by deceased in favour of his sons/defendants was challenged by daughters/plaintiffs in suit for declaration holding that deceased had not made any sale---Suit was decreed but decree was set aside in appeal---Validity---Passing of consideration was not proved on record as defendants who were admittedly minors at the time of alleged sale, did not disclose any source of income for themselves or for their mother who according to them had provided consideration amount---Mutation by itself was not sufficient for purpose of proving alleged sale because mutation was merely a record of previously concluded transaction and it did not, by itself, create title therefore defendants were to produce Lambardar who had purportedly identified deceased before Revenue Officer and Pattidar whose alleged presence at the time of mutation had been recorded in the order of Revenue Officer but defendant, without justification, did not produce them and thus failed to prove the alleged sale-deed---Plaintiffs became aware of disputed mutation only after death of their father, whereafter they failed their declaratory suit---Suit was, therefore, well within time

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

----Ss.39 & 42---Qanun-e-Shahadat (10 of 1984), Art. 127---Entries of mutation and record-of-rights---Evidentiary value---Strong presumption of correctness would arise in favour of mutation and record-of-rights, particularly when such entries were of longstanding and had been repeated in successive Jamabandies, which was, however, rebuttable---No presumption of correctness thus could be attached to the entries in Revenue Record based on mutation in question.

Arbab Jamshed Ahmad and another v. Ghazan Khan and others 1995 CLC 695 ref.

Imtiaz Hussain Khan Balooch for Petitioners.

Malik Muhammad Akram Khan for Respondents.

Date of hearing: 18th January,

YLR 2006 LAHORE HIGH COURT LAHORE 1293 #

2006 Y L R 1293

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mehmood, JJ

SHAH MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.685 and Murder Reference No.736 of 2001, heard on 24th January, 2006.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Sentence, reduction in---Complainant had not appeared before the Trial Court---Case of prosecution itself was that accused had committed murder of deceased as he saw both of them in compromising position---Time was mid-night and place of occurrence was house of accused---Complainant was the real brother of one of deceased who himself had stated in F.I.R. that his brother-in-law had committed murder of deceased under grave and sudden provocation---Case in circumstances, was not a case attracting provisions of offence under S.302(b), P.P.C.-Conviction of accused, in circumstances was converted to offence under S. 302 (c), P.P.C. and sentence which he had undergone, was considered sufficient to meet the ends of justice---Death sentence awarded to accused by the Trial Court, was not confirmed.

Miran Begum v. Ejaz Anwar and others PLD 1982 SC 294 ref.

Sardar Muhammad Sarfraz Doga for Appellant.

Tanvir Haider Buzdar for the State.

Date of hearing: 24th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1295 #

2006 Y L R 1295

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

BASHIR AHMAD and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.545 of 2000 and M.R. No.212 of 2002, heard on 25th January, 2006.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Appreciation of evidence---F.I.R. was promptly lodged---Main accused, who was attributed fatal shot on person of deceased, had been awarded death penalty, while his co-accused had been sentenced to imprisonment for life each---Main accused not only had fired one shot, but two shots---Ocular account was fully corroborated by medical evidence---Parties were known to each other---No possibility of mistaken identity existed as it was a broad daylight occurrence---No mitigating circumstances being in favour of main accused, appeal to his extent was dismissed and his death sentence was confirmed and Murder Reference stood answered accordingly---Co-accused were empty handed at the time of occurrence and no injury on the person of deceased was attributed to them---Appeal to the extent of co-accused was allowed granting them benefit of doubt and they were acquitted of the charge.

Sardar Muhammad Latif Khan Khosa and Sardar Balakh Sher Khan Khosa for Appellants.

Azmat Ali Khanzada for the State.

Date of hearing: 25th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1298 #

2006 Y L R 1298

[Lahore]

Before Maulvi Anwarul Haq, J

GULRAIZ AHMAD ROHANI---Appellant

Versus

M. IQBAL ANJUM---Respondent

F.A.O. No.22 of 2006, decided on 16th March, 2006.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1 & 2, O. XXIII, R.3--Arbitration Act (X of 1940), S.14---Suit for recovery of amount on basis of promissory note---Application for compromise by defendant was refused by the trial Court---Validity---Matter in suit, wherein the application was filed, had been referred to arbitrators who had recorded a decision which in fact was an award for which procedure prescribed in Arbitration Act, 1940 had to be followed---Admittedly arbitration proceedings were resorted to without interference of Court therefore, there was no question of compromise under O. XXIII, R.3, C.P.C.

Mian Irshad Ali Qureshi for Appellant.

YLR 2006 LAHORE HIGH COURT LAHORE 1299 #

2006 Y L R 1299

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

AMJAD MASIH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.203-J of 2005 and Murder Reference No.477 of 1999, heard on 9th March, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---F.I.R. having been lodged promptly without unnecessary loss of time, any chance of entering into deliberations and consultations with others to involve accused wrongly was excluded---All material details of occurrence had been elaborately explained in the F.I.R.---Presence of complainant and other prosecution witnesses at the spot at relevant time of occurrence could not be doubted---Ocular account and medical evidence supported each other on all material points---Accused had produced no evidence in defence and even no person from Bradari had bothered to appear before the police or the Trial Court to depose in his favour deposing about his so-called false involvement---Prosecution story had been proved through statements of the eye-witnesses, whose presence at the spot could not be doubted because they both belonged to the place where occurrence had taken place--Witnesses were natural witnesses and could not be termed as chance witnesses--Statements of both the eye-witnesses tallied with each other---No material discrepancy or contradiction of potential nature was pointed out against prosecution evidence---

Ocular account furnished by the eye-witnesses and the medical evidence fully supported prosecution version, which deserved full credence, being genuine and legitimate---Lack of motive altogether or inability of prosecution to prove same for murder, did not affect imposition of normal penalty of death in a murder case, if prosecution otherwise had been able to prove its case against accused beyond reasonable doubt---Contention of accused that he deserved reduction in sentence as he had fired a single shot and had not repeated same, had no force because accused while carrying a revolver had come at the scene fully prepared and had fired a shot in the chest of deceased, which proved fatal---Accused did not deserve any leniency in the matter of sentence---As regarded contention of accused that no empty was recovered from place of occurrence by Investigating Officer, fact was that at the relevant time accused was carrying a revolver in his hand and he used the same once---Empties were ejected from a pistol and not from a revolver---Weapon deployed by accused being revolver, there was no question of availability of empties at the spot, because empties did not fall out of barrel of a revolver---Evidence on record had proved that accused had committed murder of an innocent person---Both eye-witnesses had provided a true and undiluted account of occurrence and their evidence had inspired confidence---No mitigating factor was floating on the surface of evidence, conviction of accused was maintained and sentence awarded to him by the Trial Court was confirmed and Murder Reference was answered in affirmative.

Nawaz Ali and another v. The State 2001 SCMR 726 and Arshad Ali alias Achhu v. The State 2002 SCMR 1806; ref.

Abdul?? Majeed??????????? Chishti for Appellant.

Mian Muhammad Bashir and Imtiaz Ahmad Chaudhary (in Murder Reference) for Respondent.

Date of hearing: 9th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1305 #

2006 Y L R 1305

[Lahore]

Before Tariq Shamim, J

ISRAR-UL-HAQ---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.1711/B of 2006, decided on 27th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.406 & 506---Ad interim pre-arrest bail, confirmation of---Matter essentially was one of civil nature as same related to business dealings between accused and complainant---Mala fides of complainant were obvious from the fact that S.H.O. concerned was one of the defendants in the civil suit filed by accused which was prior in time to F.I.R.---Co-accused had already been granted bail by the Trial Court---Accused was also entitled to confirmation of his bail before arrest---Possibility of F.I.R., being lodged out of ulterior motive by the complainant, could not be ruled out---Civil litigation, though was no bar to criminal proceedings which could continue simultaneously, nevertheless one would get the impression that F.I.R. had been lodged in order to pressurize accused through criminal process---Offences mentioned in F.I.R. being not hit by prohibitory clause of S.497, Cr.P.C., grant of bail was a rule and refusal was an exception---Delay of three months in lodging F.I.R. also reflected negatively on the entire prosecution case---Accused had only extended verbal threats on telephone which would not attract provisions of S.506 Part-II, P. P. C. ---Offence of accused would fall within the ambit of S.506-Part-I, P.P.C. which was a non-cognizable offence for which punishment of two years was provided and same was bailable---Sufficient evidence was not on record to connect accused with commission of offence alleged against him---Bail was confirmed.

Gulsher v. The State 2000 PCr.LJ 142; Ubedullah v. The State 2003 PCr.LJ 1921 and Tariq Bashir v. The State PLD 1995 SC 34 ref.

Muhammad Akbar Khan for Petitioner.

S.H. Shehzad Azmat for the Complainant.

Badar Munir Malik for the State with Ijaz Ahmad, A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 1307 #

2006 Y L R 1307

[Lahore]

Before Maulvi Anwarul Haq, J

HAMZA NAZIR and others---Petitioners

Versus

VICE-CHANCELLOR, BZU, MULTAN---Respondent

Writ Petition No.769 of 2006, decided on 13th March, 2006.

Constitution of Pakistan (1973)---

----Arts.8 & 199---Constitutional petition---Fundamental rights---Discrimination---Petitioners who after failure in second semester were dropped from M.Sc. course applied for re-admission but same was refused by the University---Validity---Petitioners were seeking re-admission on usual terms and not as a very special favour---If the University had made any re-admissions in similar circumstances then petitioners could not be allowed to be discriminated in matter of re-admission---University was directed to entertain application for re-admission, if properly presented by the petitioners, without discrimination.

Zahoor Ahmed Azhar v. Islamia University, Bahawalpur through Vice-Chancellor and 4 others PLD 1998 Lah 324 ref.

Muzaffar Abbas Kazmi for Petitioners.

Muhammad Tariq Rajwana for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 1308 #

2006 Y L R 1308

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD AURANGZEB---Petitioner

Versus

THE STATE and another---Respondents

Cr. Misc. No.1208-B of 2005 BWP, decided on 23rd December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 34, 201, 148 & 149---Bail, grant of---Further inquiry---Question of delay---Delay in lodging F.I.R.; delay in investigation of a case; and delay in conclusion of trial of a case, all said three delays were to bring multifarious results and consequences to a case---Delay in lodging F.I.R., would compel one to think over as to why delay was made in reporting matter to police---Doubts and supposition that some pre-meditation and pre-consultation would have been taken while reporting occurrence were raised in the case---Pace in interrogation and investigation sometimes caused extinction of material evidence, which would be most relevant to bring out real culprits to the door of justice---Slack attitude of prosecution in the trial of criminal case would cause mental torture and agony to an innocent person, who was lodged in jail and would give out an impression of mala fides on the part of prosecution--Delay took place in conclusion of trial of the case---All four Investigating Officers, concurrently found accused to be not guilty of firing upon deceased as alleged in F.I.R.---All of them had found accused not guilty of occurrence---Opinion of police, though was not binding, but in facts and circumstances of the case when no recovery was made from accused and recovery of pistol was made from co-accused, case of accused required further 'lithe-Failure of prosecution/informant to produce even a witness within two months of hearing of the case, created an impression that informant was not serious to allow the trial to be concluded in near future---Not a single witness was got examined within those two months of direction---One of co-accused having gone abroad, trial was expected to take many months to conclude---Detention of accused had exceeded more than two years---In view of delaying tactics employed by informant, accused was admitted to bail.

Sarnawaz and another v. The State 1997 PCr.LJ 949; Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; Sher Muhammad and 2 others v. The State and 4 others 1994 SCMR 549; Mst. Naziran v. Saifal and others 1998 PCr.LJ 1689; Zakar Ullah v. State 2002 YLR 1714; Mst. Rasoolan Bibi v. The State and another 2000 SCMR 641; Mst. Kausar Shaheen v. Said Rasool and 3 others 2001 PCr.LJ 244; Nur Elahi v. The State PLD 1966 SC 708; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53 and Karim Bakhsh v. Zulfiqar and 4 others 1997 SCMR 334 ref.

Sardar Ashiq Muhammad Khan for Petitioner.

G. N. Gohar for the Informant.

Ch. Shafi Muhammad Tariq, A.A.-G. for the State along with Athar Naveed, S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 1312 #

2006 Y L R 1312

[Lahore]

Before Muhammad Nawaz Bhatti, J

NAWAB KHAN---Petitioner

Versus

T.M.A. through T.M.O., Shujabad, District Multan and another---Respondents

Writ Petitions Nos.5665 and 7183 of 2005, heard on 14th February, 2006.

Punjab Local Government (Auctioning of Collection Rights) Rules, 2003---

----R. 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Arbitration clause---Dispute between contractor and Local Government---Notices were issued by Local Government to contractor for deposit of advance instalments and salaries of employees--Instead of approaching arbitrator, contractor had come to High Court in Constitutional jurisdiction against such notices---Validity---Constitutional petition did not lie against such notices---Even otherwise neither the lease was cancelled nor 12% of the bid money deposited by contractor had been forfeited, as such the petition was pre-mature---Constitutional petition was dismissed in circumstances

Muhammad Hagnawaz Bhalli v. The Administrator, Zila Council, Narowal and 2 others 1997 CLC 673 ref.

Shagufta Begum v. The Income Tax Officer, Circle-XI, Zone-B, Lahore PLD 1989 SC 360 and Mir Nabi Baldish Khan Khoso v. Branch Manager, National Bank of Pakistan, Jhatpat (Dera Allah Yar) Branch and 3 others 2000 SCMR 1017 rel.

Abdul Rasheed Sheikh for Petitioner.

Sh. Muhammad Yaseen along with Malik Rizwan Ahmad, T.M.O. and Ahmad Ali TO(F) for Respondents.

Date of hearing: 14th February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1315 #

2006 Y L R 1315

[Lahore]

Before Maulvi Anwaul Haq, J

MUHAMMAD AKBAR through Legal Heirs---Petitioners

Versus

Major TAJ-UD-DIN through Legal Heirs and others---Respondents

Civil Revision No.814 of 2004, heard on 8th March, 2006.

Civil Procedure Code (V of 1908)---

----O. XXI, R.10, O. XXXIX, Rr.1 & 2, Ss. 36 & 144---Specific Relief Act (I of 1877), S.53---West Pakistan Land Revenue Act (XVII of 1967), S.42---Execution of decree---Proof---Plaintiffs sought injunction asserting that possession of suit-land had been obtained by them in execution of pre-emption decree but later on the decree was reversed therefore possession could be restituted only in proceedings under S.144, C.P.C.-Injunction was refused---Validity---Nothing was on record to prove that possession of land had ever been delivered to plaintiffs as a result of execution of decree---Report of Roznamcha was produced which showed some amendment in Revenue Record upon presentation of copy of the decree which subsequently was varied by higher forum---Pre-emption decree was not to be executed and Revenue Authorities were competent to alter the records upon presentation of copy of decree, similarly they ware equally obliged to correct the records upon setting aside the said decree---Admittedly land was being cultivated by tenants and there was no question of delivery of any physical possession---Plea of injunction was, therefore, rightly refused.

Muhammad Mumtaz Malik for Petitioners.

Nemo for Respondents.

Date of hearing: 8th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1341 #

2006 Y L R 1341

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD DIN and another---Petitioners

Versus

SHAH MUHAMMAD---Respondent

Civil Revision No.414-D of 2003, heard on 14th March, 2006.

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

----O. VIII, R.5 & O. VI, R.17---Admission made in written statement---Application for amendment in written statement was allowed by trial Court on the ground of clerical error---Written statement was amended to the effect that admission was withdrawn---Validity---Parties were sons and daughters of deceased lady who contracted two marriages during her life---After death of lady, defendant who was out of her second wedlock got inheritance mutation to the exclusion of plaintiff's asserting that his mother did only one marriage to his father, hence plaintiff filed suit for declaration claiming inheritance---In the original written statement the pedigree table showing the parties to be the children of deceased lady was admitted and it was stated that pedigree-table was correct---Such admission could not be said to be the result of a clerical error---Admissions made in pleadings were of very special nature and the party making an admission in pleadings could not be allowed to withdraw the same---Trial Court acted without jurisdiction while allowing the defendant to withdraw the said admission by seeking amendment---Contention of defendant that said order of amendment had attained finality as it was not challenged when it was passed had no force under S.105(2), C.P.C. whereby all orders passed in a suit could be objected to where a decree was appealed from.

Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 ref.

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

----Arts. 30, 113 & 114---Admission---Admission wrong in fact---Not binding---Withdrawal of admission---Admission which is wrong on a point of fact or is made in ignorance of a legal right, has no binding effect on the person making same---Admission which is wrong, in fact, can be withdrawn but that would be subject to two conditions first, where admission amounts to a representation operating as a estoppel and the second, admission made in the pleading---Admissions made in the written statement have altogether different legal significance than admissions made generally.

Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 and Secretary, Government (West Pakistan), N.-W.F.P. Department of Agriculture and Forests, Peshawar and 4 others v. Kazi Abdul Kafil PLD 1978 SC 242 ref.

Ahmad Raza for Petitioners.

M. Tariq Nadeem for Respondent.

Date of hearing: 14th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1349 #

2006 Y L R 1349

[Lahore]

Before Khawaja Muhammad Sharif and Ijaz Ahmad Chaudhry, JJ

SOHAIL SHAHZAD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.200, 201 and 398 of 2001 and Murder Reference No.185 of 2001, decided on 12th October, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Reduction in sentence---Two alleged eye-witnesses were not produced before the Trial Court as having been won over---Evidence of other prosecution witness who was real grandson of complainant, was ruled out of consideration as he was not named in the F.I.R.---Complainant, who was father of deceased was only left in field---F.I.R. in the case had been promptly lodged---Number of injuries had proved that more than one accused had fired at deceased---To substitute actual culprit was a rare phenomenon and especially when real father was complainant---Presence of complainant at the time and place of occurrence had been established---No preyious background of enmity existed between the parties---Before actual occurrence of murder, a quarrel arose over playing of cards between deceased and accused---Something else had happened which was shrouded in mystery and same had not been disclosed before the Trial Court---No specific injuries were attributed to any of accused---Prosecution had failed to prove motive as except the assertion of complainant no corroboration was available to the same---Accused had committed murder of deceased---Extenuating circumstances existed, such as occurrence having taken place at the spur of the moment, what happened just before occurrence was shrouded in mystery, prosecution had failed to prove motive and seat of injuries had not been specified---Conviction of accused under S.302(b), P.P.C., was maintained, but their sentence was reduced from death to imprisonment for life---Sentence of compensation and in default, was maintained.

Syed Zahid Hussain Bukhari for Appellants.

Tahir Abbas Rizvi and Ch. Imtiaz Ahmad for the State.

Ch. Shafqat Ali Sulahria for the Complainant.

Date of hearing: 12th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1352 #

2006 Y L R 1352

[Lahore]

Before Maulvi Anwarul Haq, J

RUQIA BIBI through Legal Heirs---Petitioners

Versus

MUHAMMAD HANIF---Respondent

Civil Revision No.621 of 2005, heard on 6th March, 2006.

Civil Procedure Code (V of 1908)---

----O.XXI, R.23, Ss. 11 & 38---West Pakistan Family Courts Act (XXXV of 1964), S.19---Executing Court---Jurisdiction---Wife's suit for recovery of dower was decreed---Execution petition was objected to on the ground that wife had already obtained an ex parse decree for dissolution of marriage on basis of Khula and that the lady would not be able to recover anything from husband except her dowery---Objection was allowed by executing Court and execution petition was dismissed---Validity---Record proved that said objection was never pressed before trial Court during pendency of suit for recovery of dower---Executing Court had no jurisdiction to set aside the said decree---After suit was ultimately decreed---Findings of first Appellate Court that since the issue of dower had been decided in previous suit filed by wife, Court was estopped under doctrine of res judicata, were not sustainable because res judicata did not affect jurisdiction but was a plea which a party could waive---Courts below by setting aside the decree passed in favour of plaintiff on ground of decree of dissolution of marriage committed illegality of jurisdiction as it was rule of law that out of two conflicting decrees latter should prevail.

Rajani Kumar Mitra and others v. Ajmaddin Bhuiya AIR 1929 Calcutta 163 and Mst. Kaniz Fatma v. Yad Husain and others AIR 1932 Allahabad 520 ref.

Kh. Munawar Ahmad for Petitioners.

Zia-ur-Rehman Khan for Respondent.

Date of hearing: 6th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1355 #

2006 Y L R 1355

[Lahore]

Before Khawaja Muhammad Sharif and Ijaz Ahmad Chaudhry, JJ

ABDUL KHALIQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.139-J of 2001 and Murder Reference No.613 of 2000, decided on 6th October, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---F.I.R. was lodged with promptitude, which had eliminated possibility of false implication of accused who was single to have fired with pistol .30 bore at deceased causing injury which was sufficient to cause death in ordinary course of nature---Both eye-witnesses were residents of the same locality and though they were related inter se and with deceased, but they had no previous ill-will or grudge to falsely implicate accused---Even otherwise there did not appear any reason to substitute the name of accused by letting off real culprit---Both prosecution witnesses were subjected to lengthy cross-examination, but nothing could be gained in favour of defence to shatter their evidence---Said witnesses remained consistent on the material points regarding time, place and manner in which occurrence had taken place---All such facts established the presence of prosecution witnesses at the spot and they were worthy of reliance even without corroboration by independent piece of evidence---Mere non-reliance of recovery of weapon of offence, was not fatal to prosecution version in presence of unshattered ocular account---Prosecution, in circumstances had been able to bring home guilt to accused beyond any shadow of doubt---Mere acquittal of co-accused was no ground to discard prosecution version as co-accused was only attributed Lalkara, whereas accused had caused fire-arm injury, which proved fatal---Conviction recorded by the Trial Court under S.302(b), P.P.C. was maintained---Occurrence having been committed by accused as a result of family honour and accused having not repeated the shot, death sentence was not warranted and same was converted to life imprisonment.

Mirza Abdullah Baig for Appellant.

A.H. Masood and Tahir Abbas Rizvi for the State.

Date of hearing: 6th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1363 #

2006 Y L R 1363

[Lahore]

Before Fazal-e-Miran Chowhan, J

ANJUMAN JAMIA MASJID SHUHDA through Senior Vice-President---Petitioner

Versus

PROVINCE OF PUNJAB through District Officer (R), Sahiwal and 8 others---Respondents

Writ Petition No.2928 of 2005, decided on 6th March, 2006.

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

----O.I, R.10, Ss.115 & 151---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application by the Society, registered under Societies Registration Act, 1860, for being impleaded as defendant was allowed---Revision against order was dismissed---Plaintiff instead of filing amended plaint moved an application under S.151, C.P.C. praying that since the Society was declared defunct and was not in existence, therefore, same could not be impleaded as defendant---Application was dismissed holding that since the order of revisional Court was not challenged by plaintiff the order to be impleaded the Society as defendant in suit had attained finality and that status of Society as defendant would be solved by the trial Court after recording evidence of the parties---Validity---In absence of jurisdictional defect or material irregularities the order of trial Court was rightly upheld by revisional Court.

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

----Art. 199---Civil Procedure Code (V of 1908), S.115---Constitutional petition---Maintainability---Constitutional petition was filed against the order of lower Appellate Court passed in exercise of its revisional jurisdiction under S.115, C.P. C. ---Such an order could be challenged through constitutional petition where the same was wholly void or coram non judice but not on the ground of mere illegality.

Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322; Muhammad Samiullah Khan v. ADJ, Sargodha PLD 2002 Lah 56; Sh. Gulzar Ali and Co. Ltd. and others v. Special Judge, Special Court of Banking and another 1991 SCMR 590 and Rana Mamoon Rasheed v. Kokab Noorani Okarvi and 4 others PLD 1999 Kar 257 ref.

Mian Arshad Latif for Petitioners.

2006 Y L R 1400

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD AKMAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.345-M to 350-M of 2006, decided on 30th March, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 397 & 561-A---Penal Code (XLV of 1860), Ss.324, 353, 392, 394 & 427---Surrender of Illicit Arms Act (XXI of 1991), S.7---Running various sentences concurrently ---Petitioner had sought concurrent running of sentences awarded to him under various offences---Conviction against petitioner was recorded on confession made by him---Provisions of S.397, Cr. P. C. had bestowed powers upon High Court to direct that subsequent sentence to run concurrently with previous sentences---Revisional Court accepted revision petition of petitioner in three cases on the ground that judgment of the Trial Court was announced on one and the same date by same Presiding Officer---On that analogy, sentences passed subsequently could not be allowed to run concurrently--No obstacle in granting relief to petitioner whose case was unique and of first impression as he at the very outset made confession and was repentant---Petitioner saved precious time of the Trial Court; his such gesture and remorse did require favourable consideration in terms of lesser sentence---Courts though were required to pass sentence as required by law, but should not lose sight of the fact that if accused had taken steps to reform himself, he should not be frustrated---Leniency in sentence in case of voluntary confession of guilt, had been the settled policy of the Courts---All sentences awarded to petitioner under various offences, would run concurrently---Sentence of fine in all cases was also reduced.

Allah Bakhsh Gondal for Petitioner.

Khadim Hussain Qaiser, Additional Advocate General for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 1404 #

2006 Y L R 1404

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD ILYAS and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5857-B of 2005, decided on 14th September, 2005.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss. 379, 406, 420, 467, 468, 471 & 506---Bail before arrest, refusal of---Bail earlier granted to accused was cancelled for non-prosecution and again it was granted for a number of times, but was dismissed as accused did not join investigation---No ground for grant of bail once again was made out---Bail before arrest could only be granted when pre-requisites as enunciated in cases PLD 1984 SC 192 and PLD 1983 SC 82 were available---Petition for bail before arrest being without any merit, was dismissed.

Zia-ul-Hassan v. The State PLD 1984 SC 192 and Murad Khan v. Fazal-e-Subhan PLD 1983 SC 82 ref.

Iftikhar Ahmad for Petitioners.

Malik Suleman Awan for the State.

Date of hearing: 14th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1405 #

2006 Y L R 1405

[Lahore]

Before Maulvi Anwarul Haq, J

SAJID NAWAZ and another---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary, Islamabad and 8 others---Respondents

Writ Petitions Nos.500 and 519 of 2006, decided on 7th February, 2006.

Punjab Local Government Elections Ordinance (V of 2000)---

----S. 14---Punjab Local Government Elections Rules, 2000, Rr.16, 18 & 70---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election to the seats of Nazim and Naib Nazim---Disqualification of candidate---Petitioners were declared returned, but respondents, in the first instance filed constitutional petition challenging election of petitioners on the ground that one of the petitioners was not holding requisite educational qualification as 'Sanad Shahadat-ul-Sanvia-tul-Alma' of the petitioner was not equivalent to Matric---Constitutional petition filed by respondents was allowed, but Intra-Court appeal against said order was accepted and constitutional petition was ordered to be reheard---Upon rehearing, constitutional petition was disposed of with direction to Election Tribunal to first take up the issue of qualification as a preliminary issue and to decide same up to specified date---Election petition filed by respondents was accordingly allowed on specified date---Contention of petitioner was that notwithstanding the fact that the matter had been treated as a preliminary issue, Election Tribunal, could not have decided same without conducting a full-dress trial and giving opportunity to parties to lead evidence---Petitioners admittedly were holding "Sanad Shahadat-ul-Sanvia-tul-Alma" which had not been considered equivalent to Matriculation Certificate and petitioners had not been issued equivalence certificate as they had not passed additional examination of English, Urdu and Pakistan Studies at SSC or HSSC level from Education Boards of Pakistan---No evidence having been led in support of plea of petitioner, both the constitutional petitions, were dismissed.

Sanaullah Khan and others v. District Returning Officer, Mianwali and others PLD 2005 SC 858 ref.

Muhammad Ramzan Khalid Joya for Petitioners.

YLR 2006 LAHORE HIGH COURT LAHORE 1409 #

2006 Y L R 1409

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

SAFDAR ALI and another---Petitioners

Versus

THE STATE---Respondent

Criminal Appeal No.5249-B of 2005, decided on 27th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.419, 420, 467, 468 & 471---Bail, grant of---Accused were no more required for any further investigation---Co-accused had already been granted bail and case of accused was at par with said co-accused---Accused were also admitted to bail in view of principle of consistency.

Zafar Iqbal Chohan for Petitioners. Khaliq Bhatti for the State.

Zulfiqar Ali, Complainant in Person.

Date of hearing: 27th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1410 #

2006 Y L R 1410

[Lahore]

Before Maulvi Anwarul Haq, J

Messrs M.B. INDUSTRIES (PVT.) LTD., MULTAN, through Managing

Director---Petitioner

Versus

Mst. SHAHNAZ AKHTAR---Respondent

C. R. No.355 of 1991, heard on 1st February, 2006.

Court Fees Act (VII of 1870)---

----Ss.13, 14, & 15---Punjab Pre-emption Act (I of 1913), Ss. 15 & 21--- Suit for preemption---Withdrawal of suit---Refund of court-fee-After recording evidence of plaintiff when case was being adjourned for recording of evidence of defendant, a decision of Shariat Appellate Bench of Supreme Court was announced---Plaintiff filed application stating that since in view of decision of Supreme Court his suit had become incompetent, he be allowed to withdraw suit and plaintiff also prayed for refund of court-fee-Suit was dismissed as withdrawn, but court fee was not refunded by the Trial Court on the ground that it had no jurisdiction to do so---Validity---Several suits either pending when pronouncement in Said Kamal Shah's case was made or filed thereafter, had been rendered incompetent under dictum of apex Court---No mala fide could possibly be attributed to plaintiff for filing said suit which was rendered incompetent because of pronouncement of Supreme Court after its institution---Plaintiff instead of pressing the matter had opted to withdraw suit and thereby to lessen the burden of the Court as well---No substantial proceedings otherwise having taken place in the suit; it would be in the interest of justice to grant prayer of the plaintiff-Court-fee paid by plaintiff on the plaint, was ordered to be refunded as prayed for by plaintiff.

Bhola v. Sardar Muhammad PLD 1976 Lah. 1268 and Nabi Bukhsh Khan Bhaurgari v. National Bank of Pakistan PLD 1988 Kar. 24 ref.

Malik M. Tariq Rajwana for Petitioner.

Nemo for Respondent.

Date of hearing: 1st February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1417 #

2006 Y L R 1417

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD RAFIQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6262-B of 2005, decided on 30th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 458, 148 & 149---Bail, refusal of---Matter though was reported to the police after almost one month of occurrence, but it could not be said that F.I.R. was lodged after consultation and deliberation because medico-legal report available on record revealed that on next day of occurrence injured was produced before Medical Officer for examination by police concerned---If, in circumstances, case was registered by police after said delay, the burden heavily lay on police officials and not on the complainant---Contents of F.I.R. revealed that specific allegation was made against accused of causing fire-arm injuries to injured---Medical evidence also corroborated ocular account on that score---Injured witnesses during investigation while making statement under S.161, Cr. P. C. had also supported prosecution stand---Prima facie, case of accused was falling within the prohibitory clause of S.497, Cr. P. C. in the light of data available on record.

Mian Mahmood for Petitioner.

Sumera Afzal for the State.

Zafar Abbas for the Complainant.

Date of hearing: 30th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1421 #

2006 Y L R 1421

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. KANWAL IRAM ---Appellant

Versus

Dr. HABIB ULLAH---Respondent

F.A.O. No.223 of 2005, decided on 21st February, 2006.

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

----S.17 (4) (b) ---Bona fide personal need of landlady---Onus to prove---When landlady filed ejectment application, another shop in the same premises was vacant and she intended to let out the same---Rent Controller dismissed the application for the reason that landlady had failed to prove her bona fide need of the shop in question---Plea raised by the landlady was that it was her prerogative to select shop for occupation and tenant could not give dictation to her---Validity---Held, it was primarily for the landlady to have proved the ingredients of S.17(4) (b) of Cantonments Rent Restriction Act, 1963---Choice was available to landlady where all the shops were occupied but in case of a vacant shop landlady was required by law to prove or at least to state that the vacant shop was not suitable for her requirement--Such important evidence or even statement of landlady was missing on record---High Court declined to interfere with the order passed by Rent Controller---Appeal was dismissed in circumstances.

Ch. Ayyaz Muhammad Khan for Appellant.

YLR 2006 LAHORE HIGH COURT LAHORE 1423 #

2006 Y L R 1423(2)

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD KHALID SALEEM---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor and 2 others---Respondents

Writ Petitions Nos.4875 and 4889 of 2005, decided on 14th September, 2005.

Bahauddin Zakariya University Multan, University Calendar Vol-I Edition 1977-78---

----R. 2---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Examination---Petitioners, who got admission in a Law College, at "S" appeared in I-Part L.L.B. from said college, but subsequently sent forms for next part from another Law College without any migration---University had not allowed petitioners to appear in Examination of L.L.B. Part-I & II on the ground that they had changed their Colleges without migration---Rule 2 of Bahauddin Zakariya University Calendar Vol:I-edition 1977-78 had clearly provided that no student, who had joined one college, would be admitted to another college during same course unless and until transfer had been allowed by the University---Petitioners had not obtained any permission and did not get themselves migrated to said college---Authorities, in circumstances had rightly restrained petitioners from appearing in L.L.B. Second Part and said action of authorities could not be declared as illegal and unlawful.

M. Mahrban Ranjha for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 1429 #

2006 Y L R 1429

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

SAHIB KHAN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3424-B of 2005, decided on 3rd June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, grant of--Further inquiry---According to F.I.R. and Investigating Officers, both accused were empty handed at the time of occurrence---No injury had been attributed to accused persons---Case of accused persons, in circumstances was of further inquiry---Accused and co-accused were stated to be aged 80 years and 70 years respectively---Case being fit for grant of bail, accused were admitted to bail accordingly.

Syed Imdad Hussain Hamadani for Petitioners.

Abdul Majeed Chishti for the State.

Date of hearing: 3rd June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1431 #

2006 Y L R 1431

[Lahore]

Before Sardar Muhammad Aslam, J

MAQSOOD AHMAD---Petitioner

Versus

MUHAMMAD ANWAR ALI and 8 others---Respondents

C.R. No.1551 of 2004, heard on 8th December, 2004.

(a) Malicious prosecution---

----Onus on plaintiff---In an action for malicious prosecution plaintiff is under the onus to show:

(i) that he was prosecuted by the defendant on criminal charge;

(ii) that the prosecution terminated in plaintiff's favour;

(iii) that the prosecution was malicious;

(iv) that the prosecution was without reasonable and probable cause;

(v) that the proceedings had interfered with the plaintiff's liberty and had also affected his reputation; and

(v) that the plaintiff had suffered damages.?

(b) Malice--

--Connotation-"Malice" is not spite or hatred against any individual but of malus animus and denotes the working of improper and indirect motives.?

----Suit for damages---Defendant had lodged a complaint against plaintiffs---Plaintiffs were challaned and ultimately they were acquitted of the charge---Plaintiffs' suits for malicious prosecution were decreed and appellate Court affirmed the said decree---Validity---No hint of any malice by defendant was found while launching of prosecution---Mere fact that prosecution instituted by defendant against plaintiffs ultimately failed, could not expose the former to the charge of malicious prosecution unless it was proved by the plaintiffs that the prosecution was instituted without any reasonable or probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect.?

Muhammad Akram v. Mst. Farman Bibi PLD 1990 SC.28 and Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700 ref.

Dr. Muhammad Akmal Saleemi for Petitioner.

Qari Nadeem Ahmad Awaisi for Respondents.

Date of hearing: 8th December, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1435 #

2006 Y L R 1435

[Lahore]

Before Ali Nawaz Chowhan and Syed Shabbar Raza Rizvi, JJ

IRFAN ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No.2281 of 2003 and Criminal Appeal No.87-J of 2004, decided on 17th October, 2005.

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction of---Accused had not assailed order of their conviction, but had challenged quantum of sentence being harsh and excessive---Official witnesses had not been impeached and there was no doubt about their testimony---Sentence of 14 years was reduced to 6 years while keeping the sentence of fine intact, in view of recovery effected of indigenous opium and Charas---Accused were given benefit under S.382-B, Cr. P. C.

Zafar Iqbal Chohan for Appellant. Tahseen Irfan for the State.

Date of hearing: 17th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1436 #

2006 Y L R 1436

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

Mst. SAHIB BIBI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.7182-B of 2005, decided on 18th October, 2005.

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

----S. 498---Penal Code (XLV of 1860), Ss.419, 420 & 468---Ad interim pre-arrest bail, cancellation of---Co-accused was admitted to ad interim pre-arrest bail with direction to submit bail bonds with one surety---Co-accused had not furnished surety bond---To the extent of co-accused no ground for pre-arrest bail having been made out, his bail petition was dismissed.

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

----Ss. 498 & 497; first proviso---Ad interim pre-arrest bail, confirmation of---Not only that the lady was illiterate and her case fell within ambit of first Proviso to S.497, Cr. P. C., but investigation to her extent was complete and she was not required for further investigation---To her extent petition was allowed and ad interim pre-arrest bail already granted to her stood confirmed against same surety bonds.

Sheikh Hamad Danish for Petitioners.

Syed Faiz-ul-Hassan for the Complainant.

Syed Tahir Abbas Rizvi with Muhammad Amir, S.-I. for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 1438 #

2006 Y L R 1438

[Lahore]

Before Nasim Sikandar, J

PAKARAB FERTILIZERS (PVT.) LTD.---Petitioner

Versus

EVACUEE TRUST PROPERTY BOARD through Chairman and

2 others---Respondents

Writ Petition No.14513 of 2005, decided on 15th August, 2005.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 8 & 16---Constitution of Pakistan (1973), Art.199---Constitutional petition---Relinquishment of tenancy rights by previous company---Taking over possession of demised premises by Department---Petitioner seeking restoration of possession claimed to have purchased 94% shares of previous company in privatization process; that petitioner was in possession of demised premises at the time of privatization; and that there was no allegation of default in payment of rent or violation of other tenancy rights against petitioner---Pendency of petitioner's representation against impugned eviction order---Department agreed to treat such representation as an appeal under S.16 of Evacuee Trust Properties (Management and Disposal) Act, 1975---Matter would still remain wide open, thus, request of petitioner for restoration of possession was justified as its business would come to a stand still, while department would not sustain any serious loss till decision of appeal---High Court accepted constitutional petition directing department to treat such representation as an appeal and decide same after considering petitioner's defence put up against eviction order.

Dr. Mrs. Nasim Qureshi v. Deputy Administrator, Evacuee Trust Property Karachi and another 1987 CLC 213; Collector of Customs, Customs House, Lahore and 3 others v. Messrs S.M. Ahmad and Company (Pvt.) Limited, Islamabad 1999 SCMR 138 and Hafiz Brothers (Pvt.) Limited and others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. 2001 SCMR 1 ref.

Malik Muhammad Rafique Rajwana for Petitioner.

Mian Muhammad Qamar-uz-Zaman for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 1440 #

2006 Y L R 1440

[Lahore]

Before Jawwad S. Khawaja, J

GHULAM RASOOL through Legal Heirs---Petitioners, Versus

NOOR BEGUM and 9 others---Respondents

Civil Revision 1944 of 2005, heard on 2nd February, 2006.

Specific Relief Act (I of 1877)---

----Ss. 12 & 42---Qanun-e-Shahadat (10 of 1984), Art.34---Suit for declaration and in the alternate specific performance of oral agreement to sell---Admission against one's own interest---Evidentiary value---Plaintiff's claim was conceded by some of the defendants which constituted an admission against their own interest and that was, by itself, strong evidence to corrborate the testimony of witnesses---Minor contradictions in statement of witnesses therefore were of no consequence---None of defendants, without any explanation, chose to enter the witness-box to testify on oath and to submit his cross-examination---Plaintiff's possession, in circumstances, was not proved as unauthorized or forcible but all such material evidence was misread or non-read by Courts below.

Dr. Ehsan-ul-Haq Khan and Abdul Latif Hussain for Petitioners.

Sahibzada Badr-ul-Hassan for Respondents Nos.1, 2, 3, 6 and 8.

Date of hearing: 2nd February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1442 #

2006 Y L R 1442

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

FAYYAZ HUSSAIN---Appellant

Versus

TARIQ MEHMOOD IQBAL KHAN and another---Respondents

Criminal Appeal No.1727 of 2005, heard on 21st November, 2005.

Penal Code (XLV of 1860)---

----S. 228---Appreciation of evidence---Accused had only submitted application for adjournment and did not do any act amounting to intentional insult or interruption in the proceedings---Action of accused did not fall within the purview of S.228, P.P.C.-Impugned order to the extent of proceedings against accused under S. 228, P.P.C. was set aside---Nothing was observed in said order that would affect the pending proceedings.

Fahad Ahmad Siddiqui for Appellant.

Tahir Mahmood Gondal, A.A.-G. assisted by Dawar Sherazi for the State.

2006 Y L R 1453(2)

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD RAFIQ through L.Rs. ---Petitioners

Versus

MERAJ DIN through L.Rs.---Respondents

Civil Revision No.164 of 2004, heard on 6th March, 2006.

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

----Arts. 100 & 117---Specific Relief Act (I of 1877), S.42---Thirty years' old unregistered power of attorney---Presumption of correctness---No presumption could be attached to such document until and unless the age of document was first established on record---Since such nature of evidence was conspicuously missing appellate Court rightly found that agreement to sell made on basis of such power of attorney which was neither registered nor contained any power of sale had no legal sanctity---Defendant's failure to prove the status of plaintiff as tenant, as alleged in the suit, was of no benefit to plaintiff because plaintiff had to stand on his own legs rather to take advantage of any weakness of other side---Plaintiff never had any title document on basis of which amenities could be procured, hence his suit for declaration was rightly dismissed in appeal.

(b) Power of attorney---

----Instruments of power of attorneys in pursuance whereof attorney was authorized to act on behalf of principal must be strictly construed and applied---Principles.

Muhammad Yasin and another v. Dost Muhammad through Legal Heirs and another PLD 2002 SC 71 ref.

Iqbal Hameed-ur-Reman for Petitioners.

Mian Sarfraz-ul-Hassan for Legal Heirs of Respondents Nos. 1 and 2.

Date of hearing: 6th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1456 #

2006 Y L R 1456

[Lahore]

Before Sardar Muhammad Aslam, J

NASEER AHMED---Petitioner

Versus

THE STATE and another---Respondents

Civil Miscellaneous No.1 of 2005 in Criminal Appeal No.1914 of 2004, decided on 11th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.337-L(ii), 337-F(i), 337-A(i)---Suspension of sentence---Application for---Applicant, once was discharged from the case, but thereafter the Court summoned him---Such aspect of case had to be examined at the time of appeal---Allowing application, sentence was suspended and applicant was released on bail.

Zafar Iqbal Chohan for Petitioner.

Ch. Muhammad Nazir for the State.

Date of hearing: 11th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1457 #

2006 Y L R 1457

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD SHARIF and others---Appellants

Versus

ANWAR-UL-HASSAN through L.Rs. and others---Respondents

Regular Second Appeal No.160 of 2005, heard on 29th November, 2005.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for declaration and suit for possession---Declaratory suit filed by plaintiff was dismissed while suit for possession filed by defendants was decreed---Findings of Trial Court were upheld in first appeal---Plaintiffs had claimed ownership of suit-land by virtue of Settlement Scheme No.7---Contention of defendants was that since plaintiffs had acknowledged that they had been cultivating the land of defendants as tenants they could not have claimed title in the suit-land---Record had conclusively proved that plaintiffs were in possession as migratory from India since 1947---Plaintiffs' prayer for declaration that they were entitled to assert their right on basis of Settlement Scheme No.7 and failing in there to assert that they had become owners on account of their continuous possession of suit property since 1947, were not contradictory but such were merely alternate pleas permissible in law---Without realizing that the tenancy was only in respect of some other agricultural land Court below had committed serious misreading of evidence by taking plaintiffs as tenants of defendants---Impugned decrees being result of an illegality in exercise of jurisdiction, were set aside by High Court.

Ch. Riaz Ahmad for Appellants.

Saif Ullah Khan for Respondents.

Date of hearing: 29th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1459 #

2006 Y L R 1459

[Lahore]

Before Jawwad S. Khawaja, J

Mst. SARWARI BEGUM and 7 others---Petitioners

Versus

MUNAWAR SULTANA and 9 others---Respondents

Civil Revision No.1366 of 2000, heard on 17th October, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts.117 & 118---High Court (Lahore) Rules and Orders, Vol.I, Ch.1-M---Suit for declaration---Suit decreed and decree upheld in appeal---Question of title---Proof---Report of demarcation proceedings along with site plan showing encroachments could not have been relied upon as it did not comply with requirements of Chapter 1-M, Vol." of High Court (Lahore) Rules and Orders as the same was prepared by a Girdawar and not by a Revenue Officer---Both Girdawar and Patwari admitted that no notice of demarcation proceedings were issued to defendants and report was prepared unilaterally behind defendants' back---Defendants had themselves filed an application for appointment of Local Commission with object of demarcating the disputed property and report of Local Commission clearly stated that because of urbanization and construction in the area, it was no longer possible to demarcate land and to identify disputed area in relation to the title claimed by plaintiffs---Possession of defendants was admitted and in the site plan, name of predecessor-in-interest of defendants had been shown as encroacher---Plaintiffs had failed to discharge the onus to prove their title through cogent and admissible evidence--Impugned decrees of Courts below being not sustainable were set aside by High Court.

S.M. Tayyab for Petitioners.

Jahangir A. Jhoja for Respondents.

Date of hearing: 17th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1461 #

2006 Y L R 1461

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD SADIQ---Petitioner

versus

MUHAMMAD MALIK and 36 others---Respondents

Civil Revisions Nos.557 and 529 of 2000, decided on 28th March, 2005.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Petitioner had claimed that he was owner of shop in question on basis of document whereby respondent had sold said shop in his favour---Respondent had claimed that original owner of shop in dispute had put petitioner in possession of the same as tenant---Trial Court decreed suit, but Appellate Court reversed judgment and decree of Trial Court---No written document was available about tenancy of original owner or his legal heirs in favour of petitioner and it had not been proved that petitioner had been making payment of rent to the respondents--Appellate Court having failed to consider said important aspects of the matter, judgment and decree passed being based upon misreading and non-reading of record, could not be maintained---Impugned judgment and decree was set aside, whereas judgment and decree of Trial Court, were upheld and maintained.

Muhammad Saleem Chaudhry for Petitioner.

C.M. Latif for Respondents.

Date of hearing: 18th March, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1463 #

2006 Y L R 1463

[Lahore]

Before Ijaz Ahmad Chaudhry, J

RASHEED alias SHEEDI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1081/B of 2004, decided on 27th April, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497-Juvenile Justice System Ordinance (XXII of 2000), S.7---Penal Code (XLV of 1860), S.377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Bail, refusal of---Serious allegations had been levelled against accused which fell within prohibitory clause of S. 497, Cr. P. C. ---During investigation nothing had come on record to show any mala fides on part of complainant or the police to falsely involve accused in such an offence---Accused who claimed to he juvenile, could first get his age determined from the proper Court of law under S.7 of Juvenile Justice System Ordinance, 2000---High Court at bail stage could not hold inquiry regarding age of accused---No case for bail having been made out, his bail application was dismissed.

Tariq Zulfiqar Ahmad Chaudhry for Petitioner.

Zafar Mehmood Anjum for the State.

Date of hearing: 27th April. 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1464 #

2006 Y L R 1464

[Lahore]

Before Jawwad S. Khawaja, J

NOOR MUHAMMAD through L.Rs. and others---Petitioners

Versus

Chaudhry MUHAMMAD BAKHSH through L.Rs. and others---Respondents

Civil Revision No.577 of 2001, heard on 25th January, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiffs claimed to be owners in possession of suit-land contending that they had purchased entire land holding of vendors vide sale-deed, therefore, legal heirs of vendors had no right to alienate the same to defendants---Dismissal of suit and appeal---Validity---Sale-deed by vendors clearly mentioned that entire land of vendors stood conveyed to plaintiffs and that as a result vendors did not remain owners of any land nor their legal heirs could transfer the same to defendant/plaintiffs were in continuous possession of suit-land---Legal heirs of vendors had obtained sanction of inheritance mutation just because Revenue Record was not correctly prepared to reflect the sale made by vendors through sale-deed but Courts below had only gone by Revenue Record without appreciating that such record did not operate to create or extinguish title---Concurrent decrees being the result of non-reading and misreading of evidence were not sustainable.

Awan Muhammad Hanif Khan for Petitioners.

Respondents: Ex parte vide order, dated 13-10-2005.

Date of hearing: 25th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1466 #

2006 Y L R 1466

[Lahore]

Before Mian Saqib Nisar, J

ASHFAQ-UR-REHMAN and another---Petitioners

Versus

WALI MUHAMMAD and 10 others---Respondents

Civil Revision No.2390 of 2005, heard on. 22nd February, 2006.

Civil Procedure Code (V of 1908)---

----O. XVII, R.3---Two connected suits subsequently separated---Dismissal of one suit for non production of evidence---Contention of plaintiffs was that they misunderstood the date of hearing, as both cases were earlier tried together, therefore, they validly thought that their case was also fixed for the date as in the other matter---Validity---In case of two connected suits proceeding almost together, the possibility of noting down the wrong date could not be ruled out, High Court, therefore, allowed petition, in the interest of justice, which required that the rights of parties should not be thwarted on the technicality, rather those be decided on merits.

Malik Amjad Pervaiz for Petitioners.

Kh. Khalid Butt for Respondents.

Date of hearing: 22nd February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1467 #

2006 Y L R 1467

[Lahore]

Before Syed Shabbar Raza Rizvi, J

SIKANDAR HAYAT---Appellant

Versus

ATTIQ-UR-REHMAN and others---Respondents

Criminal Appeal No.917 of 2005, decided on 7th September, 2005.

Penal Code (XLV of 1860)---

----S. 364-A---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Trial Court noted that not a single word was recorded in the F.I.R. as to why nephew of complainant was abducted---Complainant, however, in supplementary statement subsequently made, had asserted that accused had intention to kill abductee---Said supplementary statement was recorded after lapse of 3-1/2 months of the alleged occurrence---Said statement as per the Trial Court had created a doubt in the story of the prosecution and in view of said doubt, version of accused was believed by the Trial Court and while giving benefit of doubt, accused was acquitted---Reasons given by the Trial Court being convincing, appeal against acquittal was dismissd.

Muhammad Amir Khan Niazi for Appellant.

Date of hearing: 7th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1469 #

2006 Y L R 1469

[Lahore]

Before Jawwad S. Khawaja, J

PAKISTAN BROADCASTING CORPORATION through Director General and others---Petitioners

Versus

NAIK MUHAMMAD and 18 others---Respondents

Civil Revision No.86 of 2000, heard on 21st October, 2005.

Specific Relief Act (I of 1877)---

----S.42---Land Acquisition Act (1 of 1894), Ss.11 & 12---Suit for declaration---Suit land had been transferred to Pakistan Broadcasting Corporation/defendant under Land Acquisition Act, 1894---Plaintiffs claimed ownership of a part of acquired land but instead of the Corporation, expressed grievance only against those persons who had allegedly obtained a collusive decree of pre-emption regarding suit-land---Suit was decreed and decree affirmed in appeal---Validity---Pakistan Broadcasting Corporation was in possession of suit-land since 1962 and land acquisition proceedings were not disputed by plaintiffs---Neither the Province nor the land Acquisition Collector was impleaded as defendant in the suit---Plaintiffs had not made any claim against defendant nor had they sought possession of suit-land---Courts below could not have passed a decree against Pakistan Broadcasting Corporation because no relief had been sought against it---Concurrent decrees of the Courts below to the extent of Pakistan Broadcasting Corporation were set aside by High Court.

Zeeshan Mir for Petitioners.

Shahid Ikram Siddiqui for Respondents Nos.1 to 12.

Date of hearing: 21st October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1476 #

2006 Y L R 1476

[Lahore]

Before Jawwad S. Khawaja, J

Mst. HAMIDA BEGUM and another---Petitioners

Versus

MUHAMMAD ISMAIL---Respondent

Civil Revision No.505 of 2002, heard on 27th October, 2005.

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

----Arts.72 & 78---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Suit was decreed and decree was upheld in appeal---Proof of execution of document---Marginal witnesses---Document was required by law to be proved through two attesting witnesses---Agreement in question was attested' by four marginal witnesses but only one attesting witness was produced who stated that he did not know the executor/defendant and only witnessed execution of agreement in question---Absence of other three witnesses was material---Was not credible that agreement was drafted by a person who was neither a stamp vendor nor a deed writer---Nothing was on record to show that scribe was not available---Was important to note that defendant herself applied for comparison of her thumb-impression---Report of Finger Print Expert was to the effect that thumb-impressions on sale-deed in question were different from that of the lady---No attempt was made by plaintiff to challenge the report---Plaintiff's own testimony was self-contradictory and it was unbelievable that plaintiff after making payment of entire consideration to defendant did not obtain conveyance of title through registration of sale-deed.

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

----Art. 84---Signatures, comparison of---Powers of Court---Court had powers to itself compare signatures along with other available relevant material to resolve a controversy--Exercise of jurisdiction conferred upon the Court under Art. 84 of Qanun-e-Shahadat 1984 could have cleared the forgery, if any, committed by plaintiff.

----Arts.117 & 118---Execution of a document by illiterate lady---Burden of proof---Where a document executed by an illiterate lady is called in question it is incumbent upon plaintiff to prove that lady had received independent advice from a male member of her family---Plaintiff had failed to prove that any male member of lady's family was involved in the transaction---Plaintiff had taken advantage of absence of defendant lady as she was residing in another city, and after death of her brother, plaintiff made an attempt to grab the suit-land through a forged agreement but such material aspects of case had been ignored by Courts below--Impugned judgment and decree passed by Courts below were, therefore, not legally sustainable and same were set aside by High Court.

Kh. Saeed-uz-Zafar for Petitioner.

Muhammad Younas Chaudhry for Respondent.

Date of hearing: 27th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1480 #

2006 Y L R 1480

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, and Ijaz Ahmad Chaudhry, JJ

ARSHAD HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.651 and Murder Reference No.276 of 2000, decided on 19th October, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Appreciation of evidence---Sentence, reduction in---Case was of two versions---Time, place of occurrence and the weapon used in the occurrence were almost admitted facts---Accused in support of defence plea, neither made any statement under S.340(2), Cr. P. C. nor produced any witness from the locality---Both the parties, while deposing before the Court had deliberately concealed the injuries caused by them to their adversaries, whereas medical evidence/reports available on record revealed that duration of injuries on the person of deceased and acquitted accused tallied with each other---Concealment on the part of both parties had revealed that some true facts were concealed by them while making statement before the Trial Court---Data available on record had shown that before the injury was caused to kill deceased, both the parties had quarreled and gave slaps to each other---Immediately before occurrence something else had happened and thus the genesis of occurrence was shrouded in mystery---Everything had happened at the spur of the moment and it was not a pre planned murder---Accused at the time of occurrence being minor, it was not a fit case for award of capital sentence---Sentence awarded to accused was thus reduced to imprisonment for life with benefit of S. 382-B, Cr. P. C. ---Death sentence of accused having not been confirmed murder reference was answered in the negative.

Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 ref.

Muhammad Saeed Ansari for Appellant.

Ch. Muhammad Nawaz Sulehria for the Complainant.

Iram Sajjad Gul for the State.

Date of hearing: 19th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1486 #

2006 Y L R 1486

[Lahore]

Before Khawaja Muhammad Sharif, J

KHURSHID---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No.177-J of 2004, decided on 25th October, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Appreciation of evidence---F.I.R. was lodged promptly and the delay, if any, was reasonably explained therein---Co-accused became fugitive from law and was declared proclaimed offender---Accused made a straight fire on star witness, but luckily he was saved from said fire---A .30 bore Mausar along with two live bullets was recovered from accused during course of investigation---Case was that of common intention between accused and his co-accused/proclaimed offender---Case had previous background of enmity and motive was proved against accused---Even otherwise, where eye-witness account was worthy of credence, unimpeachable, confidence-inspiring and accusation was established beyond shadow of doubt, weakness of motive or its absence or where alleged, but not proved, would hardly make any difference in awarding the sentence---Prosecution had proved its case against accused beyond any shadow of doubt to sustain conviction against accused---Both accused armed with fire-arms had come to the spot, started waiting for the complainant party---When complainant party reached at the spot, accused raised Lalkara whereupon co-accused fired at deceased followed by a fire by accused on prosecution witness which went amiss---Trial Court had delivered a well-reasoned judgment which did not call for interference---Conviction and sentence awarded to accused by the Trial Court, were maintained.

S.D. Qureshi, Defence Counsel at State expenses for Appellant.

Kazim Iqbal Bhanghu for the State.

Date of hearing: 25th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1489 #

2006 Y L R 1489

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD MALIK---Petitioner

Versus

Mst. KHURSHID BIBI through Legal Heirs and another---Respondents

Civil Revision No.93-D of 1997, decided on 4th November, 2004.

(a) Pardanashin lady---

----Power of attorney---Specific Relief Act (I of 1877), S.42---Power of attorney, execution of---Absence of independent advice---Plaintiff assailed registered sale-deed on the ground that the power of attorney was executed by her without any independent advice, on the basis of which sale-deed was executed in favour of defendant---General power of attorney contained thumb-marks of plaintiff and her husband---Effect---Independent advice was available to plaintiff in circumstances.

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

----S.42---Suit for declaration of title---Concurrent findings of fact by the Courts below---Dispute between principal and attorney-Non-payment of balance consideration amount after registration of sale-deed---Effect---Plaintiff alleged that general power of attorney on the basis of which sale-deed was registered in favour of defendant, was obtained with fraud and further alleged that she did not receive any consideration amount---Both the .Courts concurrently decided the matter in favour of plaintiff---Validity---Both the Courts below had given undue importance and weightage to the contradictions as to whether the amount was paid in full before Registrar at the time of execution of sale-deed or otherwise---Once the execution of sale-deed was proved through attorney, part payment or non-payment of consideration amount would not invalidate the sale itself---Plaintiff could sue her attorney for the recovery of sale proceeds---Execution of power of attorney was not denied but a plea had been taken that the same was obtained for lease---No evidence of fraud was produced by plaintiff and the defendant could not be made to suffer on account of any dispute, between the principal and attorney---Principal could sue her attorney for damages if it was proved that he acted against the instructions or interest of the principal---Judgments and decrees of both the Courts below were set aside and the suit was dismissed.

Zafar Iqbal Ch. for Petitioner.

Akhtar Masood Khan for Respondent No. 1.

Date of hearing: 28th October, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1492 #

2006 Y L R 1492

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD RAFIQUE---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1625 of 2003, decided .on 18th October, 2005.

Emigration Ordinance (XVIII of 1979)---

----Ss.17 & 22---Appreciation of evidence---Victims/prosecution witnesses deposed the mode and manner under which payment was made by them to accused who had promised to take them abroad and make arrangements for their job---Said payment was made in the house of Lamberdar of the village---No doubt during investigation passports of both victims were never taken into possession, but it was apparent from the record that those documents were in the custody of accused who was travelling with the witnesses/victims---Non-production of said documents, was of no value, in circumstances---Both victims while deposing before the Trial Court had painted a vivid and bright picture of occurrence---Witnesses remained steadfast in their lengthy and searching cross-examination---Nothing was in the statements of said witnesses/victims either to doubt their credibility or to say that they had any malice or grouse against accused to falsely involve him in ,case---Evidence of said witnesses inspired confidence, rang true and same was sufficient to uphold conviction of accused---Delay, in registration of case in such-like matter was very natural, because people are always interested in their money and for that purpose they keep on making attempts and finally when they fail to achieve the goal, then F.I.A. officials are approached for the redressal of their grievance---Delay in lodging F.I.R. in case, thus was of no significance---Accused was facing agony of case against him for the last about nine years and had suffered a lot---Accused had also undergone considerable period as under-trial prisoner as well as a convict---While upholding conviction of accused, sentence of imprisonment of accused was reduced to the period already undergone by him.

Muhammad Yaqoob Sidhu for Appellant.

S.D. Qureshi for the State.

Date of hearing: 18th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1496 #

2006 Y L R 1496

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD INAM and another---Petitioners

Versus

Mst. KHUSHNOOD AKHTAR and 2 others---Respondents

Civil Revision No.1563 of 2000, heard on 21st October, 2004.

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

---S.3---Civil Procedure Code (V of 1908), O.XIV, R.1---Issue of limitation, non-framing of---Effect---Defendant raised objection in written statement with regard to limitation but neither any issue was framed nor any evidence was produced by parties---Appellate Court dismissed the suit on the point of limitation---Validity---Though Appellate Court could take notice under S.3 of Limitation Act, 1908, but the same being a mixed question of fact and law, the parties should have been given an opportunity of producing their evidence in support of their espective pleas before adjudication---Judgment and decree passed by Appellate Court was set aside in circumstances.

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

---S.115---Recovery of possession through partition---Limitation---Right of cosharer---On the death of owner of suit house, she was survived by two daughters and two sons of her brothers---Partition of the house was sought which was in possession of one of the daughters---Trial Court decreed the suit but Appellate Court dismissed the suit on the ground of limitation---Validity---Physical possession of the house was with one of the parties and the remaining parties were co-sharers in the property---Possession of one co-sharer in joint property was deemed to be possession of each co-sharer in every inch of the property until it was partitioned by metes and bounds---On the death of the owner, all her legal heirs became entitled to the property in accordance with their respective shares and thus acquired constructive possession---Plaintiffs being the heirs of the deceased owner were deemed to have acquired ownership and joint possession of the property to the extent of their respective shares---On refusal of the sharer in possession of suit property, the plaintiffs filed suit within a period of two months and the same was not out of time---Judgment and decree passed by Appellate Court was set aside and that of the trial Court was restored with certain modification.

Ch. Nisar Ahmad for Petitioners.

Sohail Majeed for Respondent.

Date of hearing: 21st October, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1498 #

2006 Y L R 1498

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

MUHAMMAD ASHRAF and another---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.136-J of 2000, and Murder Reference No.412 of 2000, heard on 1st November, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 109---Appreciation of evidence---Nobody was named in the F.I.R. as accused and even no evidence was in the case---Occurrence allegedly had taken place at 3.30 a. m. in the month of January when winter season was on its peak and stark dark---No source of light being mentioned in F.I.R., prosecution witness could not have identified accused---Supplementary statement, had no evidentiary value in the eye of law---According to eye-witness account, accused fired a single shot and it was not the case of prosecution that accused had made a second fire---Evidence of extra judicial confession which was joint one, was not admissible in evidence---No other evidence was available against accused persons---Case against both accused persons was of doubtful nature---While extending benefit of doubt, conviction and sentence recorded against accused persons by the Trial Court, were set aside and they were acquitted of charge against them.

Ch. Muhammad Nazir for Appellant (at State expense).

Tahir Mahmood Gondal for the State.

Dates of hearing: 31st October and 1st November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1501 #

2006 Y L R 1501

[Lahore]

Before Tanvir Bashir Ansari, J

Mst. KANEEZAN---Petitioner

Versus

MUHAMMAD RAMZAN---Respondent

Civil Revision No.1258 of 1992, heard on 22nd December, 2004.

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

----S. 42---Suit for' declaration of title---Gift---Proof---Non-delivery of possession---Effect---Plaintiff and defendant were real daughter and son of the deceased owner of the suit-land---Plaintiff sought cancellation of gift deed on the ground that the disputed gift deed was a result of fraud and no possession was handed over to the defendant after alleged gift---Trial Court decreed the suit in favour of plaintiff but Appellate Court reversed the findings and dismissed the suit filed by plaintiff---Validity---Appellate Court misread the evidence of witness who had stated that husband of plaintiff remained in actual physical possession of the suit-land even after two years of the execution of gift deed---Appellate Court was also not correct in holding that effect of Khasra Girdawari produced by plaintiff was to record the ownership of defendant showing her husband to be a tenant at will under defendant---Ownership of defendant could become complete only upon the completion of gift in his favour which could not be considered to be a complete gift in absence of transfer of actual physical possession to him---It would have been different if deceased owner continued to be entered as in possession in Khasra Girdawari subsequent to making of gift---High Court in exercise of revisional jurisdiction, set aside the judgment and decree passed by Appellate Court and that' of trial Court was restored.

Ghulam Hasan v. Sarfraz Khan PLD 1956 SC (Pak.) 309 distinguished.

(b) Islamic Law----

----Gift---Constructive possession---Effect---Islamic law of gift does not contemplate the transfer of constructive possession.

Nemo for Petitioner.

Taffazal Hussain Rizvi for Respondent.

Date of hearing: 22nd December, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1504 #

2006 Y L R 1504

[Lahore]

Before Muhammad Nawaz Bhatti, J

NAEEM AHMAD KHAN---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Home Department, Lahore and 7 others---Respondents

Writ Petition No.2506 of 2005, decided on 5th July, 2005.

Dramatic Performance Act (XIX of 1876)---

----S.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Lawful business, interference with---Petitioner was running a theatre under a licence issued by authorities---Grievance of petitioner was that the authorities had wrongly refused to issue "No Objection Certificate" to him and were illegally interfering in his business---District Censor Rehearsal Committee watched final rehearsal and observed that in the past petitioner had been crossing the limits of vulgarity and obscenity, therefore, it did not recommend issuance of "No Objection Certificate" till rehearsal was close to the script---Validity---High Court without touching merits of the case directed the authorities to act upon the Notification dated 17-11-2003, issued by Home Department and further directed to adopt the Standard Operating Procedures---Petition was disposed of accordingly.

Ch. Abdul Sattar Goraya for Petitioner.

Mubashir Lateef Gil, A.A.-G.

Muhammad Saleem, Junior Clerk on behalf of D.C.O., Vehari.

Respondents Nos.6 and 7 in person.

YLR 2006 LAHORE HIGH COURT LAHORE 1507 #

2006 Y L R 1507

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD IRFAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.69-J of 2005, decided on 11th November, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Prosecution witness, though was closely related to deceased, but he had no enmity or strong motive to falsely implicate accused in case---Father of deceased would substitute real culprit of the case was a rare phenomenon---Witness had reasonably explained his presence at the place of occurrence and he was subjected to lengthy cross-examination, but he could not be shaken from his testimony---Other prosecution witness also remained consistent on all material particulars of the case and nothing could shake him from his testimony during his cross-examination---Witness had corroborated the statement of other eye-witnesses on main points; though he was brother of deceased, but he had no enmity with accused to falsely depose against him---Said witness had also reasonably proved his presence at the spot to have witnessed the occurrence---Accused was the single accused in case---Both eye-witnesses, though were related to deceased, but they could not be termed as interested and chance witnesses because of absence of background of enmity between both parties---Ocular account was corroborated by medical evidence---Stand taken by accused in his statement recorded under S.342, Cr. P. C. that deceased tried to commit sodomy with him and the dagger incidentally hit deceased in his chest, was not plausible---Prosecution had proved its case against accused beyond a shadow of doubt and the Trial Court had delivered a well reasoned judgment to convict accused which did not call for interference by High Court in its appellate jurisdiction---No question of further leniency arose because accused being juvenile, had already been awarded lesser sentence after having invoked relevant provisions of Juvenile Justice System Ordinance, 2000 by the Trial Court---Conviction and sentence awarded to accused by the Trial Court, were maintained.

Mst. Dur Naz and another v. Yousuf and another 2005 SCMR 1906; Muhammad Ahmad and another v. The State and others 1997 SCMR 89; Alam Khan and another v. The State 1976 SCMR 128 ref.

Siddiqua Altaf for Appellant (at State expense).

Kh. Shaukat Ali for the State.

Date of hearing: 11th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1510 #

2006 Y L R 1510

[Lahore]

Before Mian Saqib Nisar and Sheikh Azmat Saeed, JJ

ZOHAIR AKHTAR---Appellant

Versus

JAWAD ADIL---Respondent

R.F.A. No.654 of 2002, heard on 9th December, 2004.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2 & 3---Recovery of money---Dishonoured bank cheque---Application for leave to appear and defend the suit---Form of application---Short affidavit---Factual controversy---Defendant in his application raised a factual controversy but Trial Court, instead of granting leave to appear, dismissed the application and decreed the suit in favour of plaintiff---Plea raised by defendant was that defence set out in leave application warranted framing of issues and recording of evidence---Contention of defendant was that the form of application was not correct and the affidavit was short---Validity---Defence even if weak in nature, could not be said to be vague and illusionary---Without recording of requisite evidence factual issue raised by defendant could not be adjudged---According to law no specific form of such application was prescribed and it was the substance of the application and not the form which mattered---Even if parawise reply to plaint having been given in the application but also specifically stating the ground on which defendant sought the leave, such application could not be declined as lacking in qualifying ingredients to be a leave application---Affidavit might be shorter in form but it embodied the requisites of an affidavit which had been attested by Oath Commissioner---In such affidavit the only deficiency was that it was not in an elaborate form but it was not ineffective---Judgment and decree passed by Trial Court was set aside and conditional leave to defend the suit was granted---Appeal was allowed in circumstances.

Fine Textile Mills Karachi v. Haji Umar PLD 1963 SC 163 and Bashir

Ahmad v. Abdul Wahid PLD 1995 Lah.98 ref.

Aftar Gul for Appellant.

Qazi Abdul Hameed for Respondent.

Date of hearing: 9th December, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1513 #

2006 Y L R 1513

[Lahore]

Before Sardar Muhammad Aslam, J

GHULAM MUHAMMAD---Petitioner

Versus

MUHAMMAD ASLAM and 10 others-Respondents

Civil Revision No.1530 of 1996, heard on 13th October, 2004.

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

----S.42---Transfer of Property Act (IV of 1882), S.54---Mutation of sale-deed by vendor to be that of mortgage---Proof---Patwari Halqa, who entered sale mutation and Revenue Officer, who sanctioned same, had supported its entry and attestation at the instance and on the statement of vendor---Evidence showed that vendor had received sale consideration and acknowledged its receipt before Revenue Officer---Genuineness of such sale mutation could not be denied---Vendor being Lambardar of revenue estate concerned could not be said to have been deprived of his land by Revenue Officer by substituting transaction of mortgage into that of sale---Vendor's claim was rejected in circumstances.

Muhammad Ishaq and 2 others v. Ghafoor Khan and another 2000 SCMR 519 rel.

(b) Document---

----Execution of document admitted, but its contents denied without material in support thereof---Effect---Such contents would stand admitted.

----S.54---Sale transaction-Part-payment of sale consideration---Remedy of vendor---Genuineness of sale transaction could not be invalidated on ground of part payment of sale consideration---Vendor, if received less amount than promised one, could sue for its recovery.

Malik Noor Muhammad Awan for Petitioner.

Mian Ghulam Hussain for Respondents Nos. 1 to 10.

Fawad Malik, A.A.-G. for Respondent No.11.

Date of hearing: 13th October, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1516 #

2006 Y L R 1516

[Lahore]

Before Muhammad Jehangir Arshad, J

JAFFAR MEHMOOD MALIK---Petitioner

Versus

Ch. KHALID HUSSAIN and others---Respondents

Writ Petition No.269 of 2006, heard on 10th March, 2006.

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

----Art. 199---Constitutional jurisdiction---Scope---High Court though was slow in exercising constitutional jurisdiction against interim order, but same was not the rule of thumb and in case; where impugned order had decided the controversy finally on a specific point and same prima facie suffered from jurisdictional defect, High Court could not sit as an idle spectator because of technical bar of non-interference in interim matters as same would amount to perpetuating illegal order/ill-gotton gain.

Secretary to the Government of the Punjab, Forest Department, Punjab Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415; Mst. Kaniz Fatima through legal heirs v. Muhammad Salim and 27 others 2001 SCMR 1493 and Sheikh Iftikhar-ud-Din and another v. District Judge, Bahawalpur Exercising Powers of Election Tribunal for Union Council of District Lodhran and 8 others 2002 SCMR 1523 ref.

(b) Punjab Local Government Elections Rules, 2005---

----Rr. 35, 65 & 75---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recounting of votes---Election Tribunal on petition by unsuccessful candidates on oral statement of counsel of said candidates directed recounting of votes---Petitioners, who were returned candidates had assailed said order of Election Tribunal in constitutional petition---Validity---Recounting of votes was possible only with the consent of both parties or after conclusion of trial including recording of evidence and not otherwise---Election Tribunal had jurisdiction to order recounting of votes even without recording of evidence, where parties entered into an agreement of their own free will for disposal of matter; and the party agreeing for recounting without recording of evidence was held guilty of approbation and reprobation, except; where party denied having given consent or pleaded mistaken view of situation; or alleged to have been otherwise duped or taken in---Petitioners/returned candidates in the present case having neither given their consent for recounting of votes without recording of evidence; rather had pleaded for decision of Election Petition after recording of evidence, nor were guilty of approbation and reprobation, impugned order could not be considered as legal order on that score also---Impugned order was declared as without lawful authority and of no legal effect, holding that Election Petition filed would be deemed pending before Election Tribunal which would be decided in accordance with law.

Nawab Khan and others v. Qamar-ud-Din and others 1999 SCMR 299; Mian Muhammad Farooq v. Election Tribunal Punjab and others 1988 MLD 2949; Abdul Majeed and another v. Election Tribunal/District Sessions Judge and 7 others PLD 2002 Lah. 654; Rai Asghar Ali Khan v. District and Sessions Judge Kasur and 2 others 2002 YLR 1324; Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483; Zulfiqar Ali v. Election Tribunal/Civil Judge 1st Class, Khanpur and 5 others 1999 YLR 355; Sheikh Iftikhar-ud-Din and another v. District Judge, Bahawalpur Exercising Powers of Election Tribunal for Union Council of District Lodhran and 8 others 2002 SCMR 1523; Haji Noor Muhammad Khan v. S.A. Majeed and another 2002 CLC 254; Muhammad Afzal v. District Judge/District Returning Officer, Sargodha and 3 others 2002 CLC 310; Sardar Rehmat Ullah Dogar v. Additional District Judge, Kasur and 10 others 1999 MLD 2847 and Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542 ref.

Masud Ahmad Khan for Petitioner.

Malik Muhammad Aslam Channar for Respondents Nos. 1 and 2.

Date of hearing: 10th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1520 #

2006 Y L R 1520

[Lahore]

Before Muhammad Khalid Alvi, J

Mst. BIDHAI---Petitioner

Versus

MUHAMMAD SULEMAN though Legal Heirs---Respondents

Civil Revisions Nos.281 and 282 of 2001, heard on 27th January, 2005.

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

----Ss.12 & 22---Agreement to sell---Suit for specific performance by son against mother---State land acquired by mother having three sons and a daughter---Plaintiff (son) alleged to have purchased suit-land from mother; and that he had been depositing State instalments---Plea of mother was that she had not transferred entire holding to only one son (plaintiff) depriving other sons and daughter; and that she being an illiterate, old, infirm and village lady had been deprived of her entire holding by plaintiff .by using fiduciary relationship with her---Trial Court dismissed suit, but appellate Court decreed the same---Validity---Discrepancies in evidence of plaintiff regarding factum of sale were not of great importance--Such discrepancies would become of much importance while keeping in view fiduciary relationship between parties, deprivation of other children from their lawful right of inheritance, age of lady, her village background and illiteracy---Deposit of instalments by plaintiff for acquiring proprietary rights in favour of mother would not be sufficient for declaring him to be an owner on available shaky evidence---Court had the discretion to direct or refuse specific performance of agreement to sell, even if proved to be lawful---High Court accepted revision petition, set aside impugned judgment/decree and dismissed suit.

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

----Ss.12 & 22---Specific performance of agreement to sell, even it proved to be lawful---Validity---Discretionary with Court to direct or refuse specific performance of such agreement keeping in view circumstances of each case.

Chaudhary Shoukat Ali Saqib for Petitioner.

Nemo for Respondents.

Date of hearing: 27th January, 2005

YLR 2006 LAHORE HIGH COURT LAHORE 1523 #

2006 Y L R 1523

[Lahore]

Before Syed Jamshed Ali, J

Messrs IBRAHIM FIBRES LIMITED through Managing Director---Appellant

Versus

HAMEED MASOOD (PVT.) LIMITED through Director and 2 others---Respondents

First Appeal from Order No. 294 of 1998, decided on 30th July, 2004.

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

----Ss.26-A & 30(a)---Misconduct of Arbitrator, determination of---Material requiring examination highlighted.

The cases of arbitration have peculiar features, therefore, misconduct of the Arbitrator is to be judged in the light of facts of a particular case. And since reasons in support of award have to be given by the Arbitrator, the Court can examine the validity of said reasons with reference to the admitted facts and the law applicable thereto. The proposition that the Arbitrator is the sole Judge of all questions of law and fact is too broad to be applied to all cases.

Messrs Joint Venture KG/Rist through D.P. Giesler G.M. Bongard Strasse 3, 4000, Dusseldorf-3, Federal Republic of Germany, C/O 15-Shah Charagh Chambers, Lahore and 2 others v. Federation of Pakistan through Secretary Food Agriculture and Coop and another PLD 1996 SC 108; Pakistan Steel Mills Corporation, Karachi v. Messrs Mustafa Sons (Pvt.) Ltd. Karachi PLD 2003 SC 301and Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

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

----Ss.30(a) & 41---Award setting aside of---Misconduct of Arbitrator---Construction work---Order of Court appointing Arbitrator showing agreement between parties as to appointment of Architect for measurement of work done---Non-association of Architect by Arbitrator---Validity---Order of Court appointing an expert would not fall under provisions of S.41 of Arbitration Act, 1940---Order of Court only passed under S.41 of the Act would be binding on Arbitrator---Such appointment of Architect was a consent arrangement between parties in respect of conduct of arbitration proceedings, which did not amount to an order/direction of Court under S.41 of the Act---Arbitrator had repelled applicant's objection regarding non-association of Architect by giving reasons---Applicant before Arbitrator had not made application for joint measurement---Non-association of Architect, despite agreement of parties, was within competence of Arbitrator---Court could not substitute reasons of Arbitrators with its own---Objection was overruled in circumstances.

Ram Protap Chamria v. Dorga Prosad Charia AIR 1925 Privy Council 239 ref.

----S.41---Order of Court passed under S.41 of Arbitration Act, 1940---Arrangement between parties before Court in respect of conduct of arbitration proceedings---Distinction---Only order of Court passed under S.41 of Arbitration Act, 1940 would be binding on Arbitrator---Such principle could not be made applicable to such agreement between parties.

Ram Protap Chamria v. Dorga Prosad Chamria AIR 1925 Privy Council 239 ref.

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

----S.29---Interest on award---Absence of specific contract between parties---Effect---Arbitrator could award interest on just and equitable grounds even in absence of such contract.

Sh. Mahboob Alam v. Sh. Mumtaz Ahmad PLD 1960 Lah. 601 ref.

Pakistan Steel Mills Corporation, Karachi v. Messrs Mustafa Sons (Pvt.) Ltd., Karachi PLD 2003 SC 301 and Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393 rel.

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

----Ss.29 & 30---Construction work---Withholding of payment of final bill not found by Arbitrator to be justified---Non-awarding of interest by Arbitrator---Validity---Contractor within the scope of agreement between parties was entitled to interest from the date on which final bill became due for payment---Arbitrator, while ignoring an admitted document and extending benefit thereof to one party, would be guilty of legal misconduct---Award was modified by awarding contractor amount of final bill with interest at Bank rate for such period.

Messrs Jaffar Bros, Ltd. v. Islamic Republic of Pakistan and another PLD 1978 Kar. 585; Messrs Joint Venture KG/Rist through D.P. Griesler G.M. Bongard Strasse 3, 4000, Dusseldorf-30, Federal Republic of Germany, C/O 15-Shah Charagh Chambers, Lahore and 2 others v. Federation of Pakistan through Secretary Food Agriculture and Coop and another PLD 1996 SC 108; Inayat Ullah Khan v. Abaid Ullah Khan and others 1999 SCMR 2702; Province of Punjab through Collector Bahawalpur v. Sufi Habibullah 1982 SCMR 243; Pakistan Steel Mills Corporation, Karachi v. Messrs Mustafa Sons Pvt. Ltd. Karachi PLD 2003 SC 301; Brooke Bond (Pakistan) Ltd. v. Conciliator Appointed by the Government of Sindh and 6 others PLD 1977 SC 237; Water & Power Development Authority through Chairman and another v. Messrs Ice Pak International Consulting Engineers of Pakistan through Chairman and another 2003 YLR 2494; Province of Punjab through Collector Bahawalpur v. Sufi Habibullah 1982 SCMR 243; Muhammad Iqbal v. P.1.D.C. 2000 CLC 876; J.F.C. Gollaher v. Samad Khan 1993 MLD 726; Associated Engineering Co. v. Government of Andhra Pradesh and another AIR 1992 SC 232; State of Kerala, represented by the Secretary, Irrigation Department Government of Kerala Thiruvananthapuram and another v. N.K. Aboobacker, Government Contractor AIR 1995 Kerala 327; Union of India and others v. Santiram Ghosh and others AIR 1989 SC 402; Union of India v. M.S. Ajit Mehta and Associates Pune and others AIR 1990 Born. 45; State of Punjab v. Messrs Chahal Engg. & Co. AIR 1991 Punjab and Haryana 258; The Indian Minerals Co. v. The Northern India Lime Marketing Association AIR 1958 Allahabad 692; Messrs Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division and another 1992 SCMR 65 and Messrs Combined Enterprises v. Water and Power Development Authority, Lahore PLD 1988 SC 39 ref.

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

----S. 29---Interest on award---Interest awarded by Arbitrator and affirmed by Court would become direction of Court fully covered by S.29 of Arbitration Act, 1940.

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

----S.30---Income Tax Ordinance (XXXI of 1979), S.50(4)---Award---Misconduct of Arbitrator---Construction work---Mobilization advances---Deduction of income tax at source---Contractor was liable to pay income-tax on advances, but Arbitrator allowed such deduction to Contractor---Held: Arbitrator had acted contrary to provisions of S.50(4) of Income Tax Ordinance 1979.

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

----S.30---Income Tax Ordinance (XXXI of 1979), S.50(4) (a)---Award---Misconduct of Arbitrator---Bills of Contractor---Deduction of income tax at the rate of 5% instead of 3%-Clause in contract showing Contractor's liability to pay Government taxes leviable "at the time of tender"---Arbitrator, while interpreting such clause, came to conclusion that rate of income tax at the time of tender being 3% was liability of Contractor, who was entitled to additional amount of 2% tax deducted at source---Validity---Interpretation of such clause was within jurisdiction of Arbitrator---Such clause did not include rate of taxes leviable at time of tender--Issue regarding income tax liability would be governed by Income Tax Ordinance, 1979---Income tax from bills of Contractor would be deducted in accordance with rates specified in First Schedule of the Income Tax Ordinance, 1979---Contract of parties could not override such provisions of law as giving effect to such contract would be against an express provision of law---Rate of deduction of income tax from 3% to 5% was provided by Finance Act, 1995---Deduction of 5% advance tax from bills of Contractor was liable to be adjusted from his tax liability---Such error was apparent on the face of record---Award to such extent was set aside in circumstances.

Zakaullah Khan v. Government of Pakistan through Secretary Buildings and Roads Department, Lahore PLD 1998 Lah.132; Pakistan Defence Housing Authority v. Meer Brothers 1992 CLC 1252; Haji Abdul Hameed and Co. v. Insurance Company of North America and others 1999 YLR 1213; Rais Chiragh-ud-Din v. Muhammad Aslam 2001 YLR 2162; Puri Construction Pvt. Ltd. v. Union of India 1990 MLD 947; Messrs Maqbool Associate Ltd. v. Messrs Sindh Sugar Corporation Ltd. 1990 CLC 55 and Messrs Hindustan Tea Co. v. Messrs K. Sashikant & Co. 1989 MLD 212 ref.

(i) Arbitration Act (X of 1940)-

---S.38-Arbitrator's fee---Liability of parties to pay such fee---Scope---Fee of Arbitrator was a necessary incident of arbitration---Where parties agreed between themselves to bear the costs of arbitration equally, then same would be shared by them equally---Principles.

Messrs Pakistan Builders Co. Karachi v. Pakistan PLD 1961 Kar. 365 ref.

Syed Altaf Hussain v. Pakistan Steel Mills Corporation 1985 CLC 914 rel.

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

----S.38(3)---Costs of an arbitration---Scope---Fee of Counsel engaged by a party would not fall within the scope of costs of an arbitration---Reasons stated.

The fee of a Counsel does not fall within the scope of the costs of an arbitration, because the parties are not bound to engage a lawyer, and if it is done for their own convenience or assistance of a professional, the other party cannot be burdened with the fee of the lawyer.

Ashtar Ausaf Ali, Ms. Samia Khalid and Ch. Muhammad Faridul Hassan for Appellant.

Syed Najam ul Hassan Kazmi for Respondent No.1.

Date of hearing: 6th May, 2004.

2006 Y L R 1544

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD MUNIR and 2 others---Petitioners

Versus

PROVINCE OF PUNJAB through Collector/D.O.R. Faisalabad and 6 others---Respondents

Civil Revision No. 17 of 2006, heard on 23rd February, 2006.

Specific Relief Act (I of 1877)---

----Ss.42 & 53---Civil Procedure Code (V of 1908), O. VII, R.1, O. XXXIX, Rr.1. & 2-B---Suit for declaration of title---Rejection of plaint---Temporary injunction to restrain defendant from dispossessing plaintiff was granted and after 7 years order of status quo lapsed automatically---Validity---Admittedly suit-land was owned by the Province---Plaintiffs claimed title of disputed land with assertion that they had been in possession of suit-land for the last twenty years, and as such, they were entitled to proprietary rights of same under some Governmental Policy but neither any notification was on record nor such order was passed by Revenue Authorities against which grievance had been expressed in the plaintiffs---Plaintiffs had failed to prove any application allegedly filed by them before the Revenue Authorities for grant of proprietary rights---Trial Court had passed order that suit be put up along with same other case but said other case was not identified in any manner nor it had any nexus with the plaintiff's suit noted in the order---Impleadment of third defendant was simply a delaying tactic as the right and interest of said defendant in suit property had not been spelt out by plaintiffs---Case had been continuously adjourned for a period of almost nine years and High Court was convinced that process of law had been misused by plaintiffs and that status quo had legally lapsed---Even plaint did not disclose any cause of action or basis for retaining the suit property---Plaint was rejected in circumstances.

Abdul Rauf Farooqi for Petitioner.

Ch. Muhammad Nawaz Bajwa, A.A.-G. for the State.

Date of hearing: 23rd February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1547 #

2006 Y L R 1547

[Lahore]

Before Tanvir Bashir Ansari, J

KHADIM through Legal Heirs and others---Petitioners

Versus

MUHAMMAD ASHRAF and others---Respondents

Civil Revision No. 415-D of 1997, heard on 16th December, 2004.

Specific Relief Act (I of 1877)---

----S.8---Suit for recovery of possession---Misreading and non-reading of evidence---Grievance of defendants was that both the Courts below had relied upon report of Local Commissioner and did not read the report in juxtaposition with the other evidence on record---Validity---Both the Courts below should have placed the report of Local Commissioner in juxtaposition with the remaining evidence of plaintiffs and if after doing so, they come to the conclusion that encroachment by defendants was established only then decree for possession should have been passed---Marked contradictions were appearing between the statements of witnesses produced by plaintiffs, when seen in the light of the report---Local Commissioner did not appear in Trial Court to support his report or to subject himself to cross-examination---Reliance placed upon such report was inappropriate and unsafe---High Court, in exercise of revisional jurisdiction, set aside the concurrent judgments of both the Courts below.

Ch. Ghulam Hassan Gulshan for Petitioners.

Mirza Hafeez-ur-Rehman for Respondents.

Date, of hearing: 16th December, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1550 #

2006 Y L R 1550

[Lahore]

Before Syed Shabbar Raza Rizvi, J

NASIR ALI-Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2966/B of 2005, decided on 7th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Prevention of Corruption Act (II of 1947), S.5(2)---Penal Code (XLV of 1860), S.161---Bail, grant of---Further inquiry---Accused had already served nearly S months in jail---Complainant and witnesses had refused to support prosecution case, which had created a dent in the prosecution story and matter required further inquiry---Offence alleged against accused providing seven years punishment, was not covered by prohibitory clause of S. 497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Uzma Shafique for the State.

Date of hearing: 7th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1551 #

2006 Y L R 1551

[Lahore]

Before Syed Hamid Ali Shah, J

MUHAMMAD IBRAHIM---Petitioner

Versus

ABDUL RAZAQ---Respondent

Civil Revision No. 17-D of 1999, decided on 13th December, 2004.

(a) Malicious prosecution---

----Ingredients.

Following are the tests for malicious prosecution.

(i) that the plaintiff was prosecuted by defendant;

(ii) that prosecution terminated in plaintiff's favour;

(iii) that defendant acted without reasonable and probable cause;

(iv) that the proceedings had interfered with plaintiff's liberty and also affected his reputation; and

(v) that plaintiff had suffered damage.

Muhammad Akram v. Mst. Farman Bibi PLD 1990 SC 28 ref.

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

----S. 115---Revision---Suit for malicious prosecution against petitioner was decreed and appellate Court had affirmed the said decree---Validity---Held, there was no denial of the fact that criminal prosecution initiated by petitioner against respondent terminated in plaintiff's favour and existence of dispute between parties had also been proved---Respondent had proved his case in accordance with the test laid down by the superior Courts---No non-reading or misreading having been pointed out, interference was declined by the High Court in revision:

Walayat Umar for Petitioner.

Ras Tariq Chaudhry for Respondent.

Date of hearing: 8th December, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1554 #

2006 Y L R 1554

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

ARSHAD MEHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6822-B of 2005, decided on 10th November, 2005.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51(2)---Bail, grant of---Further inquiry--D.S.P. (Investigation) had given a clean chit to accused as well as to co-accused and had propounded a new story which had brought case of accused within ambit of subsection (2) of S.51 of Control of Narcotic Substances Act, 1997---Bail was granted to the accused.

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

----Ss.9(c)---Conflicting opinions expressed by two Investigating Officers could not be left unsettled before submission of final' report---One of the two opinions was wrong---Huge quantity of narcotic substances having been recovered by the police, case required re-investigation by a team of Senior Police Officers so that real culprits should not escape unpunished--High Court observed that if Sub-Inspector of police was found to have fabricated a false case in order to get innocent people convicted, he should be dealt with strictly in accordance with law and if it was found that D.S.P. (Investigation) had propounded a false story in order to allow some of accused to escape punishment then he should be taken to task in accordance with law.

Syed Naeem-ul-Hassan for Petitioner.

Tahir Mehmood Gondal, A.A.-G and Iram Sajjad Gul for the State.

Date of hearing: 10th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1556 #

2006 Y L R 1556

[Lahore]

Before Jawwad S. Khawaja, J

PAKISTAN RAILWAYS through General Manager---Petitioner

Versus

Mst. KISHWAR BIBI---Respondent

Civil Revision No. 1694 of 2000, heard on 23rd January, 2006.

Specific Relief Act (I of 1877)---

----Ss.42 & 53---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Punjab Kachi Abadis Act (VII of 1992), S.6(2)---Central Government Lands and Buildings (Recovery of Possession) Ordinance (LIV of 1965), S.3---Suit for declaration of title along with permanent injunction---Plaintiff, in her suit asserted that land in dispute (owned by Railways) was allotted to her by . Directorate General of Kachi Abadis under Punjab Kachi Abadis Act, 1992---Contention of Railways/defendant was that land was owned by it and Development Authority or Provincial Government had no power to allot the same to plaintiff---Suit was decreed and decree was upheld in appeal---Validity---Provisions of S.6 of Punjab Kachi Abadis Act, 1992, authorized the Director-General, Kachi Abadi to declare any area or part thereof to be Kachi Abadi except area belonging to Federal Government---Railways, undeniably, was a Federal authority therefore, Director-General Kachi Abadis had no power to declare the land in question as Kachi Abadi, nor he could allot the same---Findings of Courts below that land was validly allotted to plaintiff by Director-General, was without lawful basis---However, even if disputed land was owned by Railways but plaintiff could not be dispossessed without issuing the notice and following procedure laid down in Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965--Since no such notice had been issued, Railways was restrained from dispossessing the plaintiff without due process of law.

Jehangir A. Jhaga for Petitioner.

Irfan-ul-Haq Khan Lodhi for Respondent.

Date of hearing: 23rd January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1558 #

2006 Y L R 1558

[Lahore]

Before Rustam Ali Malik, J

NASIR KHAN and others---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No. 443 of 2005, decided on 19th July, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 265-C & 439---Penal Code (XLV of 1860), Ss.302; 109 & 34---Supplying copies of statements of prosecution witnesses to accused---Application for---Copies of statements of prosecution witnesses recorded by Investigating Officer during investigation, having not been supplied to accused, he filed application under S.265-C, Cr. P. C. to supply said copies, but his application was dismissed by the Trial Court---Aggrieved by impugned order of Trial Court, accused had filed revision petition---Held: Trial Court was bound to supply copies of statements of all witnesses, whether cited or not as envisaged by S. 265-C(1) (c), Cr.P. C.-Order of the Trial Court, was clearly erroneous and as such was liable to be set aside---Allowing revision petition, impugned order of the Trial Court was set aside with direction to supply to accused copies of statement of all those witnesses whose statements were recorded under S.161 Cr. P. C. in the course of investigation, irrespective of fact' whether or not they had been cited as prosecution witnesses in the calendar attached to the challan.

Muhammad Riaz and others v. The State PLD 2003 Lah. 290 ref.

Zafar Iqbal Chohan for Petitioners.

Abdul Rauf Farooqi for the Complainant.

Muhammad Akbar Tarar, Addl. A.-G. for the State.

Date of hearing: 9th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1560 #

2006 Y L R 1560

[Lahore]

Before Jawwad S. Khawaja, J

GHULAM RASOOL---Petitioner

Versus

Mst. ANARAN BEGUM (ANAR BIBI) by L.Rs. and another---Respondent

Civil Revision No. 623 'of 2001, heard on 28th September, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Colonization of Government Lands (Punjab) Act (V of 1912), S.19---Suit for declaration to challenge the gift deed allegedly executed by father of plaintiff in favour of defendant (step-mother of the plaintiff)---Dismissal of suit and appeal---Gift deed against the lady---Validity---Impugned gift deed was neither duly stamped nor same was registered, therefore, the same could not be purported to effect the conveyance from executant to defendant---Notary Public who had attested the deed, in his statement, admitted that he made no entry of the notarization in his register and that he did not know the executant nor he had obtained executant's signature---Most important point was that impugned documents were attested a day after their execution---Furthermore the unwarranted absence of donee/legatee from witness-box was sufficient for purpose of concluding that execution of documents was not proved---No evidence was on record in proof of alleged gift but Courts below failed to consider said material aspects of the case---Concurrent findings were set aside by High Court in circumstances.

Mehdi Khan Chohan for Petitioner.

Sh. Rashid Mukhtar for Respondents.

Date of hearing: 28th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1562 #

2006 Y L R 1562

[Lahore]

Before Jawwad S. Khawaja, J

PROVINCE OF THE PUNJAB, through Secretary, Industries and Mineral

Development Department and another---Appellants

Versus

BASHARAT M. SIDDIQUI---Respondent

Regular Second Appeal No. 63 of 2000, heard on 27th September, 2000.

Specific Relief Act (I of 1877)--

----S. 42---Suit for declaration that demand raised by defendant through notices was without basis---Contract was awarded to plaintiff by defendants for installation of lifts---Supplied material was stolen after more than half of the work had been done---Defendants got the contract completed through some other contractor in consideration of certain amount and raised a demand against plaintiff because plaintiff was contractually obliged to pay the said amount to defendants---Question was whether any payment was made to other contractor---Defendants failed to prove the alleged payment and contention of plaintiff that demand raised by defendants was without basis, had borne out from the record---Decree of Court of first appeal called for no interference in circumstances---Second appeal was dismissed by High Court.

Kh. Muhammad Saeed for Appellant.

Mahmood-ul-Hassan for Respondents.

Date of hearing: 26th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1563 #

2006 Y L R 1563

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4672-B of 2005, decided on 4th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-F(v), 337-L(ii) & 34---Bail, grant of---All injuries attributed to accused were with blunt weapon and none of those was on any vital part of the injured complainant---Delay of five days in lodging F.I.R., had not been explained by the prosecution and "Sota" allegedly recovered from accused was not stained with blood---Opinion of Investigating Officer, though was not binding on the courts, but same had persuasive value at the bail stage--Investigating Officer had reported that occurrence did not take place in the manner described in F.I.R. and that two of the accused persons were falsely involved in the case---Case was of further inquiry---Coaccused had already been released on bail by trial Magistrate and role ascribed to accused was similar, except the seat/nature of injury attributed to 'him and principle of consistency was fully attracted---Since accused had a counter-version of occurrence wherein he along with two others had sustained nine injuries, which were suppressed in F.I.R., it was yet to be determined as to who out of the two parties was the aggressor---Offences against accused being punishable with maximum punishment of five years' R.I., did not fall within the prohibitory clause of S.497, Cr. P. C. ---Despite submission of challan since long, trial of case had not commenced and there was no chance of its conclusion in near future---Accused was no more needed for investigation purposes and his further detention would not advance prosecution case any further---Bail was not to be withheld as of punishment, especially when there was no allegation of abscondence and tampering with prosecution evidence by accused---Accused having made out a case for his post-arrest bail in case registered against him, he was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Shakil Parvaiz Bhatti for the State along with Zulfiqar Ali, A.S.-I..

Date of hearing: 4th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1565 #

2006 Y L R 1565

[Lahore]

Before Jawwad S. Khawaja, J

QASIM ALI---Petitioner

Versus

Mst. AMINA BIBI---Respondent

Civil Revision No. 3043 of 2004, heard on 26th September, 2005.

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

----Art. 119---Specific Relief Act (I of 1877), S.42---Suit for declaration---Dismissal of suit---Gift---Validity---Onus of proof---Plaintiff had successfully denied having made any gift in favour of defendant---Onus was on the defendant to prove that property had been validly gifted to her---Defendant did not move any application for comparison of plaintiff's thumb-impression appearing on impugned mutation nor defendant's version was supported by best evidence---Defendant, in her statement admitted that plaintiff had not affixed his thumb-impression on the impugned mutation at the time of presentation of mutation in public assembly because thumb-impression had previously been placed on the mutation---Such testimony was in conflict with statement given by concerned Patwari who deposed that thumb-impressions were affixed before the Tehsildar---Defendant had failed to discharge the onus of proof which fact escaped notice of the Trial and Appellate Courts---Concurrent findings being not legally sustainable were set aside by High Court.

Nauman Qureshi for Petitioner.

Sardar Abdul Majid Dogar for Respondent.

Date of hearing: 26th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1567 #

2006 Y L R 1567

[Lahore]

Before Asif Saeed Khan Khosa, J

ZAHOOR AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4214/B of 2005, decided on 24th June, 2005.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss.161 & 420---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Further inquiry---F.I.R. in the case had been lodged with a delay of about three years---Case was not a case of a raid and recovery, but was one of alleged private payment of illegal gratification---Accused, as alleged was not Investigating Officer of relevant criminal case and he was not himself in any position to declare any accused person involved in that case as innocent---Nothing had been recovered from possession of accused during investigation of the case---One offence allegedly committed by accused was bailable and other offence did not attractprohibitory clause contained in subsection (1) of S.497, Cr. P. C. ---After completion of investigation, a challan had already been submitted before the Trial Court---Accused being a public servant, little likelihood was of his absconsion in case of his admission to bail---Case against accused calling for further inquiry into his guilt within the purview of subsection (2) of S.497, Cr. P. C., accused .,was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Javed Iqbal for the State.

Noor Hassan, A.S.-I. with record.

Date of hearing: 24th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1568 #

2006 Y L R 1568

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AASIM IQBAL KHAN---Petitioner

Versus

BAHA-UD-DIN ZAKARIYA UNIVERSITY through Vice-Chancellor and 3 others---Respondents

Writ Petition No. 680 of 2006, heard on 14th March, 2006.

Educational institution---

----Admission in B.B.A. (I.T.)---Clearance of five out of six semesters---Long semester break due to unavoidable circumstances---Candidate declared failed, consequently dropped---Validity---Rule 14 of the Uniform Semester Rules of the University did provide for a semester break subject to application for that purpose to the Chairman Departmental Examination Committee---Candidate contended that he had prepared such application and delivered it to a class-mate for presentation to the concerned Authority but said fact was denied by the University---Validity---Semester break being less than the maximum period provided in the Rules, candidate was directed by High Court to file an application in terms of the relevant Rule and University was asked to entertain the same exercising its parental jurisdiction.

Mian Ahmad Mehmood for the Petitioner.

Malik Muhammad Tariq Rajwana for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 1569 #

2006 Y L R 1569

[Lahore]

Before Syed Zahid Hussain, J

ASHIQ HUSSAIN through Legal Heirs---Petitioners

Versus

Mst. SAJJAD FATIMA and 11 others---Respondents

Civil Revision No.1703 of 1990, heard on 2nd March, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiff being one of the daughters of original owner of suit-land, had filed suit for declaration that Tamleek incorporated in mutation regarding land measuring 104 Kanals, made by original owner in favour of one of his sons (brother of plaintiff) was void and ineffective---Plaintiff claimed that she being daughter of original owner, was entitled to the share in leftover by her father along with other legal heirs of original owner---Son of original owner in whose favour Tamleek was executed sold certain land to other person who was impleaded as defendant in suit---Son of original owner and subsequent vendee, offered to surrender land to the extent of share of plaintiff, which offer was accepted by plaintiff---To the extent of share of plaintiff, her claim was satisfied and there remained no dispute---Judgment and decree of appellate court below was modified to the extent that defendants, who being daughters of original owner, would be entitled to satisfy their claim from son of original owner in whose favour Tamleek was executed.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

M.A. Zafar and Kazim Khan for Petitioners.

Ch. Riasat Ali for Respondent No.1.

Malik Muhammad Imtiaz Mahl for Respondents Nos.6 to 12.

Date of hearing: 2nd March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1572 #

2006 Y L R 1572

[Lahore]

Before Sheikh Azmat Saeed, J

GHULAM RASOOL---Petitioner

Versus

MUHAMMAD YOUSAF---Respondent

Civil Revision No.376 of 2005, decided on 8th March, 2006.

Punjab Pre-emption Act (IX of 1991)---

----S.25---Civil Procedure Code (V of 1908), O.IX, R.13 & O.XXI, R.10---Suit for pre-emption decreed ex parte---Application for setting aside ex pane decree was accepted subject to payment of cost---Rejection of application for non-payment of cost---Non-depositing of pre-emption money inclusive of Zar-e-Panjum---Extension in time was eventually granted by revisional Court but said order was successfully assailed through writ petition---Being aggrieved plaintiff/pre-emptor filed a civil appeal before Supreme Court which was allowed and order of revisional Court was restored---Proceedings of execution of decree were resisted by defendant/vendee with contention that in view of order of Supreme Court matter could only be adjudicated upon by fresh trial and decree could not be executed before conclusion of said trial---Contention was repelled---Validity---Judgment of Supreme Court had made it clear that order of revisional Court extending time for payment of pre-emption money stood restored as a consequence whereof plaintiff had been granted time to deposit the said money---So far as setting aside of ex pane decree was concerned said issue had not been subject-matter of lis before Additional District Judge, High Court or Supreme Court---Consequently ex parte decree still held the field and same was being executed justifiably---In absence of any legal infirmity and jurisdictional defect findings of appellate Court could not be interfered with.

Taqi Ahmed Khan for Petitioner.

Khalid Masood Sandhu for Respondent.

2006 Y L R 1585

[Lahore]

Before Mian Saqib Nisar, J

AHMED YAR---Petitioner

Versus

PROVINCE OF PUNJAB through Collector, Faisalabad and 3 others---Respondents

Civil Revision No.1497 of 2005, heard on 19th October, 2005.

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

----S.36---Civil Procedure Code (V of 1908), O. VII, R.10---Return of plaint because of bar of jurisdiction - in terms of S.36 of Colonization of Government Lands (Punjab) Act, 1912---Validity---Courts below had no jurisdiction to return the plaint in absence of objection that any forum, other than the Civil Court, had the jurisdiction---Trial Court, in such a situation, should have decided. he question itself---Suit should have been dismissed on account of lack of jurisdiction, but plaint could not be returned---Impugned orders passed by Courts below being not lawful, were, set aside by High Court and matter was remanded for decision afresh.

Sameer Ijaz for Petitioner.

Rafey Ahmad Khan, A.A.-G. and Syed Ijaz Qutab for Respondents.

Date of hearing: 19th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1587 #

2006 Y L R 1587

[Lahore]

Before Nazir Ahmed Siddiqui, J

MUHAMMAD AKRAM---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.2984-B of 2005, decided on 2nd November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 16---Bail, grant of---F.I.R. showed that accused and his co-accused, after having abducted wife of complainant, had committed Zina with her---Delay of 53 days in lodging F.I.R. and accused was behind the bars for the last more than three months and challan had not been submitted---Alleged abductee was not recovered either from accused or co-accused---Abductee had come to house of complainant of her own and made a statement before Magistrate under S.164, Cr.P.C. in absence of accused and co-accused, wherein she had involved sisters of accused with reference to her abduction and levelled allegation of Zina against accused and other persons whereas co-accused was also shown to be present at the place of occurrence as a Guard---Said ladies and co-accused had been declared innocent by the police---Such aspect impliedly suggested that statement of alleged abductee appeared to be somewhat exaggerated---Birth certificate showed that accused's age was of 15 years, whereas age of alleged abductee who was mother of four children, was 40 years---Case of accused, in circumstances was covered under Juvenile Justice System Ordinance, 2000--Alleged abductee had also filed a suit for dissolution of marriage against her husband/complainant, wherein she had not supported the story of F.I.R.---No previous history of accused of his involvement in such-like cases existed---Accused was admitted to bail, in circumstances.

Tariq Zulfiqar Ahmad Ch. for Petitioner.

Khawaja Qaiser Butt for the Complainant.

Mumtaz Hussain Awan for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 1588 #

2006 Y L R 1588

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMADI BEGUM---Petitioner

Versus

ABDUL LATIF and others---Respondents

Civil Revision No.997 of 2000, decided on 26th January, 2006.

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

----Arts. 76, 76(c) & 100---Certified copy of gift deed without seeking permission for adducing secondary evidence---Evidentiary value---Defendant/donee did not file application before trial Court setting out any of the grounds in Art.76(c) of the Qanun-e-Shandat, 1984 for proving the gift deed through secondary evidence---Validity---Certified copy of the gift deed would not suffice to prove the same---Mere oral assertion that gift deed had been lost was not sufficient for the purpose of Art.76 of the Qanun-e-Shahadat, 1984 to justify the admission of certified copy of the deed in evidence but Court below completely ignored this aspect holding that gift deed was more than thirty years old and presumption of correctness attached to the same---Courts below failed to realize that document produced on record was not a gift deed of thirty years old but was merely a certified copy thereof which was prepared just before litigation---No presumption of correctness could attach to certified copy of the gift deed and certified copy produced on record was not admissible in evidence because conditions precedent to the admission of secondary evidence had not been fulfilled---Decrees of Courts below were not legally sustainable.

Ahmad Ali v. Mukhtar Ahmad and 13 others 2002 YLR 2505 ref.

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

----Arts.100 & 101---Thirty years old document---Certified copy---Admissibility---Certified copy of power of attorney was produced in trial Court and the same was treated under Art.100 of Qanun-e-Shahadat, 1984---Validity---Certified copies were the subject-matter of Art.101 of Qanun-e-Shahadat, 1984---Not the age of the document but the age of its certified copy, which was relevant for the purpose of admissibility under Art.101 of Qanun-e-Shahadat, 1984, of the document when produced.

Mian Mehmood Rasheed for Petitioner.

Mohsin Ranjha for Respondents.

Date of hearing: 26th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1591 #

2006 Y L R 1591

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD SAEED---Petitioner

Versus

THE STATE---Respondent

Criminal Misc. No.5162-B of 2005, decided on 26th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-A(iii) & 337-N---Bail, grant of--Further inquiry---Addl. A. G. had conceded that conviction and sentence of imprisonment under S.337-N(ii), P.P.C. could not be awarded unless it was proved that accused was a hardened and desperate criminal---Case of accused, in circumstances, was of further inquiry---Accused was released on bail, in circumstances.

Zafar Iqbal Chohan for Petitioner. Addl. A.-G. for the State.

Ghulam Hussain Malik for the Complainant.

Date of hearing: 26th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1592 #

2006 Y L R 1592

[Lahore]

Before Jawwad S. Khawaja, J

NASIR-UD-DIN and others---Petitioners

Versus

SURRAYYA BEGUM and others---Respondents

Civil Revision No.870 of 2005, heard on 1st March, 2006.

Easements Act (V of 1882)---

----S.15---Specific Relief Act (1 of 1887), Ss.42, 53 & 55---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Limitation Act (IX of 1908), S.26---Right of passage---Plaintiffs sought injunction against a wall erected by defendants barring plaintiff's right of passage and amenities of excess, which they had been enjoying for the last 37 years---Question was as to whether there was any right of passage available to plaintiffs over the property of defendants for the purpose of excess to the Road---Validity---Findings of Deputy Settlement Commissioner, site plan annexed therewith and order of writ petition wherein the contention of plaintiffs that they had not been granted any direct excess from their property onto the Road, was repelled, made abundantly clear that plaintiffs did not have any right of excess directly onto the Road rather their excess was through a street only---Section 26 of Limitation Act, 1908 had stipulated that any easement over government property could only be acquired after 60 years while an easement over private property required 20 years of uninterrupted use---Entire suit property being part of the government pool as evacuee property and was allotted to the defendants only 7 years prior to the institution of suit, therefore, there was no question of any right of easement having matured in favour of plaintiffs---Decrees passed by Courts below were result of misreading and non-reading of evidence---Revision petition was dismissed.

M. Iqbal for Petitioners.

Muhammad Shahzad Shaukat for Respondents Nos.1 to 8.

Ch. Muhammad Nawaz Bajwa, A.A.-G. for Respondent No.11.

Respondents Nos. 9 and 10 Ex parte.

Date of hearing: 1st March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1594 #

2006 Y L R 1594

[Lahore]

Before Asif Saeed Khan Khosa, J

SHAHID ALI CHATHA---Petitioner

Versus

S.H.O. POLICE STATION, SADDAR DASKA and 5 others---Respondents

Writ Petition No.131 of 2006, decided on 25th January, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Constitutional petition---Quashing of F.I.R.---Alleged abductee had stated her age to be about twenty years and had claimed to be major, adult and sui juris to all intents and purposes---Lady had categorically and emphatically maintained before High Court that she had not been abducted or enticed away by anybody as alleged in impugned F.I.R.; and that she had left the house of respondent on her own; whereafter she had contracted marriage with petitioner of her own free will and volition which fact was evidenced by a registered Nikah Nama-Alleged abductee happened to be the star prosecution witness, and if she did not support case of prosecution, then there was little likelihood of petitioner and his co-accused being convicted for alleged offence---Respondent by lodging impugned F.I.R., had tried to convert a matrimonial issue into a criminal case so as to bring weight of criminal law to bear upon spouses to break their resolve as well as their matrimony---Registration of impugned F.I.R., in circumstances appeared to be nothing, but an abuse of process of law which could not be allowed to be perpetuated---Impugned F.I.R. was quashed, in circumstances.

Khawaja Waseem Abbas for Petitioner.

Syed Hasnain Kazmi for Respondent No.6.

A.A.-G. for Respondent No.1. Nemo for Respondent No.2.

Respondents Nos.3, 4 and 5 in Person.

Alleged Abductee in person.

Date of hearing: 25th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1595 #

2006 Y L R 1595

[Lahore]

Before Muhammad Sair Ali, J

FAQIR MUHAMMAD through Legal Heirs---Petitioner

Versus

MUHAMMAD YOUNIS and 4 others---Respondents

Civil Revision No.1693 of 1999, heard on 8th March, 2006.

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

----O.I, R.9-Non-joinder of proper and necessary parties---Effect---No suit could be defeated on account of non joinder of parties, however, as a rule of substantial law, in absence of necessary and proper parties, the suit would fail because in such circumstances Court would be unable to decide the suit.

Mst. Rani and another v. Mst. Razia Sultana 1994 SCMR 2268 and Mst. Maqbool Begum and others v. Gullan and others PLD 1982 SC 46 ref.

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

----S.8---Plaintiff in a suit for possession of disputed shop pleaded that same was sold by owner to defendant jointly with him and that as plaintiff was unable to pay his share of sale price, his name was not included in the sale document---Suit was decreed but decree was set aside in appeal---Validity---Plaintiff himself deposed that he did not pay his share of sale price and his admission in itself was sufficient to show that plaintiff in absence of consideration, could not claim any enforceable contract of sale in his favour---Plaintiff admitted to have signed the document of sale as marginal witness and in presence of said document, endeavour to set up an oral case by plaintiff long after the execution of sale document, could not be given any weight---No irregularity, illegality of misreading or non-reading of evidence was pointed out in appellate judgment---Petition was dismissed accordingly.

Ch. Muhammad Aslam Zia for Petitioner.

Ch. Muhammad Younas for Respondents.

Date of hearing: 8th March, 2006.

2006 Y L R 1615

[Lahore]

Before Jawwad S. Khawaja, J

ALLAH BAKHSH and 7 others---Petitioners

Versus

Mst. BHAGAN and 24 others---Respondents

Civil Revision No. 1211 of 1999, heard on 17th October, 2005.

Specific Relief Act (I of 1877)---

----S.42---Limitation Act (IX of 1908), S.18---Civil Procedure Code (V of 1908), S.11---Qanun-e-Shahadat (10 of 1984), Arts.117, 118 & 163---Suit for declaration---Suit was decreed and decree upheld in appeal---Execution of sale-deed---Proof---Contention of defendants was that earlier suit filed by three of present plaintiffs was withdrawn on statements of parties and plaintiffs had acknowledged the validity of disputed sale-deed---Date of knowledge of disputed sale-deed was a question of fact which was supported by evidence, therefore, subsequent suit filed by plaintiffs was not time-barred---Mere filing of earlier suit by some of the plaintiffs who had no nexus, whatsoever with the suit property, could not have possibly be operated as res judicata in subsequent proceedings because nothing was on record to prove that owner of land/father of plaintiffs' was ever served or was otherwise shown to have had knowledge of disputed sale-deed---Nature of earlier suit and manner in which it was withdrawn, suggested absence of bona fides---Witnesses produced by plaintiffs having testified on oath that no sale-deed had been effected between parties, burden of proof, had shifted upon defendants, who failed to discharge the same as they neither produced marginal witnesses nor the testimony of one of defendants could be given weight in absence of affirmative evidence---Findings of Courts below were thus not legally sustainable---Dismissal of suit to the extent of three plaintiffs who had accepted the validity of disputed sale-deed in previous suit, was affirmed, while suit to the extent of rest of plaintiffs was decreed.

Ch. Muhammad Rafiq Azhar for Petitioners Nos.1 and 5 to 8.

Nemo for other Petitioners.

Seerat Hussain Naqvi for Respondents Except No.18.

Hassan Ahmad Khan Kanwar for Respondent No.18.

Date of hearing: 17th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1618 #

2006 Y L R 1618

[Lahore]

Before Maulvi Anwarul Haq, J

SHAHANA NAZ---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vide-Chancellor and 2 others---Respondents

W.P. No.1278 of 2002, heard on 25th July, 2005.

Educational institution---

----Examination---Result card issued by University showed that petitioner/candidate was allowed to appear in one or two papers to make up aggregate till 2nd Annual, 1999---Said result card was handed back to office of the University in which interpolation was made and 1999 was converted into 1998---Petitioner was issued Roll Number Slip, and she appeared in two papers and passed both said papers with good marks, but despite that she was declared failed on the ground that University Regulations did not permit such a course of action---It could be so, but no fault could be attributed to petitioner/ candidate either by design or by inadvertence---Petitioner, who applied within time span available to her, was allowed to do so, she was issued a Roll Number Slip and was further allowed to undertake examination, but when she had passed both said papers thereby definitely improving her aggregate enabling her to pass entire examination, she was confronted with said University Regulation---Such a conduct on the part of the University officials, was not to be countenanced at all---Even if it could be assumed that through an inadvertence, error had crept in Result card, it was not open to University officials to interpolate document instead of dealing with the matter fairly and lawfully and then further to try to create a case leading to circumstances absolutely to the detriment of petitioner---High Court allowing constitutional petition declared that she had passed her M.A. (Economics) on the basis of her original result and the result of two papers with the direction that documents be issued to her accordingly.

Chairman, Selection Committee/ Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 and Muhammad Abbas Alam v. Director of Education (Elementary) Labour Division and 4 others 1996 CLC 1316 ref.

Mian Muhammad Akram for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

Muhammad Aslam Zafar, Assistant Controller (Examinations), Baha-ud-Din Zakaria University, Multan.

Date of hearing: 25th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1620 #

2006 Y L R 1620

[Lahore]

Before Maulvi Anwarul Haq, J

NAZIR AHMED and others---Petitioners

Versus

YOUSAF---Respondent

Civil Revision No. 462 of 1996, decided on 27th July, 2005.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), S.115-Suit for possession---Respondent, in his suit, had claimed that house in question, which was an evacuee property, was transferred to him on basis of his possession and P.T.D. had been issued to him---Respondent stated that his parents died when he was a child and that he was brought up by petitioners who respectively were his uncle and cousin and that on attaining majority he requested petitioners to shift to their own house located in the same locality but they refused to do so---Petitioners, firstly had claimed that they had it in writing from respondent whereby they would not leave possession and then petitioners claimed that they had purchased house after . paying price thereof---Respondent denied claims of petitioners and had filed suit for possession which was concurrently decreed by the Trial Court and appellate court below---Respondent by producing oral as well as documentary evidence, had fully proved that house in question was transferred to him and he had denied that he had ever sold or agreed to sell house to petitioners---Petitioners, no doubt, took up residence in house owned by respondent and they had brought up respondent after death of his parents---Apart from that licence, petitioners could not claim any other interest in the said house and petitioners could not prove that house in question was sold to them by respondent---Even if it was assumed that some sale was made by respondent in favour of petitioners, same was void for the reason that respondent was minor at said point of time---Courts below, in circumstances had rightly decreed suit filed by respondent---Revision against concurrent judgment and decrees of Courts below, was dismissed, in circumstances.

Jagat Singh and others v. District Board Amritsar AIR 1940 Lahore 509 and Davaram and others v. Deorao and another AIR 1926 Nagpur 376 ref.

Muhammad Amir Bhatti for Petitioners.

Tariq Zulfiqar Chaudhry for Respondent.

Date of hearing: 27th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1623 #

2006 Y L R 1623

[Lahore]

Before Jawwad S. Khawaja, J

ANWAR-UL-HAQ ANJUM---Petitioner

Versus

Mian ANJUM YOUSUF---Respondent

Civil Revision No. 1901 of 2001, decided on 25th March, 2005.

Defamation---

----Suit for defamation---Damages---Petitioner, who was an accused in a criminal case, in his statement recorded under S. 342, Cr. P. C. , made certain assertions against respondent who finding said assertions defamatory, filed suit for damages on the ground that his reputation had been injured by said assertions---Trial Court dismissed suit holding that statement which was made by petitioner during course of judicial proceedings, was protected and that suit filed by respondent against petitioner was not maintainable---Appellate Court, however, reversed findings of Trial Court---Validity---Any statement or assertion made before any Court, could not give rise to an action for libel or slander---Appellate decree, in circumstances being a result of illegal exercise of jurisdiction, was not maintainable---Same was set aside, whereas dismissal of suit by Trial Court, stood restored.

Mahomed Alam v. Crown PLD 1954 Sindh 70 ref.

Ch. Muhammad Afzal Wahla for Petitioner.

Nemo for Respondent.

Date of hearing: 25th March, 2005.

2006 Y L R 1632

[Lahore]

Before Jawwad S. Khawaja, J

TAJ MUHAMMAD---Petitioner

Versus

SHUKAR DIN---Respondent

Civil Revision No. 616 of 2001, decided on 13th April, 2005.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Suit for pre-emption--Superior right of pre-emption---Making of Talbs---Proof---Both Courts below had concurrently found that plaintiff had a superior right of pre-emption because he was owner of contiguous land and his land shared common passage and water course with the suit land---Circumstance that defendant was irrigating his land through the same tube-well, alone, would not rebut evidence produced by plaintiff who was able to show from Revenue Record that he was owner of land which was contiguous to suit land---Defendant having failed to establish contiguity, concurrent findings of Courts below holding that plaintiff had a superior right of pre-emption, were not open to exception---Judgments of the Trial Court and Appellate Court below on question of making Talbs, however were at variance---Appellate Court below had itself found that all requirements relating to Talbs had not been fulfilled, but despite that it proceeded to hold that substantial compliance of S.13 of Punjab Pre-emption Act, 1991, having been made by plaintiff, issue regarding making of Talbs was to be decided in his favour---Witness of Talb-e-Muwathibat and Talb-e-Ishhad was not examined by plaintiff, which was a material omission--In view of unjustified absence of witness of Talbs, it was not possible to hold that he was a witness of Talb-e-Ishhad---Appellate Court below, in circumstances had acted illegally and with material irregularity in exercise of its jurisdiction---Appellate judgment, being not legally maintainable, was set aside and decree of the Trial Court was restored.

Jahangir A. Jhoja for Petitioner.

Hafeez Ahmed Chaudhry for Respondent.

13th April, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1634 #

2006 Y L R 1634

[Lahore]

Before M. Bilal Khan, J

FAHEEM MIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.997-B of 2006, decided on 31st March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 365, 109, 148 & 149---Bail, refusal of---Apart from Superintendent of Police (Investigation), two other Investigating Officers had also opined about the guilt of accused---Counsel for accused had not been able to point out any ill-will or spite on the part of complainant to falsely implicate accused---Perusal of post-mortem report had made a dreadful reading---Deceased had received as many as eighteen injuries, which indicated that deceased had been subjected to extreme physical torture and Doctor observed that nature of injuries was consistent with physical trauma of variable duration between one to seven days---Affidavit of one of the prosecution witnesses in favour of accused, did not advance his case for grant of bail---Ample incriminatory material, prima facie, was available against accused connecting him with the crime---Bail petition of accused, was dismissed ' accordingly.

Naseer Ahmad v. The State PLD 1997 SC 347 ref.

Mansoor-ur-Rehman Khan Afridi assisted by Muhammad Jawad Butt for Petitioner.

Sikandar Zulqarnain Saleem for the Complainant.

Raja Akhtar Nawaz for the State with Muhammad Javed, S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 1636 #

2006 Y L R 1636

[Lahore]

Before Mian Saqib Nisar, J

TANVIR ABBAS---Petitioner

Versus

Mst. NAZIA YAQOOB and others---Respondents

Writ Petition No.219 of 2006, decided on 28th February, 2006.

Guardians and Wards Act (VIII of 1890)---

----S.25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minor---Amendment of pleadings---Principles---Concurrent findings of fact by the Courts below---Family Court declined to hand over custody of minor son to father---During pendency of appeal before Appellate Court, father of the minor stated that he belonged to Fiqa-e-Jaafaria and wanted to amend his application accordingly---Appellate Court did not allow the amendment and dismissed the appeal---Validity---Father had never claimed, even in grounds of appeal before Appellate Court, that he belonged to Figa-e-Jaafaria---Application of the father was rightly dismissed, as the same was an attempt to set out a new case and cause of action---High Court in exercise of constitutional jurisdiction declined to interfere in the order passed by Appellate Court refusing to allow such amendment--No misreading or non-reading of evidence or any legal or factual infirmity in decisions had been established on account of which two concurrent findings could be interfered---Constitutional petition was dismissed in circumstances.

Muhammad Akram Javed for Petitioner.

Ch. Ahmad Khan Gondal for Respondent No.1.

YLR 2006 LAHORE HIGH COURT LAHORE 1637 #

2006 Y L R 1637

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

KARAM ALI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.211 of 2001 and Murder Reference No.22 of 2001, heard on 25th April, 2006.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Appreciation of evidence---Benefit of doubt---Both prosecution witnesses were closely related inter se and with the deceased---Old dispute existed between the parties and civil suits were also filed by deceased and complainant against accused party--Immediate cause alleged by prosecution resulting into commission of crime, could not be proved through any independent piece of evidence and other circumstances---Oral statements being not supported by any independent piece of evidence regarding motive, prosecution had not been able to prove same against accused beyond any shadow of doubt---Medical evidence did not support ocular account to the extent of role of firing attributed to accused---Occurrence had not taken place in the manner narrated by both prosecution witnesses---Eye-witnesses had not spoken the whole truth and medical evidence had been found in contradiction with ocular account regarding role attributed to accused who was alleged to have fired from the roof top hitting on left shoulder of deceased---Medical evidence also did not support ocular account regarding firing by co-accused hitting the forehead of deceased---Nothing had been recovered during investigation from co-accused and according to the result of investigation, co-accused had not participated in the incident or fired at deceased---Medical evidence being in contradiction with ocular account regarding role attributed to accused persons, statements of said eye-witnesses could not be relied upon against accused--Independent corroboration was lacking in the case---Both the witnesses though were residents of same vicinity and their presence at the spot could not be doubted, but those factors alone were not sufficient to hold that whatever was stated by said witnesses was correct, when said witnesses had not spoken the whole truth and their version had been found contradictory to medical evidence---Ocular account which was. not trustworthy, could not be relied upon for maintaining conviction of accused entailing capital sentence---In absence of other reliable evidence to supplement prosecution case, defence version had to be believed in toto---Prosecution having failed to prove its case against both accused beyond reasonable doubt, conviction and sentence recorded against accused by the Trial Court, were set aside and accused were acquitted of the charges by extending them benefit of doubt.

Ghulam Sikandar and another v. Mamraz Khan and another PLD 1985 SC 11; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Iftikhar Hussain and another v. The State 2004 SCMR 1185 and Sultan Khan v. Sher Khan and others PLD 1991 SC 520 ref.

Burhan Moazzam Malik and Arshad Hussain Bhutta for Appellants.

S.D. Qureshi for the State.

Syed Zulfiqar Haider for the Complainant.

Date of hearing: 25th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1645 #

2006 Y L R 1645

[Lahore]

Before Muhammad Muzammal Khan, J

Haji TARIQ ALI---Petitioner

Versus

Mst. SHAMIM AKHTAR and 2 others---Respondents

Writ Petition No.18733 of 2005, decided on 6th April, 2006.

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

----S.9---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched. ---Past maintenance, grant of---Application by ex-wife after her divorce became effective---Maintainability---Arbitration. Council could be constituted inter spouses, whose relationship of husband and wife subsisted at the time of such application---Ex-wife could not go before Chairman, Arbitration Council calling him to constitute Arbitration Council for granting of past maintenance---Proceedings of Arbitration Council, if initiated on basis of such application, would be coram non judice and order passed thereon would be ab initio void---Ex-wife could file suit for recovery of maintenance before Family Court being a liability accrued against ex-husband.

Ghulam Jillani v. Deputy Commissioner/District Collector and others 1991 CLC 1813; Muhammad Najeeb v. Mst. Talat Shahnaz and others 1989 SCMR 119; Muhammad Zarif v. Mst. Safia Bibi 2000 MLD 1900; Mst. Shabnam Rasheed v. District Collector and others 2001 CLC 961 and Mushtaq Ahmad v. Collector, Lahore 1986 CLC 2312 ref.

Mst. Naziran v. Collector Sialkot and 2 others 1990 SCMR 803 fol.

Ihsan Ali Sheikh for Petitioner.

Syed Mehmood Shah Bokhari for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 1648 #

2006 Y L R 1648

[Lahore]

Before Ali Nawaz Chowhan and Umar Ata Bandial, JJ

Malik SALAH-UD-DIN

DOGAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1420 of 2004, decided on 20th March, 2006.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) (vi), 10, 15 & 32 & Sched-II, Para. 7-Appreciation of evidence---Accused, who was Mayor of Municipal Corporation, was convicted for commission of offence of corruption and corrupt practices---Accused was also subjected to disqualification provided under 5.15 of National Accountability Ordinance, 1999---Allegation against accused was that he being Mayor of Municipal Corporation misused his authority by wilfully failing to exercise authority to prevent undue benefit to favour contractors causing corresponding loss to the Corporation--Investigating Officer reported that accused alone was not responsible for inaction against contractors, but other staff of Municipal Corporation too had hand in the same---Investigating Officer further stated that accused had not gained from those contractors nor were they related to him and that when an information was given to him, he ordered for recovery of disputed amount which had been forfeited by the Income Tax Department---Money under reference had gone to the Federal Government, while loss was suffered by an agency that pertained to Provincial Government whose money was confiscated---No evidence was available to suggest that said money was pocketed by accused/Mayor---If the accused had acted negligently and had not pursued the case for refund properly, he should have been burdened accordingly and not as harshly as had happened in the present case---No iota of evidence was available on record to suggest any mens rea or criminal intention on the part of accused, except that he was negligent and failed to take proper action against the contractors---Negligence of accused while arithmetically calculating, could not be beyond Rs. 2, 84, 301, which could not be construed more than a civil wrong which could be made good through recovery of amount due---No explanation was available as to why the actual beneficiaries i.e. the contractors, who were liable to pay the income tax, were not made party to the charge and that aspect of the case remained unanswered, which was failure on the part of the prosecution---Criminal intention (mens rea); being the essential part of commission of an offence, having not been fully established against accused, order of his conviction and sentence was not correct in law and was set aside---Amount of Rs. 2, 84, 301 which was not recovered from the contractors, was non-refundable from tax authorities---High Court, in circumstances, directed that accused should arrange for making good that loss to Municipal Corporation and recover same from the contractors, in accordance with law within specified period.

Messrs Pfizer Laboratories Limited v. Federation of Pakistan and others PLD 1998 SC 64 ref.

A. K. Dogar for Appellant.

Waqar Hassan Mir, D.P.G. for NAB.

Date of hearing: 22nd November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1657 #

2006 Y L R 1657

[Lahore]

Before Muhammad Muzammal Khan, J

IMAM ALI SHAH and 3 others-Petitioners

Versus

Mst. KUBRA BIBI---Respondent

Civil Revision No.540-D of 1997, heard on 7th April, 2006.

(a) Islamic Law---

----Inheritance---Deceased having Shia faith---Proof---Daughter in her deposition detailed her entire relationship and traced life of her father---Veracity of daughter's statement not shaken in lengthy cross examination---Daughter a household lady and not much educated---Daughter having made such statement out of memory after lapse of a long time---Minor discrepancies/ contradictions in her statement were to be of no value and would not be enough to deprive her from inheritance.

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

---Art.64---Relationship of one person to another---Proof---Statements of persons closely related to person, whose relationship is to be decided, would be of much more value as compared to persons not related to him, but simply knew him without disclosing their source of knowledge.

----Inheritance---Shia and Sunni Law---Share of legal heirs, quantum of--Propositus succeeded by a widow, three sons and a daughter---Widow would get 1/8th share, three sons 3/4th share and daughter 1/8th share.

Karamat Ali Butt for Petitioners.

Respondent ex parte.

Date of hearing: 7th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1660 #

2006 Y L R 1660

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD RAMZAN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION, NOSHEHRA

VIRKAN DISTT., GUJRANWALA and 6 others---Respondents

Writ Petition No.1389 of 2006, heard on 24th February, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Constitutional petition---Quashing of F.I.R.---Brother of alleged enticed lady in his F.I.R. had alleged enticing away of his sister by petitioner and his co-accused---Alleged enticed lady who was the star witness, had not supported case of the prosecution---No likelihood existed of petitioner and his co-accused being convicted of said offence---Circumstances of case had shown that a matrimonial issue had been converted by complainant party into a criminal case so as to bring weight of criminal law to bear upon alleged enticed lady in order to break her resolve and to force her back into the matrimonial fold of her husband as she was married and she had filed suit for dissolution of marriage against her husband---Such utilization of criminal process, was nothing, but an abuse of process of law which could not be allowed to be perpetuated---F.I.R., was quashed, in circumstances.

Imran Yousaf on behalf of Muhammad Ahsan Bhoon for Petitioner.

Syed Husnain Kazmmi, Assistant Advocate-General for Respondent.

Respondents Nos.2 and 4 to 7 in Person.

Nemo for Respondent No.3.

Date of hearing: 24th February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1662 #

2006 Y L R 1662

[Lahore]

Before Jawwad S. Khawaja, J

FAIZ MUHAMMAD and others---Petitioners

Versus

SHER MUHAMMMAD and others---Respondents

Civil Revision No.2517 of 2004, heard on 6th October, 2005.

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

----S.36---Specific Relief Act (I of 1877), S.42---Declaration of title---Civil Courts, jurisdiction of---Proprietary rights were granted in year, 1963, to four brothers jointly---Collector reviewed the order passed in year, 1963 on the application filed in year, 1993, by defendant, one of the four brothers---Plaintiffs assailed the review order of Collector and claimed to be the owners of the suit-land on the basis of grant of proprietary rights---Trial Court decreed the suit in favour of plaintiffs and set aside the review order passed by Collector---Appellate Court allowed the appeal and found that the Civil Court was not entitled to grant of declaration in terms of S.36 of Colonization of Government Lands (Punjab) Act, 1912---Validity---Appellate Court had erred in law as the plaintiffs were armed with a valid order dated 22-7-1963, whereby the four brothers were found entitled to proprietary rights in the suit-land and it was that title which was asserted through the suit filed by plaintiffs---Parties were fully aware of respective pleas taken by them and led evidence accordingly---Trial Court, after considering evidence and in particular the order dated 22-7-1963, found that the plaintiffs were co-owners of the property in dispute---Once the order for grant of proprietary rights had been passed, the dispute became confined to the question of title between the brothers---No scope was available for de novo determination by Collector---Such plea got support from the written statement filed by the Province---Appellate Court's decision to refer the parties to the Collector was without lawful basis---Decree passed by Trial Court was proper and in accordance with law---Modification made by Appellate Court in the decree passed by Trial Court, directing the parties to once again agitate the matter before Revenue Authorities, constituted a material error in exercise of jurisdiction by Appellate Court---Judgment and decree passed by Appellate Court was set aside and that of Trial Court was restored.

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

----S.11---Res judicata, plea of---Scope---Question of res judicata is mixed question of law and fact and cannot be allowed to be raised at belated stage.

S.M. Masud for Appellant.

Syed Ijaz Qutab for Respondent.

Date of hearing: 6th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1664 #

2006 Y L R 1664

[Lahore]

Before Ijaz Ahmad Chaudhry, J

TANVIR and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1677-B of 2005, decided on 21st June, 2005.

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

----S. 498---Penal Code (XLV of 1860), Ss.324, 148 & 149---Bail. before arrest, refusal of---Accused while armed with gun had fired at injured which hit him---Accused had himself admitted that he fired at the injured, but he had asserted that said fire was made in self-defence---Accused and his parents only received injuries with blunt weapon and no injury was declared dangerous to life---Recovery of fire-arm was yet to be effected from the accused---Bail application to his extent was dismissed.

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

----S. 498---Penal Code (XLV of 1860), Ss.324, 148 & 149---Bail before arrest, grant of---Bail to second accused was granted in view of the fact that his four co-accused had been granted bail and case of said accused was not distinguishable from the case of the co-accused who were named in F.I.R.---Accused along with other two co-accused allegedly had caused injuries to father and mother of complainant, but only two injuries were found on person of injured, which had falsified prosecution story that three accused persons including said second accused had caused injuries to the injured---Bail application to the extent of said second accused was accepted and ad interim pre-arrest bail was granted to him.

Tariq Zulfiqar Ahmad Chaudhry for Petitioners.

Khalid Zia for the Complainant.

Sheikh Arshad Ali for the State.

2006 Y L R 1672

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE---Respondent

Cr. M. No.204-B of 2006, decided on 23rd February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Pre arrest bail, confirmation of---Article 3 of Prohibition (Enforcement of Hadd) Order, 1979, did not attract prohibitory clause of S.497, Cr. P. C. , whereas Art. 4 of the Ordinance, was bailable---Investigating Officer had violated provisions of S.103, Cr. P. C. ---Since raiding party consisted of so many police officials, it did not appeal to reason that accused succeeded in escaping from the clutches of raiding party at relevant time---No useful purpose would be served to send accused behind the bars as no recovery was to be effected from him---Ad interim pre-arrest bail already granted to accused was confirmed, in circumstances.

Syed Jaffar Bukhari with Petitioner in person.

Shaukat Riaz for the State.

Date of hearing: 23rd February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1673 #

2006 Y L R 1673

[Lahore]

Before Jawwad S. Khawaja, J

Rana SHAHID IQBAL---Appellant

Versus

Mst. SAKEENA BIBI and others--- Respondents

Regular Second Appeal No.2 of 2004, heard on 28th February, 2006.

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

----S.12---Specific performance of agreement to sell---Recovery of possession---Scope---Plaintiff who sues for specific performance of agreement to sell, is entitled to claim possession of property agreed to be sold.

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

----S. 12---Specific performance of agreement to sell---Concurrent findings of fact by the Courts below---Recovery of possession in part performance of agreement to sell---Proof---Plaintiff claimed to have possession of the suit shop as he had paid Rs. 3, 45, 000 and only Rs. 5, 000 were outstanding---Defendant disputed delivery of possession and admitted only receipt of Rs. 1, 25, 000 out of total consideration amount---Suit was concurrently decreed in favour of plaintiff by Trial Court and Appellate Court---Validity---Natural course of human conduct would require that a sale-deed should be executed upon payment of total consideration or, if there was any hurdle in such execution, possession of the property agreed to be sold, was delivered---Plaintiff had failed to show existence of any impediment in execution of sale-deed and he also failed to prove delivery of possession of disputed shop to him---Such were compelling circumstances, which stood proved and as consequence supported the defence set up by defendant and undermined the credibility of case put forth by plaintiff---Both the Courts below did not take note of the circumstances in support of defendant and proceeded to accept testimony of plaintiff's witnesses despite serious shortcomings and despite strong circumstantial evidence which was much more reliable and went contrary to the statements made by plaintiff's witnesses---Both the Courts below had thus committed substantial error in their proceedings which resulted in error in their decisions on merits of the case---Judgments and decrees passed by both the Courts below were set aside and suit filed by plaintiff was dismissed---Appeal was allowed in circumstances.

Muhammad Yasin Chughtai for Appellant.

Hamid Ali Mirza for Respondent.

Date of hearing: 28th February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1680 #

2006 Y L R 1680

[Lahore]

Before Mian Saqib Nisar, J

SHAKEEL MASIH and others---Appellants

Versus

Sheikh NADEEM PERVAIZ through Special Attorney---Respondent

F.A.O. No.246 of 2004, heard -on 10th March, 2006.

Cantonment Rent Restriction Act (XI of 1963)---

----Ss. 2(g)(/), 17 & 24---Ejectment application---Relationship of landlord and tenant---Appeal before High Court---Respondent, who had brought ejectment application against appellants, had claimed that he had purchased house in question bona fide from legal heirs of its deceased original owner and that appellants were in possession of said house as tenants under previous owner---Respondent had alleged to have served appellants with legal notice about change of ownership and required them to pay rent to him, but they had failed to do so---Appellants denied relationship of tenancy and claimed that they were in possession of house for the last 60 years and had raised construction and that original owner or his legal heirs had no title to said house---Validity---Held, in order to achieve ejectment of tenant, landlord was bound to prove that property in question had been rented out to tenant; there were two kinds of tenancy; one was contractual; and other was statutory---Respondent had not claimed that it was a statutory tenancy between the parties because after alleged purchase of house from legal heirs of deceased original owner, he had stepped into the shoes of earlier owner---No contract of tenancy had been proved---Witness produced by respondent in his cross-examination had conceded that he did not have any personal knowledge if appellants were tenants of the house in question---None of previous owners, with whom the contract of tenancy was alleged, had been examined by respondent---Respondent, in circumstances, had not been able to prove relationship of tenancy between the parties---Court below, in circumstance should have dismissed ejectment application filed by respondent, directing him to seek his remedy by filing a suit for recovery of possession, instead of seeking ejectment under special law, which had special application---Allowing appeal, ejectment order passed against appellants, was set aside, with the result that ejectment application filed by respondent stood dismissed.

Sain Muhammad Tufail v. Anjuman-e-Darbar-e-Hussain 1993 MLD 316; Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 and Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1 ref.

Abdul Majid Khan for Appellants.

Muhammad Akhtar Rana for Respondent.

Date of hearing: 10th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1688 #

2006 Y L R 1688

[Lahore]

Before Muhammad Sair Ali, J

DOST MUHAMMAD and another---Appellants

Versus

SARDAR ALI and others---Respondents

Regular Second Appeal No.34 of 2001, heard on 27th February, 2006.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of contract---Plaintiff claimed that defendant had executed agreement to sell suit-land in his favour and had received earnest money---Subsequent to suit filed by plaintiff, two sons of defendant filed two suits against their father claiming to be vendees of land from their father---Defendant initially denied claim of their sons, but subsequently admitted their suits---In view of unqualified statement of defendant admitting claim of his sons, his sons did not produce any evidence---Defendant, however contested suit filed by plaintiff against him and produced his evidence in answer to evidence of defendant---On death of defendant, his said two sons succeeded him---Sons of deceased defendant had no independent right to produce evidence as their predecessor-in interest/defendant had already availed such opportunity as defendant---Courts below had found the two suits filed by sons of deceased defendant as collusive with their father/deceased defendant and said findings were not challenged by two sons---Such ruling about collusive suits of sons of deceased defendant had attained finality, in circumstances--Courts below through thorough and detailed analysis of evidence, concurrently found that the evidence on record was sufficient to prove existence and execution of agreement in favour of plaintiff and it had not been shown that concurrent findings of fact recorded by subordinate Courts were contrary to law or erroneous---Courts below having concurrently believed evidence produced on execution of agreement of sale, it was not necessary for plaintiff to produce an expert to prove sale agreement---Appeal against concurrent findings of fact recorded by two Courts below, was dismissed, in circumstances.

S. M. Mohsin Zaidi for Appellants.

Ch. Muhammad Akbar Gill for Respondents.

Date of hearing: 27th February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1699 #

2006 Y L R 1699

[Lahore]

Before Syed Sajjad Hussain Shah, J

NISAR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Misc. No.407-M of 2006, decided on 4th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 514---Confiscation of surety bond---Petitioner/surety through petition had challenged order whereby his surety bond was confiscated and he was ordered to pay surety amount---Petitioner was a poor illiterate person who stood surety for accused out of benevolence and on humanitarian considerations and not for any monetary personal gain---Accused for whom petitioner stood surety were subsequently acquitted by the Trial Court before passing impugned order---Absence of accused was not intentional, but was due to bona fide mistake---Forfeited amount was reduced from Rs.25,000 to Rs. 5000, in circumstances.

Mehmood-ul-Haq Thanvi for Petitioner.

Faisal Ali Qazi A.A.-G. for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 1704 #

2006 Y L R 1704

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD NADEEM alias DEEMA---Petitioner

Versus

THE STATE---Respondent

Criminal Misc. No.1058-B/2005, decided on 25th May, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, grant of---Five Investigating Officers in their investigation, had found accused innocent---Definite conclusion had been arrived by said police officers that accused had not participated in alleged occurrence and nothing could be recovered from him during investigation---Previous enmity between accused and complainant party was even admitted in F.I.R.-Chances of false implication of accused in the case could not be ruled out---Two co-accused had already been granted bail, who were also attributed injury on the person of deceased, but they were declared innocent by the police and nothing was recovered from them---Case of accused was not distinguishable from the co-accused---Accused was also entitled to same treatment---Mere abscondance of accused from law, was no ground to keep him in jail for indefinite period and bail could not be refused as a punishment---Accused was released on bail, in circumstances.

Zafar Mahmud Chaudhry and Tariq Zulfqar Ahmad Chaudhry for Petitioner.

Rana Tahir Mahmud for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 1705 #

2006 Y L R 1705

[Lahore]

Before Sheikh Azmat Saeed, J

MANZOOR AHMAD and another---Petitioners

Versus

Mst. ALLAH RAKHI and others---Respondents

Civil Revision No.1349 of 2004, heard, on 20th September, 2005.

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

----O.VII, R.11 & S.11---Specific Relief Act (I of 1877), S. 42---Rejection of plaint---Principle of res judicata---Applicability---Plaint was rejected by Trial Court on the ground that in earlier proceedings, Supreme Court had finally determined the controversy between the parties---Appellate Court allowed the appeal and remanded the case to Trial Court for decision afresh after recording of evidence---Validity---Trial Court was conferred with jurisdiction under O.VII, R.11, C.P.C. to reject any plaint which was barred by law (including S.11, C.P.C.)---Previous round of litigation inter se the same parties or their predecessors in-interest involving same land culminated in a judgment by Supreme Court---Trial Court relying upon judgment of Supreme Court rejected the plaint and such order of Trial Court could not be deemed to be a void order---Judgment and decree passed by Appellate Court was set aside and order of Trial Court rejecting the plaint was upheld---Revision was allowed in circumstances.

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

----S.5---Civil Procedure Code (V of 1908), S.115---Revision---Condonation of delay---Paucity of funds and necessity to plant crops---Whether sufficient grounds to condone delay---Appellate Court accepted the plea of appellants that they remained busy in planting crops, did not have sufficient funds to file the appeal and one of the appellants was seriously ill, and condoned the delay in filing appeal---Validity---Each and every day of delay had not been explained---Necessity to plant crops and paucity of funds were not sufficient grounds for condonation of delay---Illness of one of the appellants was also not a sufficient ground as there were no less than 23 appellants---Sufficient grounds being not available for condonation of delay, should not have been condoned---Failure to file appeal within prescribed period had created a vested right in favour of opposite party, which could not be rightly done away with or extinguished---Judgment passed by Appellate Court was set aside in circumstances.

Abdul Karim v. Muhammad Ibrahim 1976 SCMR 79 and Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822 ref.

Ch. Bashir Ahmad for Petitioners.

Ch. Siddique Ahmad and Ch. Abdul Wahid for Respondents.

Respondents Nos.12 to 17 were proceeded ex parte vide order dated 29-6-2004.

Date of hearing: 20th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1708 #

2006 Y L R 1708

[Lahore]

Before Muhammad Khalid Alvi, J

ATTA MUHAMMAD---Petitioner

Versus

Mst. SHAHNAZ KHATOON and 6 others---Respondents

Writ Petition No.737 of 2005, decided on 20th July, 2005.

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

----S. 5, Sched. & S.17A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance---Petitioner, for the first time was directed to pay a meagre amount of interim maintenance i.e. Rs.300 per head per month, but petitioner having failed to pay the same, right of his defence was closed---Validity---Family Court could pass an order for payment of interim maintenance during pendency of a suit and failure to comply with such order necessarily would entail penal action of closing right of defence---No interference was called for in the order of the Family Court, constitutional petition having no merit was dismissed, in circumstances.

Muhammad Amir Khan Niazi for Petitioner.

Date of hearing: 20th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1709 #

2006 Y L R 1709

[Lahore]

Before Ijaz Ahmad Chaudhry, J

JAFFAR HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.20 of 2004, decided on 3rd October, 2005.

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

----Ss. 420, 468 & 409---Prevention of Corruption Act (II of 1947), S.5(2)---Appreciation of evidence---Star witness of prosecution was subjected to lengthy cross-examination, but no enmity could be pointed out to prove that complainant had falsely implicated accused in the case---Said witness was an independent witness who had no motive to falsely implicate accused---Accused had failed to shatter statement of said witness during cross examination---Statement of said witness was sufficient to connect accused with commission of the crime---Other witnesses had also provided independent corroboration about preparation of forged birth certificates which were provided to star witness by accused---Prayer for reduction of sentence of accused was declined as birth entry was of utmost importance since because of it accused, could be convicted and sentenced to death, or his sentence could be converted into imprisonment for life or his trial could be conducted under Juvenile Justice System Ordinance, 2000 which had given certain benefit to juvenile accused---Forgery of birth certificate entries, in circumstances, could not be taken leniently which was a heinous offence---Appeal to the extent of said accused, was dismissed and Trial Court was directed to issue his warrant of arrest for his committal to jail to serve out his remaining sentence, because his sentence was suspended earlier by the Trial Court.

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

----Ss. 420, 468 & 409---Prevention of Corruption Act (II of 1947), S.S(2)---Appreciation of evidence---Prosecution, except the statement of Handwriting Expert, had not been able to produce any witness connecting co-accused with commission of offence---Complainant and other prosecution witnesses, including star witness,. had not uttered a single word against co-accused that he was connected with commission of alleged forgery in any manner---Opinion of Handwriting Expert alone could not be relied upon for conviction of co-accused as he had formed opinion on the basis of Photostat copy of letter allegedly addressed by accused to some one else, but it was not admitted by accused that he had ever written that letter---Prosecution had miserably failed to prove through documentary or oral evidence that co-accused had prepared forged document---Appeal to the extent of co-accused was accepted and impugned judgment regarding his conviction and sentence was set aside and he was acquitted of the charge.

Muhammad Farooq Qureshi Chishti for Appellants.

Nadeem Siddiqui for Complainant.

Date of hearing: 3rd October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1713 #

2006 Y L R 1713

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

SHAHID HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.498 and Murder Reference No 509 of 2001, heard on 20th January, 2006.

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

----S. 302(b)---Appreciation of evidence--F.I.R. had been promptly lodged naming the accused and specifying his role in the occurrence---Ocular account was corroborated by medical evidence and the recovery evidence---Identity of accused in the occurrence having taken place after Maghrib prayer was possible when parties were known to each other and distance between them was only 4/5 feets---Eyewitnesses though related to the complainant party, had no enmity with the accused---Two successive shots fired by the accused on the deceased showed his intention to kill the deceased---Weakness or absence of motive was insignificant in the presence of credible, unimpeachable and confidence-inspiring ocular testimony and the same would not constitute a mitigating circumstance in favour of accused---Accused was major at the time of occurrence---Conviction and sentence of death of accused were affirmed in circumstances.

Taj Ali Khan v. State 1999 SCMR 2444; Syed Azeem Shah v. The State NLR 1998 AC 99; Noor Ahmad v. State PLJ 1982 Cr.0 251; Waqar Azeem, Billu and others v. The State 2001 P.Cr.R. 202; Sardar Khan v. State 1998 SCMR 823; Waris Khan v. The State 2001 SCMR 387 and Syed Muhammad Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

(b) Criminal trial---

----Appreciation of evidence---Priniples---Technicalities are to be overlooked by the Courts of law while doing justice in criminal cases.

----S. 302(b)---Appreciation of evidence---Absence or weakness of motive---Effect---Where case against accused is established beyond any shadow of doubt by credible, unimpeachable and confidence-inspiring prosecution evidence, absence of motive or its weakness or where alleged but not proved, would hardly make any difference in awarding death sentence and would not constitute any mitigating circumstance.

Waris Khan v. The State 2001 SCMR 387 and Syed Muhammad Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 rel.

Ch. Pervez Aftab for Appellant.

Zauq Sipra for the State.

Khan Wajid Nawaz Khan Alizai for the Complainant.

Date of hearing: 20th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1717 #

2006 Y L R 1717

[Lahore]

Before Jawwad S. Khawaja, J

MOHSIN RAZA---Appellant

Versus

MUHAMMAD KHIZAR and 2 others---Respondents

R.S.A. No.108 of 2000, decided on 26th April, 2005.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell property of minors---Suitland was owned by defendants who were minors and agreement to sell was executed by their father without obtaining permission of Guardian Court for effecting sale---Both the Trial Court and Appellate Court below had rightly dismissed suit filed by appellant for specific performance of agreement to sell---Impugned concurrent judgments and decrees of .Courts below, being unexceptionable, same could not be interfered with by High Court in appeal.

Ch. Akhtar Ali Goraya for Appellant.

Muhammad Jamil Zahid for Respondents.

Date of hearing: 26th April, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1718 #

2006 Y L R 1718

[Lahore]

Before Ijaz Ahmad Chaudhry, J

KHADIM HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.402 of 2003, decided on 22nd December, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 408, 435 & 439---Penal Code (XLV of 1860), Ss.392 & 411---Appeal before Additional Sessions Judge---Maintainability---Petitioner had challenged order passed by Additional Sessions Judge by which he had dismissed appeal filed by petitioner against his conviction on ground that appeal could be filed before High Court as sentence awarded to petitioner was more than four years---Any conviction and sentence passed by a Magistrate was appealable before the Court of Session and if accused was convicted by Assistant Sessions Judge and sentenced to more than four years, that was appealable in the High Court---Conviction and sentence in the present case, having been passed by Magistrate 1st Class, appeal was maintainable before Sessions Court--- Appeal of petitioner was dismissed as withdrawn under impression that same was not maintainable before Sessions Court---Order of Additional Sessions Judge whereby appeal was dismissed as withdrawn, was declared to be illegal and subsequent order passed on the ground that earlier appeal was dismissed as withdrawn, had become of no legal effect---Both said orders were set aside by accepting revision and appeal which was dismissed as withdrawn, would be deemed to be pending and decided on merits after hearing parties.

1991 MLD 2203 ref.

Sardar M. Akram Khan Pitafi for Petitioner.

Muhammad Qasim Khan, A.A.-G. for the State.

Date of hearing: 22nd December, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 1728 #

2006 Y L R 1728

[Lahore]

Before Muhammad Muzammal Khan, J

ZULFIQAR---Petitioner

Versus

Mst. KHANAM MAI and 3 others---Respondents

Writ Petition No.3406 of 2006, decided on 13th April, 2006.

Guardians and Wards Act (VIII of 1890)---

----S. 25---Custody of minors (son and daughter)---Agreement between father and mother that in case of re-marriage by her, she would forego right of custody of minors---Second marriage by father and mother---Contest for custody between father and maternal grandmother of minors---Validity---Mother on account of second marriage was disqualified to be appointed as guardian of minors---Father in absence of mother could claim custody, but due to his second marriage, welfare of minors would be looked into---Minors were living with maternal grandmother since long, with whom they had deep attachment---Maternal grandmother under Islamic Law had first right of custody of female minor---Minors had expressed their desire in favour of maternal grandmother---Daughter having reached age of majority would need motherly teachings in order to be guided in her practical life, which could be provided only by maternal grandmother---Minors were being given schooling and worldly education by maternal grandmother---Father was avoiding decree of maintenance allowance in favour of minors---Minors at the cost of their future could not be given to father to face their step-mother---Father was refused custody of minors in circumstances.

Syed Zulfiqar Ali Bokhari for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 1730 #

2006 Y L R 1730

[Lahore]

Before Syed Hamid Ali Shah, J

ABDUL MAJEED---Petitioner

Versus

MEMBER (JUDICIAL-II), BOARD OF REVENEU PUNJAB, LAHORE

and 2 others---Respondents

Writ Petition No.19640 of 2004, decided on 14th July, 2005.

West Pakistan Land Revenue Rules, 1968---

----R. 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of lambardar---Point to be considered---Respondent having been appointed as lambardar, petitioner being rival candidate, had called in question the order of appointment contending that claim of respondent for his appointment was hereditary claim on basis of rule of primogeniture which claim had been, declared' repugnant to Injunctions of Islam---Validity---Executive District Officer Revenue in his order had taken into: consideration the requirements of R.17 of West Pakistan Land Revenue Rules, 1968, while appointing the lambardar---Executive. District Officer (Revenue) had not based his selection totally on rule of primogeniture, but had taken into consideration other factors; such as that respondent was Hafize-Quran, youngman of thirty five; he had no previous history of anti-social activities; owned sufficient land to meet the requirement of Zar-e-Bharat; and was an educated person to cope with the demands of the office of lambardar---Authorities had decided matter after taking into

consideration record of case, hearing of parties and law on the subject---In absence of any jurisdictional error, and violation of statute: or law, impugned order could not be interfered with in constitutional jurisdiction of High Court and no appraisal of evidence could be made, in constitutional petition.

Maqbool Ahmad Qureshi v. Islamic Republic of Pakistan PLD 1999 SC 484; Abdul Salama v. Muhammad Amir Khan Rajpoot PLD 1972 (Revenue) 16; Haji Burhan v. Haji Ibrahim PLD 1974 Revenue 82; Sharf Din v. Qazi Abdul Jalil 1986 SCMR 1368; Muhammad Hanif v. Zulfiqar Ali 2002 MLD 1844 and Amir Latif v. Member (Colonies), Board of Revenue 2005 YLR 1913 ref.

Ch. Mushtaq Masood for Petitioner.

Ch. Javed Rasool for Respondent No.3.

Date of hearing: 1st July, 2005.

2006 Y L R 1744

[Lahore]

Before Muhammad Jehangir Arshad and Muhammad Farrukh Mehmud, JJ

MUHAMMAD TUFAIL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.7-ATA of 2004, decided on 27th June, 2005.

Penal Code (XLV of 1860)---

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Appreciation of evidence---Evidence of the abductee was fully corroborated by other prosecution witness who was privy to the payment of ransom for the release of the abductee---Relationship of the said witness with the complainant abductee was no ground to straightaway discard his statement, when no enmity or ill will was proved on his part for false implication of accused---Parties admittedly being residents of the same locality, identity of the accused was not disputed---Contradictory stands taken by the defence had indicated the falsehood of the motive tried to be attributed to the prosecution witnesses---Trial Court while taking a lenient view had already imposed the minimum sentence of imprisonment for life on the accused provided under S.365-A, P.P.C.---Conviction and sentence of accused were maintained in circumstances.

State through Advocate-General, Sindh v. Muhammad Asghar and 2 others 2002 MLD 1853; Qasim and 3 others v. The State 1999 SCMR 2841; Ali Dost v. The State 1994 PCr.LJ 950; Sikandar Ali v. The State 1999 MLD 1513 and Khawaja Hasanullah v. The State 2000 PCr.LJ 173 ref.

Muhammad Aslam Khan Dukkar for Appellant.

Kamran Ahmad Sumra for the Complainant.

Ghazanfar Ali Khan for the State.

Date of hearing: 26th May, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1749 #

2006 Y L R 1749

[Lahore]

Before Karamat Nazir Bhandari, J

Chaudhary LIAQAT ALI and 8 others---Petitioners

Versus

Mian MASOOD AHMED SHAHID and 3 others---Respondents

Writ Petition No.514 of 2001, decided on 12th January, 2001.

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

----S. 56---Punjab Legal Practitioners and Bar Councils Rules 1974, R. 4.11---Pakistan Bar Council Appeal Rules, 1986, Rr. 3 & 4---Punjab Rules of Business of Bar Associations Memorandum of Association 1981, R.45---Constitution of Pakistan (1973), Art. 199--- Constitutional petition---Voters list---Petitioners applications for enrolment as members of Bar Association and inclusion of their names in the voters list was not accepted by the Bar Association on the ground that eligible voters list had already been declared by the President Bar Association---Petitioners challenged the matter before Punjab Bar Council---Single member of Executive Committee in case of two petitioners, had allowed the application and had directed the President of concerned Bar Association to include their names in the voters list and five members of the Executive Committee in case of other five applicants had issued the same direction---Such directions were challenged in appeal before the Pakistan Bar Council---Appeal Committee suspended the orders of Punjab Bar Council---Validity---Powers of Executive Committee exercised by single member was not legal and illegal order was rightly suspended by the Chairman Appeal Committee of Pakistan Bar Council---Other Petitioners had applied for membership in the Bar Association, as non-member has no right to vote---Member could not request to have his name included in eligible voters list---Pakistan Bar Council had exercised powers legally within its jurisdiction---Order was interim and constitutional petition against interlocutory order was generally not permissible---Petition was dismissed in limine in circumstances.

Ch. Riasat Ali for Petitioners.

Muhammad Amin Lone, A.A.-G. on call with Muhammad Akbar Bhatti, Secretary, Punjab Bar Council for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 1751 #

2006 Y L R 1751

[Lahore]

Before Muhammad Farrukh Mahmud, J

GHULAM MUSTAFA---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.81 of 2004, heard on 28th July, 2005.

Penal Code (XLV of 1860)---

----Ss. 420/466/467/468/471---Prevention of Corruption Act (II of 1947), S.5---Allegation against the accused was that he by making a false entry of the death of his brother in the death register got his land transferred in his own name---Trial Court after framing the charge against the accused recorded the statements of six prosecution witnesses and also examined him under S.342, Cr. P. C. but thereafter it concluded that it lacked jurisdiction and vide impugned order directed for submission of challan before the Court of ordinary jurisdiction---No reliable incriminating evidence had come on record against the accused before the trial Court---Accused had been suffering for the last about ten years and now his trial by the Court of ordinary jurisdiction would not improve the prosecution case and it would be sheer waste of time---Impugned order passed by the Special Judge, Anti-Corruption, was consequently set aside and the proceedings pending against the accused were quashed in circumstances.

Sardar Muhammad Aslam Khan for Petitioner.

M.A. Farazi for the State.

Date of hearing: 28th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1753 #

2006 Y L R 1753

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. SAIRA SHAUKAT through Special Attorney---Petitioner

Versus

DISTRICT COLLECTOR I.C.T., ISLAMABAD and 2 others---Respondents

Writ Petition No.140 of 2004, decided on 16th January, 2004.

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

----S.7---Constitution of Pakistan, (1973), Art. 199---Constitutional petition---Certificate of effectiveness of divorce---Reconciliation proceedings---Spouses belonged to "Shia" sect---Husband gave notice of "Talaq" to Chairman Arbitration Council, who issued notice to the petitioner---Father of petitioner as her attorney received notice---Chairman

Arbitration Council issued certificate of effectiveness of divorce---Validity---Chairman had no jurisdiction to issue a certificate declaring effectiveness or otherwise of divorce---Valid divorce could take effect only upon the fulfilment of the conditions laid down in S.7 of the Family Laws Ordinance.

Syed M. Tayyab for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 1754 #

2006 Y L R 1754

[Lahore]

Before Muhammad Sair Ali, J

FAQIR MUHAMMAD and another---Applicants

Versus

MUHAMMAD BASHIR---Respondent

Civil Revision No.395 of 1999 and C.M. No.176-C of 2004, decided on 5th March, 2004.

Civil Procedure Code (V of 1908)---

----Ss. 151 & 115---Dismissal of revision in default---Restoration---Negligence of counsel---Petitioners' case was adjourned twice in the year 2001, in the interest of justice---Case was adjourned thrice in year 2002 on the request of petitioners that their counsel had settled abroad---Suit was dismissed in default in 2004---Petition for restoration---Validity---Negligence of counsel was no adequate ground for restoration of suit---Petitioners were duty bound to pursue their case---Case file contained powers of attorney of two counsel---None of the counsel had applied either for revocation of power of attorney or for their withdrawal from the case---Application for restoration was dismissed in circumstances.

Raja Ghulam Hassan Khan for Applicants.

YLR 2006 LAHORE HIGH COURT LAHORE 1756 #

2006 Y L R 1756

[Lahore]

Before Muhammad Farrukh Mahmud and M.A. Shahid Siddiqui, JJ

MANZOOR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.101 of 2002, decided on 12th September, 2005.

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

----Ss. 302(b) & 324---Appreciation of evidence---Occurrence had taken place in daylight---Eye-witnesses had received injuries during the incident and their presence at the crime spot at the relevant time could not be denied---Ocular testimony was consistent in which the accused were specifically made responsible for having committed the offence---Medical evidence and recovery of gun from the residential room of accused had corroborated the ocular evidence---Crime empties recovered from the spot were found to have been fired from the said gun---Main accused had gone to the spot fully prepared armed with a double barrel gun who had fired repeatedly with it causing death of a 24 years old innocent person and a serious injury to the prosecution witness---Absence of motive or failure to prove the same would not adversely affect the prosecution case if it had been proved by reliable evidence, normal penalty for which was death sentence---No mitigating circumstance was available on record for award of lesser punishment---Conviction and sentences of accused were upheld in circumstances.

Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427; Taylor's Principles and Practice of Medical Jurisprudence, 13th Edition edited by A. Keith Mant page 246; Medical Jurisprudence and Toxicology, 5th Edn., 1990 reproduced in 1995 at p.295 by Dr. C.K. Parikh; Muhammad Hanif v. The State PLD 1993 SC 895; Amrood Khan v. The State 2002 SCMR 1568; Hameed Khan alias Hameedai v. Ashraf Shah and another 2002 SCMR 1155 and Jawed Malik v. The State 2005 SCMR 49 ref.

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

----Ss. 302(b) & 324---Appreciation of evidence---Motive, absence of---Effect---Absence of motive or failure to prove the motive would not adversely affect the prosecution case if the same has been proved by reliable evidence.

Hameed Khan alias Hameedai v. Ashraf Shah and another 2002 SCMR 1155 ref.

----Ss.302(b) & 324---Appreciation of evidence---Principles---Erroneous opinion of Doctor cannot outweigh definite and trustworthy direct evidence.

Muhammad Hanif v. The State PLD 1993 SC 895 and Amrood Khan v. The State 2002 SCMR 1568 ref.

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

----S. 302(b)---Murder---Sentence---Normal sentence is death---Insufficiency of motive or the same being shrouded in mystery does not justify non-awarding of normal penalty of death to a murderer or to reduce his death sentence to a lesser punishment---Occurrence, though had taken place at the spur of moment resulting in a murder with a single shot which was not repeated, also did not justify withholding of sentence of death.

Jawed Malik v. The State 2005 SCMR 49 ref.

Sardar Muhammad Aslam Khan Dhukkar for Appellant.

Mumtaz Hussain Bazmi for the Complainant.

Shaheen Masood Rizvi, A.A.-G. assisted by M.A. Farazi for the State.

Dates of hearing: 6th & 12th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1765 #

2006 Y L R 1765

[Lahore]

Before Syed Hamid Ali Shah, J

SHIMLA---Petitioner

Versus

S.H.O., POLICE STATION CANTT., TEHSIL AND DISTRICT SARGODHA

and 4 others---Respondents

Writ Petition No.3007 of 2005, decided on 3rd March, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Habeas corpus petition---Report of Bailiff had revealed that alleged detenus were sitting on their cots, in the residential quarters without any restraint---Respondent stated that object of filing habeas corpus petition was mala fide and alleged that alleged detenus and petitioner had received huge amount as advance payment of labour and petitioner had moved petition so that they should wriggle out of their liabilities and escape from job for which their services were hired against advance payment---Petitioner was alleged to be habitual in filing constitutional petitions and had already filed constitutional petitions against brick-kiln owners in the same vicinity---Validity---Respondents had the remedy and right to initiate a legal action against petitioner and alleged detenus, which right was available to them for recovery of amount paid by them as advance---No restraint existed on respondents, if they chose to take any action against alleged detenus---Detenus present in the Court had stated that they did not want to render their services any more for respondents---Detenus were set free and allowed to move according to their wishes.

A.G. Mian for Petitioner.

Najeeb Faisal Chaudhry, Addl. A.-G., Malik Muhammad Imtiaz Mahl for Respondent No.5.

Khadim Hussain Bailiff.

YLR 2006 LAHORE HIGH COURT LAHORE 1766 #

2006 Y L R 1766

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD ALI---Petitioner

Versus

S.H.O., POLICE STATION LAKSEEN, SARGODHA and 5 others---Respondents

Writ Petition No.5272 of 2005, decided on 31st May, 2005.

Penal Code (XLV of 1860)---

----Ss.295-A & 298---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Petitioner had invoked constitutional jurisdiction of High Court for issuance of direction to S.H.O. concerned for registration of case against respondents---Grievance of petitioner was that respondents had announced in the village and made proclamation by wall chalking on the walls of village that petitioner who was a tubewell operator had changed his religion along with his wife---Petitioner was a true Muslim who had full faith in Islam and follower of "Hazrat Muhammad" (peace be upon him)---Mere bald statement of some persons about some Muslims, was not sufficient to believe that the person had ceased to be a Muslim, and had adopted some other religion, unless said person himself should confess the same---Since there was no allegation or confession of petitioner that he had embraced some other religion and had ceased to be a Muslim, from the allegation levelled by respondents, no cognizable offence was constituted and case was not covered within provisions of Ss.295-A & 298, P.P.C.

Malik Muhammad Imtiaz Mahl for Petitioner.

2006 Y L R 1775

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

GHULAM YASIN alias BHAIDOO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.632 of 2000 and Murder Reference No.159 of 2001, heard on 18th January, 2005.

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

----S. 302(6)---Appreciation of evidence---F.I.R. was promptly lodged---Complainant and the other eye-witness though related to the deceased had no motive or strong enmity against the accused for his false implication in the case---Eye-witnesses had proved their presence at the crime spot at the time of occurrence and had corroborated each other on the main points---Accused had admitted to have killed his aunt under grave and sudden provocation on having seen her in compromising position with her paramour in the house of the complainant, but he had failed to substantiate his specific plea, which was neither plausible nor convincing and the same was not corroborated nor convincing and the same was not corroborated even by a single piece of evidence---Prosecution version was more reliable and confidence-inspiring when put in juxtaposition with the defence version---Case was of single accused and the parties being known to each other having close relations, question of substitution or false implication did not arise---No previous enmity existed between the parties---Ocular testimony was corroborated by medical evidence---Non-recovery of the weapon of offence was of no avail to the defence as the intentional murder had been admitted by the accused with a gun---Conviction and sentence of death of accused were affirmed in circumstances.

Ghulam Yasin v. Zafar Ali and 3 others 1970 SCMR 527; Muhammad Ali v. Muhammad Farooq and 5 others 1989 SCMR 1099; Muhammad Ashraf v. The State 1996 PCr.LJ 1652; Kamal and 2 others v. The State PLD 1999 Kar 212; Mst. Dur Naz and another v. Yousuf and another 2005 SCMR 1906; Abdul Wahid v. The State 2003 SCMR 668; Waris Khan v. The State 2001 SCMR 387; Saeed and 2 others v. The State 2003 SCMR 747; Syed Muhammad Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427; Saeed Akhtar and others v. The State 2002 SCMR 383; Arshad Ali alias Acchhu v. The State 2002 SCMR 1806; Hameed Khan's case 2002 SCMR 1155; Mirza Khan and another v. The State 2005 SCMR 1110; Imtiaz Ahmad v. The State 2001 SCMR 1334; Woolmingtin's case 1935 AC 462 and Talib Hussain v. State 1995 SCMR 1776 ref.

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

----S. 302 (b) ---Qanun-e-Shahadat (10 of 1984), Art.121---Appreciation of evidence---Burden of proof---When an accused takes a specific plea to bring his case within an exception, then the onus lies on him to prove the same.

Mst. Dur Naz and another v. Yousuf and another 2005 SCMR 1906 and Abdul Wahid v. The State 2003 SCMR 668 ref.

----S. 302(b)---Appreciation of evidence---Burden of proof---Initial burden to prove the guilt of accused lies on the prosecution, but when accused raises a specific plea in his defence, then both the prosecution version and the defence version are to be judged in juxtaposition and the one nearer to truth is to be given weight.

Mst. Dur Naz and another v. Yousuf and another 2005 SCMR 1906 and Abdul Wahid v. The State 2003 SCMR 668 ref.

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

----S. 302(b)---Appreciation of evidence---Motive, absence of---Effect---Where eye-witness account is credit worthy, confidence inspiring and unimpeachable and case against accused is proved beyond shadow of doubt, absence of motive or its weakness of where alleged motive is not proved, the same would hardly make any difference in awarding the death sentence and would not constitute a mitigating circumstances.

Waris Khan v. The State 2001 SCMR 387; Saeed and 2 others v. The State 2003 SCMR 747; Syed Muhammad Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427; Saeed Akhtar and others v. The State 2002 SCMR 383; Arshad Ali alias Acchhu v. The State 2002 SCMR 1806; Hameed Khan's case 2002 SCMR 1155; Mirza Khan and another v. The State 2005 SCMR 1110; Imtiaz Ahmad v. The State 2001 SCMR 1334; Woolmingtin's case 1935 AC 462 and Talib Hussain v. State 1995 SCMR 1776 ref.

Ms. Humaira Naheed Khan on State expense for Appellant.

Masoo.d Sabir for the State.

Nemo for Complainant.

Date of hearing: 18th January, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1781 #

2006 Y L R 1781

[Lahore]

Before Abdul Shakoor Paracha, J

GHULAM HAIDER and 7 others---Petitioners

Versus

FAZAL and 2 others---Respondents

Civil Revision No.2305 of 2000, heard on 12th April, 2004.

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), Art.148---Suit for declaration---Plaintiffs had filed suit for declaration to the effect that they had become owners in possession of the suit property on basis of lapse of 60 years as mortgagees in possession---Suit was decreed by the Trial Court and appeal against such decree had failed---Validity---Admittedly property was mortgaged in 1908 and the same was not redeemed by the defendants---With the afflux of time the plaintiffs after expiry of 60 years had become owners of the property in dispute---Petition was dismissed in circumstances.

Masood Sadiq for Petitioners.

Muhammad Shahzad Shaukat for Respondents.

Date of hearing: 12th April, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1783 #

2006 Y L R 1783

[Lahore]

Before Pervez Ahmed, J

Mst. BHAGAN---Petitioner

Versus

SULTAN---Respondent

Civil Revision No.267 of 1996, heard on 12th February, 2004.

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act. (IX of 1908), S.3 & Art.120---Declaratory suit---Limitation--- Propositus of parties having died, mutation was sanctioned in favour of defendant---Plaintiffs' contention was that mutation sanctioned on 19-1-1972 was illegal and void---Plaintiff had filed the suit on 8-12-1991---Validity---Suit was barred by time---Judgment and decree of the Appellate Court were set aside in circumstances.

Rana Muzaffar Hussain for Petitioner.

Zahid Hussain Khan for Respondent.

Date of hearing: 12th February, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1784 #

2006 Y L R 1784

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUMTAZ alias TAJ and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.180 of 2001, heard on 18th January, 2006.

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

----Ss. 302(b), 300 & 34---Qanun-e-Shahadat (10 of 1984), Art. 121---Appreciation of evidence---Case of two versions, one given by prosecution and the other by accused persons---Occurrence took place in the broad-daylight---Sister of accused persons who allegedly was found in compromising position with deceased when accused had fired, did not receive any injury on her person---Sister of accused persons was never produced even before the police or before the Trial Court to substantiate version of accused---When an accused wanted to bring his case within Exceptions to S.300, P.P.C. or wanted to be convicted under S.302(c), P.P.C., onus would be on him to prove same as contemplated by Art.121 of Qanun-e-Shahadat, 1984, but version of accused was not believable and same was discarded---Accused had committed murder of deceased by pistol fire with premeditation without any rhyme or reason and injury on person of deceased proved fatal---Ocular account was fully supported by Medical evidence, corroborated by recovery of incriminating weapon from the possession of accused, coupled with positive report of Fire Arms Expert---Accused, in circumstances had been rightly convicted and sentenced---Accused not deserving any leniency, appeal to his extent was dismissed, his death sentence was confirmed and murder reference was replied in affirmative.

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

----S. 302(c)---Appreciation of evidence---Co-accused was brother of accused and though pistol was recovered from him, but no injury had been attributed to him---Possibility of his false implication being real brother of accused, could not be ruled out---Appeal to the extent of co-accused was allowed and impugned judgment of Trial Court qua him was set aside and he was acquitted of the charge.

Rana Muhammad Nazeer Saeed for Appellants.

Rao Atif Nawaz for the State.

Date of hearing: 18th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1788 #

2006 Y L R 1788

[Lahore]

Before Muhammad Sayeed Akhtar, J

MODEL TOWN ISLAMIC TRUST through Secretary---Petitioner

Versus

SOHAIL SHAFQAT, RENT CONTROLLER, LAHORE and 3 others---Respondents

Writ Petitions Nos.10453 and 10454 of 2003, heard on 12th November, 2003.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Constitution of Pakistan (1973), Art. 199---Civil Procedure Code (V of 1908), O.I, R.10---Constitutional petition---Muslim Wakf Property---Impleading of party---Respondent filed ejectment petition claiming himself to be owner on ground of default since 1983 and subletting---Tenants denied the relationship of landlord and tenant with the respondent and they claimed to be tenants of the Trust (petitioner)---Rent Controller dismissed the application of petitioner/Trust to implead them as party---Validity---Record revealed that petitioner/ Trust was registered and mutation of gift was sanctioned in its favour in 1962---All the record of the property was with the petitioner---Petitioner was necessary and proper parry---Petition was allowed and order of Rent Controller was declared as without lawful authority in circumstances.

Salman Mansoor for Petitioner.

Badar-ul-Amir Malik for Respondent No.2.

Ch. Muhammad Tahir for Respondent No.3.

Date of hearing: 12th November, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 1791 #

2006 Y L R 1791

[Lahore]

Before M. Bilal Khan, J

SONIA NAZ---Applicant

Versus

Ch. KHALID ABDULLAH, S.P., INVESTIGATION (under suspension)

and 2 others---Respondents

Criminal Miscellaneous No.9257/CB of 2005, decided on 19th April, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10,11, 16 & 18---Penal Code (XLV of 1860), Ss.344, 354, 355 & 506---Police Order, (22 of 2002), Arts.155 & 156---Cancellation of bail-Principles--Additional Sessions Judge had given authentic and logical reasons for granting concession of bail to accused persons---In all investigations, prima facie no direct evidence supporting allegation of abduction and rape, against accused, was found apart from statement of victim herself---Valid difference existed between considerations for the grant of bail and cancellation thereof---Once a Court, in exercise of its discretion, granted concession of bail, same could be cancelled only if it would come to the conclusion that bail had been allowed on artificial grounds and that bail granting order was absolutely whimsical and perverse---Provisions of S.497(5), Cr.P.C. were not punitive in nature and there was no legal compulsion for cancelling of bail_ granted in cases punishable with death, imprisonment for life or imprisonment for ten years---Bail could be cancelled only if bail granting order was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice and where accused was found to be trying to tamper with prosecution evidence or in any way had misused the concession of bail--Impugned order passed by the Trial Court was not suffering from any of serious infirmities calling for interference---Petition for cancellation of bail, was dismissed, in circumstances.

Masood v. The State and another 1989 SCMR 2063; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Chaudhary Shujat Hussain v. The State 1995 SCMR 1249; Syed Amanullah Shah v. The State and another PLD 1996 SC 241; The State v. Abdul Ghaffar 1996 SCMR 678; Nazir Ahmad v. Muhammad Ismail and another 2004 SCMR 1160; Munawar Khan v. Abdul Rauf Khan 2002 YLR 2440 and Mian Dad v. The State and another 1992 SCMR 1286 ref.

Ms. Asma Jahangir and Jan Nisar Baloch for Applicant.

Ch. Riyasat Ali for Respondent No.1.

Kh. Aamir Farooq and Mian Sultan Tanvir Ahmad for Respondent No.2.

Tanvir Ahmad Shami for the State with Liaqat All, A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 1797 #

2006 Y L R 1797

[Lahore]

Before Mian Hamid Farooq, J

SALEHON MUHAMMAD---Petitioner

Versus

Mst. SABRAN BIBI---Respondent

Civil Revision No.1676 of 2003, heard on 19th March, 2004.

Specific Relief Act (I of 1877)---

----S.8---Civil Procedure Code (V of 1908), S.11---Suit for possession---Res judicata---Plaintiff had filed suit for possession on basis of sale-deed---Defendant took the plea that the plaintiff had filed two suits for possession of the same house, which were dismissed by the competent Courts and thus the fresh suit could not proceed---Trial Court framed preliminary issue, after receiving documentary evidence and decided the issue against the defendant---Appellate Court accepted the appeal and dismissed the suit---Validity---In the earlier suits Khasra No. in the sale-deed was incorrectly recorded---Plaintiff was directed to get it corrected---Plaintiff after getting necessary correction from the competent authority had filed the suit which gave him fresh cause of action---Parties in the previous suits were different---Suits were not heard and finally decided by the Courts in the previous litigation---Conclusion of the Court in the previous judgment was that the suit for possession was not maintainable on account of error in the sale-deed---Section 11 of C.P. C. had no applicability in the present suit---Findings of the Appellate Court were misconceived and misdirected and same were set aside in circumstances and that of trial Court stood restored.

Nazir Ahmad Javed for Petitioner.

Tanveer Ahmad Sheikh for Respondent.

Date of hearing: 19th March, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1799 #

2006 Y L R 1799

[Lahore]

Before Jawwad S. Khawaja, J

BAQIR and another---Petitioners

Versus

AHMAD and 7 others---Respondents

Civil Revision No.1381 of 1992, decided on 15th April, 2005.

Punjab Pre-emption Act (I of 1913)---

----Ss. 4, 15, 21 & 27---Suit for preemption---Superior right of pre-emption---Plaintiffs had established their superior right of pre-emption in respect of suit-land on basis of their being co-sharers/Pattidars and owners of the estate---Defendant had claimed that he had superior right of pre-emption as he was tenant of suit-land---Plaintiffs by producing Khasra Granary and Khasra . Girdawri, had proved that on date when they acquired suit-land, person other than defendant was tenant of suit-land and was cultivating ' same---Onus was on defendant to prove that he was tenant of suit-land on relevant date,, but he failed to discharge same---Appellate Court while deciding matter in favour of defendant had relied on a Khasra Gardawari, which was not exhibited on record despite same was available on file---Said document could not be given any evidentiary value---Reliance of Appellate Court on said unexhibited document clearly was against law---Judgment of Appellate Court, in circumstances, was not legally maintainable---Appellate judgment and decree suffering from illegality, were set aside and as a consequence decree of the Trial Court stood restored.

Mian Tajammul Hussain others v. State Life Insurance Corporation of Pakistan 1993 SCMR 1137 and Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051 ref.

Sheikh Naveed Shehryar for Petitioners.

Syed Kaleem Ahmed Khurshid for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 1801 #

2006 Y L R 1801

[Lahore]

Before Ijaz Ahmad Chaudhry and Asif Saeed Khan Khosa, JJ

MUHAMMAD KHALID and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 742 and Murder Reference No.369 of 2000, heard on 25th April, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 148---Appreciation of evidence---One of the prosecution witnesses was real brother of one of the deceased and son of other, while other prosecution witness was from their brotherhood and both were previously inimical towards accused party---Such witnesses could not be termed as independent witnesses, but were interested witnesses whose statements had to be taken into consideration with due care and caution to ascertain as to whether they had spoken the whole truth or not---Presence of said witnesses at the spot was found doubtful---Certain contradictions appeared in previous statements of both said eye-witnesses regarding injury caused by accused on the right shoulder of deceased---Both said witnesses also failed to explain as to who had fired causing murder of the deceased---Witnesses were unable to identify accused who had fired at in which both deceased received injuries---Said witnesses were not consistent on the other points---Both the eye-witnesses had also contradicted each other about recovery of empty---Presence of one of said witnesses at the spot was doubtful, he was not a man of good character and could be expected to have made false statement---Places of occurrence were stated to be surrounded by number of houses, but not a single independent person was attracted to the spot---Story of ocular account was further falsified from site plan---Medical evidence also had created doubt in the ocular account regarding the time of occurrence and occurrence had not taken place in the manner narrated by prosecution witnesses---Recovery of different weapons from accused was inconsequential as no empty was recovered from the spot and there was no evidence to hold that weapons allegedly recovered from accused were used by them in the incident and same could not be treated as corroborative piece of evidence to ocular account---All Investigating Officers had found that accused had not participated in the incident---Prosecution having failed to prove its case against accused beyond reasonable doubt, conviction and sentence awarded to accused by Trial Court were set aside and accused were acquitted extending them benefit of doubt and were released, accordingly.

Syed Mazahar Ali Abkar Naqvi and Shahbaz Ahmad Dhilun for Appellants.

Ashfaq Ahmad Chaudhry for the State.

Date of hearing: 25th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1810 #

2006 Y L R 1810

[Lahore]

Before Asif Saeed Khan Khosa and M.H. Shahid Siddiqui, JJ

MUHAMMAD NAWAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1907 of 2000 and Murder Reference No.25 of 2001, decided on 27th June, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Both complainant and prosecution witness were very closely related to the accused---Complainant being brother of deceased was a natural witness of alleged occurrence as he lived with the deceased in the same house wherein occurrence had taken place---F.I.R. had been lodged with sufficient promptitude and in the said F.I.R. accused had been nominated as the principal accused who was saddled with the responsibility of causing solitary and fatal fire-arm injury to the deceased---Was not believable that within that short span of time, complainant had conspired and cooked up a false story and had implicated his first paternal cousin falsely for the murder of complainant's real brother---F.I.R.; site plan and both the eye-witnesses revealed that an electric bulb was on at the time and place of occurrence---It was quite believable that even in the absence of electric light, complainant was in a good position to identify accused after waking up at the spot---Complainant being a natural witness of occurrence, it was difficult to believe that he would substitute real murderer of his brother and falsely implicate his first paternal cousin for the same---Motive set up by prosecution stood amply established, which had provided corroboration to ocular account furnished by complainant---Medical evidence had provided support to account furnished by complainant inasmuch as the date, and time of occurrence, weapon used and locale of injury stated by complainant had all been confirmed by medical evidence---Accused and none else had been proved to have committed murder of deceased at the time, place and in the manner alleged by prosecution---Conviction and sentence recorded by the Trial Court, were maintained and upheld, in circumstances.

Masood Mirza for Appellant.

A.H. Masood and Mian Muhammad Bashir for the State.

Malik Saeed Hassan for the Complainant.

Date of hearing: 27th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1815 #

2006 Y L R 1815

[Lahore]

Before Sh. Javed Sarfraz and Fazal-e-Miran Chauhan, JJ

MUHAMMAD AKRAM---Appellant

Versus

D.P.O., LODHRAN and 7 others---Respondents

I.C.A. No.145 of 2005, decided on 21st September, 2005.

Police Order, 2002---

----Art. 18(6)---Penal Code (XLV of 1860), Ss.337-A(ii), 365 & 34---Law Reforms Ordinance (X11 of 1972), S.3---Intra-Court appeal---Transfer of investigation---District Police Officer on application of one of accused persons, transferred investigation to Deputy Superintendent of Police who, without hearing petitioner/complainant, started investigation of case and declared applicant/accused as innocent---Said transfer of investigation by District Police Officer was challenged by petitioner/ complainant before High Court in constitutional petition, but Single Judge of High Court dismissed constitutional petition---Petitioner/complainant had filed Infra-Court appeal against judgment of Single Judge---Article 18(6) of Police Order, 2002 dealt with change of investigation and District Police Officer did not figure anywhere in the procedure laid down in Art.18(6) for transfer of investigation---Board constituted under Art.18(6) of Police Order, 2002 having not recommended for transfer of investigation, investigation could not have been changed---District Police Officer, in circumstances had exceeded his powers by ordering transfer of investigation---Contention of Law Officer that since Investigating Officer had completed investigation, no action should be taken, was repelled---Public functionaries were legally required to act strictly in accordance with law---District Police officer had acted beyond his authority in transferring investigation as he had no authority to do so, but Single Judge of High Court had overlooked said aspect of the case---Infra-Court appeal was accepted and order of Single Judge was recalled--Investigation was returned to Officer who was previously conducting investigation---Investigation carried out by Deputy Superintendent of Police to whom same was transferred, was also declared illegal---Previous Investigating Officer would investigate case from the stage where it was transferred from him.

Aziz Ahmad v. Provincial Police Officer, Punjab, Lahore and others PLD 2005 Lah. 185 ref.

Muhammad Tariq Nadeem for Appellant.

Malik Muhammad Qasim, A.A.-G. for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 1818 #

2006 Y L R 1818

[Lahore]

Before Ch. Iftikhar Hussain and Asif Saeed Khan Khosa, JJ

MUHAMMAD IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.187 & 376 of 2000 and Murder Reference No.114 of 2000, heard on 17th January, 2005.

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

----S. 302(b)---Appreciation of evidence---Eye-witnesses were unanimous on all material particulars of the prosecution case i.e., time, venue and the mode of occurrence---Relationship of the eye-witnesses inter se and with the deceased was not sufficient to discredit their testimony---Occurrence had taken place in daylight---Accused alone had been nominated in the F.I.R. to have fired at the deceased with the gun---F.I.R. had been promptly lodged containing all the necessary details of the incident---Medical evidence was completely in consonance with the ocular testimony---Parties were inimical towards each other even prior to the occurrence---Motive set up by the prosecution stood established on record---Conviction of accused was maintained in circumstances---Accused, however, had fired a solitary shot at the deceased on non-vital part of his body and did not repeat the same---Death sentence of accused was reduced to imprisonment for life accordingly.

Taj Ali Khan v. The State 1999 SCMR 2444 ref.

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

----S. 302(b)---Site-plan---Site-plan is not a substantive piece of evidence.

Taj Ali Khan v. The State 1999 SCMR 2444 ref.

----S. 302(b)---Criminal Procedure Code (V of 1898), S.417(2-A)--Appeal against acquittal---No overt act qua the deceased had been ascribed to accused and he was only attributed the role of informing the principal accused of the arrival of the complainant and the deceased at the site---Tendency in the people to rope in maximum number of family members of the adversary to wreak vengeance could not be lost sight of---Trial Court had rightly exercised abundant precaution in acquitting the accused in circumstances---Appeal against acquittal of accused was dismissed accordingly.

Mian Muhammad Sikandar Hayatan for Appellant (in Cr1. Appel No.187 of 2000).

Ehsan Sabir for the State.

Nemo for Appellant (in Crl. Appeal No.376 of 2000).

Date of hearing: 17th January, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1824 #

2006 Y L R 1824

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

GHULAM RASOOL and 4 others ---Petitioners

Versus

Mst. GHULAM FATIMA and another---Respondents

Criminal Revision No.64 of 2001, decided on 18th August, 2002

Criminal Procedure Code (V of 1898)---

----S. 491---Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979), S.16---Summoning of accused---Case of complainant was that petitioners took away her daughter as one of the petitioners had illicit relation with her---Respondent got registered F.I.R., but police found case to be false and prepared cancellation report---Complainant filed petition under S.491, Cr.P.C. for recovery of her daughter which was decided by the Court observing that matter was probed in by various authorities at the various levels, but whereabouts of the daughter of complainant could not be known; also that if complainant was able to locate her daughter anywhere in illegal custody of anybody she would be entitled to get her petition restored so as to recover her daughter---Daughter of the complainant having not been recovered, it was necessary for complainant to place on record of the Trial Court copy of order passed in petition under S.491, Cr.P.C. and the Trial Court was to consider the same before passing impugned order of summoning accused, but same having not been done, impugned order of summoning accused was not maintainable and being not legal and proper, was liable to be set aside--Impugned order was set aside and Trial Court was directed to pass fresh order after considering order passed on petition under S.491, Cr.P.C. and after hearing the parties.

Abdur Rasheed Rashid for Petitioners.

Saleem-ud-Din Aftab for Respondent No.1.

M.A. Farazi for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 1826 #

2006 Y L R 1826

[Lahore]

Before Khawaja Muhammad Sharif, J

MUDASSAR AHMED KHAN---Appellant

Versus

ATTIQUE AHMED and another---Respondents

Criminal Appeal No.1532 of 2003, heard on 15th October, 2004.

Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Cheque in question was issued on 8-7-2002 and it was presented to the Bank on 2-1-2003---Section 489-F, P.P.C. was brought on the Statute Book on 25-10-2002---On the date of issue of the Cheque S. 489-F, P.P.C. did not exist--Said section had not been given retrospective effect---Accused, therefore, could not have been tried for the offence under S.489-F, P.P.C. which on the date of issue of the Cheque was not on the Statute Book--Impugned judgment of acquittal of accused did not suffer from any illegality or material irregularity---Appeal was dismissed accordingly.

2004 PCr.LJ 1545; 2004 PCr.LJ 263 and 2004 YLR 2867 ref.

Niaz Ahmad Khan for Appellant.

Shahzad Shaukat for Respondents.

Date of hearing: 15th October, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1828 #

2006 Y L R 1828

[Lahore]

Before M. Bilal Khan, J

Mehr MUHAMMAD YOUNIS---Petitioner

Versus

THE STATE---Respondent

Criminal Misc. No.7901-B of 2005, decided on 27th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.498-F---Pre-arrest bail, refusal of---Accused who was allowed bail in a case, when came out of Court room was apprehended by police officer---Inquiry had revealed that said subsequent arrest was being sought in a different case registered against him which was subject-matter of present bail application and not in the case in which he had been allowed ad interim pre-arrest bail, whereupon accused was handed over to police---Contention of accused that once bail application had been filed in the office, police could not effect arrest of accused had no substance---Accused had already been formally arrested when present petition came up before the Court for hearing---Bail petition for pre-arrest bail thus having become infructuous, was dismissed.

Syed Hassan Qadir Shah for Petitioner.

Shoaib Zafar for the Complainant.

Riaz Ali Inspector/Ineharge Investigation and Abdul Ghafoor S.-I., P.S. Shalimar, Lahore with police papers.

YLR 2006 LAHORE HIGH COURT LAHORE 1829 #

2006 Y L R 1829

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

MUHAMMAD ASLAM RANA---Appellant

Versus

Syed ABUZER HUSNAIN BOKHARI others---Respondents

I.C.As. Nos.205 and 211 of 2001, heard on 27th April, 2001.

Punjab Local Government Elections Ordinance (V of 2000)---

----S. 14---Punjab Local Government Elections Rules, 2001, R.18---Constitution of Pakistan (1973), Arts. 62, 63 & 199---Law Reforms Ordinance (XII of 1972), S. 3, paras 1 & 2---Constitutional Petition---Qualification of candidates---Scrutiny---Acceptance of nomination papers---Subsequent events---Nomination papers of appellants were accepted by the Returning Officer---Appellants contested the election and won it by substantial margin---Respondents filed constitutional petition against the acceptance of nomination papers of the appellants which was accepted and the appellants were disqualified to contest election---Validity---Order of Returning Officer qua acceptance of nomination papers was final---High Court had no jurisdiction to resolve the disputed questions of fact in constitutional jurisdiction under Article- 199 of the Constitution---High Court had ample power to take notice of subsequent events---Appellants had won election by the substantial margin---Mandate given by people of the area could not be ignored---Intra-Court appeals were allowed and judgments of the High Court were set aside---Respondents could avail remedy by way of election petition.

Nasir Jamil's case 1990 CLC 1069 quoted.

Riasat Ali Chaudhry for Appellant.

M.D. Tahir for Respondents (in I.C.A No.205 of 2001).

Ijaz Ahmed Chaudhry, Addl. A.-G.

Date of hearing: 27th April, 2001.

YLR 2006 LAHORE HIGH COURT LAHORE 1831 #

2006 Y L R 1831

[Lahore]

Before M. Bilal Khan, J

AMANAT ALI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, LAHORE and 3 others---Respondents

Writ Petition No.1519 of 2005, heard on 2nd November, 2005.

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

---Ss. 516-A & 550---Custody of vehicle on Superdari---Custody of vehicle in question was being sought by petitioner on ' the grounds that he was a bona fide purchaser and owner of said vehicle and that seizure thereof under S.550, Cr.P.C. was illegal---Further contention of petitioner was that neither there was any rival claimant of the vehicle in question nor same was involved in any criminal case---Nothing was on record to show that the vehicle was stolen property or same was involved in any criminal case---Documents of said vehicle were properly maintained by petitioner---Only question as to Chassis panel, which was allegedly refitted and re punched, was a matter of evidence which could be seen at the time of trial---Retention of vehicle in police possession for an indefinite period without there being any progress in the case, would mean nothing, but complete decay, deterioration and damage thereto which could not be allowed under any provision of law---Documents appended with petition, prima facie, had shown petitioner to be owner of vehicle in question at least in absence of any rival claimant---Accepting petition, vehicle was handed over to petitioner on Superdari accordingly.

Mahboob Khan v. The State 2003 YLR 791 ref.

Rana Muhammad Arif for Petitioner.

Ch. Aamir Rehman, A.A.-G. assisted by Tanvir Ahmad Shami with Ikram-ul-Haq, S.-I. for Respondent.

Date of hearing: 2nd November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1833 #

2006 Y L R 1833

[Lahore]

Before Khawaja Muhammad Sharif and M. A. Shahid Siddiqui, JJ

MUHAMMAD RAZZAQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6548-B of 2005, decided on 20th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 51-A---Bail, refusal of---Accused was apprehended with one kilogram of "Phakki" which was a narcotic substance---Bail could not be granted to accused in view of S.51-A of Control of Narcotic Substances Act, 1997.

Ch. Muhammad Akram for Petitioner.

Ch. Muhammad Sharif for A.N.F.

Tariq, A.S.-I., with Record.

YLR 2006 LAHORE HIGH COURT LAHORE 1834 #

2006 Y L R 1834

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

Dr. EMMANUEL ONUWABUCHI KEKE-Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No.1887 of 2005, decided on 22nd December, 2005.

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

----Ss. 9(c) & 15---Criminal Procedure Code (V of 1898), S.265-K---Appreciation of evidence---Accused had not been arrested at the spot and no narcotic substance had been recovered from his possession during investigation of the case---F.I.R. itself showed that raiding party had not identified or named accused on its own and accused had been implicated in case on the basis of alleged disclosure made by arrested co accused---Trial Court, while admitting accused to post-arrest bail, itself had observed in its order that accused stood implicated on the statement of co-accused which was inadmissible in evidence---F.I.R. showed that members of raiding party could identify the fleeing culprit, but no test identification parade had been held in the case so as to positively incriminate the accused---Case against accused was based on no legally admissible evidence at all---No probability existed for conviction of accused---Provision of S. 265-K, Cr.P.C. was meant, to save a person from rigors of a trial, but the Trial Court had not kept that object of the provisions before it while dismissing application of accused submitted in that regard---Continued harassment of accused through a trial which was not likely to end in accused's conviction, would amount to an abuse of the process of Court which could not be allowed to be perpetuated---Impugned order was set aside and application by accused under S.265-K, Cr.P.C. was accepted and accused was acquitted in the case.

Hammad Akbar Wallana for Appellant.

Muhammad Sharif for Respondent with Qadeer Baig, Inspector, Date of hearing: 22nd December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1835 #

2006 Y L R 1835

[Lahore]

Before Jawwad S. Khawaja, J

HAJRAN BIBI---Petitioner

Versus

MUHAMMAD BOOTA and others---Respondents

Civil Revision No.876 of 2005, heard on 31st January, 2006.

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

----S.42---Mutation---Decision in mutation proceedings---Legal effect of mutation on title to property---Mutation was merely a record of a previously concluded transaction---Mutation did not result in the creation or extinguishments of rights in immovable property.

(b) Islamic law---

----Gift---Validity---Plaintiff challenging gift mutation in suit for declaration asserted that she had made no gift in favour of her brother/defendant---Suit was decreed but decree was set aside in appeal---Validity---Record proved that mutation in question had been entered in Roznamcha on basis of a statement made by defendant/donee himself and rapt which contained no mention about delivery of possession of suit property, noted the presence of plaintiff and her daughter but non-affixation of their thumb-impressions or signatures led to the inference that plaintiff did never appear before Patwari nor did she make any statement in respect of alleged oral gift---Defendant failed to prove that his sister/plaintiff, who had her own children, had any justification to gift her property in favour of her step-brother/defendant---Appellate decree tainted with non-reading of evidence not being legally sustainable was set aside.

Muhammad Shahzad Shaukat for Petitioner.

Ch. Muhammad Ashraf Wahla for Respondent No.1.

Abdus Salam Awan for L.Rs. of Respondents Nos.2 and 3.

Date of hearing: 31st January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1838 #

2006 Y L R 1838

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

MUHAMMAD SHAFI and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1994 of 2002 and Murder Reference No.114 of 2003, heard on 30th June, 2005.

Penal Code (XLV of 1860)---

----Ss. 302, 34 & 109---Appreciation of evidence---Matter was reported to police two days after the occurrence, while police post was at a distance of two kilometers from place of occurrence and brother of complainant was also a retired police officer---Injured was stated to have been removed to Rural Health Centre concerned after occurrence and thereafter to the Hospital, but no Medico-legal report was there, nor any evidence except bald statement of eye-witness, was available about taking the injured to hospital for medical treatment---Such lacuna in the prosecution case had created doubt about presence of prosecution witness at the relevant time---Possibility that F.I.R. was registered after consultation and deliberation, could not be ruled out---None of eye-witnesses had uttered a single word qua involvement of one of the three co-accused and allegation of abetment against another co-accused had not been proved as statement of prosecution witness in respect thereof was absolutely silent about the time, date and place where allegedly said co-accused had abetted his co-accused---Manner and mode in which said co-accused had allegedly instigated his other co-accused, was unbelievable, as witness in that regard, after hearing conspiracy never bothered to inform complainant well in time---Said co-accused being father of other two co-accused, his false implication because of his relationship with his co-accused as well as enmity with the complainant, could not be ruled out---No specific role had been attributed to the one of other co-accused, nor any recovery was effected from him---Main accused at relevant time, allegedly was armed with rifle and he allegedly caused fire-arm injury to deceased, but during investigation, said weapon was never recovered at his instance---Glaring improvements were made by eye-witnesses while deposing before the Trial Court---Complainant also never joined investigation---During investigation, all accused were found innocent by Investigating Officer and Investigating Officer had opined that prosecution had failed to prove guilt against said accused persons---Prosecution case being full of doubts, conviction and sentence recorded against accused were set aside and they were acquitted of charge and were released.

Ch. Salamat Ali Haidery for Appellants.

Ch. Nazeer Ahmad for the State (in M. R. No.114 of 2003).

Ch. Muhammad Nazeer for the State (in Cr1. A. No.1994 of 2002).

Date of hearing: 30th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1841 #

2006 Y L R 1841

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD AJMAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.426 and Murder Reference No.376 of 2001, heard on 19th January, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S.376---Appreciation of evidence---Sentence, reduction in---Conversion of death sentence into life imprisonment---Matter was reported to police after about 15 hours of occurrence. while distance between police station and place of occurrence was 4 K.M.---If deceased wanted to get his shop vacated from accused, he should not have taken the law in his own hand without approaching any Court or filing any ejectment petition; or approaching Councillor or Nazim of the area and Punchayat could have decided the dispute amicably---Deceased also took the law in his own hands and started opening of the lock of shop in question where accused was also residing---Accused, who was not armed with any fire-arm or sharp-edged weapon, caused injuries with tyre-lever on the person of deceased which proved fatal---Case, in circumstances, was of lesser punishment---Maintaining conviction of accused under S.302(b), P.P.C., death sentence awarded to accused was converted into imprisonment for life with benefit of S. 382-B, Cr. P. C. accordingly.

Zafar Mehmood Anjum for Appellant.

Muhammad Zafar Khan Sial for the Complainant.

Date of hearing: 19th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1843 #

2006 Y L R 1843

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

Dr. ABID UR REHMAN---Petitioner

Versus

THE STATE through Additional Director, Directorate of Intelligence

and Investigation---Respondent

Criminal Revision No.47 of 2004, heard on 16th November, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 200, 202 & Chap. XXII-A [Ss.265-A to 265-N]-Central Excise Act (I of 1944), Ss.9-A & 13---Amendment of complaint--On filing complaint, Trial Court entertained same, recorded statements of complainant and thereafter holding preliminary inquiry, summoned respondents to face trial---Thereafter on application moved by complainant for impleading name of petitioner along with other accused was allowed---Through present criminal revision legality of said order of Trial Court had been challenged on ground that once complaint was filed, same could not be amended---Validity---Under Chapter XXII-A, Cr. P. C. procedure for the trial by Courts of Session had been prescribed and that part of Code of Criminal Procedure was silent about any restriction or fetters on jurisdiction of Trial Court to allow permission for amendment in complaint already pending or to entertain a fresh complaint---No illegality was shown in impugned order whereby permission had been granted to file fresh amended complaint---On receipt of amended/new complaint, Trial Court would re-examine same, hold a fresh inquiry and thereafter if satisfied that sufficient material was available to connect petitioner with the commission of any offence the Court would summon him to face the trial.

Kh. Adnan Ahmad for Petitioner.

Khawar Ikram Bhatti for Respondent.

Date of hearing: 16th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1845 #

2006 Y L R 1845

[Lahore]

Before Abdul Shakoor Paracha, J

Lt.-Col. M. AHSAN-UL- HAQ---Appellant

Versus

Mst. MUMTAZ BEGUM and others---Respondents

F.A.O. No.478 of 2002, heard on 17th March, 2003.

Civil Procedure Code (V of 1908)---

----Ss.16, 21 & O. VII, R.10---Specific Relief Act (1 of 1877), S.42---Return of plaint---Place of suing---Objections to jurisdiction---Plaintiff filed suit for declaration that special power of attorney allegedly executed by a lady predecessor-in-interest of the plaintiff was based on fraud, illegal and void ab initio---Special power of attorney was about the land situated at a place different to the place where the document was executed and registered---Suit was filed at the place of execution and registration of document---Suit was decreed by the Trial Court---Appellate Court set aside the judgment and decree of the Trial Court and returned the plaint under O. VII, R.10, C. P. C. for presentation to the proper Court where immovable property was situated---Validity---No objection as to place of suing could be allowed by Appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity before the settlement of issues---Where the defendants actually and voluntarily resided in the territorial jurisdiction of the Court where the suit was instituted the objection to territorial jurisdiction would not prevail---Appeal was allowed, judgment and decree of the First Appellate Court was set aside and case was remanded to be decided afresh by giving findings on all issues.

Mian Shamsul Haq for Appellant.

Muhammad Javed Hafeez for Respondents.

Date of hearing: 17th March, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 1848 #

2006 Y L R 1848

[Lahore]

Before Sh. Javaid Sarfraz, J

ZAHID JAVAID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3251/B of 2005, decided on 9th January, 2006.

Criminal Procedure Code (V of 1898)---

S. 497(2)---Penal Code (XLV of 1860), Ss.468, 471 & 473---Bail, grant of---Further inquiry---Allegation against accused was that he forged the signatures of Deputy Superintendent, Jail on the power of attorney and same was used for the purpose of filing bail petition---No opinion of Handwriting Expert had been obtained by prosecution so as to prove that offence was committed by accused---Nothing had been recovered from accused---Case of further inquiry, in circumstances had been made out entitling accused to grant of bail---Offences against accused did not fall within the prohibitory clause of S.497, Cr.P.C. and in such-like cases grant of bail was a rule and refusal an exception---Accused was behind the bars since his arrest and the trial was not likely to be concluded in the near future---No useful purpose, in circumstances, would be served by keeping accused behind the bars till the conclusion of the trial---Accused was admitted to bail, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Rana Khalid Mahmood for Petitioner.

Javed Ahmad Khan for the State with Zafar Ali, S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 1849 #

2006 Y L R 1849

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD RIAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Appeals Nos.654, 87 and Murder Reference No.136 of 2001, heard on 17th January, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b)(c) & 109---Appreciation of evidence---Complainant, who was husband of deceased, was not eye-witness---Only two eye-witnesses were in the case; one was daughter of deceased and other was maternal nephew of deceased---F.I.R. was promptly lodged within two hours of occurrence, while distance between police station and place of occurrence was 12 miles---Co-accused who was real brother of complainant and had been convicted and sentenced for offence under Ss.302(c) & 109, P.P.C., having met with death during pendency of appeal, his appeal had become infructuous and was disposed of as such---Identification parade of accused was held by Magistrate who had adopted all precautions for holding said parade and had given a very detailed report---Magistrate was examined at the trial, but not a single question was put to him, though opportunity in that respect was provided---Accused also led to recovery of pistol when he was arrested---Report of Fire Arms Expert with regard to the crime . empties, was positive---Sole witness was daughter of deceased as other witness was given up who allegedly was won over by accused---Said sole witness had fully supported prosecution case---Witness not only had identified accused in the course of identification parade, but also before the Trial Court and made accused responsible for the death of her mother---Court had to see the quality of evidence and not quantity thereof---If solitary statement was confidence-inspiring and had come from an unimpeachable source and had intrinsic value, capital punishment, could be maintained on the basis of such statement---Said sole witness having no enmity against accused and there was no question of his false implication in the case---Ocular evidence was fully supported by Medical evidence and also got support from positive report of Fire Arms Expert---Accused not only had fired a shot, but had repeated same to kill innocent woman---Accused, in circumstances did not deserve any leniency---Appeal of accused was dismissed and death sentence awarded to him by High Court was confirmed---Murder

Reference, was answered in affirmative.

Sahibzada Farooq Ali for Appellant.

Wajid Ali Bhatti for the State.

Date of hearing: 17th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1852 #

2006 Y L R 1852

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD AYUB ---Petitioner

Versus

Rana ABDUL REHMAN and another---Respondents

Criminal Miscellaneous Nos.1632-CB, 1773-B, 3056-CB, 3084-CB, 3088-CB, 1110-CB and 2699-B of 2006, heard on 25th April, 2006.

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

----S. 497(1)(5)--Penal Code (XLV of 1860), S. 489-F---Bail grant of---Section 489-F, P.P.C. would only be relevant where in respect of a loan or non fulfilment of an obligation, a cheque was issued and it got dishonoured in the way mentioned under said section---Section 489-F, P.P.C. would not be attracted for any other purpose---Corollary of that would be that cheques which were issued otherwise than for purpose of re-payment of loans or fulfilment of obligation, would not be covered by definition of S.489-F, P.P.C.---Applications asking for cancellation of bail, were dismissed because none of those pertained to the purpose as defined---Application asking for grant of post-arrest bail, was allowed, accordingly.

Major (R) Ijaz Ahmad Bhatti v. The State and 3 others 2005 PCr.LJ 1462 and Abdul Rehman v. S.H.O. Police Station Kot Sumaba Rahim Yar Khan and another 2006 PCr.LJ 157 ref.

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

----S. 489-F---Scope and application of S. 489-F, P.P.C.-Section 489-F, P.P.C. would only be relevant where in respect of a loan or non fulfilment of an obligation, a cheque was issued and it got dishonoured in the way mentioned under said section---Section 489-F, P.P.C. would not be attracted for any other purpose---Corollary of that would be that cheques which were issued otherwise than for purpose, of re-payment of loans or fulfilment of obligation, would not be covered by definition of S.489-F, P.P. C.

Major (R) Ijaz Ahmad Bhatti v. The State and 3 others 2005 PCr.LJ 1462 and Abdul Rehman v. S.H.O. Police Station Kot Sumaba Rahim Yar Khan and another 2006 PCr.LJ 157 ref.

Rana Muhammad Naeem Khan for Petitioner.

Muhammad Arif Bhindar, Addl. A.-G. for the State.

Rana Muhammad Arif and Imran Raza for Respondents.

Date of hearing: 25th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1858 #

2006 Y L R 1858

[Lahore]

Before M. A. Shahid Siddiqui, J

SARDAR MUHAMMAD---Petitioner

Versus

MUHAMMAD RAMZAN and 7 others---Respondents

Civil Revisions Nos.687 and 688 of 1998, heard on 20th February, 2006.

Civil Procedure Code (V of 1908)---

----O.XLI, R.1---Non-filing of decree-sheet along with Memo. of appeal filed against judgment of Trial Court---Dismissal of such appeal---Validity---Record showed that plaintiff filed two suits which were dismissed vide two separate judgments against which two separate appeals were filed---Copies of decree sheets were filed but due to inadvertence the decree sheets were appended with impugned judgments in wrong order---Such was not more than an irregularity, which was curable and appellate Court should have allowed the plaintiff to rectify such mistake---Dismissal of appeal on this sole ground being hyper-technical was, improper and unjust.

Ustad Muhammad Iqbal for Petitioners.

Ch. Din Muhammad Mayo for Respondents.

Date of hearing: 20th February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1859 #

2006 Y L R 1859

[Lahore]

Before Muhammad Farrukh Mahmud, J

AYUB---Petitioner

Versus

THE STATE---Respondent

Cr1. Miscellaneous No.3549-B of 2005, decided on 15th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10, 13 & 14---Bail, grant of---Matter was reported to police after a delay of more than 1-1/2 years---Accused claimed himself to be husband of complainant---Complainant lived with accused in his house for the last about 1-1/2 years and it was not plausible that during such a long period, complainant never got an opportunity to escape or to protest---Accused was admitted to bail.

Abid Hussain Bhutta for Petitioner.

M. Sabir Qureshi for the State with Imtiaz, A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 1860 #

2006 Y L R 1860

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD LATIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.22 and Murder Reference No. 130 of 2001, heard on 18th January, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Appreciation of evidence---F.I.R., was promptly lodged---Accused persons, who entered in the house of complainant in order to commit dacoity, had caused murder of one and had injured the other---Deceased received three injuries on his person, one with blunt weapon and two fire-arms injuries on his chest---Father of deceased, received three injuries on vital part of his body---Prosecution witnesses had fully identified accused in identification parade held under supervision of 1st Class Magistrate---No reason existed on part of father of deceased to substitute the culprit---Report of Fire-arm Expert regarding pistol recovered from accused, was in positive---Prosecution had proved its case against accused through ocular and medical evidence and identification parade coupled with positive report of Fire-arm Expert---No mitigating circumstances in favour of accused having been pointed out appeal against his conviction and sentence by the Trial Court, was dismissed, death sentence was confirmed and Murder Reference was answered in affirmative.

Tanvir Haider Buzdar (Defence Counsel) for Appellant.

Khan Atta Ullah Khan Tareen for the State.

Date of hearing: 18th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1863 #

2006 Y L R 1863

[Lahore]

Before Nazir Ahmed Siddiqui, J

MUBARIK ALI---Petitioner

Versus

THE STATE---Respondent

Crl. Miscellaneous No.29-B of 2005, decided on 14th February, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(i), 450 & 34---Bail, grant of---Accused was behind the bars for the last five months and there was no likelihood of commencement of trial in near future and even charge had not been framed---No recovery of crime weapon i.e. pistol was made in the case---Prosecution witnesses named in F.I.R. had given affidavits wherein they had not supported involvement of accused in alleged occurrence---No previous history of involvement of accused in such-like cases---Injury allegedly attributed to accused fell within mischief of S.337-A(i), P.P.C. for which punishment was 2 years---Delay of five days was in lodging F.I.R., which was not properly explained---Accused was admitted to bail, in circumstances.

Tariq Zulfiqar Ali Ch. for Petitioner.

Sh. Arshad Ali for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 1864 #

2006 Y L R 1864

[Lahore]

Before Muhammad Sair Ali, J

ALLAH LOK through Legal Heirs---Petitioners

Versus

ZAKA ULLAH and another---Respondents

C.R. No.2178 of 2001, heard on 18th March, 2004.

Punjab Pre-emption Act (IX of 1991)---

----S.13---Making of Talbs---Concurrent findings---Reappraisal of evidence---High Court re-examined the evidence to determine whether Courts below had omitted to consider any relevant and important piece of evidence or committed any misreadings---No misreading or non-reading was found-,-Courts had rendered their judgments on questions of fact in due and proper exercise of their jurisdiction---Revision petition was dismissed in circumstances.

C.M. Latif Rawn for Petitioners.

Muhammad Hussain Ch. and Khalid Mian for Respondents.

Date of hearing: 18th March, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1866 #

2006 Y L R 1866

[Lahore]

Before Sh. Javaid Sarfraz, J

SHAHID ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2539-B of 2005, decided on 27th October, 2005.

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---Investigating Officer, after investigation declared accused as innocent and found co-accused guilty of alleged offence---Said declaration was confirmed in investigation conducted by S.H.O., who also found accused as innocent and found that the accused was not even present at the time of occurrence, while co-accused was the main culprit---Deputy Superintendent of Police also conducted investigation and found that accused had nothing to do with occurrence and declared the accused innocent---Findings of Police, though were not binding, but a case of further inquiry had been made out within the purview of S.497(2), Cr. P. C. ---Accused was behind the bars for over two months and it would take long time before trial was finally concluded---Bail could not be refused as punishment---No useful purpose would be served by keeping accused behind the bars for an indefinite period---Bail was granted to accused, in circumstances.

Falak Sher v. the State 2001 YLR 2593; Ghulam Shabbir v. The State 2001 YLR 2618; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Ch. Abdul Malik v. The State PLD 1968 SC 349 ref.

Mian Ahmad Mehmood for Petitioner.

Sardar Abdul Qayyum for the Complainant.

2006 Y L R 1875

[Lahore]

Before Muhammad Farrukh Mahmud, J

JAMIL AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 78 of 2003, decided 27th October, 2005.

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

----S. 302(b)---Appreciation of evidence---Case was not of direct evidence and prosecution had relied upon circumstantial evidence to prove its case---Complainant who was widow of deceased, had stated about confession of accused before her, her brother and another person who was not produced during trial---Complainant as prosecution witness had made dishonest improvements in her statement recorded by Trial Court---Statement of complainant qua confession of accused before her and other prosecution witnesses was to be adjudged and valued in the light of her statement as a whole and piece of her statement relating to extra judicial confession of accused could not be separated---Suppression of facts and dishonest improvements made by prosecution witnesses had caused serious injury to veracity of their statements---Story of confession put forward by said prosecution witnesses was belied by medical evidence---Confession could be relied upon only if it was made voluntarily and without any inducement or threat or promise---Alleged confession was made before more than three persons, but none of them apprehended accused and produced him before police---Such circumstances had refuted voluntariness of confession---Statement of prosecution witnesses relating to confession of accused before them, which suffered from serious doubts, could not be relied upon---Fact that deceased and accused were seen together only by related witnesses and not by other residents of area, had caused serious dent in the prosecution story---No reliance could be placed on evidence of recovery of blood-stained Chhuri and Purse containing identity card of deceased from his house, because not a single independent witness from locality was produced to support recovery evidence---No reliance could be placed on statement of a prosecution witness in that regard who had already been disbelieved on the point of last seen evidence---Story with regard to motive behind the occurrence, was also belied by circumstances of the case---Prosecution having miserably failed to prove case against accused, judgment passed by Trial Court, was set aside and accused was acquitted of the charges.

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

----S. 302---Appreciation of evidence---Circumstantial evidence---Circumstantial evidence was to be appreciated according to the principle that it was well knit like a chain whose one end should point to deceased while the other to neck of accused.

Muhammad Zahid Khan for Appellant.

Ghazanfar Ali Khan for the State.

Dates of hearing: 19th and 27th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1881 #

2006 Y L R 1881

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

MUHAMMAD ISHTIAQ alias JAT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 11-J of 2005 and Murder Reference No.97 of 1997, heard on 3rd April, 2006.

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

---Ss. 302(b), 392, 412, 451 & 460---Appreciation of evidence---F.I.R. was lodged after a considerable delay and complainant spent enough time with remaining prosecution witnesses and it could not be said that during that period, prosecution witnesses did not consult with each other---Names of culprits were not mentioned in the F.I.R.---F.I.R., revealed that complainant as well as other prosecution witnesses saw two accused, who were of average height and lean in physique standing in the compound of the house and one of accused was holding a carbine---No particular mark of identification was mentioned---Description given in F.I.R. would fit to thousands of citizens---Evidence on record and circumstances of case, had proved that eye-witnesses were not present when deceased was allegedly attacked and even if they were present, they could not identify the culprits and that fact was further proved by inquest report which was prepared at the spot after registration of case---Real nephew of deceased had claimed that accused along with co-accused went to his house in presence of one (who was not produced during trial) and confessed their guilt---No plausible reason was available on the record as to why accused went to the house of nephew of deceased and confessed their guilt-Extra-judicial confession was a very weak type of evidence and mostly was carved out in case of unwitnessed occurrence---No reliance could be placed upon the extra judicial confession---Prosecution had failed to prove recoveries to judicial satisfaction as no independent person from the locality was produced---Even otherwise recovery was only confirmatory evidence and would be of no consequence when direct evidence had not been believed---One piece of tainted evidence could not corroborate another piece of tainted evidence---Medical evidence had belied prosecution case---Prosecution case, in circumstances was not free from doubt---Accused was acquitted of all charges against him extending him benefit of doubt and he was released, setting aside judgment passed by the Trial Court.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 ref.

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

----Ss. 154 & 161---Recording of F.I.R.---Supplementary statement---F.I.R. was a document which was signed/thumb marked by informant, while supplementary statement was recorded under S.161, Cr. P. C. which could not be equated with F.I.R.---In most of cases supplementary statement was recorded only to fill in the lacunas of prosecution case or to add the number of accused.

Miss Shahabat Rizvi and Abdul Qayyum Anjam on Court's call for Appellant.

A.H. Masood for the State.

Date of hearing: 3rd April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1887 #

2006 Y L R 1887

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

MUHAMMAD IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 992 of 1998 and Murder Reference No.337 of 1998, heard on 19th April, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Time of occurrence had not been challenged---Prosecution witnesses who were brothers of deceased, had furnished ocular account---Nothing was on record to show that both said witnesses had any ill-will, enmity or grouse against accused to involve him in a false case---Both of them had given a very consistent and confidence inspiring account of occurrence and their statements were corroborated by the factum of promptly lodging of F.I.R.---Prosecution witness or accused could not be said to be not present at the time of occurrence---Statements of eye-witnesses were also supported by medical evidence---Strong corroboratory evidence in the shape of recovery of weapon and its tallying with one of the crime empties recovered from the spot was also available against accused---Two crime empties were collected from the spot which were deposited with Forensic Science Laboratory and according to report one of the empties wedded with recovered pistol, while no opinion could be given about second empty as it was without percussion cap---Contention that no independent witness was associated during recovery of pistol and that such recovery was effected from the house of father-in-law of accused, did not help accused as undeniably pistol belonged to accused, who held its licence---Except the motive set down in the F.I.R., there was no other motive behind the occurrence---No mitigating circumstance was available in favour of accused---Appeal of accused against his conviction and sentence, was dismissed and judgment of the Trial Court was upheld.

Ms. Tayyiba Ramzan Chaudhry and Malik Muhammad Aslam, Defence counsel for Appellant.

Syed Muhammad Farhan Tirmizi for the Complainant.

Ashfaq Ahmad Chaudhry for the State.

Date of hearing: 19th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1891 #

2006 Y L R 1891

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD HANIF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.154-B of 2006/BWP, decided on 31st March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Further inquiry---Cheque number, date, month and year was not mentioned in F.I.R. ---Time when said cheque was delivered to the informant and before whom it was given, was also not mentioned---After registration of F.I.R. cheque was got recovered by the police from accused, but recovery memo. did not contain any date, month or year when it was recovered---All said facts required a thorough probe into the case, which could be made after evidence was brought on the record by prosecution in the trial---Case of accused being a case of further inquiry, he was admitted to bail accordingly.

Sardar Riaz Ahmad Dahir for Petitioner.

Khan Muhammad Hussain Azad for Informant.

Mohsin Rasheed for the State with Ishaq, A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 1892 #

2006 Y L R 1892

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

MUHAMMAD TUFAIL---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 324 and 242 of 2000 and Murder Reference No.224 of 2000, heard on 18th April, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 337F(i) & 199---appreciation of evidence---Sentence, reduction in---One of prosecution witnesses had received two simple injuries during occurrence---Even otherwise presence of said witness was admitted by accused himself who took a specific plea of self-defence ---Where specific plea was taken by accused, same was put in juxtaposition with prosecution version to find out which of the two was true or nearer to the truth---Time and place of occurrence and presence of injured prosecution witness had not been denied---Causing of fatal injury to deceased had also been admitted---Prosecution however, had not come out with whole truth and had suppressed certain important aspects of the case---Accused neither appeared as witness to support his defence plea nor he produced any defence witness---Defence plea was also not put to Investigating Officer---Right of self-defence as claimed by accused was subject to provision of S.99 of P.P.C.---Accused had failed to show that his case was not hit by provisions of S.99, P.P.C.-Plea of self defence taken by accused was rejected, in circumstance---Parties had not come out with true story, but such fact should not deter the Court from drawing proper inference from evidence and circumstances of the case---Case was not that where 'extreme penalty of death should be inflicted---Maintaining conviction of accused under S.302(b), P.P.C., his death sentence was altered to imprisonment for life---Benefit of S. 382-B, Cr. P. C. was also given to accused.

Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 ref.

Muhammad Asif Munir Kainth for Appellant.

Tariq Shafiq Bhandara for the Complainant.

Malik Muhammad Suleman Awan for the State.

Date of hearing: 18th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1899 #

2006 Y L R 1899

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD YOUSAF and others---Petitioners

Versus

ALLAH DITTA---Respondent

Civil Revision No. 2212 of 2005, decided on 24th January, 2006.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement of sale---Two marginal witnesses to agreement in question were not produced and no explanation was given as to why those witnesses were not produced---Testimony of sole witness produced to prove agreement, was rightly held by Courts below to be insufficient for proving agreement---Two Courts below, in circumstances were justified in holding that agreement had not been proved---Impugned decrees were unexceptionable, in circumstances---In absence of any jurisdictional error or other legal infirmity in the impugned judgment, same could not be interfered with by High Court in exercise of its revisional jurisdiction.

Abdul Wahid Chaudhry for Petitioners.

Mian Abbas Akhtar and Mustafa Bhatti for Respondent.

Date of hearing: 24th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1900 #

2006 Y L R 1900

[Lahore]

Before Mian Hamid Farooq and Syed Hamid Ali Shah, JJ

ZUBAIR AHMAD and another---Petitioners

Versus

SHAHID MIRZA and 3 others---Respondents

Civil Revision No. 2044 of 2005, heard on 6th March, 2006.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1 & 2, O.XXI, R.11(2) & S.37(a)---Suit for recovery---Leave to defend the suit was allowed subject to furnishing of bank security---Bank security having not been furnished suit was decreed together with interest as prayed for---Appeal was partly accepted and decree was modified to the extent of awarding of interest---Direct appeal filed by defendant before Supreme Court was dismissed---Decree-holder filed execution petition for realization of decretal amount together with interest thereupon---Judgment-debtor moved an application seeking amendment in decretal amount so as to exclude the amount of interest from the decree, which was dismissed---Validity---Decree passed by the Court of first instance merged in the appellate decree---When the Court of last instance passed decree only that decree could be executed irrespective of the fact that decree of the lower Court was affirmed, reversed or modified---Decree passed by Trial Court, thereby awarding interest to plaintiff was modified by High Court and Supreme Court did not take any exception to the judgment of High Court---Modified decree, therefore, held the field---Banking Court being a Court of first instance was competent to implement the final order in terms of section 37(a), C.P.C.---Impugned order was set aside resultantly defendant's application for amendment of decretal amount would be deemed to be pending before executing court for decision afresh.

Ardeshir Cowasjee v. Byram D. Avari and 4 others 1984 CLC 2494; Nazim-ud-Din and 11 others v. Ch. Muhammad Saeed and another 1993 CLC 2130; Zahur Din v. Anjuman Himayat-I-Islam 1989 MLD 480 and F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 ref.

Arif Chaudhry for the Petitioners.

2006 Y L R 1907

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD JAVED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1090 of 2005, heard on 16th November, 2005.

Customs Act (IV of 1969)---

----Ss. 156(1) (14) (82) (86) & 178--- Appreciation of evidence---Sentence, reduction in ---Accused in his statement under S.342, Cr. P. C. had admitted that he had filed disputed documents before Customs Authorities; in that view of the matter, provisions of S. 209 of Customs Act, 1969 were attracted and keeping in view said provisions of law Trial Court had convicted and sentenced accused---To the extent of conviction of accused, there was no illegality warranting interference of High Court---Accused was an agent of a company and while working on behalf of company, he presented disputed bill of entry before Customs Authorities and he. was not beneficiary---Disputed bill of entry did not bear his signatures, which would mean that said document was not prepared by accused---Trial Court had taken a little harsh view while awarding sentence to accused and lenient view in that regard would have met the ends of justice---Accused had undergone a considerable period as under trial prisoner and as convict---Dismissing appeal, sentence awarded to accused was reduced to the period already undergone by him.

Mian Abdul Ghaffar for Appellant.

Sultan Mahmood for the State.

Date of hearing: 16th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1910 #

2006 Y L R 1910

[Lahore]

Before Muhammad Sair Ali, J

Mst. ZIADAN---Petitioner

Versus

Mst. BAKHAN and others---Respondents

Civil Revision No.1194-D of 1988, heard on 15th September, 2003.

Specific Relief Act (I of 1877)---

----S.42---Punjab Laws Act (IV of 1872), S.5---West Pakistan Muslim (Personal Law) Shariat Application Act (V of 1962), Ss.3, 4 & 5---Custom---Life estate---Limited interest---Mutation of inheritance of last male owner was challenged in the suit for declaration and perpetual injunction after the termination of life estate of the deceased---Widows, along with the other mutations intervening up to the date of the suit---Contention was that all the mutations were incorrectly recorded and re-evaluation of shares be done---Trial Court partly decreed the suit but the Appellate Court re-calculated the shares of the parties and modified the decree---No incorrect or erroneous transfer of share was alleged in the pleadings and protection as bona fide purchaser without notice for consideration of the mutation of sale was not pleaded---Suit involved calculation of shares of co-owners upon the termination of limited estate through co-widows, no such protection could either be claimed or advanced---High Court could not enter into exercise of re-calculating the shares of all the parties when the same were very properly and competently done by the Appellate Court through well-reasoned judgment---Revision petition was dismissed in circumstances.

Hakim Sabir Raja for Appellant.

Malik Allah Yar Khan for Respondents.

Date of hearing: 15th September, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 1915 #

2006 Y L R 1915

[Lahore]

Before Muhammad Muzammal Khan, J

RULYA---Petitioner

Versus

PROVINCE OF PUNJAB through District Collector, Sargodha and others---Respondents

Civil Revision No.1292-D of 1995, decided on 23rd December, 2003.

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

----S. 42---Colonization of Government Lands (Punjab) Act (V of 1912), Ss.16 & 30(2)---Suit for declaration---Fraud and misrepresentation---Natural justice, principles of---Applicability---Lawful authority---Allotment cancelled without notice to the allottee or transferee---Such cancellation was illegal being against natural justice---Land permanently settled on the allottee could not be cancelled, the proviso conferring such jurisdiction had been removed from the statute book---Order of cancellation was thus without lawful authority.

Mian Bashir Ahmad v. The Government of Sindh through Chief Secretary, Sindh Secretariat Karachi and 3 others 1997 MLD 1847; Government of Punjab Province v. Malik Harbhagwan and another 1940 PLR 529; Province of Punjab through Deputy Commissioner/ Collector Sargodha, District Sargodha v. Muhammad Akram PLD 1993 Lah 114 and Muhammad Liaqat and 5 others v. Member, Board of Revenue (Colonies), Punjab, Lahore and 3 others 2000 CLC 953 rel.

(b) Fraud---

----Assertions of fraud and misrepresentation are factual in nature, which require some basis and determination---Order passed without inquiry and concrete proof of fraud or misrepresentation was void.

Province of Punjab through Deputy Commissioner/Collector Sargodha, District Sargodha v. Muhammad Akram PLD 1993 Lah 114 and Muhammad Liaqat and 5 others v. Member, Board of Revenue (Colonies), Punjab, Lahore and 3 others 2000 CLC 953 rel.

----Action of authority contrary to provisions of law was ultra vires.

Naveed Shaharyar for Petitioner.

Ch. Muhammad Suleman, Addl. A.-G. for Respondents.

Date of hearing: 4th December, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 1919 #

2006 Y L R 1919

[Lahore]

Before Asif Saeed Khan Khosa and M.A. Shahid Siddiqui, JJ

MUHAMMAD AFZAAL and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.164 of 2004, decided on 28th March, 2005.

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

----S. 9(b)---Appreciation of evidence---Sentence reduction in---Counsel for accused at the very outset opted not to challenge conviction of accused, but had only prayed for reduction in the sentence on the ground that accused were not previous convicts---Accused had suffered a major portion of their sentence and nothing was on record to show previous involvement of accused in any other case of similar nature---Sentence of accused was reduced from 3 years' R.I. to 2 years R.I., fine, however was maintained.

Rana Habib-ur-Rehman Khan for Appellants.

Muhammad Sharif for the State.

Date of hearing: 28th March, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1921 #

2006 Y L R 1921

[Lahore]

Before Ali Nawaz Chowhan, J

AHMAD and another---Petitioners

Versus

Mst. SAKEENA BIBI and 5 others---Respondents

Civil Revision No.684 of 1996, heard on 27th April, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiffs had assailed findings pertaining to mutation of inheritance of their deceased paternal uncle in favour of defendants---Case of plaintiffs was that their deceased paternal uncle, belonged to Shia Sect and he died issueless; that defendant who posed to be their step-brother from their second mother, was not progeny of their father, but was of a person with whom their step-mother had married before performing marriage with their father---Plaintiffs further claimed that after death of their paternal uncle, his widow had entered into second Nikah---Plaintiffs claimed that they were sole heirs of deceased paternal uncle and defendant, who posed to be their step-brother and widow of the deceased who had entered into second marriage, were not entitled to get any share of inheritance from property of their deceased paternal uncle---Trial Court decreed suit, but Appellate Court reversed the findings of Trial Court---Appellate Court below after appreciating evidence on record had concluded that deceased paternal uncle of plaintiffs was Sunny by sect and. impugned mutation in respect of his property had rightly been sanctioned---Oral and documentary evidence on record had fully established that defendant was step-brother of plaintiff being son of their father from second wife---Evidence on record had also proved that plaintiffs had also previously instituted a suit regarding same issue which was dismissed---Plaintiffs were estopped by their own words and conduct and had not come before the Court with clean hands---No issue regarding res judicata had been framed---High Court agreed with findings of Appellate Court below.

Muhammad Ashraf Kumah for Petitioners.

M.A. Zafar for Respondents Nos.4 and 6.

Date of hearing: 27th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1924 #

2006 Y L R 1924

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and M. A. Shahid Siddiqui, JJ

KHADIM HUSSAIN---Appellant

Versus

THE STATE---Respondent

Writ Petition No.510 of 2000, decided on 18th January, 2006.

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

----------S. 302(b)-Appreciation of evidence---Case was that of single accused who had committed murder of his wife and mother-in-law during bright hours of the day in his house---Matter was promptly reported to the police by prosecution witness who was father-in-law of accused giving all minor details of occurrence on the same day---Promptness in lodging F.I.R., had ruled out the possibility of concoction, fabrication and false implication of accused---Prosecution witness who was father-in-law of accused and a resident of same area, was present at the relevant time in the house of accused when occurrence took place---Presence of the said witness in the house of his daughter (place of occurrence) at the relevant time, seemed to be very natural and normal; he also stood the test of lengthy and searching cross-examination and nothing was found in his statement to doubt his credibility or to say that he ham any motive against his son-in-law to falsely involve him in the case---Statement of said witness also found support from the evidence of other prosecution witness who being resident of same area, on hearing the fire-shot came at the spot and saw accused holding a double barrel gun in his hand, whereas both victims were lying on the ground in injured condition---Other witness was neither related to any of the party nor had any enmity against accused and was absolutely independent and disinterested witness---Ocular account further found support from the medical evidence which revealed that both ladies died because of fire-arm injuries as narrated by eyewitnesses---Location, duration and nature of injuries as narrated by complainant, found support from the post-mortem report---Substitution of accused by kith and kin of deceased was a rare phenomenon in a case of single accused---False involvement of accused in case for the murder of his own wife and mother-in-law by his father-in-law and other independent witness, was out of question---Evidence available on record inspired-confidence, rang true and same could be relied upon---Death sentence of accused on both counts was confirmed and murder reference was answered in affirmative.

Muhammad Sharif for Appellant.

Muhammad Azam for the State.

Date of hearing: 18th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1927 #

2006 Y L R 1927

[Lahore]

Before Ali Nawaz Chowhan, J

Haji MUHAMMAD RAFIQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9248-B of 2005, decided on 19th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.468, 471, 420 & 406---Ad interim pre-arrest bail, confirmation of---Two basic pieces of evidence were available before High Court, which, prima facie, looked favourable as far as accused was concerned: One was that the report of A.S.P. had been further endorsed by A.S.P. (Investigation) and the other was the statement of Local Commissioner, who went to execute the document---Question of impersonation was still to be established and the best persons for that purpose were the vendors, who were yet to be investigated by A.S.P. (Investigation), but they were not presently available---Bail application had been lingering for the want of said two pieces of evidence---Bail of accused was confirmed subject to condition that in case the A.S.P. (Investigation) called vendors, interrogated them and came to the contrary view, then what was already said in the two reports would be liable to cancellation and other side could always make an application for cancellation of bail---Confirmation of the bail application was absolutely without prejudice to the right of cancellation.

Azam Nazir Tarrar for Petitioner.

Iftikhar Ahmed Shah for Complainant.

Samina Shahzadi with Tariq Inspector for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 1929 #

2006 Y L R 1929

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. SHABANA SHAHEEN---Petitioner

Versus

MAZHAR HAYAT and 2 others---Respondents

Writ Petition No.1287 of 2005, decided on 15th December, 2005.

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

----S. 5 & Sched. ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suits for recovery of dowry articles and maintenance allowance--- Maintenance allowance for wife after dissolution of marriage, stood reduced to her Iddat period of three months at the rate of Rs.1,000 per month while a meagre amount was awarded in lieu of dowry articles---Validity---Giving of dowry was acknowledged in Nikah Nama by making entry in Column No.19 but Appellate Court proceeded on mere conjectures and with assumption that dowry articles were restored to wife---Such presumption was not only misplaced but was also contrary to canons known for administration of justice because husband once having admitted giving of dowry to wife by her parents was under legal obligation to prove its return but he failed to do so---Scan of evidence on record revealed that wife was unnecessarily deprived of her right to dowry articles---Appellate decree was therefore, revised to the extent of dowry articles while maintenance allowance fixed by Family Court was upheld.

Malik Muhammad Imtiaz Mahal for Petitioner.

Ch. Dost Muhammad Kahoot for Respondent No 1.

2006 Y L R 1939

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD SHARIF---Petitioner

Versus

QUTBA and others---Respondents

Civil Revision No.564 of 2005, decided on 25th January, 2006.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 3, 13 & 24---Suit for pre-emption--Deposit of 1/3rd money (Zar-e-Soim)---Limitation---Plaintiff, on the very day the suit was filed, was directed by the Trial Court to deposit 1/3rd money of total sale price within one month (30 days) from the date of order---Suit was filed on 10-8-2004 and plaintiff deposited Zar-e-Soim on 10-9-2004---Suit was dismissed on ground that Zar-e-Soim was deposited beyond period of 30 days (stipulated period)---Appeal against judgment of the Trial Court having also been dismissed, plaintiff had filed revision against the same---Under S.24 of Punjab Pre-emption Act, 1991, period of 30 days had to be counted from day of filing of suit---Duty of plaintiff was to deposit 1/3rd of sale amount as soon as he instituted the suit in the Court and 30 days time would start from the day of filing of the suit---Court in the present case, on 10-8-2004, had directed the plaintiff to deposit 1/3rd of sale amount within 30 days which period had expired on 8-9-2004---Plaintiff had deposited amount 1 day after expiry of prescribed period of 30 days---Power of extension of time for deposit of one third amount had been restricted to 30 days and Court could not further extend the same---First Proviso to S.24 the Punjab Pre-emption Act, 1991 barred discretion of the Court to extend the time beyond 30 days by a positive command in the negative---If period expired on one day earlier than the day when deposit was made by plaintiff, it could neither be extended nor any benefit could be given to plaintiff---Requirement of deposit of 1/3rd amount was mandatory in nature and not directory and plaintiff was required to deposit the same within 30 days---Petition against judgment of Appellate Court, was dismissed, in circumstances.

Imran Ahmad and another v. The District Judge, Dera Ghazi Khan and two others 2003 CLC 1597; Muhammad Ilyas and 4 others v. Munshi Khan 2003 CLC 1815 and Rehman-ud-Din and another v. Sahibzada Jehanzeb 2004 SCMR 418 ref.

Mian Muhammad Tayyab Watto for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 1942 #

2006 Y L R 1942

[Lahore]

Before Muhammad Muzammal Khan, J

EJAZ AHMED---Petitioner

Versus

JUDGE, FAMILY COURT and 5 others---Respondents

Writ Petition No.4598 of 2005, decided on 8th July, 2005.

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

----S. 5, Sched., Ss.14 & 17---Constitution of Pakistan (1973), Art.199---Constitutional Petition---Suit for enhancement of amount of maintenance---Res judicata, principle of---Applicability---Suit for maintenance, earlier filed by minors against father was decreed according to compromise arrived at between the parties, whereby amount of Rs.600 was awarded as maintenance per month per child---Three years after minors filed second suit for recovery of maintenance amount at enhanced rate of Rs.2, 000 per month for each of three minor children, which suit was decreed as prayed for and father had challenged in constitutional petition said judgment and decree---Father had contended that the second suit for maintenance allowance was not maintainable in view of provision of S.11, C.P. C. and that maintenance allowance of Rs.2, 000 per month per child for three children; was not only excessive, but was beyond his means---Validity---No bar existed in West Pakistan Family Courts Act, 1964 for filing second suit for enhancement of maintenance allowance, except one under S.11, C.P. C. which was made applicable to those proceedings by virtue of S.17 of West Pakistan Family Courts Act, 1964; under that provision, second suit would only be barred in case the matter had been directly or substantially in issue in a former suit between the parties---No doubt in the present case, the earlier suit was for recovery of maintenance, but issue regarding its enhancement was neither raised nor was considered in that suit and was not in issue---Section 11, C. P. C. in circumstances, would not bar any subsequent suit which was filed only for enhancement of maintenance allowance---Second suit which was maintainable, was rightly decreed---In view of rate of inflation and dearness, besides increased demands of minors who were in 9th, 6th, and 4th classes respectively in the year 2002 and had further been promoted by three classes each, it was held that said enhanced amount of maintenance, was not excessive/exorbitant---Courts below in decreeing the second suit had not committed any illegality amenable to constitutional jurisdiction of High Court---Even otherwise, a lawful decision within the ambit of conferred jurisdiction, could not be substituted in constitutional petition.

The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Shahul Hamid v. Tahir Ali 1980 SCMR 469; Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Arbab Mir Muhammad v. Mst. Iram Iltimas and 4 others 1999 CLC 1668 and Mehmood Asif Butt v. District Judge, Gujranwala and 2 others 2004 CLC 217 ref.

Rana Muhammad Akram Khan for Petitioner.

Parvez I. Mir for Respondents.

Date of hearing: 8th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1945 #

2006 Y L R 1945

[Lahore]

Before Mian Saqib Nisar, J

MUNAWAR HUSSAIN---Appellant

Versus

AMIR AYYUB and 4 others---Respondents

F.A.O. No.58 of 2005, heard on 10th May, 2006.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Interim injunction, grant of---Conditional order---Balance of convenience, prima facie case and irreparable loss---Proof---Steps necessary for performance of agreement---Defendants executed agreement to sell in favour of plaintiff and had received earnest money---Plaintiff asserted that he was willing to make the balance payment but defendants were not ready to execute sale-deed in his favour---Contention of defendants was that the plaintiff did not perform material steps in performance of his part of agreement, thus Trial Court declined to grant interim injunction---Validity---Agreement to sell was admitted by defendant, receipt of an amount of Rs.5, 00, 000 as advance money was also admitted---No overt act was on the part of defendants to show that they ever had cancelled the agreement to sell such as by service of any notice---Even if plaintiff had not mentioned in his legal notice about such steps but had prima facie proved those in the matter, no presumption for such omission could be raised against him---Prima facie, it was established on record that assessment of the property for the purpose of payment of requisite fee was procured by plaintiff from Cantonment Board and he purchased stamp papers for sale-deed, which might be a bit deficient in the value and pay order of the consideration was got prepared---Such steps were in positive direction and to impute at such stage that plaintiff was not ready and willing would be a harsh view and such question was yet to be resolved through evidence---Plaintiff had prima facie proved his case, the balance of convenience and irreparable loss also tilted in his favour---To prevent further complication and multiplicity of proceedings, it was expedient that the defendants should be restrained from further alienating the property but subject to the condition of deposit of balance consideration amount---Order passed by Trial Court was set aside and interim injunction was granted---Appeal was allowed in circumstances.

Fateh Muhammad v. Muhammad Hanif and others PLD 1990 Lah 82; Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan PLD 1956 W.P. Kar 521 and Mst. Nazir Begum and 2 others v. Muhammad Tahir and another 2005 CLC 925 ref.

Mian Zafar Iqbal Kalanauri for Appellant.

Jahangir A. Johja for Respondents.

Date of hearing: 10th May, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1948 #

2006 Y L R 1948

[Lahore]

Before Asif Saeed Khan Khosa, J

IMRAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.829-B of 2006, decided on 24th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), 5.324---Bail, refusal of---F.I.R. in the case had been registered after eighteen days of alleged occurrence, but reason for such delay had not only been explained in F.I.R. itself, but same was also discernible from the attending circumstances---Accused stood duly nominated in the F.I.R. as the sole perpetrator of the alleged offence and a specific fire-arm injury on the right lower-leg of complainant stood attributed to him therein---Eye-witnesses mentioned in F.I.R., including the injured complainant, had stood by their statements made before the police fully implicating accused in alleged offence---Parties were very closely related to each other and in view of such close relationship between parties and the fact that there was solitary accused in the case, false implication of accused and possibility of substitution of accused for the real culprit, were not readily believable---Prima facie medical evidence had lent support to the allegation levelled against accused in F.I.R.---Record of investigation had shown that a background of strained family relations existed between the parties at the relevant time and accused was directly connected with the motive--Weapon of offence had been recovered from the possession of accused during investigation---Local police after having become convinced of the guilt of accused had already submitted challan against accused---Offence against accused under S. 324, P.P.C. attracted prohibitory clause contained in subsection (1) of S.497, Cr.P.C.-Prima facie reasonable grounds existed to believe in involvement of accused in alleged offence---Bail petition was dismissed in circumstances.

Rai Muhammad Tufail Khan Kharal for Petitioner.

M. Ishfaq Ahmad Chaudhry for the State with Ghulam Shabbir Khan, S.-I. with Record.

YLR 2006 LAHORE HIGH COURT LAHORE 1950 #

2006 Y L R 1950

[Lahore]

Before Syed Hamid Ali Shah, J

Hafiz MUHAMMAD JAMIL NASIR---Petitioner

Versus

DISTRICT RETURNING OFFICER/APPELLATE AUTHORITY, DISTRICT GUJRANWALA and 3 others---Respondents

Writ Petition No.14153 of 2005, decided on 8th August, 2005.

Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(1) (i)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Disqualification for omission to declare assets---Declaration of assets form was signed by both the candidates jointly but assets of only one candidate were mentioned and relevant portion of printed form was left blank---Nomination papers were accepted by Returning Officer holding that non-submission of separate prescribed form, qua the declaration of the assets, was irregularity and not illegality and that nomination papers could not be rejected on mere technicalities---Validity---Law requires separate declaration and candidates were obliged to disclose all his assets in declaration of assets form---Omission, was certainly fatal and in case of variance, candidates were not qualified to be elected as member of the local government---Misdeclaration of assets or omission to declare assets, entailed penal consequences of disqualification---Contention that objection with regard to joint declaration had not been raised before Returning Officer was not well founded as said objection was taken at the relevant time---Evidently declaration had not been filled, completed and signed by candidates, separately and in accordance with law, both candidates were, therefore, declared disqualified to be elected.

Abbas Khan v. Appellate Authority 2002 SCMR 398; Syed Abdu Zar Hussnain Bokhari v. Returning Officer 2001 CLC 911 and Samu Khan v. Returning Officer 2001 CLC 1246 ref.

Mazhar Hussain Tahir for Petitioner.

Najeeb Faisal Chaudhry, Additional Advocate-General.

Umar Mahmood Kasuri for Respondents Nos.3 and 4.

YLR 2006 LAHORE HIGH COURT LAHORE 1952 #

2006 Y L R 1952

[Lahore]

Before Syed Shabbar Raza Rizvi, J

SHER MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7622-B of 2005, decided on 2nd, December 2005.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 11---Bail, grant of---Further inquiry---Allegation against accused was that he managed to elope or take away daughter of complainant---Contention of accused was that he formally entered into Nikah with daughter of complainant and did not commit any offence---Accused also submitted that Nikah Nama was formally registered with the concerned Union Council and in that regard he had referred to a certificate issued by the Secretary of the Union Council---Certificates issued by Secretary, Union Council, had been produced by both the parties---Suits for jactitation of marriage and for restitution of conjugal rights, had been filed by accused and daughter of complainant against each other---All that had made its case of further inquiry---Accused, who was behind the bars since his arrest, was not required for investigation purpose any more---Whether version of accused was correct or that of the complainant, would be decided by the trial Court---Accused was admitted to bail, in circumstances.

Mian Humayoon Aslam for Petitioner.

Miss Farina Butt for the State with Rehmat, S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 1953 #

2006 Y L R 1953

[Lahore]

Before Ali Nawaz Chowhan and Umar Ata Bandial, JJ

MUHAMMAD WAHEED AKHTAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2005 in Criminal Appeal No.1554 of 2003, decided on 30th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302(b)---Suspension of sentence---Sentence was sought to be suspended on ground that there was clash between ocular evidence and medical evidence as injury found at back of deceased was in fact an exit wound and was not an independent injury as ascribed to accused---Matter as far as petitioner/accused was concerned, was one which required further consideration---Sentence awarded to petitioner/accused was suspended

accordingly.

Muhammad Afzal and others v. State 1994 SCMR 453 ref.

Rao Abdul Jabbar Khan for Petitioners/Appellants.

YLR 2006 LAHORE HIGH COURT LAHORE 1955 #

2006 Y L R 1955

[Lahore]

Before Mian Hamid Farooq, J

MARYAN BIBI and 2 others---Petitioners

Versus

ALI MUHAMMAD and 4 others---Respondents

Civil Revision No.1499 of 1994, heard on 8th March, 2004.

Civil Procedure Code (V of 1908)---

----S. 115-Revision-Scope-Concurrent findings---Appreciation of evidence---Appellate Court did not discuss even single document/witness produced by the parties---Judgment of the appellate Court suffered from non-reading of documentary as well as oral evidence and the Court had acted illegally and with material irregularity in exercise of its jurisdiction---Judgment and decree passed by the appellate Court was set aside and case was remanded for decision afresh.

Shaukat Nawaz v. Mansab Dad and another 1988 SCMR 851 and Sahib Khan through Legal Heirs v. Muhammad Pannah PLD 1994 SC 162 ref.

Masood Abid Naqvi for Petitioners.

Manzoor Hussain Basra for Respondent No.3.

Nemo for Respondents Nos. 4 and 5.

Date of hearing: 8th March, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 1957 #

2006 Y L R 1957

[Lahore]

Before Mian Muhammad Najam- uz-Zaman, J

MUHAMMAD AMIN MAGSI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.3686-B to 3697-B of 2005, decided on 11th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Customs Act (IV of 1969), Ss.156(1), 11, 12, 14, 14-A, 17, 21, 26, 32-A, 39, 77 & 82---Pre-arrest bail, grant of---Allegation against accused who was Chief Officer in the Collectorate of Customs, was that he in connivance with officials had issued cheques for payment of rebate of customs duty in excess of entitlement and had caused a loss to the Government Exchequer---Conduct on part of investigation agency itself was mala fide---None of the offences allegedly committed by accused were punishable with more than three years' R.I. and did not fall within prohibitory clause of S.497, Cr. P. C. ---Challan in nine matters out of said cases against accused had already been submitted before Trial Court where matters were ripe for trial and accused was no more required for further investigation in those cases---Entire case of prosecution was based upon documentary evidence which was in possession of the said agency and prima facie there was no possibility of tampering with same by accused---Accused had already been retired from service and he was more than sixty years of age---Sending accused behind the bars would not serve any purpose as nothing was to be recovered from him---Interim pre-arrest bail already granted to accused was confirmed.

Mian Abdul Ghaffar for Petitioner.

Khawar Ikram Bhatti for Customs.

Syed Khalid Javed, Deputy Superintendent Customs and Muhammad Usman Azad, Inspector Customs.

YLR 2006 LAHORE HIGH COURT LAHORE 1959 #

2006 Y L R 1959

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

GHULAM ABBAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.643 of 2001 and Murder Reference No.169 of 2000, heard on 18th January, 2006.

Penal Code (XLV of 1860)---

----------- S. 302 (b) ---Appreciation of evidence--- Occurrence had taken place in a "Mela" where currency notes were being showered by both the parties on the dancing party, on which an altercation took place and the accused caused a single fire-arm injury on the person of the deceased---No previous enmity existed between the parties---Occurrence had taken place at the spur of the moment---Accused had not repeated the fire---Accused although had remained fugitive from law for ten months, yet he had no motive to kill the deceased---Conviction of accused was consequently maintained, but his sentence of death was reduced to imprisonment for life in circumstances.

Ch. Falak Sher for Appellant.

Mehr Muhammad Saleem for the State.

Nemo for the Complainant.

Date of hearing: 18th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1962 #

2006 Y L R 1962

[Lahore]

Before Muhammad Farrukh Mahmud, J

SHEHZAD ABBAS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.1315-B and 1327-B of 2005, decided on 20th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 34---Bail, grant of---Further inquiry---Case of one of the accused persons was identical with that of co-accused who had been admitted to bail---Said accused, also deserved bail on ground of parity---One single injury by wire lock hunter was attributed to second accused---According to post-mortem report, injury attributed to said second accused was simple in nature and he was found innocent during investigation by Police---Said opinion of Police was based on evidence of about thirty persons who appeared in defence of said accused---Allegation qua second accused, in circumstances, needed further inquiry within the ambit of subsection (2) of S. 497, Cr. P. C. ---Accused was admitted to bail, in circumstances.

Imran Mehmood Akhtar and Fauzul Kabir for Petitioner.

M.A. Farazi for the State with Muhammad Saleem, A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 1963 #

2006 Y L R 1963

[Lahore]

Before Syed Shabbar Raza Rizvi, J

GUL MUHAMMAD---Petitioner

Versus

PROVINCE OF PUNJAB through District Officer (Revenue)---Respondent

Writ Petition No.14520 of 2005, decided on 15th, August 2005.

Punjab Local Government Elections Rules, 2005---

----Rr.12 & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Rejection of nomination papers---Petitioner's nomination papers were rejected on the ground that proposer of petitioner who was also contesting the election was not present at the time of scrutiny---Appeal filed by petitioner against order of rejection was also dismissed---Rule 14 of Punjab Local Government Elections Rules, 2005, did not require mandatory presence of either proposer of seconder at the time of scrutiny of nomination papers---Scrutiny was a process for convenience of candidate, proposers, seconder and voters to raise any objection, if they so desired---No objection having been raised by contesting candidates, in that respect, petition was allowed with direction to the Returning Officer to allow petitioner to contest election.

PLD 1984 (Journal) 154 ref.

Sarfraz Khan for Petitioner.

Najeeb Faisal Chaudhry, Addl. A.-G.

YLR 2006 LAHORE HIGH COURT LAHORE 1964 #

2006 Y L R 1964

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

GHULAM FARID---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.472 and Murder Reference No.329 of 2001, heard on 19th January, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Case of accused before the Trial Court was of clean denial, but before the High Court he had taken plea of self-defence, which plea he could not prove---Court could convict and sentence an accused for an offence, if the ingredients of said offence would flow from the evidence on record even though the police had not challaned accused under that section of P.P. C.---Case was that of a single accused---Prosecution witnesses had no motive or ill-will against accused to involve him in a false case---No crime empty was recovered from the spot, but recoveries were only corroborative piece of evidence and when the ocular account had come from an unimpeachable sources, _corroboration was only a rule of prudence---Prosecution had been able to prove its case against accused to its hilt beyond any shadow of doubt---Act of accused in having gone at a dead dark hours of the night duly armed with a fire-arm to the house of a lady with whom she had no relation, had left no room for any mitigation---Conviction and sentence recorded against accused by the Trial Court vide impugned judgment was maintained in toto, his death sentence was confirmed and Murder Reference was answered in affirmative.

PLD 1953 Lah. 207; PLD 1966 SC 432; 1995 SCMR 1639; AIR 1938 Lah. (sic); AIR 1941 Pesh. 9 and 1986 PCr.LJ 2833 ref.

Malik Muhammad Saleem for Appellant.

Masood Sabir for the State.

Nemo for the Complainant.

Date of hearing: 19th January, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1968 #

2006 Y L R 1968

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD HANIF and 3 others---Petitioners

Versus

MANZOOR AHMAD MALIK, ADDITIONAL DISTRICT JUDGE, KHUSHAB and 7 others---Respondents

Writ Petition No.10374 of 2000, heard on 28th March, 2006.

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

------S.17---Contract Act (IX of 1872), Ss.186 & 188---Decree on basis of award after making same rule of Court, obtaining of---Reference of dispute to arbitration by attorney---Absence of specific power in Power of Attorney permitting attorney to enter into arbitration agreement on behalf of his principal and refer dispute to arbitration or confess any decree on basis of award---Such award, proceedings for making award rule of Court and decree based thereon were not valid.

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

----Ss.186 & 188--Power of Attorney---To be construed strictly---Only powers finding

mention in power of attorney would be deemed conferred upon agent.

----S.12(2)---Limitation Act (IX of 1908), Art.181---Application under 5.12(2), C.P.C.-Limitation, starting point of---Article 181 of Limitation Act, 1908 would govern such application---Limitation would commence from the date, when applicant came to know about the impugned decree.

Atif Pervaiz Chaudhry for Petitioner.

Malik Muhammad Imtiaz Mahal for Respondents.

Date of hearing: 28th March 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1970 #

2006 Y L R 1970

[Lahore]

Before Muhammad Farrukh Mahmud, J

NOOR MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1150-B of 2005, decided on 16th November, 2005.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), 5.409---Prevention of Corruption Act (II of 1947), S.5-Bail, refusal of---Accused being the Chairman of Zakat and Ushr Committee was entrusted with a very pious job of distributing the Zakat Fund to the deserving poor people and a heavy responsibility lay on him---Accused, however, did not realize the demand of his job and misappropriated the Zakat Fund meant for helping the poor by distributing the same to non-deserving persons including his relative who was a Zamindar---Act of accused, prima facie, fell within the mischief of S.409, P.P.C. which was hit by the prohibitory clause of S.497(1), Cr.P. C.-Bail was declined to accused in circumstances.

Raja Muhammad Sohail Iftikhar for Petitioner.

Muhammad Faheem Khurram for the State with Lal Akhtar Khan Baluch, Deputy Director, Anti-Corruption.

YLR 2006 LAHORE HIGH COURT LAHORE 1972 #

2006 Y L R 1972

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

Haji MUHAMMAD BASHIR---Petitioner

Versus

THE STATE through Deputy Director, Intelligence and Investigation (Customs

and Excise)---Respondent

Crl. Revision No.120 of 2004, heard on 16th November, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 200, 202 & 203---Amendment of complaint---On filing amended complaint which included name of petitioner and others respondents, Trial Court entertained same and ordered for issuance of summonses qua newly-added accused including the petitioner---Said order was challenged on the ground that application for amendment in complaint was not competent and that on receipt of fresh/ amended complaint, Trial Court should have re-examined complainant before issuing process---After granting permission to complainant to file amended/fresh complaint, new amended complaint was entertained without complying with legal formalities i.e. recording statement of complainant and making inquiry to satisfy itself that there was sufficient material on record to connect petitioner with commission of offence---Impugned order to the extent of summoning respondents along with petitioner, being not maintainable, was set aside and to that extent matter stood remanded to Trial Court with observation to record statement of complainant, make fresh inquiry and thereafter if satisfied about involvement of petitioner and other respondents, then to summon them to face trial.

Sharjeel Adnan Sh. for Petitioner.

Khawar Ikram Bhatti for Respondent.

Date of hearing: 16th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 1974 #

2006 Y L R 1974

[Lahore]

Before Jawwad S. Khawaja, J

MUBARIK ALI and 2 others---Petitioners

Versus

KHUSHI MUHAMMAD and others---Respondents

Civil Revision No.708 of 2005, decided on 24th November, 2005.

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

----S. 118---Exchange transaction---Courts below after considering evidence on record had concluded that respondent had not entered into any exchange transaction with petitioners---Appellate Court had rightly noted that mutation did not create title and that it was only a record of an earlier transaction---Courts below had rightly inferred from unequal bargain represented in mutation in question that respondent had not, in fact, made any exchange---Impugned decrees were unexceptionable---In absence of any jurisdictional error or other legal infirmity in the impugned judgments and decrees, same could not be interfered with by the High Court, in exercise of its revisional jurisdiction.

Ali Akbar Qureshi for Petitioners.

Ch. Irshad Ullah Chatha for Respondents.

Date of hearing: 24th November, 2005.

JUDGENT

JAWWAD S. KHAWAJA, J.---Respondent No.3, namely, Ansar Mahmood, has died. Vide previous order his L.Rs. were directed to be brought on record. Today Shaukat Ali, respondent No.2, brother of Ansar Mahmood, is present in person. He states that Ansar Mahmood died issueless and unmarried. The parents of Ansar Mahmood and Shaukat Ali also died. In the circumstances Shaukat Ali (respondent No. 4) is the only legal representative of Ansar Mahmood. He is present.

According to the process serving agency, Muhammad Ashraf (respondent No.2) has refused to accept service. He is, therefore, deemed to have been duly served. None has appeared on his behalf. He is therefore, proceeded against ex parte.
This revision petition impugns the concurrent findings of the learned trial Court dated 1-4-2004 and of the learned lower appellate Court dated 2-3-2005 whereby a suit filed by the respondent/ plaintiff Khushi Muhammad was decreed.
The facts of the case have been set out in the impugned judgments and need not therefore, be reproduced in extenso.
The learned Courts below have duly considered the evidence on record while concluding that the respondent Khushi Muhammad had not entered into any exchange transaction with the petitioners. The learned appellate Court has rightly noted that Mutation No.166 did not create title. It was only a record of an earlier transaction. I am also of the view that the respondents connived to deprive the petitioners of their land as the respondent/plaintiff was issueless and unmarried. The testimony of respondent Arshad Ali, who appeared as D. W.3, is also material. It showed the inequity of the exchange transaction relied on by the respondents. The learned Courts below were justified in relying on the said testimony while holding that the same gave rise to the inference that the respondent/ plaintiff had not exchanged his land with the petitioners.
The petition was admitted to regular hearing on the ground that mere inadequacy of consideration was not a ground nullifying a contract. Considering the evidence on record, I am not left in any doubt that the present case is not one of mere inadequacy of consideration. The Courts below have rightly inferred from the unequal bargain represented in Mutation No.166, that the respondent Khushi Muhammad had not, in fact, made any exchange.
In the foregoing circumstances, I find the impugned decrees to be unexceptionable. Furthermore, learned counsel for the petitioners was unable to advert to any such jurisdictional error or other legal infirmity in the impugned judgments which would justify interference therein while exercising revisional jurisdiction. In these circumstances, I find no merit in this petition which is, therefore, dismissed. As a consequence the Exchange Mutation No.166 (Exh.P.1) is set aside and the land comprised therein is reverted to the original owners.

YLR 2006 LAHORE HIGH COURT LAHORE 1975 #

2006 Y L R 1975

[Lahore]

Before Maulvi Anwarul Haq and Fazal-e-Miran Chauhan, JJ

MUMTAZ AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.664-B of 2006, decided on 28th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Further inquiry---Persons named in F.I.R. were alleged to be openly selling narcotics, but no such activity was found by the raiding party---Accused was apprehended and according to F.I.R. Charas was recovered from the house of co-accused who was brother of accused--Samples from each of the 20 packets, were not taken and packets were opened and contents thereof were mixed and weighed, which procedure was curious---Co-accused had since been declared innocent---Case of accused being of further inquiry, he was admitted to bail, in circumstances.

Syed M. Hashim v. Circle Officer Anti-Corruption 2002 PCr.LJ 440 ref.

Ch. Muhammad Tariq Niaz for Petitioner.

Yousaf Sayed for the State.

Sardar Ali. A.S.-I. with Records.

YLR 2006 LAHORE HIGH COURT LAHORE 1977 #

2006 Y L R 1977

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD SHARIF---Appellant

Versus

MUHAMMAD HUSSAIN and others---Respondents

Regular Second Appeal No.14 of 2004, heard on 16th March, 2006.

Punjab Pre-emption Act (I of 1913)---

----Ss.4, 19 & 30---Civil Procedure Code (V of 1908), O.I, R. 10(2)---Pre-emption suit---Purchase of land by several vendees on lump sum payment to vendor---Suit against all vendees, but omission to implead one of them as defendant while filing amended plaint---Application to implead in suit such defendant at later stage, acceptance of---Effect---Such defendant was party at the inception of case---By acceptance of such application, original impleadment of such defendant stood restored with retrospective effect---Suit on account of such omission could not be dismissed as being barred by limitation or hit by rule of partial pre-emption.

PLD 1988 SC 287 ref.

Shaaban and others v. Mst. Shamim Akhtar and others 2005 SCMR 1706 fol.

Syed Mukhtar Abbas for Appellant.

Ch. Mukhtar Hussain Sabir for Respondent.

Date of hearing: 16th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 1980 #

2006 Y L R 1980

[Lahore]

Before M. A. Shahid Siddiqui, J

Syed RAFAQAT ALI SHAH and another---Petitioners

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No.8141 of 2005, decided on 22nd July, 2005.

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. ---Main factual controversy regarding the validity of Nikah of alleged abductee with her husband was pending adjudication before the Family Court---Fate of criminal case hinged on decision of suit for jactitation of marriage which alleged abductee had filed prior to registration of criminal case---High Court in exercise of its constitutional jurisdiction, could not resolve factual controversies---High Court declined to quash F.I.R.---Concession of pre-arrest bail allowed to accused, was confirmed subject to furnishing bail bonds by the accused.

Hasnaat Ahmad Khan for Petitioners.

Zafar Iqbal Awan, Additional Advocate-General for the State.

M. Rizwan Nasir, Advocate on behalf of Ch. Abdul Ghaffar for the Complainant.

Maskeen Ali S.-I. with Record.

Zafar Iqbal, Nikah Registrar with Record.

YLR 2006 LAHORE HIGH COURT LAHORE 1981 #

2006 Y L R 1981

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD DAUD and another---Petitioners

Versus

GULZAR HUSSAIN---Respondent

Civil Revision No.2329 of 2004, decided on 14th April, 2006.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13 (3) ---Qanun-e-Shahadat (10 of 1984), Arts. 74 & 77---Talb-i-Ishhad, notice of---Proof---Production of Postman, Scribe and photocopy of such notice in evidence---Postal receipt showing dispatch of registered envelope neither made by such Postman nor its original record available---Non-examination of clerk through whom Scribe alleged to have dispatched such notice---Original notice neither required to be produced through process of Court nor available for its confrontation to its Scribe and witnesses---Production of such photocopy without seeking permission of Court to lead secondary evidence---Notice of Talb-i-Ishhad was not proved in circumstances.

(b) Punjab Pre-emption Act (IX of 1991)----

----S. 13(2) (3) ---Talb-i-Muwathibat and Talb-i-Ishhad, performance of ---Proof---Sale-deed dated 18-11-1998---Pre-emptor claiming to have gained knowledge of sale on 3-3-1999---Copy of Jamabandi produced along with plaint showing its issuance on 23-2-1999 by Patwari---Pre-emptor, in circumstances, had gained knowledge of sale at least on 23-2-1999 resulting in non-proving such Talbs and extinguishing his pre-emptive right, if any, by operation of law.

A.G. Tariq Chaudhary for Petitioners.

Malik Noor Muhammad Awan for Respondent.

2006 Y L R 1996

[Lahore]

Before Khawaja Muhammad Sharif, J

TARIQ MEHMOOD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.445 of 2003, heard on 29th, 30th November and 1st December, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Appreciation of evidence---Broad-day light occurrence---matter reported to police promptly---Case of acquitted accused totally different from accused---Parties being very closely related to each other, there was no question of mistaken identity---Accused became proclaimed offender and was arrested after nine months of occurrence and no explanation whatsoever had been given by accused about his abscondence---Injury attributed to accused was caused with fire-arm according to medical report---Ocular account was fully corroborated by medical evidence and motive given in F.I.R.---Long abscondence of nine months of accused was also a corroborative aspect of the case---F.I.R. having been lodged on statement of deceased before his death, it had become a dying declaration and it was not believable that deceased would leave actual culprits while making dying declaration and involve innocent persons in the case---Prosecution, in circumstances had proved its case against accused beyond any shadow of doubt---Conviction and sentence recorded against accused by Trial Court, were maintained.

M.A. Zafar for Appellant.

Mushtaq Ahmad Bhatti for the State.

Dates of hearing: 29th November and 30th November, of 2005 and 1st December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2000 #

2006 Y L R 2000

[Lahore]

Before Ch. Ijaz Ahmad, J

Mirza MUHAMMAD AQEEL---Petitioner

Versus

Mirza MUHAMMAD HUSSAIN and 15 others---Respondents

Writ Petition No.15168 of 2005, decided on 6th September, 2005.

Constitution of Pakistan (1973)---

----Art.199---Transfer of Property Act (IV of 1882), Ss.53-A & 54---Constitutional petition---Maintainability---Execution of sale agreement---Denial of---Respondent had denied execution of agreement to sell in favour of petitioner---Both Courts below, after proper appreciation of evidence on record, had given concurrent findings of facts against petitioner that alleged agreement to sell was not executed by respondent in favour of petitioner and had rightly dismissed application for grant of ad interim relief to petitioner---Trial Court had the prerogative to exercise discretion subject to condition that discretion must be exercised with cogent reasons---Both Courts below had exercised discretion by refusing ad interim relief to petitioner with cogent reasons---Constitutional petition was not maintainable against concurrent findings of Courts below and High Court had no jurisdiction to substitute its own findings in place of findings of Tribunals below while exercising power under Art.199 of the Constitution---In absence of any infirmity or illegality in the impugned orders of Courts below, same could not be interfered with by High Court in constitutional jurisdiction.

Khuda Bakhsh v. Muhammad Sharif and others 1974 SCMR 279; Muhammad Sharif and others v. Muhammad Afzal and others PLD 1981 SC 246; Abdul Rehman Bajwa, v. Sultan Ahmad and others PLD 1981 SC 522; Muhammad Zaman and others v. Muhammad Ramzan Khan 1993 SCMR 197; Sarfraz and others v. Sultan Ahmad and others 2002 MLD 886; Board of I&S.E., Lahore v. M. Musaddaq Naseem PLD 1973 Lah. 600 and Syed Azmat Ali Shah v. Chief Settlement and others PLD 1964 SC 260 ref.

Ch. Inayatullah for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 2003 #

2006 Y L R 2003

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

SHAUKAT ALI alias BILLA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2071 of 2003, heard on 31st January, 2006.

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

----S. 9(c)---Appreciation of evidence--Inspector Anti-Narcotic Force prepared a report on basis of which formal F.I.R. was drawn and he made detailed statement in accordance with the said report---Inspector had been fully supported by other prosecution witness---Inspector, in his cross-examination had disclosed that he had recorded first version of accused at the spot and he denied the suggestion that accused had pleaded that he had purchased two dinner sets through the informer who instead of delivering the dinner sets had placed narcotic substance in his house---Same plea had been partly taken up by accused in his statement under S.342, Cr.P.C., but he did not produce any evidence in support of his plea---Accused did not even pick up the courage to appear as a witness in disproof of charge---Prosecution witness was not even suggested any motive for implicating accused falsely---Inspector had stated that he had attempted to associate residents of locality during the raid, but they had declined--Anti-Narcotic Force could not be expected to have planted false recovery of a huge quantity of narcotic substance against accused---Mere fact that no search warrant was obtained before conducting raid, would not render recovery as illegal---Evidence furnished by prosecution witnesses inspired full confidence---Report of Chemical Examiner had shown that substance recovered from the possession of accused was Charas---Case against accused, in circumstances, stood proved beyond reasonable doubt and there was no reason to take any exception---In view of huge quantity of Charas recovered from the possession of accused, there was no reason to take lenient view---Appeal against conviction and sentence awarded to accused by the Trial Court, was dismissed.

State through A.-G. Sindh v. Hinjju 2003 SCMR 381 and Munawar Hussain alias Bobi and 2 others 1993 SCMR 785 ref.

Shaukat Hussain Khan Baloch for Appellant.

Muhammad Sharif for Respondent.

Date of hearing: 31st January, 2006.

2006 Y L R 2018

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD ASIF alias ACHHU---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.666 of 2000 and Murder Reference No.98 of 2001, heard on 17th January, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 377, 511 & 34---Appreciation of evidence---Deceased and complainant were first cousin of accused---Deceased before his death described the occurrence in detail in his statement before complainant and other prosecution witnesses---Said statement of deceased which was mentioned in F.I.R., had become a dying declaration of deceased---Injuries given in the F.I.R., had also been mentioned by Doctor who had conducted post-mortem examination on the dead body of deceased---Time between injury and death, also coincided with the time of occurrence---Accused after his arrest, got recovered Chhurri, which according to the report of Chemical Examiner and Serologist, was found to be stained with human blood---Doctor, who conducted Post-mortem examination on dead body of deceased, on the same day, took the swabs from the anus of deceased, sent same to Chemical Examiner and according to report of Chemical Examiner, those were stained with semen---Case being of single accused, there was no question of substitution---In a case of such-like nature, kith and kin of deceased, would not spare actual culprits, and involve an innocent person--Prosecution, in circumstances, had proved its case against accused beyond any shadow of doubt---No mitigating circumstance was in favour of accused, as his act was brutal in nature as he tried to commit sodomy with deceased and then committed his murder---Conviction and sentence recorded against accused by the Trial Court, were maintained, his death sentence was confirmed and murder reference was replied in affirmative.

1996 PCr.LJ 109 ref.

Abdul Aziz Khan, Niazi for Appellant.

Atta Ullah Tareen for the State.

Hafeez Ahmad Khan for the Complainant.

Date of hearing: 17th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2022 #

2006 Y L R 2022

[Lahore]

Before Muhammad Muzammal Khan, J

WASEEM GUL and another---Appellants

Versus

Rana GHULAM RASOOL and another---Respondents

Regular Second Appeal No.54 of 2003, heard on 26th February, 2004.

Partnership Act (IX of 1932)---

----S.48---Contract Act (IX of 1872), S.213---Civil Procedure Code (V of 1908), O. VII, R.2---Qaun-e-Shahadat (10 of 1984), Art.,102---Plaintiff in his suit for rendition of accounts had alleged oral extension of partnership and prayed for accounts---Preliminary decree passed by the Trial Court was confirmed in appeal---Validity---No stipulation existed in the deed for extension of partnership---No proof of investment was brought by the plaintiff in alleged extended period---Case set up at trial was contrary to the pleadings of plaintiff---Validity---Courts were not under obligation to make any new contract---Both the Courts had assumed extension of the partnership between the parties on basis of oral evidence---Evidence produced by the plaintiff was irrelevant and the relevant piece of evidence was not corroborated---Courts below had relied on such evidence to presume extension of partnership---Suit could not be decreed on lapses of other party and non-appearance of other party did not give any right to the plaintiff---Evidence on record was misread and same was opposed to the settled principles of interpretation and construction of documents---Appeal was accepted and judgments and decrees of both the Courts below were set aside in circumstances.

House Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society and others 1992 SCMR 19; Anjuman-e-Islamia, Sialkot v. Haji Muhammad Younas and 3 others PLD 1997 Lah. 153; Ch. Noor Muhammad v. The District Council, Sargodha PLD 1975 Lah. 896; West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi 1973 SCMR 555 and State of Maharashtra and others v. Saifuddin Mujjaffarali Saifi AIR 1994 Bom. 48 rel.

Ch. Fawad Hussain for Appellants.

Ch. Riasat Ali for Respondents.

Date of hearing: 26th February, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2028 #

2006 Y L R 2028

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD ALI---Petitioner

Versus

WAPDA through Chairman, WAPDA House Lahore and another-Respondents

Civil Revision No.1254 of 1998, heard on 16th February, 2004.

Electricity Act (XI of 1910)---

----Ss.24, 24-A, 26 & 26-A---Specific Relief Act (I of 1877), S.42---Suit for declaration---Detection Bill---Notice---Mala fides---Proof of-Plaintiff's suit for declaration and damages was dismissed concurrently---Validity---Admittedly notice was issued after the inspection of the meter---Complaint before the Wafaqi Mohtasib was decided in favour of the plaintiff---Criminal case against the plaintiff was cancelled---Approach adopted by the Courts below was neither consistent with the evidence on the record nor with legal position---Plaintiff endeavoured to prove that he was being victiirized---Plaintiff was entitled to such declaration---Judgments of Courts below being not consistent with the legal position, were not sustainable in law---Suit of the plaintiff was decreed in circumstances but no damages were awarded.

Iftikhar Ahmad v. Water and Power Development Authority 1985 MLD 1117; Nadir Khan v. Water and Power Development Authority and 2 others 1988 MLD 1374; Messrs Shamas Textile Mills Limited, Chiniot v. WAPDA 1989 CLC 2345; Pattoki Ice Factory v. Revenue Officer and others 1996 CLC 1636 and Imran Nazeer v. Saifullah Jan and others PLD 2001 Lah. 31. quoted.

Muhammad Saeed Ahmed for Petitioner.

Ch. Khalil-ur-Rehman for Respondents.

Date of hearing: 16th February, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2031 #

2006 Y L R 2031

[Lahore]

Before Ch. Iftikhar Hussain and Asif Saeed Khan Khosa, JJ

RAMZAN alias JANI---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.556, 659 and 662 of 2003 and Murder Reference No.14-T of 2003, decided on 26th January, 2005

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

----Ss. 302(b)/34 & 392/34---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Appreciation of evidence---Eye-witnesses had no occasion to be present at the spot at the relevant time---Complainant did not appear to have seen the occurrence as he was not sure about the exact number of accused persons---Eye-witnesses just due to their relationship with the deceased had become the witnesses of the occurrence and the story narrated by them seemed to be suspicious---Claim of the witnesses to have identified the accused in the bulb light and moonlight was not believable---Mere absence of enmity could not stamp the eye-witnesses to be truthful, unless their evidence had any intrinsic worth which was lacking in the present case---Death of the deceased, no doubt, had been proved to have occurred due to the fire-arm injuries by the medical evidence, but it did not connect the accused with their death and, thus, was not of much consequence in supporting the ocular testimony---Accused having not been picked up by the eye-witnesses by their roles in the crime, identification parade was of no value, which even otherwise was of no consequence as the possibility of the witnesses having seen the accused prior to the holding of identification parade, could not be ruled out---Recovery of fire-arms from the accused was immaterial in the absence of the matching report to affirm that the same were in fact used in the commission of the crime---Other recoveries made from the accused were not proved on record to have belonged to the deceased persons and, therefore, were of no help to the prosecution---Accused were acquitted in circumstances.

Khadim Hussain v. The State 1985 SCMR 721 and Masood Ahmad and 3 others v. The State and another 1995 SCMR 127 ref.

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

----Ss. 302 (b) /34 & 392/34---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Appreciation of evidence---Identification of accused in identification parade---Picking up the accused without assigning their roles to them in the commission of the crime is of no value.

Khadim Hussain v. The State 1985 SCMR 721 and Masood Ahmad and 3 others v. The State and another 1995 SCMR 127 ref.

Rana Hidayat Ali for Appellant (in Criminal Appeal No.556 of 2003).

Ijaz Feroze for Appellant (in Criminal Appeal No.659 of 2003).

Mrs. Erum Sajjad Gul at State expense for Appellant (in Criminal Appeal No.662 of 2003).

Ch. Ghulam Hussain for the State.

Sh. Najam-ul-Hassan for the Complainant.

Dates of hearing: 25th & 26th January, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2038 #

2006 Y L R 2038

[Lahore]

Before Muhammad Sair Ali, J

SAMAR ALI and another---Petitioners

Versus

ZARAT HUSSAIN and others---Respondents

Civil Revision No.3074 of 1996, heard on 20th April, 2006.

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

----S. 30---Transfer of Property Act (IV of 1882), S.41---State land---Acquisition of proprietary rights in favour of allottee after his death by his attorney and subsequent sale thereof by attorney---Validity---Order of grant of proprietary rights by executing sale-deed in favour of dead allottee was invalid and void---Doctrine of a bona fide purchaser for consideration without notice of defect could not be extended to an invalid and void purchase by a purported purchaser from incompetent vendor, in whose favour sale was fundamentally void---No rights under such sale could flow in favour of subsequent purchasers.

Khalid Ikram Khatana for Petitioners.

Amar Zahoor Chowhan for Respondents.

Date of hearing: 20th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2042 #

2006 Y L R 2042(1)

[Lahore]

Before Sardar Muhammad Aslam, J

KASHIF ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.431/B of 2005, decided on 19th January, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Civil suit being pending adjudication in respect of dispute raised in F.I.R., accused was entitled to concession of bail---Accused was admitted to bail, in circumstances.

A. Habib Ahmad v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 ref.

Ch. Ishtiaq Ahmad for Petitioner.

Rana Muhammad Shabir for the State.

Riasat Ali, A.S.-I. with record.

YLR 2006 LAHORE HIGH COURT LAHORE 2045 #

2006 Y L R 2045

[Lahore]

Before Sh. Hakim Ali, J

FIYYAZ AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Misc. No.770-B of 2005/BWP, decided on 23rd September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 148 & 149---Bail, grant of---Accused since his arrest was being kept in judicial lock-up without any material progress in his case---Even after expiry of two years and two months, prosecution had not been able to bring evidence on record against accused---Not a single witness had been examined in the case---Co-accused with similar role were granted bail--Accused was also granted bail in view of rule of consistency.

Imran Mahmood Akhtar for Petitioner.

Zulfiqar Habib for the State along with Abdul Majeed, A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 2046 #

2006 Y L R 2046

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

M. H. MUSADDIQ---Appellant

Versus

MUHAMMAD ZAFAR and another-Respondents

F.A.O. No.8 of 2003, heard on 20th January, 2004.

Cantonment Rent Restriction Act (XI of 1963)---

----S. 17(8) & (9)---Wilful default---Striking off defence---Tenant was ordered to deposit arrears of rent within one week and monthly rent on the 5th of every month---Tenant was held as defaulter-No compelling or unavoidable circumstances were shown for the default and no error or jurisdiction was pointed out by the tenant---.Appeal against eviction order was dismissed in circumstances.

Akhtar Masood Khan for Appellant.

Fakhar-uz-Zaman Tarar for Respondents.

Date of hearing: 20th January, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2048 #

2006 Y L R 2048

[Lahore]

Before Sh. Abdur Rashid and M. Bilal Khan, JJ

Raja WAQAR AZIM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3703-B of 2005, decided on 7th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Anti-Terrorism Act (XXVII of 1997), S.9/11---Bail, grant of---Neither the persons to whom the accused had allegedly imparted offensive directions were mentioned in the record, nor the contents of the said directions imparted to the unknown persons were mentioned therein---Nature and the offensive tenor of such directions, therefore, could not be judged---Entire material against the accused was based on opinion and surmises---No legally admissible material linking the accused with any defunct Organization or his terms with any terrorist had been brought on the file---Sole statement of a sub-Inspector, which was merely expressive of his opinion, could not make out a prima facie case against the accused---Allegations set up in the F.I.R. against the accused, thus, needed further inquiry---Accused was admitted to bail accordingly.

Waqar Azeem for Petitioner.

Najeeb Faisal Chaudhry, Addl. A.-G. assisted by Mirza Abdullah Baig for the State with Naseem-ul-Hayee, D.S.P. and Ali Imran, Inspector (Investigation).

YLR 2006 LAHORE HIGH COURT LAHORE 2050 #

2006 Y L R 2050

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD DIN---Petitioner

Versus

GOVERNMENT OF PUNJAB and another---Respondents

Writ Petitions Nos.14944 and 20445 of 2002, heard on 29th July, 2003.

Punjab Urban Local Councils (Immovable Property Tax) Rules, 1999---

----R. 5(g)(iii)---Civil Servants Act (LXXI of 1973), S.2(1)b---Service Tribunals Act (LXX of 1973), S.2-A---Pakistan Telecommunication Corporation Act (XVIII of 1991), S.9---Constitutional petition---Property tax exemption---Civil servants---Definition---Civil Servants as defined in the Civil Servants Act, 1973, after transfer to the corporation through a statutory instrument, on the sane terms and conditions which were applicable to them while they were serving elsewhere in the Government, will remain government servants and after retirement should be entitled to the exemptions of payment of immovable property tax---Petitioner owned and possessed house, which was an exempt in matter of payment of immovable property tax---Tax recovered from the petitioner was ordered to be refunded to the petitioner by the authorities by the High Court.

Division Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others 1999 PLC (C.S.) 1208 quoted.

Amir Mehmood for Petitioner.

Asif Mahmood Cheema, A.A.-G. for Respondents.

Date of hearing: 29th July, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2052 #

2006 Y L R 2052

[Lahore]

Before Sh. Abdur Rashid, J

ZUHAIB ZAFAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.329 of 2004, decided on 21st October, 2005.

(a) Juvenile Justice System Ordinance (XXII of 2000)---

----S. 7---Penal Code (XLV of 1860), Ss.302/395/202---Trial Court had dismissed the application of accused for being adjudged as a child solely relying upon the opinion of the Medical Board---Validity---Juvenile Court had to take into account all the material produced during the inquiry along with the medical report for determination of the age of the child--Juvenile Court was not required to solely rely on one evidence and discard the other material---Medical evidence could not override the other documents such as Nikahnama or marriage certificates of the parents and birth certificates, if found to be genuine and truthful---Juvenile Court had relied only on the opinion of the Medical Board to determine the age of accused without taking into consideration other relevant material available on record--Impugned order was consequently set aside with the direction to Juvenile Court to determine the age of accused afresh in the light of all the documents produced by him and to be further produced by him if he so desired, along with the medical evidence.

(b) Juvenile Justice System Ordinance (XXII of 2000)---

----S. 7---Determination of age---Intent and import---Juvenile Court for determination of the age of the accused has to take into account all the material produced before it during inquiry along with the medical report and it is not required to solely rely on one piece of evidence and discard the other material---Medical evidence cannot override the evidence of other documents such as Nikahnama or marriage certificates of parents and birth certificates, if found to be genuine and truthful.

Justin Gill for Petitioner.

M. Asghar Rokhri for the Complainant.

Amir Feroze for the State. Amin Afzal, A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 2054 #

2006 Y L R 2054

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD YOUNIS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6888-B of 2003, decided on 3rd December, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324 & 34---Bail, grant of---Further inquiry---Accused was empty-handed during alleged occurrence and he had not caused any injury to any person during occurrence---Accused, according to F.I.R. stood saddled with responsibility of raising a Lalkara only---Accused did not stand directly connected with motive set up in the F.I.R. ---Question regarding sharing of common intention by accused with co-accused and also question regarding his vicarious liability for offences allegedly committed by his co-accused were questions which required further inquiry in circumstances---Trial of accused, though had already commenced, but commencement of trial would not pose an insurmountable hurdle in the way of granting bail to an accused whose case was found by a Court to be of further inquiry---Accused was behind the bars for the last more than five years and his trial had not shown any significant progress as statements of only five prosecution witnesses had been recorded so far by Trial Court whereas prosecution was yet to produce sixteen other witnesses cited in calendar of witnesses---Such a long period of incarceration of accused before conviction, if any, had been found by High Court to be unconceivable in circumstances of case---Accused was admitted to bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Fayyaz Ahmad Mehr for Petitioner.

Aslam Javed for the State with Abdul Rashid, S.-I. with record.

YLR 2006 LAHORE HIGH COURT LAHORE 2055 #

2006 Y L R 2055

[Lahore]

Before Muhammad Muzammal Khan, J

KARAM DIN---Petitioner

Versus

MUHAMMAD AKHTAR and another---Respondents

Civil Revision No.2336 of 2000, heard on 29th September, 2003.

Specific Relief Act (I of 1877)---

----S.8---Suit for possession of evacuee shop claiming possessory title---Suit dismissed by the trial Court but decreed in appeal---Refugees from Jammu and Kashmir State under Settlement and Abadkari Scheme were entitled to one shop in their possession---Father of the plaintiffs having already one shop in his possession, could not lay his claim to another shop---Appellate Court ignored entries of Abadkari Register and its judgment being tainted with the defect of non-reading of the evidence was not sustainable and thus, was set aside---Revision petition was accepted and judgment and decree of the trial Court was revived.

Muhammad Rafique Warraich for Petitioner.

Muhammad Nazir Janjua for Respondents.

Date of hearing: 29th September. 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2058 #

2006 Y L R 2058

[Lahore]

Before Sh. Javaid Sarfraz, J

ABDUL RASHID and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2685-B of 2005, decided on 3rd October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Protective bail, grant of---Petition moved by accused before Trial Court was dismissed for non prosecution as accused failed to appear before Trial Court and same was not dismissed on merits---Trial Court should have disposed of petition on merits---Bail petition filed by accused would be deemed to be pending---Accused would appear before Trial Court and their application would be decided on merits--Accused were granted protective bail till then.

Tahir Hussain and anther v. The State 1994 PCr.LJ 2490 ref.

Ch. Zulfiqar Ali Sidhu with Petitioners.

YLR 2006 LAHORE HIGH COURT LAHORE 2059 #

2006 Y L R 2059

[Lahore]

Before Jawwad S. Khawaja, J

Khawaja NAYYAR QAYYUM---Petitioner

Versus

ZUBAIR QAYYUM and 6 others---Respondents

Civil Revision No.485-D of 1992, heard on 8th July, 2003.

Partition Act (IV of 1893)---

----Ss. 2 & 3---Partial partition---Benamidar---Partition and separate possession was sought of ancestral house---One of the defendants contested the suit, by taking the plea that their predecessor-ininterest was owner of two other properties which properties were held by Benamidars, and were not included in the partition suit, suit was thus not maintainable because partial partition was sought---Trial Court rejected the plea and passed preliminary decree---Appellate Court reversed the findings of trial Court holding that "benami" held properties be also dealt with in the partition proceedings and remanded the case---Judgment of the appellate Court was not legally sustainable as the plaintiff was entitled to confine his suit to the property held by his predecessor-ininterest---Plaintiff was not owner of such properties which were in the name of other persons---If the defendant had any claim on such properties he should have filed separate suit for declaration---Judgment and decree of the appellate Court were set aside and judgment and decree of the trial Court were restored.

Malik Abdul Wahid for Petitioner.

Malik Mushtaq Ahmad for Respondent No. 1.

Respondent Nos.2 to 7 ex parte.

Date of hearing: 8th July, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2061 #

2006 Y L R 2061

[Lahore]

Before Sardar Muhammad Aslam and Sheikh Azmat Saeed, JJ

JAVED IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.174-J of 2003, heard on 25th January, 2005.

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

----S. 9(c)---Appreciation of evidence---Escape of the accused in three successive raids by the police leaving behind incriminating articles was not believable---Accused, after having escaped in three raids would not straightaway proceed to his residential house giving a clear signal to the police to effect his arrest---One recovery witness had not supported the prosecution case---Other recovery witness had contradicted the prosecution case as narrated in the F.I.R. qua the time of raid and occurrence---Police officer who had conducted the raid and allegedly recovered the narcotics was not produced at the trial and no reason was available on record for his non-appearance---In the absence of any proof of the non-availability of the said police officer, secondary evidence was not valid under the law for proving the complaint and the recovery memo---Accused was acquitted in circumstances.

Miss Kubra Gillani for Appellant.

Sarfraz Gondal for the State.

Date of hearing: 25th January, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2063 #

2006 Y L R 2063

[Lahore]

Before Rustam Ali Malik, J

ALLAH YAR and 4 others---Petitioners

Versus

SHER MUHAMMD---Respondent

Civil Revision No.1032 of 1996 and C.M. No.461 of 2002, heard on 17th October, 2003.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss.6, 13, 15 & 17---Superior right of pre-emption---Making of Talbs---Waiver---Abandonment---Suit for pre-emption on the basis of co-sharership, contiguity, common source of irrigation and common passage was dismissed by the trial Court but Court of appeal decreed the suit---Trial Court had dismissed the suit on the grounds that the suit was for partial pre-emption, absence of Talbs and waiver---Plaintiff had claimed entire land transferred through the mutation, however, Khatuni Numbers 372 to 374 instead of Khatuni Numbers 370 to 374 were mentioned---Validity---Such error being clerical mistake and on the application of the plaintiff he was allowed to correct the same---Talbs, in circumstances, were found to be correctly made and proved---Objection of partial pre-emption was not taken in the written statement and vendor was produced to prove waiver, his solitary statement without corroboration was not believed---Findings of Appellate Court were affirmed and revision petition as dismissed in circumstances.

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

----O. VI, R.17 & S.151---Amendment of pleadings---Clerical mistake---Mention of Khatuni Numbers 372 to 374 instead of 370 to 374 having a clerical mistake, was allowed to be corrected.

Wazir Muhammad and others v. Abdul Aziz and others 1982 SCMR 189 and Sardar Ali v. Mukhtar Begum PLD 1989 Lah.142 rel.

Zain ul Abidin for Petitioners.

Masood Akhtar for Respondent.

2006 Y L R 2077

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD NAWAZ---Petitioner

Versus

Mst. NAZARAN BIBI---Respondent

Civil Revision No.41 of 2006, heard on 5th April, 2006.

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

----S. 219---Agreement authorizing agent to pursue litigation on principal's behalf and bear expenses---Suit for recovery of such expenses incurred by agent---Proof---Mere testimony of agent-plaintiff as his own witness would not be sufficient for proving such claim.

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

----Ss. 2(h) & 219---Agreement authorizing agent to pursue litigation on principal's behalf and bear expenses---Suit for recovery of such expenses incurred by agent including amount for suffering mental torture---Maintainability---Agent's claim was based on contract and not on tort---Agent under such agreement could claim only expenses, but not amount for suffering mental torture.

Dost Muhammad Kahoot for Petitioner.

Ch. Muhammad Yousaf for Respondent.

Date of hearing: 5th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2079 #

2006 Y L R 2079

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD SARWAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.331 and Murder Reference No.514 of 2000, heard on 19th January, 2006.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---F.I.R. in the case was promptly lodged---Complainant was son of deceased lady aged 75 years, while other prosecution witness was not related to deceased---Case being that of single accused, substitution was a rare phenomenon because it was not believable that complainant, who was son of deceased, would let off actual killer of his mother and would falsely involve the accused---Seven injuries were found on person of deceased, some were incised wounds and some were with blunt weapons, which had shown that different weapons had been used in the occurrence---No previous enmity was found between the parties---Inquest report showed the name of accused and number of F.I.R. was also mentioned---Razor and clothes of deceased were found to be stained with human blood, according to the report of Chemical Examiner and Serologist---Accused could not prove his plea of alibi---Eye-witnesses were most natural and their presence on the spot, at the relevant time, could not be disbelieved---During trial said witnesses were subjected to lengthy cross-examination, but nothing could shake them from their testimony---Prosecution had proved its case against accused beyond any shadow of doubt to sustain capital punishment and nothing was on record warranting mitigation---Death sentence awarded to accused was confirmed and murder reference was answered in affirmative.

Kanwar Muhammad Younas for Appellant.

Khan Atta Ullah Khan Tareen for the State.

Date of hearing: 19th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2084 #

2006 Y L R 2084

[Lahore]

Before Muhammad Akhtar Shabbir, J

ALLAH WASAYA---Petitioner

Versus

MEMBER (COLONIES) BOARD OF REVENUE, PUNJAB, LAHORE and others---Respondents

Writ Petition No.2626 of 2003, decided on 30th January, 2006.

(a) West Pakistan Board of Revenue Act (XI of 1957)---

----Ss. 7 & 8---Constitution of Pakistan (1973), Art.199---Constitution petition---Second review application before the Board of Revenue---Scope---Land in dispute was allotted to petitioner under Five Years Temporary Cultivation Scheme on basis of auction and petitioner, after depositing advance Zar-e-Laghan, applied for grant of proprietary, rights, but said application was dismissed and land was resumed by Settlement Authority---Appeal filed by petitioner against resumption order having been dismissed by Commissioner, petitioner filed revision, which was accepted by Member, Board of Revenue---Review petition against said revisional order having been dismissed, second review petition filed by a person who was not aggrieved person had been accepted through impugned order and order passed in revision and then in first review petition, was set aside---Validity---No provision existed in West Pakistan Board of Revenue Act, 1957 for filing second review petition---Power of review could be exercised by Board of Revenue only upon application filed by a person who considered himself aggrieved by a decree passed or order made by the Board, who, from discovery of new and important matter or evidence, which, after exercise of due diligence was not within his knowledge or could not be produced by him at the time when decree was passed and order was made---Board had no power of suo motu review---Second review application which had not been filed by aggrieved person, was not maintainable, when neither fresh material or evidence was available nor any sufficient ground had been established--Second review application had been entertained illegally by Member Board of Revenue who passed the impugned order--Impugned order was declared to have been passed illegally, without lawful authority without jurisdiction and was set aside by High Court.

Umar Din and others v. Member (Colonies), Board of Revenue and others 1984 CLC 17 ref.

(b) West Pakistan Board of Revenue Act (XI of 1957)---

----Ss. 7 & 8---West Pakistan Board of Revenue (Conduct of Appeals and Revisions) Rules, 1959, R.5---Civil Procedure Code (V of 1908), O.XLVII, Rr.1 & 9---Powers of review by Board of Revenue---Second review---Scope---Order XLVII, R.1, C.P. C. had also conferred power of review on the Court to review its decree or order or judgment from which no appeal was allowed on the grounds mentioned in R.1 of O.XLVII, C.P.C., but R.9 of said Order had placed a bar on that power of review---Power of entertaining second review application was neither Contained in West Pakistan Board of Revenue Act, 1957 nor in C.P. C. as contained in R. 9 of O. XLVII, C.P.C.---Powers of review had been conferred only on Board of Revenue, provided an aggrieved person would file an application for review of an order and it was for the applicant to take all available grounds for review of decision sought by him---If any ground was omitted by him, it could be added through application for amendment---No express prohibition existed for a second review application in the West Pakistan Board of Revenue Act, 1957, but it did not either expressly or, impliedly exclude general principle of res judicata and rule of finality of judgment---When provision of S. 7 of West Pakistan Board of Revenue Act, 1957 was read in conjunction with R.5 of West Pakistan Board of Revenue (Conduct of Appeals and Revisions) Rules, 1959, conclusion would be that an application for review under subsection (2) of S.7 of the Act, would lie to "Full Bench" only---Order passed in review by Board of Revenue was revisable by the Board provided application was placed before Full Bench of the Board---Order passed by a Member, Board of Revenue in revisional jurisdiction could be reviewed by a Full Bench and not by a Single Member of Board of Revenue.

Muhammad Shafi v. The Member (Colonies), Board of Revenue and 2 others 1995 CLC 966 ref.

----O.XLVII, Rr.2 & 5---West Pakistan Board of Revenue Act (XI of 1957), S.8---Power of review---Scope---Second review application---Competence---Court, Authority or Member of Board, was competent to review its own order, judgment or decision in exercise of its power of review as envisaged in R.2 of O.XLVII, C.P.C., not being a High Court, upon some ground other than discovery of such new and important matter or evidence as is referred to in R.1 of O.XLVII, C.P.C. on existence of a clerical or arithmetical mistake or error apparent on face of the decree---Such application would be made only to the Judge who passed decree or made order sought to be reviewed, but any such application, could, if Judge who passed the decree or made order, had ordered notice to issue under O.XLVII, R.1 sub-rule (2), proviso (a), C.P.C. be disposed of. by his successor---Board of Revenue, being the highest forum of revenue hierarchy, analogy would be that second review petition would be placed before more than one member of Board of Revenue (Full Board) who would hear second application provided it was within time or fulfilled requirement of subsection (1) of S.8 of West Pakistan Board of Revenue Act, 1957---After dismissal of first review application, finality had been attached to the matter in favour of petitioners and second or third application for review on the same ground was opposed to natural justice---No prohibition existed in the West Pakistan Board of Revenue Act, 1957 for filing a second review application, but principles for filing same would be same as provided in S.8(1) of said Act and R.1 of O.XLVII, C.P.C.-No person who was not aggrieved by the judgment or order, could be allowed to initiate proceedings by filing review application against any other person in whose favour order of competent Authority like Board of Revenue, had been passed.

Ch. Muhammad Shafi Meo for Petitioner.

Shafi Muhammad Tariq, A.A.-G. with Manzoor Ahmed, Litigation Assistant for Respondents Nos.1 and 2.

Respondent No.3 proceeded ex parte.

Date of hearing: 30th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2091 #

2006 Y L R 2091

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD AZIM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.506, Murder Reference No.482 and Criminal Revision No.322 of 2001, heard on 17th January, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Case was of promptly lodged F.I.R. without any pre-meditation and consultation---Complainant was brother of deceased and other prosecution witness was mother of deceased---Both being inmates of house, were natural witnesses, their presence at the spot could not be doubted---Even otherwise, a real mother and a brother of deceased would not leave actual culprit and involve an innocent person---Electric bulb had been shown in rough site plan prepared by Patwari with scale---Accused was identified in the light of said electric bulb---No conflict was found between ocular account and medical evidence---Ocular account furnished by natural witnesses of occurrence, which had intrinsic value, was fully corroborated by medical evidence---Prosecution, in circumstances had been successful in proving its case against accused beyond any shadow of doubt--Some mitigating circumstances were however available, in favour of accused, such as complainant had himself negated motive of occurrence set up by him in F.I.R.; on same evidence, co-accused who was attributed a fire-arm injury on the chin of deceased had been acquitted by the Trial Court which acquittal had attained finally; accused did not repeat shot; and deceased was a person of dubious character, having a record of three criminal cases to his credit including a case of abduction---Maintaining conviction of accused under S.302(b), P.P.C., his death sentence was converted to imprisonment for life with benefit of S.382-B, Cr. P. C., accordingly.

Ch. Pervaiz Aftab for Appellant.

Ch. Falak Sher for the State.

Malik Muhammad Shabbir Langrial for the Complainant.

Date of hearing: 17th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2095 #

2006 Y L R 2095

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD IBRAHIM and others---Petitioners

Versus

KHUDA YAR---Respondent

Civil Revision No.586-D of 2005, decided on 25th January, 2006.

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

----S. 12---Limitation Act (IX of 1908), Art.113---Suit for specific performance of agreement of sale---Limitation---Agreement to sell executed by petitioners in favour of respondent and receipts of payment had been established through sufficient, cogent and convincing evidence---Attesting witnesses of said documents and petition writer were independent witnesses and through lengthy cross-examination nothing had been extracted from them---To controvert documentary evidence, no other evidence, except oral statements had been produced by petitioners---Petitioners could not prove their allegation by convincing evidence and beyond any shadow of doubt that agreement to sell and receipts of payment were the result of fraud and misrepresentation---Transaction of sale in the case, had been reduced into writing and was signed by the parties and in such circumstances, it had become a binding contract and the parties could not repudiate its terms or resile therefrom later on and parties could not detract therefrom and lodge a claim over and above the terms of contract---Documentary evidence could not be excluded by oral evidence to rebut agreement to sell and receipts---No date was fixed for performance of agreement and petitioners had issued no notice to respondent refusing performance of contract---Suit, in circumstances was rightly filed by respondent within limitation---Both Courts below had passed concurrent findings of fact against petitioners and High Court would not interfere in such findings of fact in exercise of its revisional jurisdiction as the Courts were not permitted to reappraise and re-evaluate evidence of the parties in exercise of such jurisdiction---Counsel for petitioners had miserably failed to point out any illegality or jurisdictional defect in impugned judgment passed by the Courts below on the issue involved in the matter---In absence of any illegality in impugned judgments calling for interference, revision petition against said judgments, was dismissed.

Muhammad Tufail v. Muhammad Aslam Khan 1999 YLR 934; Punjab National Bank Ltd., Lahore v. Dr. A.B. Arora and others AIR 1933 Lah 1024; Hansrai Gupta and others v. Dehra Dun Mussorie Electric Tramway Co. Ltd. AIR 1940 PC 98; Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation, Karachi FLD 2002 SC 500; Guldar Khan v. Isa Khan 1993 SCMR 2099; Nazir Ahmad v. Boota 1989 SCMR 450; Riaz v. Muhammad Saleem 1989 SCMR 1491 and Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1999 SC 291 ref.

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

----Art. 113---Specific Relief Act (I of 1877), S.12---Scope and applicability of Art.113, Limitation Act, 1908---Suit for specific performance of agreement of sale---Limitation---Article 113 of Limitation Act, 1908, provided limitation for a suit for specific performance of contract, as three years from the date fixed for performance or if no such date was fixed, then the time when plaintiff had notice that performance was refused---Article 113 of Limitation. Act, 1908 had two parts; first part of said Article would apply only when time was of the essence of the contract, which would mean that the time was stipulated for the contract to be performed on a specified date and limitation would be reckoned from that date and not from date of refusal; where no date for performance of agreement was fixed and time was not of the essence of the contract, then the time would be reckoned from the date of knowledge about refusal by the executants to perform agreement to sell meaning thereby that plaintiff's knowledge of defendant's refusal would be the date when notice served by plaintiff on defendant remained unacknowledged by defendant.

Bomanshaw Burjorji Gazdar and another v. Mst. Mumtaz Begum and others 1985 SCMR 554 ref.

Raees Abdul Qadir Wrind for Petitioners.

YLR 2006 LAHORE HIGH COURT LAHORE 2107 #

2006 Y L R 2107

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD HUSSAIN---Appellant

Versus

MUHAMMAD NAWAZ---Respondent

Regular First Appeal No.383 of 2000, heard on 17th February, 2004.

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

----O.XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), 5.118---Suit for recovery of money---Presumption as to negotiable instrument---Dishonoured cheque---Bill of exchange---Plaintiff alleged that the defendant issued cheque to repay loan---Cheque was dishonoured---Leave .to defend was granted---Defendant had pleaded that plaintiff had given a bus on hire purchase terms on instalments to the relative of defendant and the defendant had given those cheques as a surety---Trial Court decreed the suit-:-Validity-No proof of purchase of the bus was given--Negotiable instrument was presumed to be made or drawn for consideration--Presumption had not been dislodged by the defendant through cogent evidence---Appeal was dismissed in circumstances.

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

----O.II, R.2 & O.I, R.9-Non-joinder of necessary party---Defendant had pleaded the bar contained in O.11, R.2, C.P.C. and also effect of non-joinder-Validity-No previous suit having been filed the bar of O.11, R. 2, C.P.C. was not attracted and suit could not be dismissed for non joinder of necessary party.

Ch. Muhammad Rafiq Warraich for Appellant.

Muhammad Yaqub Pannu for Respondent.

Date of hearing: 17th February, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2111 #

2006 Y L R 2111

[Lahore]

Before Nazir Ahmad Siddiqui and Sh. Hakim Ali, JJ

LAND ACQUISITION COLLECTOR, WAPDA SCARP and others---Appellants

Versus

MUHAMMAD ISMAIL and others---Respondents

R.F.A. No.92 of 1998/BWP, decided on 11th May, 2004.

(a) Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 18, 23, 28 & 54---Qanun-e-Shahadat (10 of 1984), Art. 61---Acquisition of land---Fixation of amount of compensation---Reference to Referee Court---Enhancement of compensation---Collector fixed amount of compensation of acquired land at Rs. 28,111 per Acre---Respondent, owner of acquired land, being dissatisfied with said award filed application to refer dispute about compensation to Referee Court which application was accepted and matter was referred to Referee Court---Referee Court, after evaluating and appreciating evidence of both parties, awarded compensation to respondent owner at the rate of Rs. 2, 000 per Marla/Rs. 3, 20, 000 per Acre, while compensation fixed by Collector was discarded---Such fixation was made by Referee Court taking into consideration opinion of witness who opined in cross-examination that market price of land could be Rs. 6, 000 per Marla---Such was mere an opinion, which was not based upon any documentary evidence---Such-like concessionary statements from the mouth of a witness, which had got no foundation, could not be accepted true, especially when it was a case where price of land had to be proved through documentary evidence---Oral evidence and particularly opinion evidence, in the face and presence of documentary evidence, could not be approved by High Court---Opinion evidence according to Art.61 Qanun-e-Shahadat, 1984, could not be accepted unless it was shown to have been based upon cogent evidence or reasons and it could not be held as an admission or a statement having any effect on the assessment or for the fixation of compensation for land---Such opinion of witness could not be held criterion to fix amount of compensation, but all documentary evidence which was relevant, admissible and was for the prescribed period, had to be given preference---Place and situation of acquired land should be the arch consideration to be given thoughtful attention for assessment of compensation of land---High Court set aside judgment of Referee Court, fixed rate of compensation at the rate of Rs.1,091 per Marla/Rs. 1, 74, 560 per Acre from the date of possession up to date of payment with interest at the rate of 6 per cent as prescribed by S.28 of Land Acquisition Act, 1894 on the enhanced amount along with 15% compulsory acquisition charges per Marla, accordingly.

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

----Art. 61---Opinion evidence---Evidentiary value---Scope.

Muhammad Ozair Chughtai for Appellants.

Raja Muhammad Sohail Iftikhar for Respondents.

Date of hearing: 11th May, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2116 #

2006 Y L R 2116

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD BILAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.98-J of 2004, decided on 13th January, 2006.

Penal Code (XLV of 1860)---

----S. 302 (b) (c) ---Appreciation of evidence--Sentence, reduction in---Eye-witnesses were chance witnesses as they had failed to establish their presence during odd hours of the night in the house of deceased where occurrence had taken place, through any cogent reasons---Witnesses also tried to make improvements at the trial which appeared to be dishonest and could not be accepted---Matter was reported to the police after about five hours of occurrence and post-mortem on dead body of deceased was conducted about 12 hours after occurrence---Such delay had not been explained which otherwise had supported the story of defence that witnesses were summoned from their village and story regarding their presence at the spot was concocted---Both eye-witnesses were closely related inter se and with deceased---Accused was not expected to have committed murder of deceased in presence of her close relatives who were sleeping in the courtyard of the house of deceased and accused---Circumstances had shown that case against accused had been registered in a doubtful manner by Investigating Officer---Possibility could not be ruled out that the story regarding recovery of hatchet and clothes which were blood stained had been concocted by Investigating Officer--Investigating Officer had admitted that occurrence had taken place at a thickly populated area, but despite that, none of the neighbours was joined in the investigation and no one from the said village had appeared before Investigating Officer in support of prosecution story---Prosecution had to stand on its own legs and if prosecution failed to bring home guilt to accused and conviction was to be recorded on special plea of accused, same had to be accepted or rejected in toto and not in piece meal to suit prosecution case---Accused had taken the plea that his conviction recorded by the Trial Court under S. 302(b), P.P.C. was not maintainable---Accused had stated that he had committed murder of his wife in a state of grave and sudden provocation with the hatchet, as when he came back to the house at the relevant time he found his wife in compromising position with other person and he lost his self-control---Conviction recorded by the Trial Court under S.302(b), P.P.C. was converted to S. 302 (c), P.P.C. and sentence of life imprisonment awarded to him was reduced to 10 years' R.1.---Amount of compensation was also reduced from Rs.100, 000 to Rs.50, 000, accordingly.

PLD 1996 SC 274 ref.

Ghulam Asghar Qadiri for Appellant.

Shoaib Zafar for the State.

Date of hearing: 13th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2125 #

2006 Y L R 2125

[Lahore]

Before Khawaja Muhammad Sharif, J

NAZIR AHMAD alias LILLY---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1434 of 2003, decided on 27th June, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence---F.I.R. was promptly lodged---Incident was a broad-daylight occurrence---No previous background of enmity existed between the parties and no question for false implication had arisen---Two injuries were attributed to accused which did exist in medical report---Ocular account against accused in circumstances was corroborated by medical evidence---Long abscondence of one and half year of accused was a further corroboration to ocular account---Rifle recovered from accused was taken into possession by police---Both eye-witnesses were brother and first cousin of deceased, but mere relationship of prosecution witnesses with deceased could not discard the testimony of said witnesses whose testimony otherwise was confidence-inspiring and trustworthy, especially, when said eye-witnesses had no enmity or strong motive to falsely depose against accused---Prosecution, in circumstances had proved its case against accused beyond any shadow of doubt to sustain conviction against accused---Well-reasoned judgment of Trial Court did not call for interference by High Court in its appellate jurisdiction---Trial Court having already taken a lenient view, there was no reason to show, further leniency qua the quantum of sentence to accused.

Malik Nazar Farid Khokhar for Appellant.

Nemo for the State.

Ch. M. Faridul Hassan for the Complainant.

Date of hearing: 27th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2128 #

2006 Y L R 2128

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.444 of 2001, heard on 18th January, 2006.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Occurrence had taken place in the premises of police station and F.I.R. was promptly lodged---Motive behind the occurrence was that deceased, who was confined at police lock-up, had committed murder of father of accused three years prior to present occurrence and in order to take revenge, accused had committed murder of the deceased---Accused was apprehended at the spot---Crime weapon, pistol was recovered from possession of accused and crime empty was also recovered from the chamber of his pistol---Both, pistol and empty were sent to Fire-Arm Expert, who submitted positive report---Witnesses, who appeared before the Trial Court, though were police officials, but they were natural witnesses, being posted at police station where occurrence had taken place---Time of occurrence was the same as was given by prosecution---Not the slightest dent was noticed in the prosecution evidence---Prosecution had fully proved case against accused beyond any shadow of doubt---No mitigating circumstances being in favour of accused, he was rightly convicted and sentenced---Death sentence was confirmed and murder reference answered in affirmative.

Manzoor Ahmad v. The State 2003 PCr.LJ 354 and Shah Nawaz alias Shani v. The State 2005 YLR 1011 ref.

Balakh Sher Khosa for Appellant.

Sheikh Imtiaz for the State.

Date of hearing: 18th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2133 #

2006 Y L R 2133

[Lahore]

Before Muhammad Farrukh Mahmud, J

Master NAZEER AHMAD and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Appeal No.40 of 2004, decided on 29th March, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-F(v), 148 & 149---Appreciation of evidence---According to medical evidence, only complainant and other prosecution witness received injuries---Injuries on the person of complainant were caused by fire-arm, while three injuries on person of other prosecution witness were caused by blunt weapon---Accused who were allegedly armed with blunt weapons, had been acquitted by the Trial Court---Main accused and rest of the accused persons except one had no enmity or previous grudge against deceased---Enmity existed between one of accused persons and complainant prior to occurrence, while no background of hostility or enmity existed between complainant and rest of accused persons---Prosecution had not come out with whole truth and had given an exaggerated account of occurrence---Defence version also suffered from suppression of truth---Statements of Investigating Officers were no more than opinions as they were not eye-witnesses of occurrence---Opinion of police officer about guilt or innocence of an offender, was irrelevant and inadmissible in evidence---Court had to scrutinize evidence produced by parties before it and arrive at right conclusion---Courts were not to be influenced by the opinion of Investigating Officers---Opinion of Investigating Officer played important role for submitting reports under S.173, Cr. P. C. before the Court, but not thereafter---Both parties had not come out with true story and had tried to minimize their own part in the incident, but incompleteness of the tale would not deter the Court from drawing proper inference that properly flew from evidence and circumstances---Situation in the case was deteriorated over lifting of earth from the plot belonging to complainant, which led to the occurrence---Case was not one of a premeditated attack at all, but occurrence was the result of sudden affairs---Conviction of main accused for offence under S.302(b), P.P.C., was altered to offence under S. 302 (c), P.P.C. and his sentence was reduced to 20 years' R.I.---Sentences inflicted upon main accused and one of other accused persons for offence under S. 324, P.P.C. were maintained, but sentences were reduced to five years' R.I., which would run concurrently and benefit of S.382-B, Cr.P.C. was maintained---Injuries attributed to remaining accused, being exit wounds, appeal to their extent was allowed and judgment passed by the Trial Court to their extent was set aside and they were acquitted of charge.

Nasir Abbas v. The State 1995 SCMR 1333; Waris Ali and 5 others v. State 2001 SCMR 640; Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 and Ali Muhammad v. Ali Muhammad PLD 1996 SC 274 ref.

Sardar Ahmad Khan, Muhammad Shahid Khan, Hafiz Shahid Nadeem and Sardar Muhammad Shamim Khan for Appellants.

Abdul Rehman Tayyib and Malik Dost Muhammad Awan for Complainant.

Ghazanfar Ali Khan for the State.

Dates of hearing: 21st July, 28th November, 2005 and 27th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2147 #

2006 Y L R 2147

[Lahore]

Before Syed Jamshed Ali, J

MUHAMMAD HAYAT and 13 others---Petitioners

Versus

MUHAMMAD ALI and 2 others---Respondents

C.R. No.1955 of 1994, heard on 27th and 31st October, 2003.

Civil Procedure Code (V of 1908)---

---S.11 & O.XXIII, R.1(3)---Compromise---Res judicata plea of---Contents of the plaint in the previous suit and those of subsequent suit left no manner of doubt that the controversy raised in both the suits was exactly the same---Previous suit was withdrawn without permission to file a fresh suit---Cause of action in both the suits was the same---Subsequent suit was barred by virtue of the provisions contained in O. XXIII, R.1(3), C.P. C.-Trial Court had wrongly held that cause of action in subsequent suit was different---Judgment and decree of appellate Court was upheld and revision petition was dismissed in circumstances.

Syed Farooq Hussan Naqvi for Petitioners.

Ch. Akhtar Ali Goraya for Respondents.

Dates of hearing: 27th and 31st October, 2003.

UDGMENT

SYED JAMSHED ALI, J.---The judgment and decree dated 3-4-1994 of the learned Additional District Judge, Sheikhupura, whereby the suit filed by the petitioners was dismissed by reversing the judgment and decree dated 29-6-1993 of the learned trial Court, has been assailed in this revision petition which arises out of the following circumstances.

Bahawal, the predecessor-in?interest of the petitioners and Sajawal, father and Mst. Mehtab Bibi, the predecessor-in-interest of the respondents jointly owned land measuring 103 Kanals and 2 Marlas. In his lifetime Sajawal had, alienated land measuring 14 Kanals and 16 Marlas in favour of Muhammad Ahmad and was thus left with land measuring 88 Kanals and 6 Marlas in Khewats Nos.5 and 6. On the death of Sajawal, a mutation of inheritance in respect of his estate was sanctioned in his favour of Bahawal and Mst. Mehtab Bibi to the extent of 1/2 each. Out of her holding she alienated land measuring 16 Kanals in favour of Bahawal vide Mutation No.58 attested on 10-7-1971 (Exh.P.15) on 13-7-1972. Muhammad Ali, respondent No.1, filed suit (Exh.P.20) pre-empting the sale made by Mst. Mehtab Bibi in favour of Bahawal. The said suit ended into a compromise whereby Muhammad Ali was given land measuring 2 Kanals out of the area sold by Mst. Mehtab Bibi (Exh.P.25). Meanwhile on 10-7-1972, Mst. Mehtab Bibi filed a suit (Exh.P.23) questioning the sale made by her by Mutation No.58 on the ground that it was without consideration. There was a compromise (Mark A) in the said suit between the parties (Exh.P.27) 'according to which Bahawal gave 32 Kanals of land to Mst. Mehtab Bibi on the basis of which the suit of Mst. Mehtab Bibi was decreed on 13-3-1973 for an area measuring 32 Kanals (Exh.P.26). The decree of the Civil Court was implemented in the Revenue Record vide Mutation No.90 attested on 15-12-1973 (Exh.P.14). On the death of Mst. Mehtab Bibi her inheritance was sanctioned in favour of the respondents vide Mutation No.193 attested on 20-1-1981. On Bahawal's death mutation of inheritance was sanctioned on 21-1-1982 (Exh.P.17) in favour of petitioners Nos.1 to 5 and Murad Ali predecessor in interest of petitioners Nos.6 to 9 as the successors of Bahawal.
On 23-2-1982, petitioners Nos.1 to 5 and Murdad Ali predecessor in interest of petitioners Nos.6 to 9 filed a suit for declaration assailing the decree dated 13-3-1973, Mutation No.90 attested on 15-12-1973 and Mutation No.193 attested on 20-1-1981. Their case in the said suit was that by way of compromise in the earlier suit, Mst. Mehtab Bibi was given land measuring 4 Kanals in lieu of land measuring 16 Kanals which was sold by Mst. Mehtab Bibi in favour of Bahawal. It was further contended that the recital in the compromise that Bahawal had given another 28 Kanals to Mst. Mehtab Bibi was only intended to consolidate her holding in one khewat instead of two and, therefore, the said decree operated only to the extent of 4 Kanals whereas under the decree aforesaid land mutated in her favour was wrongly shown as 32 Kanals. The said suit was contested, tried and was dismissed vide judgment and decree dated 31-1-1988 (Exh.P.28). They filed an appeal and in the appeal the said suit was allowed to be withdrawn on 19-9-1988 (Exh.P.31).
On 16-6-1988, the petitioners filed the instant suit in which declaration was claimed that they were owners of 157 Kanals and 9 Marlas of land and the land measuring 32 Kanals (covered by the decree dated 13-3-1973) was also owned and possessed by them. It was explained that 32 Kanals of land with specific field numbers were given to Mst. Mehtab Bibi in lieu of her share of inheritance of the estate of Sajawal and that Mst. Mehtab Bibi, was given 4 Kanals by way of compromise in the previous suit, thus, she was only an owner to the extent of 32 Kanals and 3 Marlas and the contrary entries in the Revenue Record were illegal, void and inoperative on the rights of the petitioners. The grievance in the said suit was that Mst. Mehtab Bibi was shown to be the owner of land measuring 60 Kanals and 3 Marlas in the Revenue Record.
The respondents contested the suit. A number of preliminary objections were taken including that the suit was barred by res judicata, it was barred by time and was collusive. It was asserted that in lieu of 16 Kanals, subject-matter of the sale of Mst. Mehtab Bibi in favour of Bahawal she was given an area measuring 32 Kanals. It was further averred that she owned 74 Kanals and 18 Marlas.
Necessary issues were framed and the suit was tried. The learned trial Court found that the present suit was based on fresh cause of action. It was further found that Mst. Mehtab Bibi owned, land measuring 28 Kanals and 3 Marlas and was given 4 Kanals by way of compromise and thus she was owner of 32 Kanals and 3 Marlas, whereas by virtue of adding 32 Kanals which she claimed vide the compromise Exh.P.27, her holding became 60, Kanals and 3 Marlas. About the said compromise, the learned Court was of the view that 28 Kanals (in addition to 4 Kanals) given to Mst. Mehtab Bibi by way of the aforesaid compromise was only for the purpose of consolidating her holding. Accordingly, the suit of the petitioners was decreed on 29-6-1993.
The respondents filed an appeal. The learned first appellate Court found that the controversy raised in the previous suit and the present suit was the same and, therefore, the suit was barred by the principle of res judicata. The reasons to arrive at this conclusion have been noted in para.6 of the judgment which are reproduced as under:

(i) In the previous suit, copy of which is produced as Exh.P.28, Mutation No.90 was challenged which was sanctioned on the basis of the compromise Mark "A" produced in the original Court, and have also challenged Mutation No. i93 and decree dated 13-7-1973 Which is now in a way challened through the titled suit.

(ii) In the previous suit as well as in the present suit the fact under question is as to whether in lieu of land measuring 16 Kanals Mehtab Bibi was given the land measuring 32 Kanals or not, which in my considered view, was decided substantially in a suit copy of which is produced as Exh.P.24 and the decree sheet of the same is produced as Exh.P.26 based on the compromise Exh.P.27 which is again under question in the present suit.

(iii) In the previous suit specific prayer was made about the cancellation of mutation and in the present suit the prayer is made for declaring the entries made in the Revenue Record on the basis of those mutations stand sanctioned in favour of Mst. Mehtab Bibi and

her legal heirs. I do not find any difference about the matter agitated in both the suits."

With regard to merits of the controversy, on examination of the evidence, particularly the admission of P.W.4, Muhammad Hayat, one of the petitioners, it was found that in lieu of 16 Kanals disputed in the suit filed by Mst. Mehtab Bibi, she was given an area measuring 32 Kanals. The earlier judgment produced in the case Exh.P.29 and Exh.D. 1 was relied upon. The contention raised before the learned first appellate Court based on Exh.P.2 dated 24-6-1971, whereby Mst. Mehtab Bibi agreed to get 28 Kanals and 3 Marlas from Khewats Nos.5 and 6 in lieu of her holding in both the khewats was considered and repelled on the ground that not only Exh.P.2 was not a registered document but also that it did not find any mention in the compromise Exh.P.27. Accordingly, the appeal of the respondent was allowed and the suit was dismissed on 3-4-1994.

The learned counsel for the petitioners contends that in the previous suit Mst. Mehtab Bibi was given 4 Kanals of land in lieu of 16 Kanals which was sold by her in favour of Bahawal, the petitioner's predecessor and reference to 28 Kanals in the compromise was only in pursuance of agreement Exh.P.2 according to which Mst. Mehtab Bibi had agreed to get her holding in one khewat in lieu of her entitlement in both the khewats in which she was a co-owner. He further submits that according to the compromise an area measuring 28 Kanals was given to Mst. Mehtab Bibi but the compromise did not say that Mst. Mehtab Bibi was given this area of 28 Kanals. He maintains that the grievances of the petitioners in the present suit was against wrong entries made in the Revenue Record and, therefore, as rightly held by the learned trial Court, the suit was based on a fresh cause of action. He contends that the effect of the entries in the Revenue Record is that instead of 32 Kanals and 3 Marlas to which Mst. Mehtab Bibi was entitled, she was wrongly shown as owner of land measuring 60 Kanals and 3 Marlas.
On the other hand, the learned counsel for the respondents contends that the disputed entries in .favour of Mst. Mehtab Bibi were continued in the Revenue Record on the basis of Mutation No.90 attested on 15-12-1973 which in turn was based on the decree of the civil Court dated 13-3-1973 and unless the said decree and the mutation was set aside, the petitioners were not entitled to the relief claimed in the instant suit. He submits that the earlier suit having been withdrawn, without permission to file a fresh suit, the present suit was rightly held to be barred. He further maintains that this compromise was accepted by P.W.4, one of the petitioners who appeared in the witness-box and, therefore, even on merits the learned first appellate Court found that in lieu of 16 Kanals subject-matter of the suit filed by Mst. Mehtab Bibi she was given an area measuring 32 Kanals.

9-A. I have considered the submissions made by the learned counsel for the parties and have perused the record. The compromise Exh.P.27, the judgment Exh.P.29 and the decree in the said case (Exh.P.26) have been examined. Contents of the plaint in the previous suit (Exh.P.28) and those of the present suit leave no manner of doubt that the controversy raised in the previous suit and the present suit was exactly the same. The case of the petitioners was that decree dated 13-3-1973 related only to 4 Kanals and not 32 Kanals and, therefore, Mutation No.90 transferring the area measuring 32 Kanals in favour of Mst. Mehtab .Bibi was wrong and illegal. The subsequent entries which were challenged in the instant suit were based on Mutation No.90. In the previous suit not only Mutation No.90 was assailed but mutation of inheritance of Mst. Mehtab Bibi and the decree dated 13-3-1973 were also assailed. The said suit was dismissed against which petitioners Nos.l to 5 and Murad Ali predecessor-in-interest of respondents Nos.6 and 7 filed an appeal but not only the appeal was withdrawn the suit was also withdrawn without permission to file a fresh suit. Therefore, I have no B doubt in my mind that cause of action in the present suit was exactly the same as was in the previous suit. The said suit having been withdrawn without permission to file a fresh suit, the instant suit was clearly barred by virtue of the provisions contained in sub-rule (3) of Rule 1 of Order XXIII of the Code of Civil Procedure. Therefore, the conclusion of the learned first appellate Court that the suit was barred by res judicata is of no consequence because it is only a case where wrong provision of law has been quoted by the learned first appellate Court.

The questions as to the effect of the compromise, the effect of the decree passed in the first case and whether Mutation No.190 was rightly attested on 15-12-1973 in favour of Mst. Mehtab Bibi were raised in the first suit and instead of contesting the judgment dated 31-1-1988 passed in the earlier suit, the petitioners opted to withdraw the said suit. Therefore, unless the present suit was maintainable, the merits of the controversy could not even be C gone into. The learned trial Court, while holding that the cause of action for the present suit was different did not advert to c the pleadings in the first and the second suit.

YLR 2006 LAHORE HIGH COURT LAHORE 2151 #

2006 Y L R 2151

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ARIF MASIH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.163-J of 2002, heard on 24th February, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 364---Appreciation of evidence---Motive set up in the case was that accused in order to usurp movie camera and a cycle taken by deceased on rent from prosecution witnesses had killed deceased---In view of contradictory statements of said prosecution witnesses in that respect, no motive could be proved against accused---Prosecution witness, who claimed to have last seen accused with deceased, was confronted with his previous statement regarding accompanying the accused with deceased, his statement in that respect was found to be full of contradictions which proved that the witness was not a truthful witness--Evidence with regard to last seen, seemed to have been concocted subsequently, which was not believable---Story of recovery of identification card and service card of accused at the time of recovery of dead body of deceased, which proved to be concocted, could not be relied upon---No empty having been recovered from near the place of occurrence alleged recovery of pistol from accused at the time of his arrest was inconsequential, which could not support prosecution story in any manner---Alleged recoveries from accused effected on his disclosure after his arrest by police officer, were not sufficient to connect accused with alleged crime---Medical evidence also did not support prosecution case---Identification of dead body was also doubtful and no cause of death was disclosed---Prosecution having miserably failed to bring home guilt to accused beyond any shadow of doubt through any convincing evidence, impugned judgment of conviction and sentence passed by the Trial Court, was set aside and accused was acquitted of the charge of Qatl-i-Amd and accused was set at liberty.

Akbar Munawar Durrani for Appellant.

Mian Abdul Qayyum Anjum for the State.

Date of hearing: 24th February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2157 #

2006 Y L R 2157

[Lahore]

Before Sardar Muhammad Aslam and M. Bilal Khan, JJ

RAFAQAT HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.19-J of 2001, decided on 25th January, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence---One of prosecution witnesses who was an unmarried girl and was residing in the house, was a natural witness---Said witness had given a Danda blow on the head of accused to save deceased from his clutches and factum of causing Danda blow was supported by medical evidence---Other prosecution witness was also resident of the same street and had no enmity with accused or any relationship even remotely with any of the side---Both said eye-witnesses remained unshaken in cross-examination and their statements appeared to be trustworthy, reliable and confidence inspiring---No reason existed for said witnesses to falsely implicate or substitute accused for the real culprit---No reason had been advanced by accused to discard eye-witness account---Plea of sudden occurrence on a supposed plea of grave and sudden provocation was ruled out of consideration---Incident was a planned murder---Accused, who was full of venom; had caused successive injuries on the person of deceased and ensured that she could not survive---Medical evidence had corroborated ocular account---Bloodstained Chhurri recovered on pointation of accused was sent to Chemical Examiner, who found same blood-stained---Serologist also opined that said weapon of offence was stained with human blood---Recovery, in circumstances had corroborated prosecution case---Prosecution had proved its case beyond reasonable doubt against accused who had brutally murdered a helpless woman by causing successive Chhurri blows on her person---Conviction and sentence recorded against accused by the Trial Court, were maintained and death sentence was confirmed.

Ch. Khan Muhammad Bajwa for Appellant.

Ijaz Ahmad Bajwa, Ch. Nazeer Ahmad for the State.

Date of hearing: 25th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2161 #

2006 Y L R 2161

[Lahore]

Before Muhammad Muzammal Khan, J

JUMMA KHAN---Petitioner

Versus

SUBAY KHAN---Respondent

Civil Revision No.2120 of 2001, decided on 30th December, 2003.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), S.115-Oral agreement to sell---Material irregularity and misreading of evidence---Concurrent findings---Plaintiff and the defendants were real brothers---Plaintiff alleged oral agreement and payment of Rs. 74,000 to defendant as earnest money in presence of witnesses and respectables and remaining sale price was to be adjusted against the mortgage already created by the defendant---Agreement was stated to have not been written due to brotherly relationship---Suit was decreed by the Trial Court and decree was confirmed in appeal---Undisputedly the defendant had sold two acres through two registered sale deeds, another transaction of mortgage was for consideration of Rs.30,000 and yet another sale transaction was made leaving behind only the suit-land---No doubt, oral agreement was enforceable at law but a strict proof was needed for the purpose, especially when it was specifically denied---Oral evidence was discrepant with regard to price, there was no corroboration, Appellate Court had tried to patch up the contradictions---Witnesses were inimical towards the defendant, they had interest in falsely deposing against the defendant---Plaintiff had asserted in the plaint that three sale transactions between the parties were through registered sale-deeds, these were proved at the trial and Rs.30,000 was given against a writing and mortgage deed was executed---In presence of such assertions by the plaintiff, it could not be accepted that entire sale price was paid without any writing---Mortgage being prior to the earlier sale transactions, question arose as to why the same was not adjusted by the plaintiff earlier---Possession of the joint land was found as a co-sharer/tenant at will of the plaintiff---Defendant had failed to prove through impartial, independent evidence beyond any doubt that the defendant entered into an oral agreement to sell---Revision petition was accepted, judgments and decrees of the Courts below were set aside and suit of the plaintiff was dismissed with costs throughout.

Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Bashir Ahmad v. Muhammad Yousaf (deceased) represented by Muhammad Shafiq 1993 SCMR 183; Noor Begum v. Barkat Ali 1986 SCMR 1160; Jam Pari v. Muhammad Abdullah 1992 SCMR 786; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Mst. Kaniz Fatima through Legal heirs v. Muhammad Salam and 27 others 2001 SCMR 1493; PLD 1985 SC 41; 1999 MLD 198 and 1986 SCMR 270 rel.

Rana Habib-ur-Rehman for Petitioner.

Kashif Nawaz Bajwa for Respondent.

Date of hearing: 11th December, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2165 #

2006 Y L R 2165

[Lahore]

Before Khawaja Muhammad Sharif and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD AFZAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1168 of 1999 and Murder Reference No.2 of 2000, decided on 22nd June, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence---Accused who was arrested after five years of occurrence, was declared fugitive from law and later on proclaimed offender---Two of prosecution witnesses out of three, were injured---All said prosecution witnesses though had appeared before the Trial Court after seven years of occurrence, but had fully supported case of prosecution---Ocular account furnished by eye-witnesses, was fully corroborated by medical evidence--Both parties being known to each other, there was no question of mistaken identity---Accused could not succeed to make it a case of two versions---Defence version of accused, was ruled out of consideration, in circumstances---No recovery of fire-arm was made on pointation of accused for he was arrested long after five years---Accused could not claim ignorance about registration of case being from the same village---Accused did not give any satisfactory reply while replying question relating to his abscondence---Opinion of the police after nine years after occurrence that accused was innocent, had no evidentiary value because occurrence had taken place in broad daylight and two injured prosecution witnesses appeared before Trial Court and supported case of prosecution---Even otherwise opinion of the police, was not binding upon the Court---Ocular account which was fully corroborated by medical evidence and long abscondence of accused spreading over five years, had lent further support to the case set up by prosecution---Accused who had been proved to have committed murder of deceased and prosecution had been successful in proving its case against accused to its hilt---In absence of any mitigating circumstance in favour of accused, conviction and sentence recorded by the Trial Court against accused, were maintained in toto---Death sentence awarded to accused was confirmed and Murder Reference was answered in affirmative.

PLD 2004 SC 150; 2003 SCMR 1164 and Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

Munir Ahmad Bhatti for Appellant.

M. Saleem Shad for the State.

Aitzaz Ahsan for the Complainant.

Date of hearing: 22nd June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2170 #

2006 Y L R 2170

[Lahore]

Before Khawaja Muhammad Sharif, J

Mst. NOOR JEHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1604 and Criminal Revision No.981 of 2004, heard on 5th May, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)/34- Appreciation of evidence---Three co-accused having been acquitted on basis of same set of evidence from the case, such evidence of witnesses could not be believed against accused who were females---No fire-arm injury was found on the person of deceased---Extrajudicial confession allegedly made by accused, was joint and conduct of both accused who allegedly made confession was unnatural and conduct of prosecution witnesses before whom alleged confession was made was also the same as both said witnesses straightaway went to their house---Such evidence of extra judicial confession was disbelieved as same was not worthy of any credence and could not be used against accused---Prosecution witness who had taken moulds of foot prints, did not state before the Court that same were of accused persons---Said evidence was of no consequence---Witness of alleged recovery of knife from one of accused, had not mentioned factum of recovery before police---Same was disbelieved and was excluded from evidence---Broken bangles of female accused and blood-stained clothes of deceased were never sent to Chemical Examiner or Serologist to know whether those were stained with human blood---Said recovery was inconsequential and could not be used against accused---Case being of circumstantial evidence, every chain should be linked with each other and if any chain link was missing, then benefit of same should go to the accused---In the present case, after having excluded evidence of extra judicial confession and evidence of recovery no case was made out against the accused---Prosecution had failed to prove its case against accused beyond any shadow of doubt to sustain conviction---Prosecution case was full of doubts and evidence had not , come through unimpeachable source and same was not trustworthy and unreliable and could not stand the test of judicial scrutiny---Impugned judgment of Trial Court was set aside and accused were acquitted of the charge.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Ahmad v. The Crown PLD 1951 FC 103; Zafar Iqbal and others v. The State 2006 SCMR 463; The State v. Kamal Khan alias Maloo and another 1993 SCMR 1378; Wazir Muhammad and another v. The State 2005 SCMR 277; Karamat Hussain v. The State 1972 SCMR 15; Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. the State 1996 SCMR 188; Asadullah and another v. State 1999 SCMR 1034; Siraj v. The Crown PLD 1956 FC 123 and PLD 1966 SC 664 ref.

M. A. Zafar for Appellants.

Badar Munir Malik for the State.

Rab Nawaz Khan Niazi for the Complainant.

Date of hearing: 5th May, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2177 #

2006 Y L R 2177

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD AKRAM SHEHZAD and another---Petitioners

Versus

THE STATE---Respondent.

Criminal Miscellaneous No. 383/B-2005/BWP decided on 3rd May, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4---Bail, grant of---Provisions of S.103, Cr.P.C. had been violated with impunity by complainant/A. S. -1. ---Offences against accused did not attract prohibitory clause of S. 497, Cr.P.C.-Nothing was on record to show that accused previously was involved in any criminal case---Accused was admitted to bail, in circumstances.

Ch. Muhammad Ashraf Mohandra for Petitioners.

M.A. Farazi for the State with Ghulam Farid, A.S.-I.

Dr. Mansoor Tariq, M.O., District Jail Hospital, Rahimyar Khan in Person.

YLR 2006 LAHORE HIGH COURT LAHORE 2178 #

2006 Y L R 2178

[Lahore]

Before Muhammad Akhtar Shabbir, J

ABDUL JABBAR and others-Petitioners

Versus

QURBAN ALI---Respondent

Criminal Revision No.193 of 2005, decided on 23rd January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 540---Interpretation and scope of S. 540, Cr. P. C. ---Power of the Court to summon material witness or examine persons present---Court under S.540, Cr. P. C. was empowered to summon any person as a witness or examine any person in attendance though not summoned as a witness or recall and re-examine any witness, if his evidence appeared to it essential to the just decision of the case---Section 540, Cr. P. C. was divided into two parts; the first part was discretionary in nature, whereas second part was mandatory; as per first part of S.540, Cr. P. C. , it was discretionary power of the Court to summon any person as a witness suo motu or on an application, whereas according to second part, the power to summon, examine or recall and re-examine any person as a witness was to be exercised with care and caution---Court could not use said power to advance the cause of prosecution or defence, but said power was only meant to advance the cause of justice---Solitary principle of judicial proceedings in criminal case was to find out the truth and to arrive at a correct conclusion and to see that any innocent person was not punished, merely because of certain technical omission on his part or on the part of the Court, if it appeared essential to the Court that evidence was necessary for just decision of the case---Under second part of S.540, Cr. P. C. , it was obligatory to the Court to examine such a witness ignoring technical and formal objections---For summoning Investigating Officer as a Court witness, party seeking summoning him, had to satisfy the Court that evidence of such police officer was necessary for the Court to come to right conclusion on the question of guilt or innocence of accused---Unless that condition was satisfied refusal to summon police officer as a court witness would be justified---No illegality existed in the impugned order passed by Court below in reaching to the conclusion that summoning of the police officers as court witness, was not essential to reach the just conclusion of the case.

State v. Muhammad Yaqoob and others 2001 SCMR 308; Feroze Din v. Bahadur Ali 1995 PCr.LJ 18; Farman Ali and 2 others v. The State 1992 SCMR 2055 and Haji Muhammad Abdullah v. The State 1995 SCMR 821 ref.

Ch. Abdul Subhan for Petitioners.

YLR 2006 LAHORE HIGH COURT LAHORE 2180 #

2006 Y L R 2180

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chahudhry, JJ

RASHID alias BAOU MASIH and others---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1028 and 1351 of 2001 and Murder Reference No.394 of 2001, heard on 9th May, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-A(i) & 34---Appreciation of evidence---Sentence, reduction in---Names of witnesses and accused including their roles played during incident had specifically been given in promptly lodged F.I.R.-Incident was not an un-witnessed occurrence and presence of prosecution witnesses at the spot had been established beyond any shadow of doubt---Locale of injuries and time of receiving of injuries as observed by Doctor supported ocular account that occurrence had taken place at the time given by prosecution---Eye-witnesses remained consistent with each other regarding time, place and the manner in which accused had caused injuries to deceased and injured prosecution witnesses---None of the witnesses had any previous enmity or grudge to falsely implicate accused in the case---Daylight occurrence and accused were previously known to prosecution witnesses---No chance of misidentity of assailants existed, in circumstances---F.I.R. having been lodged promptly, possibility of concoction of prosecution story to falsely implicate accused after due deliberation, had been eliminated---Minor contradictions in the statements of eye-witnesses regarding minute details of occurrence and presence of other people around place of occurrence, could be termed as lapses of time as statements of prosecution witnesses were recorded after about one year of occurrence---Even otherwise such contradictions being not on material points, could not be declared fatal to prosecution story---Ocular account furnished by prosecution was trustworthy and confidence inspiring, which even without being corroborated by any independent piece of evidence, was sufficient to connect accused with commission of crime---Blood stained weapons recovered from accused, were found to be stained with human blood according to reports of Chemical Examiner and Serologist---No previous ill-will was found between the parties and witnesses could not be disbelieved merely because they had relationship with the deceased---As one person was murdered and other two had received injuries, independent persons of locality might be reluctant to come forward to avoid enmity with any of the parties---Defence failed to attribute any mala fide to Investigating Officer---Defence plea taken by accused was not found plausible or borne out from the record and was found to be an afterthought story---Prosecution having been able to bring home charges to all accused beyond any shadow of doubt, conviction recorded by the Trial Court against accused was maintained---Occurrence having taken place at the spur of moment and prosecution had not been able to prove motive set up by it through sufficient evidence, death sentence awarded to accused by the Trial Court, was converted to life imprisonment---Benefit of 5.382-B, Cr.P.C. was also extended to him.

Sultan Khan v. Sher Khan and others PLD 1991 SC 520 ref.

Ijaz Ahmad Chaddhar for Appellants.

Ashfaq Ahmed Ch. (in M.R. No.394 of 2001).

Raja Akhtar Nawaz for the State (in Criminal Appeal No.1328 of 2001).

Ch. Muhammad Ahad Batalvi for the State (in Criminal Appeal No.1351 of 2001).

Date of hearing: 9th May, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2189 #

2006 Y L R 2189

[Lahore]

Before Khawaja Muhammad Sharif and Syed Sakhi Hussain Bokhari, JJ

ABDUL HAQ and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 1870 of 2000 and Criminal Appeal No.27/J of 2002 and Murder Reference No.745 of 2000, decided on 21st June, 2005.

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

----Ss. 302, 452 & 34---Appreciation of evidence---Sentence, reduction in---Two eye-witnesses examined by prosecution were consistent in their statements that accused fired at the deceased with his gun as a result whereof he died---No material contradiction or discrepancy was found in statements of said witnesses and their statements were convincing and confidence inspiring and nothing was on record to disbelieve the same---Medical evidence conformed to ocular account furnished by said eye-witnesses---Occurrence having taken place in the house of complainant, he was natural witness---Nothing was on record to show that any previous enmity existed between the parties---Prosecution, in circumstances had proved case against accused beyond any shadow of doubt---Defence version that accused was not present at the scene of occurrence at relevant time, being baseless, was rejected---Case against accused, however, was not a fit case for imposition of death sentence and he deserved leniency---Accused was convicted and sentenced under S.302(a), P.P.C., but no evidence was available as required under 5.304, P.P.C.-Accused was convicted under S.302(b), P.P.C. and was sentenced to suffer imprisonment for life under S.302(b), P.P.C.-Sentence under S.452, P.P.C. would remain intact and both sentences would run concurrently and he would also get benefit of S. 382-B, Cr. P. C.

Muhammad Arshad and 2 others v. State PLD 1996 SC 122 ref.

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

----Ss. 302, 452 & 34---Appreciation of evidence---No injury or overt act had been attributed to co-accused---F.I.R. showed that one of the co-accused was empty-handed and nothing was recovered from the other co-accused, during investigation---Said two co-accused seemed to have been falsely involved in the case---Prosecution having failed to prove its case against co-accused, to their extent appeals were accepted and they were acquitted of the charge against them and were released.

Syed Zahid Hussain Bokhari for Appellants.

A.H. Masood for Respondent.

Date of hearing: 21st June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2201 #

2006 Y L R 2201

[Lahore]

Before Muhammad Akhtar Shabbir, J.

MUHAMMAD SAEED---Petitioner

Versus

JAN MUHAMMAD---Respondent

Civil Revision No. 248/D of 2005, decided on 24th January, 2006.

Tort---

----Malacious prosecution---Suit for recovery of damages and compensation---Petitioner, during investigation was found guilty and challaned to the Court of competent jurisdiction along with his co-accused, but after trial of case he was acquitted on account of non-production of evidence by the prosecution---Respondent did not appear before the criminal Court to depose against petitioner---In a suit for recovery of damages and compensation on the basis of malicious prosecution, plaintiff was under legal obligation to establish, ingredients; that plaintiff was prosecuted by defendant on criminal charge; that prosecution had ended in plaintiff's favour; that prosecution was malicious; that prosecution was without reasonable and probable cause; and that proceedings had interfered with plaintiff's liberty and had affected/ruined his reputation and he had suffered mental and financial agony---If any one of said ingredients, was missing, the litigant was not entitled to compensation and damages---Malice should be proved affirmatively---No evidence was available in the present case to establish malicious prosecution of petitioner by respondent; that prosecution was malicious or prosecution was without reasonable and probable cause---Mere fact that prosecution instituted by respondent against petitioner ultimately had failed, could not expose respondent to the charge of malicious prosecution unless it was proved by petitioner that prosecution was instituted without any reasonable or probable cause and it was due to malicious intention of respondent and not with a mere intention of carrying law into effect---In the present case after registration of case respondent did not pursue the case and also did not appear in the Court for statement against petitioner---All ingredients for malicious prosecution had not been established---Suit filed by petitioner was concurrently dismissed by the Trial Court and Appellate Court---Such concurrent findings of the Courts below, could not be interfered with by High Court in exercise of its revisional jurisdiction, even if High Court could take a different view after reappraising evidence of parties.

Muhammad Mantazuddin v. Shamsur Rahman PLD 1964 Dacca 618; Shakil Ahmed v. Ashfaq Ahmed 1993 CLC 1669; Abdul Rauf v. Abdul Razzak and another PLD 1994 SC 476; Subedar (Retd.) Fazale Rahim v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and 2 others PLD 2000 Kar. 214; Guldar Khan v. Isa Khan 1993 SCMR 2099 and Nazir Ahmad v. Boota 1989 SCMR 450 ref.

Muhammad Ibrahim for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 2204 #

2006 Y L R 2204

[Lahore]

Before Sheikh Hakim Ali, J

MUHAMMAD AKRAM---Petitioner

Versus

SENIOR CIVIL JUDGE, FAMILY COURT and others---Respondents

Writ Petition No.3742 of 2005, decided on 16th November, 2005.

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

----Ss. 5, Sched. & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Maintainability--- Suit for dissolution of marriage on ground of Khula' and recovery of dowry articles---Suit for dissolution of marriage on basis of Khula' and for recovery of dowry articles, was decreed by Family Court---Contention of petitioner was that Family Court had failed to grant him 'Zar-e-Khula' and that respondent had not asserted and prayed for grant of decree on basis of Khula' in her plaint---Validity---Respondent though had not used word Khula', but in her plaint had narrated the facts which were the cause of filing of the suit---Respondent lady had stated that she had developed extreme hatred against the petitioner; that there was no likelihood of reconciliation between the parties and that she would prefer death rather to remain within the marital union with petitioner---Said words of respondent could well be considered as bringing out plea of Khula' and it was not necessary for her to use specific words of grant of decree of Khula'---Section 14 of West Pakistan Family Courts Act, 1964 had taken away benefit of filing of appeal against decree granted to the extent of Rs.30,000 for dowry articles---Legislature having barred that remedy to be availed of by petitioner in case of decree of dowry articles to the extent of Rs.30,000, remedy of extraordinary jurisdiction in an ordinary case, of not an exceptional nature, could not be granted to the petitioner---Constitutional petition, in circumstances, was not entertainable against decree of dowry articles.

Ch. Muhammad Akram for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 2205 #

2006 Y L R 2205

[Lahore]

Before Jawwad S. Khawaja, J

RIASAT---Appellant

Versus

Mst. BIBI RANI through L.Rs. and another---Respondents

R.S.A. No.4 of 1999, decided on 14th April, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration of title---Claim of plaintiff was that alleged sale-deed purporting to convey title of suit-land to defendant' was a forgery and had never been signed by her---Defence of defendant was that he had purchased suit land through said sale-deed for a total consideration of Rs.80, 000---Trial Court dismissed suit of plaintiff holding that sale-deed had, in fact been executed by plaintiff---Appellate Court, however, had reversed that finding---Three witnesses produced by defendant in proof of his claim were not credible and had not given evidence sufficient to identify plaintiff as the person who executed sale-deed in question---Even Fingerprint Expert, had deposed that two thumb impressions appearing on sale-deed did not match thumb impression of plaintiff appearing on sample paper sent to Finger Print Bureau for comparison---Appellate Court, after considering evidence, had rightly concluded that plaintiff had not executed sale-deed in question---Defendant being unable to show existence of any of the grounds mentioned in S.100, C.P. C. which could justify interference in impugned decree, second appeal was dismissed.

Muhammad Hanif Niazi for Appellant.

Zahid Saleem for Respondents.

Date of hearing: 14th April, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2207 #

2006 Y L R 2207

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD SHARIF---Appellant

Versus

NOOR AHMAD through Legal Heirs and others---Respondents

Regular Second Appeal No. 49 of 1990, decided on 2nd January, 2004.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 129(i)--- Specific performance of contract---Presumption---Plaintiff's suit for specific performance of contract on the basis of agreement to sell---Defendants pleaded that the plaintiff did not fulfil the terms of the agreement to sell within the stipulated period and that he failed to pay the remaining amount and also abandoned the .said agreement and returned the original agreement to sell to the vendors---Trial Court decreed the suit but Appellate Court had reversed the findings---Validity---Original agreement was with the vendors---Plaintiff had concealed said fact in the pleadings and at trial the plaintiff had tried to improve his case---Presumption was that the plaintiff had himself abandoned the agreement or acquiesced in the matter---Subsequent purchasers were declared to be the bona fide purchasers---Judgment of Appellate Court was affirmed and appeal was dismissed in circumstances.

Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202; Ilamuddin through Legal Heirs v. Syed Sarfraz Hussain through Legal Heirs and 5 others 1999 CLC 313 and Aasa v. Ibrahim 2000 CLC 500 ref.

Raja Abudl Razzaq for Appellant.

Maqbool Ellahi Malik for Respondents Nos.1 and 2.

Ch. Muhammad Iqbal for Respondent Nos.3 to 5.

Date of hearing: 15th December, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2212 #

2006 Y L R 2212

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

RIZWAN ULLAH and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.64 of 2001 and Murder Reference No.58 of 2001, heard on 17th January,-2006.

Penal Code (XLV of 1860)---

----Ss. 302(b)(c), 324 & 337-F(v)---Appreciation of evidence---Sentence, reduction in---Matter was reported to the police promptly---Out of six accused persons, four had been acquitted by the Trial Court---Complainant was father of deceased and other prosecution witness was brother of deceased and presence of both at the spot had been proved by prosecution---Prosecution witness/brother of deceased had received firearm injury on his left leg---No previous enmity existed between parties---Occurrence was a broad-daylight and parties were known to each other---No mistaken identity was involved in the case---Mitigating circumstances, however, were present in the case as during cross-examination complainant had stated that he was not present at the time of earlier incident and he was told about earlier incident by his deceased son, but that fact was not mentioned either in F.I.R. or before the Trial Court---No crime empty having been recovered from the spot, no report of Fire-arm Expert was obtained-- - Case was that of a single shot---Maintaining conviction of accused under S.302(b), P.P.C., his sentence of death was reduced to life imprisonment with benefit of S.382-B, Cr. P. C. ---Co-accused, who was armed with a gun, fired a shot which hit on leg of prosecution witness and caused its fracture was rightly convicted under Ss.324 & 337-F(v), P.P.C., but he could not be convicted under S.302(c), P.P.C.---Conviction of co-accused under S.302(c), P.P.C., was set aside; but his sentence under Ss.324 & 337-F(v), P.P.C. was maintained accordingly.

PLD 1998 SC 523 and 1983 SCMR 806 ref.

Sahibzada Farooq Ali for Appellants.

Muhammad Arif Alvi for the Complainant.

Masood Sabir for the State.

Date of hearing: 17th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2215 #

2006 Y L R 2215

[Lahore]

Before Muhammad Khalid Alvi, J

JAVED AKHTAR---Petitioner

Versus

NASREEN AKHTAR and 2 others---Respondents

Writ Petition No.20708 of 2004, heard on 15th February, 2006.

Guardians and Wards Act (VIII of 1890)---

----Ss. 12 & 25---Constitution of Pakistan (1973), Art.199---Constitutional petition--Interim custody of minors---Petitioner being father of minors filed application under S.12 of Guardians and Wards Act, 1890 for interim custody of minors, which was disposed of by Guardian Judge observing that on the last Saturday of a month at 7.00 p.m., minors would be handed over to petitioner and would be returned at 7.00 p.m. on next day to respondent---Appellate Court had only permitted meeting of petitioner with his minor children in the Court---Validity---Paramount consideration in custody of minors' case, was the welfare of minor and technicalities were not to come in the way of decision in a case which related to welfare of minors---Minors, in the present case statedly were aged about 13/14 years; they undoubtedly needed care of the father as well---Arrangement made by Guardian Judge of their meeting with their father once a month was a fair arrangement and also depicted welfare of minors---Totally depriving minors from their association with father would not bring any healthy state of mind---Allowing constitutional petition, order passed by Appellate Court was declared to be illegal and without lawful authority and as a result order passed by Guardian Judge, would hold the field.

Chaudhry Ahmad Masood Gujjar for Petitioner.

Muhammad Yousaf Kazmi for Respondents.

Date of hearing: 15th February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2218 #

2006 Y L R 2218

[Lahore]

Before Nasim Sikandar, J

JAAN MUHAMMAD alias ADNAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1345-B of 2005, decided on 25th January, 2006.

Criminal Procedure Code (V of 1898)---

S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10, 13 & 16---Bail, grant of---Further inquiry---Allegations made against accused were against statements of alleged abductees recorded by Judicial Magistrate in which alleged abductees had stated that they had left their home at their will---Said statements when put juxtaposed with those subsequently made before police, had made case of accused to be that of further inquiry---All other accused nominated in F.I.R., had already been enlarged on bail---Accused was included in the list of accused on the statement of mother of alleged abductees after almost 6 months of registration of the case---Though incomplete challan was submitted, but no evidence had been recorded and completion of the trial did not appear in sight- Accused was no more required for investigation and his claim of being a previous non-convict was also not seriously challenged by prosecution---Accused was admitted to bail, in circumstances.

Ghufran Khurshid Imtiazi for Petitioner.

M.D. Shahzad for the State.

Walayat, S.-I., Police Station Pind Dadan Khan, District Jhelum with record.

YLR 2006 LAHORE HIGH COURT LAHORE 2221 #

2006 Y L R 2221

[Lahore]

Before ljaz Ahmad Chaudhry, J

MUHAMMAD ASHRAF BHATTI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3011-B of 2006, decided on 12th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 338-C-Bail, grant of-,-Pregnant woman in search of medical aid---Misrepresentation by doctor as to availability of Gynecologist in his clinic---lsqat-i-Haml caused to woman at the hands of a Nurse resulting in death of her child and removal of her womb---Charge against doctor of a private clinic---Non-collection of documentary evidence during investigation by Police to prima facie connect accused with commission of offence---Documents attached with bail petition showed that complainant's wife earlier remained admitted in government Hospital, where he was directed to pay amount in advance as expenses of operation of delivery, but there was no evidence as to what amount was settled between the parties at the time of delivery of his wife---Such documents further showed that complainant himself had taken his wife from the Hospital on relevant date without giving intimation to its staff, when he was advised about delivery through operation as case of his wife became serious due to severe pain---Whether accused had contributed in miseries faced by complainant and his wife was a question to be resolved by Trial Court after recording evidence---Accused was in jail for more than three months and his person was no more required to Police and nothing was to be recovered from his possession---Case against accused requiring further inquiry, he was granted bail.

Ch. Muhammad Ishtiaq for Petitioner.

Zafar Ali Khan for the Complainant.

Muhammad Ilyas Jhummat for the State.

Muhammad Yousaf, S.-I. with record.

YLR 2006 LAHORE HIGH COURT LAHORE 2225 #

2006 Y L R 2225

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

GHULAM RASOOL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.25 of 2001, and M.R. No.91 of 2001, heard on 17th January, 2006.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Motive alleged was that the accused had suspicion that deceased had illicit relations with his sister---Sister of accused firstly was cited as prosecution witness, but was given up as having been won over and finally she was produced as defence witness and she wanted to save her brother/accused and deposed that some other person had committed murder of the deceased---Plea of grave and sudden provocation though was not taken by accused before the Trial Court, but High Court could consider said plea, if it was borne out from the evidence produced by prosecution---Existence of illicit relations between deceased and sister of accused was the case of prosecution itself---Accused having seen deceased in the company of his real sister, under grave and sudden provocation had committed murder of the deceased---Case of accused therefore was not a case of capital punishment, but one falling under S.302(c), P.P.C.---Conviction of accused was converted from S. 302(6) , P. P. C. to S. 302(c), P. P. C. ---More than a decade having elapsed, during which accused had remained in jail, said sentence would meet the ends of justice---Sentence of compensation was set aside because in a case of such like nature, it was not to be awarded---Accused was released.

Javed Iqbal for Appellant.

Zooq Muhammad Sipra for the State.

Nemo for the Complainant.

Date of hearing: 17th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2240 #

2006 Y L R 2240

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, .I

GHULAM YASEEN---Appellant

Versus

Syed RIAZ HUSSAIN SHAH and 2 others---Respondents

Criminal Appeal No.560 of 2003, decided on 27th June, 2005.

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

----S. 417---Penal Code (XLV of 1860), Ss.451 & 342---Appeal against acquittal---Allegation against accused was that he entered complainant's house, assaulted complainant and insisted him to accompany him to the police station and on resistance, accused misbehaved with wife and daughter of the complainant---Evidence on record had revealed that complainant and prosecution witnesses did not know accused who had trespassed into their house, belaboured ladies of the house, taken them to the police station and confined them there for many hours---Accused statedly came to the house of complainant in his absence; he was not known to inmates of the house i.e. ladies who were taken into the police station where they were confined---Case of prosecution being full of doubts, appeal against acquittal was dismissed.

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

----5.417---Penal Code (XLV of 1860), Ss.451 & 452---Appeal against acquittal---Statement of complainant and other prosecution witnesses made it very much clear that accused along with police officials, had raided house of complainant and while trespassing into the house, he gave beating to ladies whereafter they were taken to police station and illegally detained there for many hours---Statements of witnesses coupled with factum of registration of F.I.R. wherein presence of said accused had been shown, was sufficient to prove the case against accused---Appeal was accepted and impugned order passed by appellate court whereby he was acquitted, was set aside and judgment of the Trial Court whereby he was convicted, was upheld.

Zafar Iqbal Chohan for Appellant.

Rana Muhammad Ayub Khan Joya for Respondent No.1.

Imtiaz Hussain Khan Balooch for Respondent No.2.

Date of hearing: 27th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2253 #

2006 Y L R 2253(2)

[Lahore]

Before Syed Sakhi Hussain Bokhari and Mian Saqib Nisar, JJ

INAYAT MASIH---Appellant

Versus

AZHAR MAHMOOD---Respondent

R.F.A. No.46 of 2001, heard on 20th January, 2004.

Specific Relief Act (I of 1877)---

----S. 12---Specific performance of agreement to sell---Execution---Fraud---Locus standi---Defendant had alleged that he never agreed to sell his land to the plaintiff, that plaintiff had obtained his signatures and thumb-impression on blank stamp paper by force and subsequently converted same into agreement to sell and that he had received no money---Oral evidence produced by the plaintiff was discrepant---Document was allegedly written by one witness and signed by the other, was not entered into register---Defendant belonged to different districts where the document was written---No respectable of the relevant village was brought to identify him---Appellate Court took notice of natural human conduct, contradictions between the pleadings and the proof on the file declared that the document was prepared through fraud---Validity---Suit by the plaintiff could not be decreed on the basis of alleged agreement to sell as plaintiff had no locus standi and cause of action, his suit, therefore, was false and frivolous---Finding of the trial Court was reversed and judgment and decree passed by the trial Court were set aside and suit of the plaintiff was dismissed with special costs in circumstances.

Rana M. Arshad for Appellant.

Zafar Iqbal Ch. for Respondent.

Date of hearing: 20th January, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2257 #

2006 Y L R 2257

[Lahore]

Before Mian Hamid Farooq, J

RAZA MUHAMMAD and others---Appellants

Versus

DOST MUHAMMAD and another---Respondents

R.S.A. No.3 of 1989, heard on 12th December, 2003.

Specific Relief Act (I of 1877)---

----S. 12---Specific performance of contract---Oral acknowledgment of superior right of pre-emption---Transfer of possession---Agreement---Plaintiff brought suit for specific performance of agreement executed by one defendant alleging that the defendant had purchased the suit-land orally and after the payment, got the possession from the other defendants---Defendant acknowledged the superior right of pre-emption of the plaintiff and agreed to transfer the suit-land to the plaintiff through sale-deed when he would get the mutation sanctioned in his favour---Other defendants had colluded with plaintiff---Suit was decreed by the trial Court and first appeal was also dismissed---No agreement existed between the plaintiff and defendants---No proof of payment of the consideration either by the defendant to other defendants or from plaintiff to the defendant was available---Defendant had not filed the suit for specific performance against other defendants---Suit for specific performance was not maintainable against other defendants---Concurrent judgments and decrees were set aside and suit of the plaintiff was dismissed in circumstances.

Malik Noor Muhammad Awan for Appellants.

Ch. Nazar Hussain for Respondent No.1.

Respondent No.2 proceed ex parte.

Date of hearing: 12th December, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2259 #

2006 Y L R 2259

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD YOUSAF---Petitioner

Versus

SAFDAR HUSSAIN---Respondent

Civil Revision No.2662-D of 1996, heard on 29th September, 2006.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13---Making of Talbs---Talb-i-Mowathibat---Operative part of the judgment of the first appellate Court revealed that the plaintiff had not stated that he made 'Talb-i-Mowathibat' at once at the time when he came to know about the sale---Such fact duly depicted the examination-in-chief of plaintiff---Other evidence was inconsistent---Appellate Court had rightly rejected the asserted date of knowledge---No misreading or non-reading having been pointed out revision petition was dismissed in circumstances.

N.S. Venkatagiri Ayyanger and others v. Hindu Religious Endowments Board Madras PLD 1949 PC 26 and Board of Intermediate and Secondary Education v. Khalid Mahmood NLR 1985 Civil 114 rel.

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

----S.115---Revision---Appreciation of evidence---Appellate Court is well within its rights to appreciate the evidence itself and reverse the finding of the lower Court if so warranted.

N.S. Venkatagiri Ayyanger and others v. Hindu Religious Endowments Board Madras PLD 1949 PC 26 and Board of Intermediate and Secondary Education v. Khalid Mahmood NLR 1985 Civil 114 rel.

Ata-ul-Mohsin Lar for Petitioner.

Zafar Iqbal Ch. for Respondent.

Date of hearing: 29th September, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2263 #

2006 Y L R 2263

[Lahore]

Before Mian Hamid Farooq, J

RAB NAWAZ---Petitioner

Versus

MAPAAL and 6 others---Respondents

Civil Revision No.808 of 2002, decided on 3rd October, 2003.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Rejection of plaint---Deficiency of court-fee-Appellate Court by a composite judgment dismissed the memorandum of appeal of the defendants on account of non-affixation of coup fee of Rs.15, 000 and simultaneously rejected the plaint on the same ground---Validity---No material was available on record about the value of the suit property---Plaintiff had fixed the valuation for purposes of Court-fee as Rs.22,000---No opportunity was provided to plaintiff to make up the deficiency as required by law---Other party had not filed the revision and had not appeared---Appellate Court by rejecting the plaint had committed illegality and material irregularity---Judgment and decree of the appellate Court were set aside and those of trial Court were restored in circumstances.

Zahid Hussain Khan for Petitioner.

Respondent Nos.1 to 6 proceeded ex parte.

Nemo for Respondent No.7.

YLR 2006 LAHORE HIGH COURT LAHORE 2265 #

2006 Y L R 2265

[Lahore]

Before Muhammad Sayeed Akhtar, J

AABAD ALI---Appellants

Versus

MUHAMMAD YAHYA and 7 others---Respondents

R.S.A. No.28 of 2001 and C.M. No.1/C of 2002, heard on 21st November, 2003.

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

----Ss.12 & 42---Civil Procedure Code (V of 1908), O. XLI, R.2 7--Qanun-e-Shahadat (10 of 1984), Art.79---Suit for specific performance of contract and declaration---Documents--- Execution--- Additional evidence---Rapat Roznamcha Waqiati, acknowledgment of payment of consideration and affidavit were produced in evidence to prove agreement to sell and sale---Witnesses were not produced as required by Qanun-e-Shahadat---Scribes of the documents had admitted that sale consideration was not paid in their presence---Affidavit was attested by a Notary Public and not by Oath Commissioner--- Thumb-impression/ signatures of the executant were not proved by comparison and expert opinion---Plaintiff having failed to prove his case, appeal was dismissed in circumstances.

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

----O. XLI, R. 27---Additional evidence---Application for additional evidence was conceded, payment was acknowledged contrary to the pleaded case and prayer was made for the acceptance of appeal---Court described it as an afterthought and result of collusion and dismissed the application in circumstances.

M. Sharif Chohan for Appellant.

Mst. Shaista Kaiser and Javed-ur-Rehman Rana for Respondents Nos. 1 to 4.

Taki Ahmad Khan and Mr. Noorul-Hassan for Respondents Nos.5 to 8.

Dates of hearing: 20th and 21st November, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2268 #

2006 Y L R 2268

[Lahore]

Before Mian Hamid Farooq, J

KHURSHID AHMAD and 8 others---Petitioners

Versus

ABDUL RASHID NIZAMI and another---Respondents

Writ Petition No.3163 of 2003, decided on 23rd September, 2003.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Specific Relief Act (I of 1877), S.12---Civil Procedure Code (V of 1908), O.IX, R.6---Constitution of Pakistan (1973), Art.199---Constitutional petition--Agreement to sell---Eviction order---Ex parte proceedings---Jurisdiction---Respondent assailed the eviction order before the appellate authority---Appellate authority allowed the appeal and deferred the final decision of the ejectment petition till the final decision of the civil litigation---Validity---Suit for specific performance of the contract was dismissed, respondent had filed an appeal, wherein no injunctive order was granted---Mere agreement to sell created no right, title or interest, same, therefore, could not be pleaded as defence in the ejectment petition---Eviction order was fully justified---Appellate authority had assumed the jurisdiction thereby completely misreading the law---Judgment of appellate authority was set aside in circumstances.

Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101; Mst. Bor Bibi and others v. Abdul Qadir and others 1996 SCMR 877; Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 and Mst. Azeem un Nisa Begum v. Ali Muhammad PLD 1990 SC 382 quoted.

Shabbir Ahmad v. Mst. Kabir un Nisa and others PLD 1975 SC 58 ref.

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

----O. IX, R.6---Constitution of Pakistan (1973), Art.199---Constitutional petition--Ex parte proceedings---Respondent was served---He was present on preceding date---On date of hearing no one appeared from the respondents' side---Respondent was rightly proceeded ex parte in circumstances.

----S.12---Constitution of Pakistan (1973), Art.199---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Constitutional petition---Agreement to sell---Eviction---Suit for specific performance of contract---Mere agreement to sell does not create any right, title or interest---Agreement to sell cannot be pleaded as defence in the ejectment petition.

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

----Art. 201---Law declared by superior Courts, subordinate Courts are bound to follow.

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

----Art. 199-Jurisdiction---Appellate authority completely misread the law declared by superior Courts---Such misreading furnished ground for interference in exercise of Constitutional jurisdiction.

Shabbir Ahmad v. Mst. Kabir un Nisa and others PLD 1975 SC 58 ref.

Mian Sohail Ahmed for Petitioners.

Nemo for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 2271 #

2006 Y L R 2271

[Lahore]

Before Muhammad Muzammal Khan, J

ADAM SUGAR MILLS LTD. through Director---Petitioner

Versus

SECRETARY FOOD, GOVERNMENT OF PUNJAB and 2 others ---Respondents

Writ Petition No.12270 of 2003, heard on 14th January, 2004.

(a) Sugar Factories Control Act (XII of 1950)---

----S. 6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cane Commissioner---Road cess---Government cess on purchase of sugarcane was partly paid---Cane Commissioner issued repeated directions but outstanding amount was not paid---Cane Commissioner summoned the petitioner and after hearing him imposed penalty---Petitioner's appeal before the Authority was dismissed---Petitioner had paid the outstanding amount and only the penalty amount imposed by the Cane Commissioner remained unpaid---Appellate Authority had decided the appeal through a mechanical and non-speaking order which lacked reasons and did not demonstrate application of conscious judicial mind---Constitutional petition was accepted and the case was remanded to the Appellate Authority for fresh decision according to law.

Ghulam Mohy-ud-Din v. Chief Settlement Commissioner, Lahore and others PLD 1964 SC 829 and Messrs Airport Support Services v. The Airport Manager, Karachi 1998 SCMR 2268 ref.

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

----S. 24-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Public functionaries-Quasi-judicial functions---Public functionaries while performing quasi-judicial functions, should decide the matter without any fear, favour and nepotism through speaking orders.

Ghulam Mohy-ud-Din v. Chief Settlement Commissioner, Lahore and others PLD 1964 SC 829 quoted.

Messrs Airport Support Services v. The Airport Manger, Karachi 1998 SCMR 2268 ref.

M. A. Zafar for Petitioner.

Ch. Muhammad Suleman, Addl. A.-G. for Respondents.

Date of hearing: 14th January, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2274 #

2006 Y L R 2274

[Lahore]

Before M. Akhtar Shabbir, J

Dr. IMTIAZ AHMED AULAKH and another---Appellants

Versus

Mian MUHAMMAD ARSHAD---Respondent

F.A.O, No.169 of 2003, heard on 11th December, 2003.

Cantonment Rent Restriction Act (XI of 1963)---

----S.17(8) (9)---Default in payment of rent--Striking off defence---Rent Controller had passed the order for depositing arrears of past rent and future rent---Tenant did not comply with the said order---Application for striking off defence of the tenant was filed--Tenant failed to give any reasonable explanation for non-compliance of the order and absented himself on the date of hearing---Rent Controller struck off his defence and passed the eviction order---No illegality or jurisdictional defect was pointed out---Appeal being devoid of force was dismissed in circumstances.

Maqsood Ahmad v. Additional District Judge and others 1994 CLC 331 quoted.

Muhammad Nazir v. Saeed Subhani 2002 SCMR 1540 ref.

M. Naeem Sadiq for Appellants.

Waqar Arif Khan for Respondent.

Date of hearing: 11th December, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2275 #

2006 Y L R 2275

[Lahore]

Before Nasim Sikandar, J

Mst. MEHRAN BIBI and 5 others---Petitioners

Versus

Mst. SHAKEELA FATIMA alias RANI and 6 others---Respondents

Civil Revision No.1862 of 2000, decided on 7th July, 2003.

Arbitration Act (X of 1940)---

----Ss. 14(2) & 39---Civil Procedure Code (V of 1908), O.XLI, R.23---Legal heirs had agreed and appointed arbitrators to effect partition of their ancestral property who had given their award---Trial Court had passed judgment and decree by making such award rule of the Court---Appellate Court, remanded the case with the direction that the arbitrators should determine the legal share of each heir---Validity---Remand of a matter to the Trial Court without any substantial reason frustrates the whole process which generally spreads over years---In absence of any grievance on the part of the second party to the agreement to arbitrate as well as against the award, setting aside the judgment and decree and its remand to the Trial Court was unjustified---Appellate Court by passing such order had exceeded its jurisdiction---Order of the Appellate Court was set aside and judgment and decree of the Trial Court was restored.

Mian Javed Iqbal Arain for Petitioners.

Muhammad Rafique Warraich for Respondent No.1.

Rana Safdar Ali for Respondent No.2.

Date of hearing: 23rd May, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2277 #

2006 Y L R 2277

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

PARKS AND HORTICULTURE AUTHORITY through Director-General---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 2 others---Respondents

Writ Petition No.16231 of 2003, heard on 12th December, 2003.

Specific Relief Act (I of 1877)---

----S. 55---Civil Procedure Code (V of 1908), S.151 & O.XXXIX, Rr.1 & 2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for permanent and mandatory injunction with a prayer for direction to the Authority to allot the disputed site to the plaintiff for fixation of hoarding---Trial Court, on application under 5.151, C.P.C. permitted the plaintiff to install the hoarding---Revision against the order failed---Validity---Application under S.151, C. P. C. could not be allowed without recording evidence of the parties---Trial Court allowed the plaintiff to fix neon sign which meant that his suit was decreed---Such order was not sustainable in the eyes of law---Revisional Court had decided the matter without perusal of record and acted in haste---Constitutional petition was allowed, orders of both the Courts below were set aside in circumstances.

Syed Mumtaz Hussain Bukhari for Petitioner.

Syed Kazim Bukhari with Ch. Zahoor Naqvi for Respondents.

Saeed Warriach for Respondent No.3.

Date of hearing: 12th December, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2280 #

2006 Y L R 2280

[Lahore]

Before Muhammad Muzammal Khan, J

YASRAB TRADERS---Petitioner

Versus

MARKET COMMITTEE---Respondent

C.M. No.433-C of 2003 in Civil Revision No.3061 of 1996, decided on 11th November, 2003.

Civil Procedure Code (V of 1908)---

----O. IX, R.13, O. XLI, Rr.21, 22 & 5.115---Ex parse decree---Re-calling of such order---Re-hearing of the case---Sufficient cause---Civil revision after proceeding ex parte, was accepted on merits---Application for re-calling of ex parte proceedings was found not maintainable---Reasons mentioned in the application for recalling the order were not found sufficient---Defendant had no chance of success on merits of the case as well---Petition was dismissed accordingly.

Taqi Ahmad Khan for Petitioner.

Zahid Farani Sheikh for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 2282 #

2006 Y L R 2282

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, GUJRANWALA through Chairman and 2 others---Petitioners

Versus

ZEESHAN AHMAD---Respondent

Civil Revision No.1018-D of 1997, heard on 10th December, 2003.

Punjab Board of Intermediate and Secondary Education Act (XIV of 1976)---

----Ss. 10 (vii) & 29---Calendar of the Board of Intermediate and Secondary Education, Rule 11---Re-checking and revaluation of answer books---Plaintiff filed suit for declaration to the effect that result regarding his Islamiat Papers (A & B) in Intermediate Examination declared by the defendant was illegal, void and based on mala fides and that checking was not made in accordance with law---Plaintiff had not prayed for re-evaluation of his answer hooks---No illegality in re-checking was pointed out---Both the Courts below had re-evaluated the answer books of the plaintiff and their judgments were based on misreading and non-reading of evidence, which had resulted in miscarriage of justice, and as such were set aside and suit brought by the plaintiff was dismissed.

Munazza Khalil v. Chairman, Board of Intermediate and Secondary Education, Faisalabad and another 1994 CLC 947; Board of Intermediate and Secondary Education, Lahore v. Saima Azad 1996 SCMR 676 and Tahir Saeed Qureshi v. The Board of Intermediate and Secondary Education, Sargodha and 3 others 1996 SCMR 1872 ref.

Sh. Shahid Waheed for Petitioners.

Respondent proceeded ex parte.

Date of hearing: 10th December, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2284 #

2006 Y L R 2284

[Lahore]

Before Muhammad Muzammal Khan, J

KHURSHEED AHMAD---Petitioner

Versus

MUMTAZ HUSSAIN SHAH and 4 others---Respondents

Civil Revision No.2334 of 2000, decided on 30th December, 2003.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration---Rejection of plaint---Suit barred by time Limitation---Suit to challenge a registered sale-deed after a period of 20 years on the face of the record was barred by limitation---Both the Courts had rightly concluded that plaint did not disclose any cause of action and was rightly rejected by the Trial Court---Courts had correctly decided the lis against the plaintiff in accordance with law---No illegality or irregularity having been shown revision petition was dismissed, in circumstances.

Rai Zahid Hayat Khan for Petitioner.

Muhammad Yusaf Khan for Respondent Nos. 1 and 2.

Date of hearing: 23rd December, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2287 #

2006 Y L R 2287

[Lahore]

Before Mian Saqib Nisar, J

Haji MUHAMMD ASHIQ and another---Appellants

Versus

Raja WARAS KHAN---Respondent

Civil Revisions Nos.1073-D and 1928-D, 2184 and 1929 of 1995, heard on 11th April, 2003.

Punjab Pre-emption Act (IX of 1991)---

----S. 6(2)---'Zaroorat' or to avoid `Zarar'---Sale-deed was registered on 6-7-1986---Suit for pre-emption was filed on 6-7-1987---Suit was dismissed by Trial Court on 10-2-1993---Appellate Court had decreed the suit on 17-5-1995---Contention was that plaintiff having not averred the "Zaroorat and avoidance of Zarar" in his plaint, same was liable to be rejected---Validity---Pleading and proof of "Zaroorat" and "Zarar" being a proposition of law, could be agitated even before the High Court, for the first time.

Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 ref.

Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200 rel.

Mian Sher Alatn, Ch. Arshd Mahmood and Sheikh Muhammad Sadiq for Appellants.

A.K. Dogar and Muhammad Kazim Khan for Respondent (in C.R. No.1073 of 1995).

Date of hearing: 11th April, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2289 #

2006 Y L R 2289

[Lahore]

Before Muhammad Muzammal Khan, J

GHULAM RASOOL and another---Petitioners

Versus

MUHAMMAD KHALID and 2 others---Respondents

Civil Revision No.2074 of 2003, decided on 23rd December, 2003.

Partition Act (IV of 1893)---

----Ss. 8 & 13---Suit for partial partition of land---Plaintiffs filed suit for partition of land shown to be joint---Defendants alleged that the joint Khata was partitioned and the suit property had fallen to the share of the defendants and was in their possession for the last fifty years---Suit was decreed by the Trial Court and appeal against the judgment and decree of the Trial Court had failed---Suit property was described by a specific Khasra Number---Khewat had six Khasra numbers and area of said Khata was much more than the suit property---Party opting to come for partition was not permitted to pick and choose and to have share in valuable parts of the joint holdings by leaving out its parties with lesser value---Courts below had not adverted to said aspect of the rase, out of non-consideration of documentary evidence on the file---Judgments of Courts below were tainted with non-reading of evidence, material irregularity and illegality, which were not sustainable in law---Suit was found to be for partial partition which was not maintainable---Judgments and decrees of both the Courts were set aside and suit of the plaintiffs was dismissed with costs throughout.

Chandi Shah v. Bahara Shaha and others AIR 1930 Lah.286(1) rel.

Jan Muhammad and another v. Abdur Rashid and 5 others 1993 SCMR 1463 quoted.

Ghazi Qaiser Pervaiz and another v. Ghazi Faisal Pervaiz and another 2000 CLC 519 ref.

Sh. Naveed Shahryar for Petitioners.

Qadeer Ahmed Warraich for Respondents.

Date of hearing: 11th December, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2292 #

2006 Y L R 2292

[Lahore]

Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ

Mst. WASEEM SUGHRA through Legal Heirs ---Appellant

Versus

MUHAMMAD AHMAD---Respondent

R.F.A. No.394 of 2000, heard on 8th October, 2003.

Specific Relief Act (I of 1877)---

----S. 12---Specific performance of contract---Stipulation in the agreement---Default---Plaintiff filed suit for specific performance of contract and alleged default by the defendants---Defendants pleaded that plaintiff had defaulted and claimed estoppel---Validity---Plaintiff had been trying to delay the matter on one pretext or the other and was not inclined to get the transaction accomplished on a plea of stipulation in the agreement which had no consequence on the valid transfer of title in favour of plaintiff and was such a condition without the fulfillment of which a valid title could be transferred to the plaintiff---Permanent Transfer Deed and the Registered sale-deed from the Collector in favour of defendant being the actual title deeds, mutation of name in the Revenue Record and demarcation report were not the documents in the absence of which a valid title could be passed---Plaintiff had raised extraneous demands, he was not entitled to the grant of the decree for specific performance and the suit was liable to be dismissed.

Ch. Khursheed Ahmad for Applicants.

Ahmad Waheed Khan for Respondent.

Date of hearing: 8th October, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2298 #

2006 Y L R 2298

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD AKRAM and 17 others---Petitioners

Versus

NATIONAL BANK OF PAKISTAN through Chief Manager/Zonal Manager, Lahore---Respondent

Civil Revision No.2227 of 2002, heard on 22nd October, 2003.

Civil Procedure Code (V of 1908)---

----O. VII, R.10---Limitation Act (IX of 1908), S.5---Return of memorandum of appeal---Limitation---Application for extension of time---Application under 8.5 of the Limitation Act, 1908 filed with the memorandum of appeal, was not supported by an affidavit and Additional District Judge proceeded to decide the question of limitation, without obtaining any kind of reply from the plaintiff and without giving them opportunity to produce document if any, in support of their stance---Validity---Order having been passed without comprehending all the facts and circumstances of the case same was illegal and suffered from material irregularity, amenable to revisional jurisdiction of High Court---Judgment and order passed by the Additional District Judge were set aside and the case was remitted for fresh decision on the application under S.5 of the Limitation Act, 1908 which would be deemed to be pending and shall be decided after getting a reply and providing an opportunity to produce evidence in form of documents, if any.

Ch. Muhammad Akbar Gill for Petitioners.

S.M. Maqsood for Respondent. Qamar uz Zaman for N.B.P.

Date of hearing: 22nd October, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2301 #

2006 Y L R 2301

[Lahore]

Before Syed Sakhi Hussain Bokhari and Mian Saqib Nisar, JJ

LAND ACQUISITION COLLECTOR and another---Appellants

Versus

Mst. SURRAYA MEHMOOD JAN---Respondent

R.F.As. Nos.393, 402 and 537 of 2000, decided on 22nd December, 2003.

Land Acquisition Act (I of 1894)---

----S.18---Reference---Award---Rate of compensation---Both the parties had filed references before the Trial Court against the award of Collector---Appeals had been filed before High Court by both the parties against award of referee Court---Validity---Trial Court had decided the references after considering the entire material available on the record and had taken into consideration the locale of the land also---No illegality or infirmity in the judgment was found---Compensation awarded by the referee Court was reasonable and not excessive as land in question was situated within the municipal limits---Appeals were dismissed in circumstances.

Ch. Ghulam Hassan Gulshan for Appellants.

Muhammad Qamar uz Taman for Respondent.

Date of hearing: 1st December, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2304 #

2006 Y L R 2304

[Lahore]

Before Syed Jamshed Ali, J

Syed GHULAM SHABBIR---Appellant

Versus

AHMAD---Respondent

R.S.A. No.59 of 1998, heard on 14th January, 2004.

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

----S.12---Civil Procedure Code (V of 1908), S.100---Specific performance of agreement---Judgment of variance---Judgment being one of variance, High Court in second appeal would examine the entire evidence produced by the parties.

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

----S. 12---Civil Procedure Code (V of 1908), O. VI, R.8 & O. VIII, R. 4---Specific performance of agreement to sell---Execution--- Pleadings--- Proof---Circumstances in their totality to be examined---Execution denied by the defendant---Scribe of the document and marginal witnesses had died---Brother of the scribe testified about the writing and signature of the scribe---Statement of the plaintiff about the execution of the agreement and his possession of the suit property was relied upon by the first appellate Court---Execution of agreement though denied in the written statement but simultaneously the pleas of estoppel, waiver, and default by the plaintiff were also raised---Defendant further asserted that neither the plaintiff was paying the share of produce nor was paying the balance sale consideration---Written statement was not signed and verified by the defendant himself---Defendant did not appear in Court to testify son of the defendant testified as his attorney---Defendant had not taken any step either for ejectment or for recovery of produce from the plaintiff-Statement at trial was inconsistent with the stance taken in the written statement---Circumstances in their totality proved the case of the plaintiff---Appraisal of evidence made by the first appellate Court was not disturbed and appeal was dismissed in circumstances.

Province of the Punjab through Secretary, Irrigation and Power Department P.W.D. Secretariat Old Anarkali, Lahore and 3 others v. Ch. Mehraj Din and Co. through Proprietor 2003 CLC 504; Faqir Muhammad and 8 others v. Abdul Momin and 2 others PLD 2003 SC 594; Saleem Akhtar v. Nisar Ahmad PLD 2000 Lah 385; Mirza Arif Baig v. Mubarik Ali PLD 1992 Lah 366; Hazratullah v. District Council, Haripur 1997 SCMR 1570; Ghulam Qadir v. Khandu 1996 SCMR 1375 and Mohar Khan and 7 others v. Sultan Khan and 5 others 1988 CLC 20 distinguished.

----S. 12---Limitation Act (IX of 1908), Art.113---Specific performance of agreement to sell---Limitation---Cause of action---No date for completion of the agreement was mentioned in the agreement---Plaintiff had paid almost the entire sale consideration and was in possession of the suit property---Necessity to file the suit for specific performance arose when the defendant filed ejectment case against the plaintiff---Agreement was dated 13-1-1979 and suit for ejectment was filed on 14-11-1990, suit for specific performance of agreement filed on 10-12-1990 was held as within time.

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

----Art.84---Visual comparison of signatures---Defendant had denied his signatures on the written statement---Signatures of defendant on the 'Vakalatnama' were visually compared with the signature on the agreement to sell---Court found similar characteristics of the signatures and ordered accordingly.

(e) Precedents---

----Role of---Every judgment must be read as applicable to the particular facts proved, or assumed to be proved.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 quoted.

Ghulam Farid Sanotra and Malik Ghulam Siddique Awan for Appellant.

Malik Muhammad Akram Khan Awan for Respondent.

Date of hearing: 14th January, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2311 #

2006 Y L R 2311

[Lahore]

Before Sheikh Azmat Saeed, J

Haji KHALID MAHMOOD and 27 others---Petitioners

Versus

ABDUL HAMID and 10 others---Respondents

Civil Revision No.1343-D of 1980 and C.Ms. Nos.151-C and 153-C of 2006, decided on 28th April, 2006.

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

----S.52---Civil Procedure Code (V of 1908), S.12 (2)---Lis pendens, principle of---Applicability---Decree, setting aside of-Fraud and misrepresentation---Proof---Applicants were purchasers of suit property during pendency of matter before Court---Matter was decided against sellers upto Supreme Court, from whom the applicants purchased the suit property---Applicants filed application under 5.12 (2) C.P.C. before High Court for setting aside decree alleging fraud and misrepresentation---Validity---All judgments and decrees were on merits and after contest by both the parties---Applicants, who acquired interest in the suit property pendente lite were bound by the judgments and decrees of the Courts below and order of High Court in revision petition as well as the judgment of Supreme Court in view of the principle of lis pendens---In exceptional cases there could be a possibility of fraud and collusion to the prejudice of a third party who was not impleaded in proceedings and acquired interest pendente lire---Applicants failed to point out any act or omission on the record even vaguely suggesting any fraud and collusion---Mere bald assertion in such behalf, in absence of material particulars unsupported by any material on record was not sufficient---High Court declined to set aside the judgments and decrees passed against sellers from whom applicants had purchased the property during pendency of litigation---Application under 5.12(2) C. P. C. was dismissed in circumstances.

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

----S.12 (2)---Limitation Act (IX of 1908), Ss. 5, 12 & Art.181---Application under 5.12 (2) C.P.C.---Limitation---Condonation of delay---Wrong forum---Ignorance of law---Applicants purchased suit property' during pendency of litigation before Courts and in year, 2000 they had the knowledge of judgment and decree sought to be set aside---Application for setting aside the judgment and decree was filed in year, 2006---Applicants sought condonation of delay on the ground that they had been pursuing the matter diligently before another forum which was not competent to hear and adjudicate the matter---Plea raised by respondents was that the application under S.12 (2) C.P.C. was barred by limitation---Validity---Period of limitation for application under S.12 (2) C.P.C. commenced from the date of knowledge of judgments and orders sought to be challenged---Applicants were not entitled to benefit of S.12 of Limitation Act, 1908, as ignorance of law was no ground for condonation of delay---High Court declined to condone the delay in filing of application under S.12 (2) C.P.C.---Application was dismissed in circumstances.

Government of Sindh through The Chief Secretary and others v. Khalil Ahmad and others 1994 SCMR 782; Karachi Electric Supply Corporation Limited v. Lawari and 4 others PLD 2000 SC 94; Abid Kamal v. Muddassar Mustafa and others 2000 SCMR 900; Iqbal v. Mst. Jainan Bibi 1991 CLC 553; Government of Sindh and another v. Ch. Fazal Muhammad and others PLD 1991 SC 197; Basit Sibtain through Legal Heirs v. Muhammad Sharif through Legal Heirs 2004 SCMR 578; Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050 and Zahid Ahmad v. Deputy Director Adjudication and 2 others PLD 2006 Karachi 252 distinguished.

Abdul Waheed Butt for Applicant.

Mian Muzaffar Hussain for Respondent No. 1.

Muhammad Ilyas Mughal for Respondents Nos.2 to 11.

YLR 2006 LAHORE HIGH COURT LAHORE 2315 #

2006 Y L R 2315

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

THE STATE---Appellant

Versus

ALLAH DITTA and 8 others---Respondents

Criminal Appeal No.566 of 2003, decided on 27th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 417---Penal Code (XLV of 1860), Ss.392, 324, 353, 212, 337-L(2), 186, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Appeal against acquittal---Accused were not nominated in F.I.R. and one of the accused persons was not proclaimed offender and perpetual warrant of arrest had not been issued against him in the case---A. S.1. /prosecution witness, could not tell in cross-examination even the names of other nominated accused, therefore, it could be said that the prosecution witness was least concerned with the arrest of said accused/alleged proclaimed offender as he was neither named in the F.I.R. nor was wanted by the police as a proclaimed offender---Medico legal Reports showed that two accused had also sustained injuries on their persons and were got examined by the police, but those injuries had been suppressed by the prosecution---Doctor had opined that injuries found on the persons of prosecution witnesses could be caused by friendly hand---No occasion for interference with impugned judgment of acquittal reasonably passed by Trial Court was thus found.

Tahir Mehmood Gondal, A.A.-G. for Appellant.

Syed Karamat Ali Naqvi for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 2317 #

2006 Y L R 2317

[Lahore]

Before Sh. Abdul Rashid, J

KHURSHID BIBI and 18 others---Appellants

Versus

Rana MUHAMMD YAQOOB and 3 others---Respondents

F.A.O. No.214 of 2005, decided on 29th May, 2006.

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

----S.107(2), O. VII, R. 11 & O. XXXIX, Rr. 1,2---Appeal against interim order granting temporary injunction---Rejection of plaint by Appellate Court was valid.

Messrs Paper Corner v. Board of Intermediate and Secondary Education 1981 CLC 740; Messrs Abdul Hamid v. Board of Intermediate and Secondary Education 1991 MLD 672; Muhammad Yousaf v. Additional District Judge, Attock 1992 MLD 856; Niamat Ali v. Mst. Sardaran Bibi 2003 YLR 51 and Abdul Ghaffar Mahenti v. Kathiawar Co-operative Housing Society Limited 2003 YLR 2635 rel.

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

----Ss. 12 & 21(c)---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for specific performance of agreement to sell---Agreement showing sale of land owned by vendors in two named villages measuring 20/25 squares without giving particulars thereof---Non-commensuration of rate of per acre of land with land falling into plaintiff's 1/6th share as alleged in plaint---Effect---Agreement suffered from inexactitude about its subject-matter---Plaint was rejected in circumstances.

Fida Hussain v. Jalal Khan 2002 CLC 1339 and Mst. Hameeda Shamim v. Deputy Commissioner, Karachi South 2003 CLC 53 rel.

Muhammad Ghani for Appellants.

Abdus Saboor Khan for Respondents.

Date of hearing: 29th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2322 #

2006 Y L R 2322

[Lahore]

Before M. Bilal Khan, J

ABDUL RAZZAQ alias ZAKIR and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8106-B of 2005, decided on 20th December, 2005.

Criminal Procedure Code (V of 1898)---

----S.498---Bail before arrest, refusal of---Penal Code (XLV of 1860), Ss. 337-A (1), 337-F(i), (iii), 337-L(2), 382 & 34---Prearrest bail, refusal of---Accused had been attributed a direct role by complainant in F.I.R.-Complainant as well as witnesses resolutely stuck to their statements which they had made under Ss.154 & 161, Cr. P. C. ---Deputy Superintendent of Police had found both accused persons to be guilty---Injuries attributed to accused, though did not attract prohibitory clause of S.497(1), Cr. P. C. but that circumstance alone would not ipso facto entitle accused to the grant of extraordinary concession of pre-arrest bail---No malice or ill-will had been pointed out on the part of complainant or police to have falsely implicate accused---No special feature of the case had been noted which could entitle accused to the relief sought for---Order whereby accused had been allowed ad interim pre-arrest bail, was recalled.

Ch. Muhammad Saleem for Petitioners.

Imran Aziz Qureshi for Complainant.

Tanvir Ahmed Shami with Amanullah, D.S.P., Saddar Circle, Okara for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2323 #

2006 Y L R 2323

[Lahore]

Before Syed Hamid Ali Shah, J

UMAR DIN---Petitioner

Versus

ANJUMAN MASJID HANFIA GHOUSIA, OKARA through President

and another---Respondents

Civil Revision No.2905 of 2000, decided on 31st March, 2006.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 2(i)---Transfer of Property Act (IV of 1882), S.105---Relationship of landlord and tenant, duration of---Once a tenant, always a tenant.

Muhammad Qasim and 6 others v. Muhammad Hussain and 8 others PLD 2001 Lah 9; Hashim Khan v. National Bank of Pakistan, Head Office at I.I. Chundrigar Road, Karachi and Branch Office at M.A. Jinnah Road, Quetta PLD 2001 SC 325; Anwar Ahmad v. Mst. Nafees Bano through legal heirs 2005 SCMR 152; Allah Dad and 3 others v. Dhuman Khan and 10 others 2005 SCMR 564 and Abdur Rashid and 3 others v. Sajjad Amjad alias Sajjad Ahmad and another 2004 MLD 1879 ref.

(b) Punjab Local Government Ordinance (VI of 1979)---

----Preamble---Quarters constructed by Management of Mosque on land shown in Revenue Record as Municipal Committee could not alienate such land.

Rao Jalal-ud-Din for Petitioner.

Mian Muhammad Hanif for Respondent.

Nemo for Respondent No.2.

Date of hearing: 28th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2327 #

2006 Y L R 2327

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

GHULAM AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2178 of 2002, decided on 28th November, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Ocular account furnished by eye-witnesses was fully corroborated by medical evidence inasmuch as time, the duration given by the doctor who conducted post-mortem examination on the dead bodies of two deceased, between the time of death and post-mortem, coincided with each other---Injuries were found on different parts of bodies of both the deceased---Some fault on the part of complainant for mentioning injury on the temporal region of deceased alone was not fatal to the case of prosecution when accused had himself admitted to have committed murder in exercise of right of self-defence---Case being one of single accused, there was no possibility of substitution---Accused, who had admitted to have killed two persons, did not act in exercise of his self-defence---Prosecution had proved its case against accused beyond any shadow of doubt through ocular account duly corroborated by medical evidence, motive and admission of accused to have killed two persons though in exercise of right of self-defence---Accused had served out his full terms of sentence recorded earlier against him and he was released, but he was taken into custody when case was remanded by High Court and since then accused was in jail---Taking said factors as mitigating circumstances, conviction of accused was maintained under S.302(b), P.P. C., but his sentence of death was altered to imprisonment for life with benefit of S.382-B, Cr. P. C. accordingly.

2003 PCr.LJ 121 and Abdul Haq v. Muhammad Amin and others 2004 SCMR 810 ref.

Mrs. Iram Sajjad Gul for Appellant.

Bashir Ahmad Gill and Ch. Muhammad Ahad Batalvi for the State.

Date of hearing: 28th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2332 #

2006 Y L R 2332

[Lahore]

Before Abdul Shakoor Paracha, J

CHOHAN BROTHERS through Sole Proprietor---Petitioner

Versus

NATIONAL TELECOMMUNICATIONS CORPORATION through Chairman and 2 others---Respondents

Writ Petitions Nos.3182 and 3109 of 2005, heard on 21st April, 2006.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Contract, award of---Judicial review---Grievance of petitioner was that contract awarded by authorities was tainted with mala fide and was not transparent---Validity---Work carrying element of public interest concluded by functionaries of the State had to be just, fair, transparent, reasonable and free from any taint of mala fide---Public functionaries deriving authority from or under law, were obligated to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law as applicable in given situation---Deviation, if of substance could be corrected through appropriate orders, under Art.199 of the Constitution---Authorities failed to show as to why bid offered by petitioner was not accepted in earlier tender---Authorities also could not explain as to why petitioner's hid along with the bids of all other parties were rejected earlier and all of them were informed that tenders would he caked again---Authorities also failed to explain as to why without calling tenders in newspapers again, the respondents was awarded contract---Action of authorities awarding contract to respondents and first work order was declared to be without lawful authority and of no legal effect---High Court directed the authorities to award the contract through transparent means by inviting tenders in newspapers---Petition was allowed accordingly.

Ramna Pipe and General Mills v. Messrs SNGPL 2004 SCMR 1274 and Brig. Muhammad Bashir v. Abdul Kareem PLD 2004 SC 271 rel.

Malik Shehzah A. Khan (in W.P. No.3182 of 2005) for Petitioner.

M. Bilal Khan and Baber (in W.P. No.3109 of 2005) for Petitioner.

Tariq Mahmood Mirza for Respondent No.3.

Syed Ishtiaq Haider for Respondents Nos.1 and 3.

Date of hearing: 21st April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2337 #

2006 Y L R 2337

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

Mst. ZEBA and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.503/J of 2003, decided on 3rd March, 2006.

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

----Ss. 302(b), 201 & 34---Appreciation of evidence---Acquittal---Complainant and other prosecution witness had made material improvements in their previous statements---Prosecution case was that accused killed deceased with a `Toka'---Statement of Doctor showed that injuries on the person of deceased were with sharp-edged weapon and it had been shown that injuries were caused with one weapon---Prosecution case to the extent of co-accused, was not free from doubt---Even otherwise main accused being mother of co-accused, she had to explain as to why dead body was recovered from her courtyard---Prosecution, in circumstances, had failed to prove its case against co-accused beyond any shadow of doubt---Appeal to the extent of co-accused was accepted and she was acquitted of the charge preferred against her by the prosecution and was released.

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

----Ss. 302, 201 & 34---Appreciation of evidence---Conviction---Motive of occurrence stood proved beyond any shadow of doubt---Dead body of deceased, who was husband of the accused, was recovered from her courtyard on her pointation---Statements of prosecution witnesses, were convincing and confidence-inspiring and nothing was on record to disbelieve the same---Witnesses had no enmity with accused---Accused had failed to explain as to why they had deposed against her---Medical evidence too supported prosecution version---Police took into possession 'Toka' from her house---Defence plea did not sound to be natural and plausible---Accused could not prove her allegation that she had been involved in the case due to enmity and ulterior motive---Prosecution having proved its case against the accused beyond any shadow of doubt, Trial Court had rightly convicted and sentenced the accused---Appeal to the extent of accused, was dismissed.

Nadeem Siddique for Appellants.

Ch. Muhammad Suleman, A.A.-G. for Respondent.

Date of hearing: 3rd March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2341 #

2006 Y L R 2341

[Lahore]

Before Jawwad S. Khawaja, J

NAVEED AHMAD---Petitioner

Versus

IQBAL BEGUM and others---Respondents

Civil Revision No.298 of 2006, heard on 5th April, 2006.

(a) Co-sharer--------

----Joint property---Sale by co-sharer to the extent of his share, would be valid.

(b) Co-sharer--

----Private partition between co-sharers---Absence of formal partition deed---Question of possession would assume critical significance.

----Fact not mentioned in plaint could not be believed.

Muhammad Sohail Bhatti for Petitioner.

Mian Israr-ul-Haq for Respondents.

Date of hearing: 5th April, 2006.

2006 Y L R 2376

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

ASMAT ULLAH alias BILLA PATHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1874 of 2002, heard on 15th November, 2005.

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

----S. 9(a) (c)---Appreciation of evidence---Police Officer concerned, had acknowledged before the Trial Court that at the time of recovery from accused's possession, Charas was in the form of various pieces and sample of that Charas was taken only from one such piece---Nothing was available on record to establish as to what was the weight of the piece of Charas out of which said sample had been taken---Sample sent to Chemical Examiner for analysis, weighed only 10 grams---If recovered substance was in the shape of various pieces and if a sample was taken only from one such piece, then conviction of accused could be recorded only in respect of weight of only that piece---Weight of piece from which sample had been taken being not discernible, accused could be convicted and sentenced only for the quantity of narcotic substance which had been sent to Chemical Examiner for analysis---Allowing appeal partly, conviction of accused recorded by the Trial Court for offence under S.9(c) of Control of Narcotic Substances Act, 1997, was set aside by the High Court and same was converted into a conviction for an offence under S.9(a) of the Act and sentence of imprisonment passed against accused by the Trial Court, was reduced to that already undergone by him---Accused had already spent more than two yeas in jail and offence under S.9(a) of Control of Narcotic Substances Act, 1997 which carried a maximum sentence of two years' imprisonment---Accused having already served out more than two years' sentence of imprisonment, sentence of fine awarded to accused, was set aside to meet the ends of justice.

Muhammad Hashim v. State PLD 2004 SC 856; Arif Ullah v. State 2005 PCr.LJ 1173 and Jangrez Khan v. State 2005 PCr.LJ 1506 ref.

Arshad Nazir Mirza for Appellant.

Sohail Tariq for the State.

Date of hearing: 15th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2378 #

2006 Y L R 2378

[Lahore]

Before Asif Saeed Khan Khosa and Sardar Muhammad Aslam, JJ

MUHAMMAD ABBAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.36-J of 2003, heard on 28th March, 2006.

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

----S. 9(a) (c)---Appreciation of evidence---Alleged recovery of narcotic substance, though had been effected from possession of accused, but none of prosecution witnesses had uttered even a single word as to what had happened to recovered substance after its recovery and with whom same had been deposited for safe custody---Report of Chemical Examiner, however, had shown that docket of samples of recovered substance had been prepared and said samples had been dispatched by Excise and Taxation Officer and not by local police---Counsel for State had conceded that no evidence was available on record to show as to how samples of recovered substance had come in the hands of Excise and Taxation Officer and what was the evidence to confirm that same had been kept in safe custody while in possession of the Excise and Taxation Officer; it was, in circumstances unsafe to uphold and maintain conviction and sentence of accused recorded against him by Trial Court---Conviction and sentence recorded against accused by Trial Court, were set aside and he was acquitted of the charge by extending him benefit of doubt and he was released.

Chaudhry Tariq Javed for Appellant.

Chaudhry Imitaz Ahmad for the State.

Date of hearing: 28th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2380 #

2006 Y L R 2380

[Lahore]

Before Syed Shabbar Raza Rizvi, J

HUMAIRA FAIZ BIBI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1177/B of 2006, decided on 14th March, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.302, 201, 109 & 34---Interim pre-arrest bail, confirmation of--Investigating Officer had opined that accused, a woman, was innocent-Thereafter investigation was never transferred formally to any other officer---Deputy Superintendent of Police Investigation, while verifying investigation of Investigating Officer, gave his own opinion whereby he declared the accused guilty---Verification could be done only of record but in the name of verification opinion could not he substituted by the verifying officer for the opinion of Investigating Officer---Opinion of D.S.P. Investigation, in circumstances, had no legal backing and opinion of Investigating Officer would hold the ground---Such fact had made the case of further inquiry---Even otherwise, proviso to S.497, Cr. P. C. itself demanded leniency towards a woman---Interim bail already granted to accused, was confirmed, in circumstances.

Khizar Hayat v. I.-G., Punjab, PLD 2005 Lah 470 ref.

Haji Khalid Rehman for Petitioner.

Shoaib Zafar for the State.

Abdul Samad for the Complainant and Noor Ahmad, A..S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 2382 #

2006 Y L R 2382

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6944/B of 2005, decided on 18th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 353, 148 & 149---Bail, grant of---Further inquiry---Ten accused were named and some were shown to be unknown---Accused was not named in F.I.R., but was named on the very next day of occurrence by a police officer in his statement recorded under S.161, Cr.P.C.---No other witness had named the said accused and no recovery had been effected from him---Case of accused was of further inquiry falling under sub-clause (2) of S.497, Cr.P.C.-Accused was admitted to bail, in circumstances.

Muhammad Anwar Zahid for Petitioner.

Sohail Tariq for the State along with Razzaq, A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 2383 #

2006 Y L R 2383

[Lahore]

Before Nasim Sikandar, J

PUNJAB OUTDOOR ADVERTISING ASSOCIATION, through Secretary---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of

Defence, Islamabad and 3 others---Respondents

Writ Petition No.10187 of 2003, decided on 30th March, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Enhancement of advertisement tax rates---Petitioners had prayed that acts of authorities of revising/enhancing advertisement tax rates thrice in a period of less than one year, be declared as illegal, arbitrary and without jurisdiction---High Court refused to entertain petition for the reasons that no jurisdictional defect had been brought home, that competency of authorities to impose/charge the levy having not been disputed, no case for interference in constitutional jurisdiction was made out; that mere assertion that advertisement tax rates were raised thrice in a period of one year, was not a good ground for interference in constitutional jurisdiction; that no constitutional guarantee in that regard had been pointed out which could possibly be said to have been violated; that petitioner association or its members were not under any obligation to avail the facility of allowing outdoor advertisement by the Authorities, if they did not find it to be a profitable preposition as they could always refuse to avail the same and that assertion of enhancement of rates with retrospective effect starting from a date earlier than the date of notification, was not established on record---No case for interference, having been made out, petition was dismissed.

Pervaiz Inayat Malik for Petitioner.

Muhammad Rasheed Ahmad for Respondents Nos.2 to 4.

YLR 2006 LAHORE HIGH COURT LAHORE 2384 #

2006 Y L R 2384

[Lahore]

Before Tariq Shamim, J

MUHAMMAD ASLAM SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.963/B of 2006, decided on 26th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(3), 11, 13 & 14---Bail, grant of---F.I.R. had been lodged after a lapse of six months---Complainant had voluntarily gone with accused---No allegation of having committed Zina with complainant had been levelled against accused in F.I.R.---Accused was behind the bars for the last about four years and trial had not concluded---Main accused had already been granted bail---Accused was also entitled to concession of bail in view of law of consistency---Accused was allowed bail.

Altaf Ibrahim Qureshi for Petitioner.

Sabir Qureshi for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2385 #

2006 Y L R 2385

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUMTAZ HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2005 in Criminal Appeal No.1740 of 2005, decided on 9th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302(6)/34-Suspension of sentence---Application for---Accused had not caused any injury to deceased or to any of prosecution witnesses and only ineffective firing was attributed to him---Whether applicant had shared common intention with his co-accused was the question of further inquiry as during investigation it was found that applicant was empty-handed---Application was accepted and his sentence was suspended accordingly.

Dost Muhammad Kahoot for Petitioner.

Sardar Bilal Ahmad for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2386 #

2006 Y L R 2386

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD NAWAZ and others---Petitioners

Versus

MUHAMMAD NAWAZ and others---Respondents

Civil Revision No.959 of 2002, heard on 16th March, 2006.

Specific Relief Act (I of 1877)---

----S.8---Suit for possession---Title of suit property was in dispute in previous litigation and that dispute had been settled on basis of statements made by two referees appointed by the parties, who had declared petitioners to be the owners of suit property---Title of petitioners in suit property having been established through previous litigation, petitioners were justified in filing suit for possession of suit property under S.8 of Specific Relief Act, 1877 on the basis of their title---Courts below having fallen in error while non-suiting petitioners, impugned decrees which were not maintainable, were set aside---Decree as prayed for by petitioners in their plaint, was passed in their favour and against respondents.

Akhtar Masood Khan for Petitioners.

Malik Akbar Yar Khan for Respondents.

Date of hearing: 16th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2388 #

2006 Y L R 2388

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD WASEEM alias BUBBLE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.394-B of 2006, decided on 21st March, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 103---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Bail, grant of---Complainant had violated provisions of S.103, Cr. P. C. with impunity---Prima facie, offence with which accused had been involved, did not attract provisions of prohibitory clause of S.497, Cr.P.C.---Report of Chemical Examiner was yet to be received---Guilt or innocence of accused would be determined by the Trial Court after recording of evidence---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Rana Muhammad Shakil for the State with Muhammad Aslam A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 2389 #

2006 Y L R 2389

[Lahore]

Before M. A. Shahid Siddiqui, J

MUHAMMAD YAQOOB---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3227/B of 2004, decided on 22nd December, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 452 & 34---Bail, grant of---Accused happened to be a relative of principal accused but had not caused any injury to deceased and only allegation against him was that he had raised a lalkara---Possibility of his false involvement in the case could not be ruled out---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Ch. Muhammad Aslam for Complainant.

Ms. Tahira Sadiq for the State.

Ghulam Hussain Deputy Superintendent of Police legal.

Sarfraz Gillani, S. H.O. /Inspector.

YLR 2006 LAHORE HIGH COURT LAHORE 2390 #

2006 Y L R 2390

[Lahore]

Before Mian Saqib Nisar, J

GHULAM AKBAR and another---Petitioners

Versus

BASHIR AHMAD---Respondent

Civil Revision No.1338 of 2003, heard on 1st March, 2005.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Suit was dismissed by Trial Court, holding that plaintiff had failed to prove Talbs as required by law---Trial Court also found that plaintiff had also failed to produce any independent evidence about making of Talb-i-Muwathibat and that even the informer had not been examined by him---Appeal filed by plaintiff against judgment of Trial Court was accepted by Appellate Court holding that sanction of mutation was the manifestation of sale, which earlier took place, when sale mutation was entered and was prior to making of Talb-i-Muwathibat---Appellate Court had found that first Talb/Talb-i-Muwathibat was properly and legally made---Validity---Sale having taken place at the time of entry of mutation, irrespective of the fact that it was sanctioned on a later date, plaintiff could validly make Talb before date of sanction of mutation---Plaintiff had not been able to prove his case through independent evidence---Best evidence available to plaintiff was informer, but he did not examine him and no explanation was given for such an omission---Statement of plaintiff alone, could never be considered as sufficient and independent proof to discharge onus upon issue of Talbs---Trial Court, in circumstances was right in holding that plaintiff had not proved Talb-i-Muwathibat and view taken by Appellate Court that defendant should have examined informer if he was not examined by plaintiff, was erroneous as it was duty of plaintiff to discharge onus of Talbs and any lapse or weakness of-plaintiff, could not strengthen his case upon an essential fact, which he had failed to initially prove---Impugned judgment and decree of Appellate Court was set aside and that of Trial Court was upheld with the result that suit of plaintiff stood dismissed.

Shahadat Khan v. Zulfiqar and others 2004 YLR 2461 ref.

Syed Shabahat Hussain Tirmazi for Petitioners.

Sh. Naveed Shahryar for Respondent.

Date of hearing: 1st March, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2392 #

2006 Y L R 2392

[Lahore]

Before M. Bilal Khan, J

BASHIR MASIH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1342/B of 2006, decided on 27th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.380 & 457---Bail, grant of---Petitioner was named in the F.I.R.---Co-accused was declared innocent---Investigation was conducted partially which did not show that petitioner was interested in stolen files which were reconstructed---Keeping petitioner behind the bars would not serve any useful purpose---Case of petitioner called for further inquiry---Bail was allowed.

A.D. Naseem for Petitioner.

Abdul Majeed Chishti for the State.

Muhammad Ahmad A.S.-I., P.S. Saddar Pakpattan Sharif with police file.

YLR 2006 LAHORE HIGH COURT LAHORE 2393 #

2006 Y L R 2393

[Lahore]

Before M. A. Shahid Siddiqui and Muhammad Sayeed Akhtar, JJ

RASIKH AJMAL---Petitioner

Versus

UNIVERSTIY OF HEALTH SCIENCES, LAHORE through Vice-Chancellor

and 4 others---Respondents

Writ Petition No.912 of 2006, decided on 16th March, 2006.

University of Health Sciences, Lahore Ordinance (LVIII of 2002)---

----S. 31---Statutes and Regulations for M. B.,B.S Third Professional Examination, Regln. No.2---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Examination of Professional M.B.,B.S. examination---Petitioner who appeared in Third Professional M.B.,B.S. Annual examination and had failed, had challenged in his constitutional petition propriety of the result and had prayed for a declaration to the effect that he had passed said examination by way of adjustment of his marks which he had obtained in theory with the marks in oral and practical examinations in the subjects of Community Medicine and Pathology---According to Statutes and Regulations for M.B.,B.S. Third Professional Examination, Regulation No.2, petitioner was required to obtain 50% marks in theory and 50% marks in oral and practical examination, but he secured 44 marks out of 100 in Theory in subject of Community Medicine and had failed---Similarly he failed in oral and practical examination in the subject of Pathology by securing 96 marks out of 200, consequently he was declared to have not passed the examination---Clubbing the marks of oral and practical examination with the marks obtained by a candidate in the written examination, was not permissible under the Regulations---High Court in exercise of constitutional jurisdiction, could not travel beyond the Regulations---No relief could be provided to petitioner in circumstances.

Sheikh Nasir Subhani v. University of Health Sciences and 4 others Writ Petition No.2896 of 2004; University of the Health Sciences Lahore and others v. Sheikh Nasir Subhani and others in Civil Petition No.314 of 2005 and Khurram Nazir v. University of the Health Sciences, Lahore and another 2005 MLD 1130 ref.

Sardar Khurram Latif Khan Khosa for Petitioner.

Rasaal Hassan Syed for Respondents Nos.1 to 3.

Ch. Muhammad Sadiq, A.A.-G.

YLR 2006 LAHORE HIGH COURT LAHORE 2396 #

2006 Y L R 2396

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

SHERAZ KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.1684, 1995 and Murder Reference No.737 of 2000, heard on 26th April, 2006.

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

---S.302 (b)/34---Appreciation of evidence---Eye-witnesses were father and real brother of deceased and their presence at the spot was natural---Complainant, father of deceased, promptly lodged F.I.R.--Eyewitnesses bore no enmity with the accused and their statements were fully supported by medical evidence---Discrepancies in statements of witnesses as pointed out by the defence/accused were immaterial as the evidence was to be read as a whole and not in isolation---Minor dispute between the accused and deceased was patched up but the next day the accused without any provocation took the life of deceased with a single .12 bore gun shot---No mitigating circumstances existed in favour of the accused---Allegation that the co-accused find at eye-witnesses was not supported by any reliable evidence---Trial Courts finding as to their acquittal did not suffer from any infirmity or perversity---Prosecution had proved its case against accused beyond doubt---Conviction of accused under S.302(b), P.P.C. was maintained and death sentence was confirmed.

Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 rel.

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

----S. 302/34---Qanun-e-Shahadat (10 of 1984), Art.146---Appreciation of evidence---Scandalous question, put to a witness---Permissibility---Trial Court was not to allow the defence to put scandalous questions which had no basis.

Muhammad Asghar Rokhari for Appellant.

Rao Muhammad Naeem Hashim Khan for the Complainant.

A. H. Masood for the State.

Date of hearing: 26th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2399 #

2006 Y L R 2399

[Lahore]

Before Jawwad S. Khawaja, J

Dr. MUHAMMAD SIDDIQUE Chaudhry and another---Petitioners

Versus

DISTRICT REGISTRAR/DISTRICT COLLECTOR, OKARA and 2 others---Respondents

Civil Revision No.40 of 2006, heard on 28th April, 2006.

Stamp Act (II of 1899)---

----S.27-A--- Specific Relief Act (I of 1877), S.42---Stamp duty---Determination---Notification under S.27-A of Stamp Act, 1899---Dispute was with regard to payment of stamp duty on registration of gift deed executed by father in favour of his son---Authorities calculated stamp duty on the basis of a document setting out the schedule of rates issued by District Collector for the purposes of stamp duty on documents---Plea raised by plaintiffs was that there was no

notification under S.27-A of Stamp Act, 1899, when the gift deed was presented for registration---Validity---Notification envisaged under S.27-A of Stamp Act, 1899, had to be duly publicized through various means, including publication in the official gazette---No valid notification was issued under S.27-A of Stamp Act, 1877, when the gift deed was executed---Valuation table relied on by Sub-Registrar did not constitute a notification under S.27-A of Stamp Act, 1877---Judgments and decrees passed by Trial Court and Appellate Court, were set aside being contrary to law and the suit of plaintiffs was decreed in their favour---High Court directed the authorities to register the gift deed---Revision was allowed in circumstances.

Province of Punjab, through Secretary Revenue, Board of Revenue Punjab, Lahore and others v. Messrs Marhaba Dawakhana and others 1999 CLC 450 and Major (Rtd.) Muhammad Suleman Khan v. D.C./Registrar, Lahore District 2002 CLC 226 rel.

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

----S.115---Revision---Question of law, not raised before the Courts below---Effect---Point of law can be taken up at any time and there is ample power vested in High Court under S.115 C.P.C. to pass any order which, in the circumstances of the case, is required by law.

Ch. Hassan Ali Khan for Petitioners.

Ch. Muhammad Nawaz Bajwa, A.A.-G. with Ch. Muhammad Azeem and Mumtaz Hussain for Respondents.

Date of hearing: 28th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2402 #

2006 Y L R 2402

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD YAQOOB---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.480 and Murder Reference No.481 of 2001, heard on 19th January, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Weapon of offence, which the accused was carrying at the time of occurrence and role played by him, was stated in promptly lodged F.I.R.---Eye-witness account was furnished by complainant who was brother of deceased and other witness who was brother-in-law of the deceased---Occurrence had taken place in the house of complainant---Even if other eye-witness was held to be a chance witness, evidence of real brother of deceased was there---Real brother being inmate of house where occurrence had taken place, his presence at the spot, by no stretch of imagination, could be ruled out of consideration---Court had to see the quality and not the quantity of evidence and even in a case of capital punishment, conviction could be maintained on the solitary statement of a witness, if it was otherwise trustworthy and had come from an unimpeachable source---Not a single question was put to any of the prosecution witnesses as to why accused was being falsely implicated---Case was that of single accused and parties were known to each other---No possibility of mistaken identity existed in circumstances---Prosecution, had proved its case against accused beyond any shadow of doubt---No mitigating circumstance was available in favour of accused and in such eventuality, only penalty provided under law was death---Conviction and sentence recorded against accused by Trial Court vide impugned judgment, was maintained in toto---Death sentence of accused was confirmed and Murder Reference was answered in affirmative.

Khalid Bin Aziz for Appellant.

Masood Sabir for the State.

Altaf Ibrahim Qureshi for Complainant.

Date of hearing: 19th January, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2405 #

2006 Y L R 2405

[Lahore]

Before Jawwad S. Khawaja, J

AJAB GUL---Petitioner

Versus

GHULAM YASIN and 2 others---Respondents

Civil Revision No.1784 of 2000, heard on 20th April, 2006.

Punjab Pre-emption Act (IX of 1991)---

----S.13---Right of pre-emption, exercise of---Talb-i-Muwathibat---Material facts to he proved---Time, date and place, non-mentioning of in the plaint---Nonappearance of all pre-emptors in witness box---Effect---Pre-emptors were three brothers who jointly filed a suit to pre-empt the sale---Only one of the pre-emptors appeared as witness, while the other two did not enter the witness box to testify on oath and to submit to cross-examination---Trial Court dismissed the suit on the ground that pre-emptor failed to establish Talb-i-Muwathibat---Appellate Court allowed the appeal and decreed the suit in favour of pre-emptors---Plea raised by vendee was that pre-emptor did not mention time, date and place of Talb-i-Muwathibat in plaint and also contended that out of three pre-emptors only one appeared as witness and remaining two did not appear in witness box---Validity---Pre-emptors failed in their suit as they did not specify in their pleadings the time of making of Talh-i-Muwathibat---Pre-emptor who appeared as witness was attorney of other two preemptors---Though the attorney testified that all three brothers were present in the assembly where they received information of sale and all three made Talh-i-Muwathibat there and then but such fact alone did not absolve the other two pre-emptors from appearing in Court to state facts for proving that they were present in the same assembly and had made Talb-i-Muwathibat---Vendee was entitled to cross-examine other two pre-emptors under oath and to elicit facts, including possible admissions or contradictions between the testimony of three pre-emptors, if they had appeared as witnesses in order to impeach their veracity---Appearance of one of the pre-emptors could not be a substitute for the other two for such reasons----Preemptors failed to prove requisite Talb---Judgment and decree passed by Appellate Court was set aside and that of the Trial Court was restored---Revision was allowed in circumstances.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Muhammad Sarfraz Khan v. Aman Ullah Khan 2005 CLC 1133 fol.

Altaf Hussain v. Abdul Hameed alias Abdul Majeed through legal heirs and anther 2000 SCMR 314 and Haji Noor Muhammad through his legal heirs v. Abdul Ghani and 2 others 2000 SCMR 329 ref.

Nazeer Ahmad Qureshi, Raja Jehanzeb Akhtar and Mehmood Pasha for Petitioner.

Shaukat Ali Mehr for Respondents.

Date of hearing: 20th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2407 #

2006 Y L R 2407

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

AZHAR---Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.1860 and Murder Reference No.763 of 2000, heard on 27th April, 2006.

Penal Code (XLV of 1860)---

----S. 302(6)/34--- Appreciation of evidence---Matter was reported to police 1-1/2 hours after the incident, though police station was only 4-1/2 miles off from the place of occurrence---Such delay in lodging F.I.R. was not explained---Complainant had alleged in F.I.R. that a quarrel took place between the accused and deceased 1-1/2/2 months prior to the occurrence but he said nothing about the nature and gravity of quarrel---Excepting for complainant no witness was produced in support of motive---Medical evidence supported prosecution case to the extent that deceased had received injuries but the same did not lead to the assailant---Empties, allegedly recovered from the spot were not sent to Forensic Science Laboratory for matching---Had the ocular evidence been believed, abscondence of accused could be considered as corroboratory circumstance against the accused---Conviction could not be recorded on the basis of abscondence alone---One doubt genuinely arising out of circumstances would be enough for acquittal of the accused---Prosecution case was replete with doubts---Accused 'was roped in an un-witnessed occurrence merely on suspicion---Benefit of doubt was extended to accused---Accused was acquitted in circumstances.

Mian Abdul Qayyum Anjum and Mehboob Rasoon Awan for Appellant.

Col (R) Abdul Wahid Khan for the State.

Ms. Kubra Gillani (in Murder Reference).

Date of hearing: 27th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2411 #

2006 Y L R 2411

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD SARWAR KHAN and 2 others---Petitioners

Versus

DIN MUHAMMAD and 7 others---Respondents

Civil Revision No.1837-D of 1997, heard on 24th March, 2006.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Right of pre-emption, exercise of---Notice of Talb-i-Ishhad---Proof---Suit filed by pre-emptors was dismissed by Trial Court but decreed by appellate Court---Plea raised by vendees was that notice of Talb-i-Ishhad was not proved in accordance with law---Validity---Pre-emptors failed to prove the date of dispatch or dispatch of notice through production of record of post office---Even acknowledgement-due memos did not show or prove receipt of purported notices by vendors owing to absence of their thumb mark or signatures on such notice---In absence of production of postman or record clerk neither dispatch nor delivery thereof was proved---Photo copies of notices of Talb-i-Ishhad were inadmissible in evidence---Pre-emptors were also not able to prove the notices through secondary evidence---Findings of Appellate Court on the question of Talb-i-Ishhad suffered from misreading of evidence and the same were accordingly set aside---Judgment of Appellate Court accepting appeal of pre-emptors and decreeing their suit suffered from material irregularity---High Court in exercise of revisional powers under S.115 C.P.C., set aside the decision of Appellate Court decreeing pre-emptors' suit on acceptance of their appeal was also set aside as there was no proof of Talb-i-Ishhad and its dispatch---Decree of dismissal of suit by Trial Court was upheld and maintained.

Malik Muhammad Imitaz Mahal for Petitioners.

Rafique Javed Butt for Respondents.

Date of hearing: 24th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2414 #

2006 Y L R 2414

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD ILYAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.123 and Murder Reference No.84 of 2001, heard on 20th January, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 34---Appreciation of evidence---Eye-witnesses though were closely related to deceased, but they were not inimical to falsely depose against accused---Incident was a broad-daylight occurrence---Motive was shrouded in mystery---Delay in lodging F.I.R., had not been explained---Co-accused, who was only attributed "Jappha ", had been convicted under S.324, P.P.C., which was against law because either he should have been acquitted or convicted under S.302(b)/34, P.P.C. for common intention---Other co-accused was convicted, to undergo seven years' R.I. under S.324, P.P.C. and five years' under S. 337-D, P.P.C., which conviction and sentence, were also totally against mandate of law and he too either should have been acquitted or convicted under Ss. 302 (b)/34, P. P. C. ---Co-accused had already undergone his sentence and neither he had filed appeal against his conviction nor State or complainant had assailed acquittal of both co-accused from S. 302(b)/34, P. P. C. ---Prosecution had fully proved case against accused beyond shadow of doubt, but it was to be seen whether it was a case of capital punishment or not qua accused---F.I.R. was delayed one; motive was shrouded in mystery as prosecution had failed to prove the same---Difference of opinion was found qua the fatal injury on the person of deceased and it had come on record that deceased had done something wrong with the. daughter of co-accused which were extenuating circumstances and had gone in favour of the accused and it was a case of mitigation and not that of a capital punishment---While maintaining conviction and sentence of accused under S.302(b), P.P.C., sentence of death was converted into imprisonment for life with benefit of S.382-B, Cr. P. C., accordingly---Murder Reference was answered in negative---Trial Court had convicted and sentenced accused persons ignoring the mandatory provisions of law on the subject---Said lapses, on the part of the Trial Court, should not have been ignored.

Altaf Ibrahimm Qureshi assisted by M. Azhat Saleem defence counsel at State expense for Appellant.

Masoof Sabir for the State.

Nemo for the Complainant.

Date of hearing: 20th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2419 #

2006 Y L R 2419

[Lahore]

Before Muhammad Sair Ali, J

FAKHAR-UD-DIN HAIDER through Legal Heirs ---Petitioner

Versus

Mst. BILQEES BEGUM---Respondent

Civil Revision No.118 of 2000 and C.M. No.908-C of 2005, decided on 22nd March, 2006.

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

----O.VII, R.11, O. XXJII, R.1 & S.151---Application for rejection of plaint at revisional stage---Subsequently defendants sought to withdraw the application with permission to raise all legal and factual grounds available to them---Validity---Permission was granted by High Court holding that defendants had the right to raise all legal and factual objections available to them under the law.

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

---Ss.42 & 54---Suit for declaration and injunction---Suit was decreed---Appellate Court also found the plaintiff to be in exclusive possession of suit property as a joint owner but while referring to Register Haqdaran-e-Zamin and Register Khasra Girdawari of relevant years, it did not attend to the entries made in various columns of said documents---Validity---Held, since said entries made in revenue record had a direct bearing upon the findings on issue which was disputed between parties therefore, on a joint request of counsel for parties case to the extent of disputed issue was remanded back to appellate Court for decision afresh.

Rao Munawar Khan for Petitioners.

Ch. Muhammad Aslam Zia for Respondent.

Date of hearing: 22nd March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2421 #

2006 Y L R 2421

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD ASLAM ---Petitioner

Versus

QURBAN ALI and 2 others---Respondents

Writ Petition No.346 of 2006, heard on 22nd March, 2006.

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

----Art.30---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Admission in presence of Court---Value---Petitioner filed ejectment petition while tenant denied relationship of landlord and tenant---Rent Controller made a query to which respondent replied by admitting that he was tenant of petitioner---Ejectment petition was, therefore, allowed---Appeal was accepted on ground that utterance made by tenant in Court being not evidence could not be made basis for passing ejectment order---Validity---Court was obliged to take notice of the admission made in its presence---If such admission sufficed for the propose of resolving controversy, Court should proceed to decide the matter without delay---Tenant's admission was valid evidence under Qanun-e-Shahadat Order, 1984 and was also sufficed to demolish the defence set up by tenant hence was rightly relied upon by the Rent Controller but appellate Court committed error in law by setting aside ejectment order.

Liaquat Ali Butt for Petitioner.

Qamar Abbas Haidri for Respondents.

Date of hearing: 22nd March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2423 #

2006 Y L R 2423

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

AURANGZEB alias RANGU---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1336 and M.R. No.488 of 2000, decided on 24th April, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 148 & 149---Appreciation of evidence---Incident was a daylight occurrence and parties being known to each other, it was not a case where question of identification was involved---Complainant was father of deceased, while prosecution witness was not closely related to complainant or deceased and belonged to the brotherhood of complainant as well as of the accused---Neither complainant nor prosecution witness had any serious enmity with accused, so as to involve him in a false case---Both complainant and prosecution witness, were subjected to lengthy cross-examination, but their statements remained consistent to the extent of accused---No benefit could be given to accused for minor contradictions which could crop up due to lengthy cross-examination and also for the fact that statements of prosecution witnesses were recorded after almost six years of the occurrence---Ocular account was supported by medical evidence---Prosecution, however, had failed to produce evidence of recovery of weapon from accused during trial---Evidence of abscondence of accused, also could not be satisfactorily proved---Prosecution had proved its case against accused beyond doubt---No independent witness was produced to prove motive but it was not necessary for prosecution to set motive in every case and the weakness of motive would not damage prosecution case---When .a particular motive was set by prosecution and same was not proved and then it set a different motive or a modified motive during trial, then it would affect the quantum of sentence---Trial Court was not justified to sentence the accused under S.302(a), P.P.C. as the proof required for Qatl-i-Amd liable to Qisas as required under S.304, P.P.C. was not available on record---Conviction of accused was altered from offence under S.302(a), P.P.C. to offence under S.302(b), P.P.C. and he was sentenced to life imprisonment as same would meet the ends of justice---Benefit of S. 382-B, Cr. P. C. was given to accused accordingly.

Mushtaq Ahmad v. The State PLD 2004 SC 150; Jehanzeb and another v. The State and others 2003 SCMR 98; Muhammad Nawaz Khan v. Mubarak Ali and others 2000 SCMR 1582 and Mushtaq Ahmad's case PLD 2004 SC 150 ref.

Sardar Muhammad Latif Khan Khosa and Ch. Akhtar Hassan for Appellant.

Hashim Sabir Raja, A.A.-G. assisted by S.D. Qureshi (in appeal) and Ch. Muhammad Nazir (in Murder Reference) for the State.

Date of hearing: 24th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2428 #

2006 Y L R 2428

[Lahore]

Before Mian Saqib Nisar, J

SHAH MUHAMMAD and 9 others---Appellants

Versus

KHURSHID ALAM and 5 others---Respondents

Civil Revision No.855 of 1993, heard on 5th May, 2006.

Civil Procedure Code (V of 1908)---

----O.I., R.10 & S.12(2)---Specific Relief Act (I of 1877), Ss.8 & 42---Judgment and decree only binds that person, who is a party thereto---Plaintiff filed suit for declaration and possession on the plea that he was owner of suit house but predecessor of defendant who was in possession of the suit house as licensee had refused to vacate the same---Suit was decreed---Other legal heirs of deceased predecessor filed a separate suit claiming that they were also in possession of suit property along with defendant as successor of deceased but were not impleaded as a party in earlier litigation and therefore, decree passed in previous litigation was not binding upon them---Suit was dismissed, appeal accepted---Question was as to whether subsequent suit was barred under S.12(2), C.P.C.-Legal heirs of deceased were not impleaded in suit which was filed against only their brother defendant thus decree passed in suit was not binding upon them and therefore, notwithstanding setting aside of that decree, they could avoid the decree on ground that same was not binding upon them as they were not party to the suit---Section 12(2), C.P. C. was only attracted in the case where decree had been procured through fraud and misrepresentation or was bad for want of jurisdiction but no such vice had been attributed to earlier judgment and decree---Judgment and decree only binds that person who is a party thereto--- Whatever interest deceased predecessor had in property, it devolved upon his legal heirs collectively and not independently, therefore, decree could be enforced against defendant to the extent of his share but possession of legal heirs of deceased could not be disturbed on basis of said decree.

Irshad Ahmed Qureshi for Appellants.

Nemo for Respondents.

Date of hearing: 5th May, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2430 #

2006 Y L R 2430

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

ALI AGHZAR and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 12, 103 and Murder Reference No. 39 of 2000, heard on 24th April, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 337-A(i)---Appreciation of evidence---Four accused persons were involved in the case---Dispute arose over construction of passage between accused and complainant---Time of occurrence had not been challenged and the fact that complainant was injured during occurrence, was also not challenged---Deep rooted ill-will and enmity existed between complainant and accused---Occurrence, however, did not take place in the manner or for the reason stated by prosecution---No reason was found for accused to launch murderous assault on the fateful day as accused had filed appeal against decision of Civil Court regarding disputed passage and he wanted to settle matter through Courts--Defence plea taken by accused was neither supported by any substantial evidence nor was made out from the circumstances of the case---Both parries had not come out with true story---Quarrel did not originate as narrated by complainant and some of the facts were suppressed by him-Appeal to the extent of one of the accused who was awarded sentence of death, was allowed---Accused was acquitted of the charge and was released--Conviction of other accused, who was also awarded death sentence for offence under S.302(b), P.P.C., was maintained, but his sentence was altered from death to imprisonment for life and benefit of S. 382-B, Cr. P. C. was also extended to him---Two other accused had already been acquitted of the charge of murder and findings recorded by the Trial Court on that issue did not suffer from any infirmity or perversity---Both of the accused had been convicted for causing injuries to complainant, which were three in number, simple in nature and were caused by a blunt weapon---Said accused having suffered rigours of trial, while maintaining, their conviction for offence under S.337-A(i), P.P.C., their sentence was reduced to the period already served out by them.

Muhammad Azam Tarrar for Appellant.

Malik Muhammad Aslam for the State.

Nemo for the Complainant.

Date of hearing: 24th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2437 #

2006 Y L R 2437

[Lahore]

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi , JJ

MUHAMMAD ASLAM---Appellant

Versus

THE STATE---Respondent

Crl. Appeal No.70-J and M.R. No.152 of 2000, heard on 21st April, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 337-F(iii)(v) & 34---Appreciation of evidence---Sentence, reduction in---Accused was found to be a crippled/disabled person during the course of hearing of appeal---Counsel for accused in view of overall circumstances of the case, did not press for acquittal of accused, but prayed for reduction in sentence---Medical report revealed that accused was totally blind and crippled person---State Counsel also did not oppose contention of counsel for accused---Conviction of accused in circumstances, was maintained, but his sentence was reduced from death to life imprisonment which would serve interest of justice as well as intents of law---Punishment of fine/compensation or sentence in lieu thereof was maintained.

Sohail Tariq for Appellant.

Ijaz Ahmed Bajwa for the State.

Date of hearing: 21st April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2440 #

2006 Y L R 2440

[Lahore]

Before Jawwad S. Khawaja, J

GHULAM HAIDER and another---Petitioners

Versus

SADIQ ALI through Legal Heirs and others---Respondents

Civil Revision No.2417 of 2001, heard on 4th October, 2005.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration of title---Province and its functionaries were also arrayed as defendants in the suit wherein parties were refugees from Jammu and Kashmir and suit-land was allotted to the head of the family---Suit was partially decreed and decree upheld in appeal---Validity---Contention of defendants that they were also members of the family of original allottee was supported by Fard Taqseem, an authentic document setting out the names of members of family, filed by the Province with its written statement---Said document was also not disputed by any of the private plaintiffs---Ford Taqseem which had not been formally exhibited on record was produced from the custody of the functionary responsible for maintaining the record but appellate Court did not take this circumstance into account and failed to exercise jurisdiction vested in it---Concurrent decrees were, therefore, set aside and declaration of title as prayed for was granted.

Petitioner in Person.

Kh. Muhammad Saeed for Respondents Nos.6, 7 and 8.

Date of hearing: 4th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2442 #

2006 Y L R 2442

[Lahore]

Before Sardar Muhammad Aslam, J

EHSAN-UL-HAQ---Petitioner

Versus

THE STATE---Respondent

Crl. Miscellaneous No.4697-B of 2005, decided on 5th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 337-A(i), 337-F(i), L-(ii) & 34---Pre-arrest bail, refusal of---Trial Court by its order had initiated proceedings under Ss.87 & 88, Cr.P.C. against accused---Pre-arrest hail being extra-ordinary relief, was to be granted to an innocent person---In view of proceedings against accused under Ss.87 & 88, Cr.P.C., his bail petition was dismissed.

Arshad Ali Chowhan for Petitioner.

Zafar Iqbal Bhatti for the Complainant.

Sohail Tariq for the State along with Qamar Abbas, S.-I. with Record.

YLR 2006 LAHORE HIGH COURT LAHORE 2443 #

2006 Y L R 2443

[Lahore]

Before Muhammad Farrukh Mahmud, J

SHAHBAZ AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.235-J of 2004, heard on 21st April, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence reduction of---Place of occurrence and time of occurrence had not been challenged---Accused did not deny that he had fired at deceased, but had taken the plea that death of deceased was accidental---Prosecution witnesses had given straightforward account of occurrence---Both of said witnesses had no previous ill-will, enmity or grouse against accused so as to involve him in a false case---Statements of witnesses were supported by medical evidence and corroborated by circumstances of the case as the matter was reported to the police within half an hour of the occurrence---Prosecution had proved beyond doubt that deceased lost his life due to fire caused by accused---During playing of cards after losing a game, deceased had lost control and started profusely abusing accused who was about twenty years of age at the time of occurrence, on which accused had lost control and caused a single fire on deceased which resulted into the occurrence---Occurrence was a sudden flare up and cause of fight was abuse given by deceased to accused---Occurrence took place at the spur of the moment in the heat of passions---Act of accused attracted provisions of Exception IV of S.300, P. P. C. (old law)---Conviction of accused was altered from offence under S.302(b), P.P.C. to offence under S.302(c), P.P.C. and sentence was reduced to ten years' R.I.-Benefit of S. 382-B, Cr.P.C. already extended to accused was maintained---Accused being a poor labourer, amount of compensation was also reduced from Rs.1, 00, 000 to Rs. 50, 000, accordingly.

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

Nemo for Appellant.

Sheikh Asif Hussain for the State.

Date of hearing: 21st April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2446 #

2006 Y L R 2446

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD ASLAM and others---Appellants

Versus

MUSARRAT IQBAL AKHTAR---Respondent

Civil Revision No.145 of 2006, heard on 25th April, 2006.

Specific Relief Act (I of 1877)---

----S.12---Qanun-e-Shahadat (10 of 1984), Art.59---Suit for specific performance of agreement to sell---Execution of document---Proof---Parties and disputed property, subject-matter of agreement had no nexus with the District from where stamp paper for agreement was purchased and where agreement was allegedly executed even marginal witnesses who were close friends/relatives of plaintiff were residents of far-flung districts---Application filed by defendant to send thumb-impression for comparison was also resisted by plaintiff---Payment of total consideration without obtaining any conveyance deed and transfer of title purportedly agreed to be effected after one week from the execution of agreement was most surprising---Plaintiff failed to give any satisfactory answer about such unusual circumstances, thus agreement of sale between grandson and grandfather/defendant was not proved.

Ch. Nisar Ahmad Kauser for Petitioners.

Zafar Iqbal Kalasm for Respondent.

Date of hearing: 25th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2448 #

2006 Y L R 2448

[Lahore]

Before Muhammad Nawaz Bhatti, J

NOOR SAMAND---Petitioner

Versus

THE STATE---Respondent

Crl. Miscellaneous No.3603-B of 2005, decided on 6th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 452, 148 & 149---Bail, grant of---Accused was not named in F.I.R., but he was subsequently involved as an accused on the supplementary statement of complainant---Said supplementary statement did not disclose as to how the complainant carne to know the name of accused when, in fact he did not disclose his name in F.I.R.---Accused, in circumstances could not be reasonably believed to have committed offence---No direct evidence was available against accused to connect him with the offence---Only evidence available against accused was of extra judicial confession which was weakest type of evidence---No recovery was effected from the accused who had been declared innocent by police---Accused was in jail since his arrest and he was no more required by the police for the purpose of investigation---No useful purpose, in circumstances, would be served to put accused behind the bars for an indefinite period---Accused was admitted to bail, in circumstances.

Naeem Akhtar v. The State 1996 SCMR 511 and Muhammad Hussain v. Afzal Ahmad and another 1995 SCMR 932 ref.

Altaf Ibrahim Qureshi for Petitioner.

Ijaz Ahmad Khan for the State.

Abdul Karim S.P. Investigation, Sahiwal and Muhammad Aslam Inspector.

2006 Y L R 2457

[Lahore]

Before Umar Ata Bandial, J

MUHAMMAD YAR---Petitioner

Versus

UMAR HAYAT- -Respondent

Civil Revision No.83 of 2004, decided on 29th March, 2006.

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

----Art. 78---Punjab Pre-emption Act (IX of 1991), Ss.13 & 31---Document placed on record---Non-raising of objection to admissibility at the time of its production---Effect---Plaintiff filed suit for pre-emption which was dismissed but appeal was accepted---Contention of defendant/vendee that plaintiff had failed to prove service of notice of Tabl-i-Ishhad in accordance with law was repelled because exhibits/ documents proving Tahl-i-Ishhad namely notice, postal receipt and acknowledgement due card were produced in original on the record without objection by the defendant---Such failure to raise objection to the admissibility at the time of production of said documents on record was conclusive---Notice under S. 31, Punjab Pre-emption Act, 1991 in circumstances, would be deemed to have been sufficiently given if it was displayed at public places even if it was not sent specifically to vendee---Vendee was duty bound to prove his allegation that plaintiff had prior knowledge about disputed sale but he could not produce oral or documentary evidence in this regard---No presumption, therefore, could he drawn against plaintiff who was neither a party nor a witness of impugned agreement of sale to this effect that he had a knowledge thereof.

Zulifqar Ahmad v. Ikhlaq Ahmad 2003 MLD 846 and Mst. Hameed Shamim v. Deputy Commissioner, Karachi South, Karachi and 7 others 2004 CLC 100 distinguished.

S.A.K. Rehmani v. The State 2005 SCMR 364 and Malik Din v. Muhammad Aslam PLD 1969 SC 136 eel.

Pervaiz and another v. Muhammad Nawaz 2006 SCMR 4 ref.

M. Ahsan Bhoon for Petitioner.

Sarfraz Khan Gondal for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 2459 #

2006 Y L R 2459

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD JAHANGIR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2911-BC of 2005, decided on 21st June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Bail, grant and cancellation of---Principles---Two witnesses of abetment had been mentioned in F.I.R. and after closure of Zimini No.8 complainant had filed application in which it was alleged that both said witnesses were won over and they did not want to give evidence in that regard---Complainant introduced two different persons as witnesses of abetment---Mere involvement of respondent/ accused in some other criminal cases could not be made basis for cancellation of bail in the case---Even otherwise, grounds for grant and for cancellation of bail were altogether different because strong grounds were required to cancel hail---Petitioner having failed to make out a case for cancellation of bail of accused, his petition was dismissed.

Ijaz Ahmad Khan for Petitioner.

Chaudhry Muhammad Hanif Khatana, Additional Advocate General Punjab, assisted by Sohail Tariq for the State with Muhammad Yousaf, S.-I. with Record.

Ch. Naseer Ahmad Bhutta with Respondent in Person.

YLR 2006 LAHORE HIGH COURT LAHORE 2461 #

2006 Y L R 2461

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD ASHRAF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4024-B of 2005, decided on 3rd June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.406---Pre-arrest bail, refusal of--Investigation qua accused was incomplete as the recover' was yet to be effected from accused---Petitioner/accused had failed to point out any mala fide or ulterior motive on the part of complainant or the police---Principles governing grant of pre-arrest bail were that accused had to show that case had cropped up due to political wire pulling; the arrest was tainted with mala fide and ulterior motives such as humiliation and unjustified harassment at the hands of police with intention to cause irreparable injury to the reputation and liberty of a person---Such grounds were lacking in the petition which was dismissed.

Malik Muhammad Afzal Farooka for Petitioner.

Qamar-uz-Zaman Qureshi for the Complainant.

Sohail Tahir for the State along with Muhammad Younas, A.S.-I., with Record.

YLR 2006 LAHORE HIGH COURT LAHORE 2462 #

2006 Y L R 2462

[Lahore]

Before Syed Asghar Haider, J

Khawaja MUHAMMAD SALEEM and 3 others---Appellants

Versus

HOME DEPARTMENT, GOVERNMENTOF PUNJAB through Secretary Home, Lahore and another---Respondents

F.A.O. No.333 of 2000, heard on 20th April, 2006.

West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act (VII of 1956)---

----Ss.3 & 6---West Pakistan Urban Rent Restriction Act (VI of 1959), Preamble---Privately Managed Schools and Colleges (Taking Over) Regulation, 1972 (M.L.R.118)-Private school---Requisitioning of building---Fixation of rent---Petition before arbitrator---Locus standee---Mother of appellants was running a school in disputed building, which was nationalized pursuant to enforcement of Martial Law Regulation No.118---Authorities requisitioned the building in 1977, against a monthly rent of Rs.200 per month---Appellants being aggrieved of such fixation of rent filed application under S.6 of West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, and sought enhancement of rent---District Judge acting as arbitrator dismissed the application---Contention of authorities was that the appellants had sold the property in year, 1996 thus they had no locus standee to file application before the arbitrator---Validity---No building which was used for imparting education could be requisitioned under S.3 of West Pakistan Requisitioning of Immovable Property Act, 1956, therefore, basic order of requisitioning was illegal and all proceedings thereafter were not legally tenable---Persons whose properties were taken under Martial Law Regulation No.I18, were empowered to file adjustment petitions under West Pakistan Urban Rent Restriction Ordinance, 1959, thus all the provisions of the Ordinance were fully applicable to them, including the provisions relating to rent---Ownership of the school was transferred by a compromise to another person, who took forcible possession of the premises and appellants surrendered all their rights in the property to that person, therefore, appellants had no locus standee to continue the proceedings or to file appeal---Appellants had no nexus with the property, therefore, they could not claim advantage or privilege from it---Appeal was dismissed in circumstances.

Province of the Punjab v. Amin Jan Naeem and 4 others PLD 1994 SC 141 and Government of the Punjab through Secretary, Education, Lahore v. Shahida Begum 1994 SCMR 1488 ref.

Mst. Shahnaz Begum and others v. Home Department and others 1991 CLC 1188; Province of the Punjab v. Ch. Fazal Karim, District Judge, Faisalabad and 5 others 1983 CLC 325 and Province of Punjab and others v. Muhammad Tufail PLD 1985 SC 360 rel.

Syed Haider Ali Shah for Appellants.

Faisal Qazi A.A.-G. for Respondents.

Date of hearing: 20th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2464 #

2006 Y L R 2464

[Lahore]

Before Sardar Muhammad Aslam and M. Bilal Khan, JJ

ZULFIQAR ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.412 of 2005, decided on 14th December, 2005.

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

----S. 9(c)---Appreciation of evidence---Evidence of prosecution was consistent and confidence-inspiring, which testimony was not shaken in cross-examination---No ill-will had been mentioned against police or officials who were present on patrol party---Accused did not appear in the Court as required under S.340(2), Cr. P. C. and statements of defence witnesses would not render any help to his case---Prosecution had been able to prove its case against accused---Conviction and sentence awarded to accused by the Trial Court did not call for any interference---Trial Court had already taken lenient view by awarding him sentence of 2 years' on recovery of charas weighing 2 Kilograms.

Ms. Irum Sajjad Gul, Defence Counsel for Appellant.

Ms. Safia Khatoon for the State.

Date of hearing: 14th December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2466 #

2006 Y L R 2466

[Lahore]

Before Mian Saqib Nisar, J

WALAYAT BIBI alias RANI and others---Petitioners

Versus

LIAQAT ALI alias FAYAZ AHMAD and others---Respondents

Civil Revision No.2077 of 1994, decided on 2nd May, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts.64, 117 & 120---Declaration of title---Relationship---Onus to prove---Principle of shifting of onus---Applicability---Misreading and non-reading of evidence---Plaintiffs asserted that they were the only legal heirs of the deceased owner of suit-land and defendants were wrongly included in mutation of inheritance---Trial Court and Appellate Court concurrently dismissed the suit and appeal filed by plaintiffs---Plea raised by plaintiffs was that evidence produced by them to establish any relation of defendants with deceased owner of suit- land was misread by the two Courts below---Validity---All persons produced by plaintiffs were close relatives of the family and had stated that mother of defendants was not married to the deceased owner of suit-land and defendants were not sons of the deceased---No effective cross-examination was conducted upon such witnesses---Wife of deceased owner was the real sister of mother of defendants, who had categorically denied marriage of her sister with her husband---Defendants failed to produce any close relative of the family or persons having special means, who could state that the defendants were sons of deceased owner---No proof was made available on record by defendants' side that the deceased owner ever married mother of the defendants---Such was one of the key propositions of the case and after evidence of plaintiffs, the burden had shifted to defendants to prove the same, but they failed in that behalf and had no positive evidence to establish the marriage---On the basis of oral as well as documentary evidence which was not considered by the Courts below in its proper perspective, judgments and decrees passed by two Courts below were the result of misreading and non-reading of evidence---High Court, in exercise of revisional jurisdiction set aside the concurrent judgments and decrees passed by two Courts below and decreed the suit in favour of plaintiffs.

Syed Muhammad Kaleem Ahmed Khurshid for Petitioners.

Mian Abdul Rashid for Respondents.

Date of hearing: 15th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2470 #

2006 Y L R 2470

[Lahore]

Before M. Bilal Khan, J

KAMRAN AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.754/B of 2006, decided on 14th February, 2006.

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

----S. 497---Penal Code (XLV of 1860), S.392---Bail, refusal of---Contentions of accused were that his case was one of further inquiry for the reason that according to statement of prosecution witness recorded under S.161, Cr.P.C., all four accused were carrying fire-arms, whereas according to F.I.R. only two of them were shown to have been armed with pistols and that it did not appeal to reason that accused were roaming about in the same car displaying original registration number six days after its recovery, needed deeper appreciation of material available on record and did not advance case of accused for grant of bail, especially when there were serious allegations against him---Pocket computer had been recovered from accused and had been duly identified by a prosecution witness---Challan had already been submitted in the Court and charge had been framed---Bail, could not be granted to accused in a case attracting prohibitory clause of S.497(1), Cr.P.C. when ample incriminating material was available against him prima facie connecting him with crime imputed to him---Bail petition was dismissed.

Ch. Irshad Ahmad Cheema for Petitioner.

Sh. Asghar Ali With Ghulam Sarwar, A.S.-I. for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2472 #

2006 Y L R 2472

[Lahore]

Before Muhammad Sair Ali, J

Mst. UMAT-UL-MUNIR and 19 others---Petitioners

Versus

FAYAZ AHMED KHAN through Legal Heirs and 35 others---Respondents

Civil Revision No.1031 of 1995, heard on 5th May, 2006.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Civil Procedure Code (V of 1908), O.XLI, R.27---Declaration of title---Principle of waiver---Applicability---Additional evidence---Scope---Concurrent findings of fact by the Courts below---New plea, raising of---Plaintiffs asserted that they were the owners of suit-land which was given on rent to defendants---Trial Court as well as Appellate Court concurrently dismissed the suit and appeal respectively---Plaintiffs, filed application for additional evidence during pendency of appeal before Appellate Court, which was dismissed---Plea raised by plaintiffs was that demarcation of suit-land was necessary for which additional evidence was to he brought on record---Validity---Documents sought to be produced through additional evidence could not be brought on record as plaintiffs had ample opportunity to produce the same during the evidence---Such documents did not have any bearing upon the litigated questions or on adjudication of issues framed by Trial Court---Plaintiffs had raised a case of further demarcation after dismissal of their suit---Such demarcation and the case not pleaded or canvassed before Trial Court could not be allowed to be raised before High Court---Case of plaintiffs in their suit and appeal was that the defendants were inducted as tenants upon the suit-land---Such plea was concurrently rejected by the Courts below for the reason that the plaintiffs had not produced any reliable evidence to prove tenancy of defendants---Plaintiffs, before High Court in exercise of revisional jurisdiction, did not make any submission to question findings of the Courts below in the absence of tenancy of defendants---Plaintiffs were deemed to have abandoned and waived their claim of being landlords of defendants---In absence of proof of tenancy and abandonment of plea by plaintiffs through non-contest in the submissions before High Court, the fundamental essential cause for lis was rendered non-existent thus base for suit disappeared--High Court declined to interfere with the judgments and decrees passed by the Courts below.

Farooq Qureshi Chishti for Petitioners.

S. M. Tayyab for Respondents.

Date of hearing: 5th May, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2475 #

2006 Y L R 2475

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD JAVED---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.3215-B of 2005 decided on 73rd May, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 381, 420, 468 & 471---Bail, grant of---Further inquiry---Accused was alleged to have withdrawn an amount of Rs.2,10,000 by forging signatures of Chief Executive Officer of the company---Grandfather of accused had paid back entire amount in dispute---Investigating Officer conceded that he had not obtained signatures of accused for comparison with alleged signatures on the cheque---No steps had been taken to obtain cheque alleged to have been forged by accused---Case of accused was open to further inquiry---Offence with which accused had been charged, fell outside the prohibitory limits of S.497, Cr.P.C.-Accused was admitted to bail.

Zafar Iqbal Chowhan for Petitioner.

Shahid Masood for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2476 #

2006 Y L R 2476

[Lahore]

Before Jawwad S. Khawaja, J

Mst. NAZIRAN BIBI---Petitioner

Versus

MUHAMMAD AKBAR---Respondent

Civil Revision No.2683 of 2005, heard on 20th April, 2006.

Specific Relief Act (I of 1877)---

----S. 22---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Specific performance of agreement to sell---Document, proof of---Attesting witnesses---Qualification---Thumbimpressions on alleged agreement to sell, relied upon by plaintiff, were nor denied by defendant---Contention of defendant was that plaintiff had given suit house on rent to plaintiff and thumb-impressions on the document were affixed in token of receipt of rent---Trial Court dismissed the suit but Appellate Court decreed the same on the ground that defendant did not make any application for comparison of her admitted thumb-impressions appearing on the agreement---Validity---Appellate Court had not noted the fact that original agreement did not mention any marginal witnesses, which was a serious and unexplained omission on the part of plaintiff---Even marginal witnesses of subsequent agreement did not qualify as attesting witnesses because they did not know the defendant---Case of defendant was that from time to time she was paid rent and her thumb-impressions were obtained as token of the receipt of rent---No reason appeared from the record as to why sale of the property should have been postponed by defendant for a long time and it was strange that in subsequent agreement there was no date by which balance amount was to be paid by plaintiff---Such unusual circumstances undermined the veracity of case set up by plaintiff and were sufficient to show inequity of the agreement to sell forming basis of the suit for specific performance filed by plaintiff---High Court disallowed discretionary relief to plaintiff by way of specific performance under S.22 of Specific Relief Act, 1877-Judgment and decree passed by Appellate Court was set aside and that of the Trial Court was restored.

Asif Ali Chaudhry for Petitioner.

Malik Maqbool Hussain Shakir for Respondent.

2006 Y L R 2484

[Lahore]

Before Sh. Abdul Rashid, J

FALAK SHER and others---Petitioners

Versus

THE STATE---Respondent

Writ Petition No.2357 of 2005, decided on 25th May, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), Ss.379 & 411---Constitutional Petition---Quashing of F.I.R.---According to prosecution, allegation set up in F.I.R. the petitioner had committed theft of forest wood belonging to Forest Department---Sub-Divisional Forest Officer during investigation had stated that wood allegedly recovered in the case, did not belong to Forest Department; that no theft of forest wood had been committed by petitioners and that petitioners had purchased wood from Zamindars and were loading the same in the trucks when they were apprehended by police officer and a false case had been made out against the petitioners---Validity---Apparently said police officer had made a false case against the petitioners---F.I.R. against petitioners was quashed and wood allegedly recovered in the case was ordered to be returned to petitioners---Said police officer having made out a false case against petitioners and having effected their arrest in a capricious manner, D.P.O. was directed to place said police officer under suspension and initiate legal action against him.

Zafar Iqbal Chaudhry for Petitioners.

Ch. Muhammad Suleman A.A.-G. for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2485 #

2006 Y L R 2485

[Lahore]

Before Muhammad Sayeed Akhtar, J

SABIR ALI---Petitioner

Versus

MUKHTAR AHMAD---Respondent

Civil Revision No.1820/D of 1999, decided on 20th April, 2006.

Specific Relief Act (I of 1877)---

----S. 8---Colonization of Government Lands Act (V of 1912), S.10(4)---Suit for possession of Ihata on basis of title---Suit was decreed and decree upheld in appeal---Validity---Contention of defendant that title of plaintiff was defective as possession of Ihata was never delivered to plaintiff by Collector under section 10(4) of Colonization of Government Lands Act, 1912 had no force because title of plaintiff was not questioned by Government/ Collector---Fact remained unrebutted that defendant who was owner of adjoining Ihata had illegally occupied the Ihata in dispute by demolishing the intervening wall between two Ihatas---Title of plaintiff was proved on record and decree had also stood executed.

Ghulam Hussain v. Fateh Muhammad and 9 others 1987 SCMR 1115; Allah Ditta v. Ali Muhammad and another 1990 SCMR 1577 and Ghulam Farid v. Member (Judicial), Board of Revenue, Punjab, Lahore and 5 others PLD 1995 Lah.178 distinguished.

Syed Shamim Abbas Bukhari for Petitioner.

Ch. Shahid Saeed for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 2487 #

2006 Y L R 2487

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

SHAHID ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7978-B of 2005, decided on 23rd November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 51(2)---Bail, grant of---Two separate raids were conducted within a period of four hours by same complainant/police officer on the same house and separate quantity of heroin was allegedly recovered from accused and his mother in such separate raids conducted on same day---No report had been received from the Chemical Examiner regarding a sample of substance allegedly recovered from possession of accused so as to confirm that said substance was a narcotic substance---Record of investigation showed that accused was aged about 16/17 years at the time of his arrest---All said considerations were special circumstances within contemplation of provisions of subsection (2) of S.51 of Control of Narcotic substances Act, 1997 so as to be sufficient for admitting accused to bail--Accused was admitted to bail, in circumstances.

Ch. Noor Muhammad for Petitioner.

Raja Akhtar Nawaz with Mamoor Khan, S.-I. with record for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2488 #

2006 Y L R 2488

[Lahore]

Before Muhammad Farrukh Mahmud, J

ABDUL LATIF and 3 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.879-B of 2005, decided on 10th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.295-C, 365, 342, 148 & 149---Bail, grant of---Further inquiry---According to F.I.R., while negotiation was in progress between complainant party and some of accused persons, rest of accused intervened and started misinterpreting Holy book and used derogatory language about Holy Prophet (p. b. u. h.)---It was also in F.I.R. that complainant and his companion were slapped and given blows with fists and kicks---None of accused gave Sota blow to complainant---According to F.I.R. thirteen persons caused injuries to complainant and his companion, while according to Medico-legal Report complainant suffered five injuries in total and one of same was a complaint of pain and none of injuries was serious in nature---Companion of complainant was never examined by Medical Officer---Specific allegation against co-accused was levelled in supplementary statements recorded after ten days of occurrence---Investigating Officer himself was not sure about truthfulness of supplementary statement of complainant---Ill-will existed between complainant party and accused over construction of place of worship since, 1999---Allegations against accused needed further probe and inquiry within purview of subsection (2) of S.497, Cr. P. C. ---Accused were admitted to bail, in circumstances.

Rana Sardar Ahmad and Sheikh Karim-ud-Din for Petitioners.

Syed Shaheen Masood Rizvi, A.A.-G. with Mian Allah Ditta for the State.

A.R. Aurangzeb and Muhammad Arshad for complainant.

YLR 2006 LAHORE HIGH COURT LAHORE 2491 #

2006 Y L R 2491

[Lahore]

Before Syed Asghar Haider, J

FAZAL ELAHI and another---Petitioners

Versus

KAMAL DIN and others---Respondents

Civil Revision No.335 of 2003, heard on 19th April, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.I R.8 & O.XLI, R.4---Appeal---Maintainability---Material irregularity and illegality---Non-impleading of necessary party---Suit filed by plaintiffs was decreed by Trial Court in their favour but Appellate Court allowed the appeal and dismissed the suit---Plea raised by plaintiffs was that the appeal was not maintainable as out of two plaintiffs only one was arrayed as a party in the appeal---Validity---Record had established that second plaintiff was not arrayed as a party in appeal although he was a party to the suit---Representation of the second plaintiff was essential and non-arraying him as a party was fatal to the proceedings before Appellate Court---No effort was made to amend the appeal at any stage---Such was a material irregularity and illegality---Appeal being not in consonance with the provisions of O.XLI C.P. C., proceedings before Appellate Court were without jurisdiction---Judgment and decree passed by Appellate Court were set aside---Revision was allowed in circumstances.

Lahore Cantt Cooperative Housing Society Ltd. through Secretary v. Additional District Judge, Lahore and three others 2003 YLR 1224 and Muhammad Suleman v. Abdul Rashid and 13 others PLD 1987 Lah. 387 rel.

Hassan Din v. Hafiz Abdul Salam and others PLD 1991 SCMR 65 and Hakim Ali Bhatti v. Abdul Hakim 1986 CLC 1786 ref.

Muhammad Iqbal for Petitioners.

Abid Saqi for Respondent No. 1.

Date of hearing: 19th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2493 #

2006 Y L R 2493

[Lahore]

Before Asif Saeed Khan Khosa, J

TANVEER BAIG---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8304-B of 2005, decided on 23rd December, 2005.

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

----S. 497---Penal Code (XLV of 1860), Ss.392 & 395---Bail, grant of---Co-accused had already been admitted to post-arrest bail and case of accused was not substantially dissimilar to or distinguishable from the case against co-accused---Only difference between case of accused and that of co-accused was that during investigation a motor-cycle had allegedly been recovered at the instance of accused---Complainant had never alleged in the F.I.R. that any motor-cycle had been taken away by accused persons from his house---Only through supplementary statement of complainant for the first time, it was alleged that his motor-cycle had been taken away by the accused at the time of occurrence---Record of investigation had shown that said motor-cycle had been recovered by the police from a deserted and open place and it could not be said with any degree of certainty that the motor-cycle had been recovered from the exclusive possession of the accused---All other aspects of case against accused were identical to those relevant to co-accused who had already been admitted to post-arrest bail---No reason was available as to why accused could not be treated in the matter of bail in the same manner as co-accused---Accused was admitted to bail in circumstances.

Muhammad Irfan Malik for Petitioner.

Ishfaque Ahmad Chaudhry for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2494 #

2006 Y L R 2494

[Lahore]

Before Muhammad Muzammal Khan, J

IMAM DIN and 3 others---Petitioners

Versus

Mst. NASREEN AKHTAR and 2 others---Respondents

Civil Revision No.197-D of 1997, decided on 21st December, 2005.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Trial Court and appellate court concurrently dismissed suit, holding that construction of house in question, were joint and none of the parties could prove its exclusive construction out of his own expenses---Plaintiffs, who claimed that they had constructed house in question, could not prove their claim---Plaintiffs being parents of propositus, admittedly were entitled to 1/6th share each, out of estate left by their son under Hanfi law of inheritance followed by deceased, after distributing that much share to father and mother of deceased, rest was to be given to his wife and children---Admission of defendant about right of inheritance of plaintiffs was in accordance with law and consequently their suit to that extent should have been decreed and a contrary view of both courts below dismissing their suit in its totality was not justified---Judgments/ decrees of two Courts suffered from no illegality/irregularity except to the extent that suit of plaintiffs should have been decreed declaring them owners to the extent of their 'Sharia' shares in estate of the deceased---Revision was partly accepted and suit was decreed declaring each of them owners to the extent of 1/6th share in disputed house---Findings of two Courts regarding joint ownership of superstructure of suit house, were maintained.

Khadim Hussain Qaiser for Petitioners.

Nemo for Respondents.

Date of hearing: 21st December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2498 #

2006 Y L R 2498

[Lahore]

Before Jawwad S. Khawaja, J

SUGHRAN BIBI---Petitioner

Versus

MUHAMMAD NAZIR alias MUHAMMAD AKRAM---Respondent

Civil Revision No.2065 of 2005, decided on 16th November, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Transfer of Property Act (IV of 1882), S.52---Suit for declaration---Transfer of property through gift-deed during pendency of suit---Principle of lis penctens---Application of---Defendant/ sister of plaintiff had claimed that their father had gifted suit house to her by executing gift-deed in her favour---Plaintiff impugned said gift-deed mainly on the ground that it had been executed and registered during pendency of earlier declaratory suit which had been filed by him against his father/executor of gift-deed---Acquisition of title during pendency of a suit was not void---Only effect of principle of lis pendens was that transferee would acquire title subject to outcome of the lis---Ground of lis pendens was not available to plaintiff.

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

----Ss. 122 & 52---Civil Procedure Code (V of 1908), S.115 ---Gift-deed, execution of---Principle of Lis Pendens---Applicability---Petitioner had claimed that her father had transferred house in dispute to her by, executing gift-deed---Respondent/brother of petitioner had impugned said gift-deed on ground that it had been obtained by petitioner fraudulently and that it was void that it had been executed and registered during pendency of an earlier suit filed by respondent against his father/executant of gift-deed---Validity---Petitioner by producing scribe of gift-deed and marginal witnesses had fully proved execution of gift-deed---Acquisition of title during pendency of a suit was not void---Only effect of principle of lis pendens was that transferee would acquire title subject to outcome of lis---Trial Court rightly dismissed suit filed by respondent and Appellate Court was not justified to set aside its judgment and decree---Appellate Court had proceeded on the basis of considerations which were conjectural---Appellate decree being result of illegality, was set aside by High Court in exercise of its revisional jurisdiction and decree of Trial Court was restored.

Shaukat Hussain Khan for Petitioner.

Muhammad Saleem Cheema for Respondent.

Date of hearing: 16th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2503 #

2006 Y L R 2503

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD IBRAHIM---Petitioner

Versus

RIAZ AHMAD---Respondent

Civil Revision No.81 of 2002, heard on 19th April, 2006.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13---Talb-i-Muwathibat, performance of---Proof---Pre-emptor deposed to have been informed of sale by "M" at residence of "A", where he stayed overnight--Informer "M" deposed that pre-emptor stayed for night at his house, where he informed pre-emptor of sale---Held, pre-emptor's witnesses having contradicted each other materially could not be relied upon for proving such Talb.

Haji Noor Muhammad through legal heirs v. Abdul Ghani and 2 others2000 SCMR 329 and Akbar Ali Khan and others v. Mukamil Shah and others 2005 SCMR 431 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.13---Talb-i-Muwathibat, date, time and place of---Proof---Plaint need not contains such particulars, but importance of proving such particulars is well-recognized.

Haji Noor Muhammad through legal heirs v. Abdul Ghani and 2 others 2000 SCMR 329 and Akbar Ali Khan and others v. Mukamil Shah and others 2005 SCMR 431 rel.

Shaukat Ali Mehr for Petitioner.

Mian Muhammad Athar for Respondent.

Date of hearing: 19th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2509 #

2006 Y L R 2509

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

KHALID MAHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9477-B of 2005, decided on 23rd February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365, 392, 395 & 412---Bail, refusal of---Accused though was not named in F.I.R., but he was involved in the case on basis of supplementary statement of complainant---Said piece of evidence though had no legal sanctity, but accused, after his arrest, was also put to the test of identification parade and he was identified by the witnesses as one of the accused persons---Looted money was also recovered from accused---.Prima facie ample evidence was on record to connect accused with commission of offence falling within prohibitory clause of S.497, Cr.P.C.--Bail petition having no merits, was dismissed.

Syed Aftab Sherazi for Petitioner.

Muhammad Younas Malik and Javed, S.-I. for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2511 #

2006 Y L R 2511

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD RIZWAN alias JANNI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.336-B of 2006, decided on 3rd February, 2006.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 393 & 34---Bail, refusal of--Accused had been identified by eye-witness as one of the accused who had participated in the occurrence and was accompanying deceased at the time of incident---Trial of case had already commenced and case was fixed for recording of evidence and three witnesses were present, but defence counsel did not opt to cross-examine them and requested for adjournment---Delay was not attributed to prosecution, but was attributed to accused and his counsel because despite presence of witnesses, defence counsel was not ready to cross-examine them and their evidence could not be recorded---Contention that investigation had not been conducted properly and true facts were not brought on record of police, would be seen by the Trial Court after recording of evidence and at bait stage deeper merits of the case could not be looked into---Case fell within the ambit of prohibitory clause of S. 497, Cr.P.C. and no ground was made out for grant of bail---Bail petition stood dismissed, in circumstances.

Rai Khan Muhammad for Petitioner.

Khalid Ismail for the State.

Muhammad Mushtaq, A.S.-I. with record.

YLR 2006 LAHORE HIGH COURT LAHORE 2515 #

2006 Y L R 2515

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD ALI---Petitioner

Versus

AHMAD YAR---Respondent

Civil Revision No.353 of 2006, heard on 19th April, 2006.

(a) Evidence---

----Evidence led by parties, weighing of---Success of a party would be determined on basis of preponderance of evidence.

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

---S.7(1)---West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R.3(b)---Talaq, notice of---Proof---Acknowledgement due-receipt showing dispatch of talaqnama by husband to Chairman, Union Council through registered cover with acknowledgement due bearing signatures of Chairman---Talaq was proved.

Mian Abu-ul-Hassan for Petitioner.

Arshad Ali Chohan for Respondent.

Date of hearing: 19th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2517 #

2006 Y L R 2517

[Lahore]

Before Sh. Abdur Rashid, J

Alhaj DIWAN BUKHTIAR SAID MUHAMMAD---Petitioner

Versus

DIWAN MAUDOOD MASOOD---Respondent

Civil Revision No.349 of 2004, decided on 29th May, 2006.

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

----S.115---Revision---Placing on record additional documents, prayer for---Genuineness of such documents not disputed for being public documents and a judgment of High Court---Such documents were relevant for just determination of issues involved in the case---High Court placed such documents on record to he read in evidence for reaching at a just finding.

(b) Islamic Law---

--"Mutawali" and "Sajjada Nashin" of Khankah---Distinction stated.

The office of Sajjada Nashin of a Khankah is fully recognized in Islam. The only difference is that a Sajjada Nashin can be a Mutawali as well as Sajjada Nashin, whereas Mutawali may not be a Sajjad Nashin, as a Mutawali can only be a Manager and not a spiritual guide.

----S.7---Darbar Hazrai Baba Farid Ganj Shakar---Status of Chief Administrator Auqaf and Sajjada/Gaddi Nashin of Darbar explained.

The ceremony of opening of "Bahishiti Darwaza" of Darbar Baba Farid Ganj Shakar and other spiritual ceremonies during whole of the year have to be performed by the Sajjada Nashin and not the Auqaf Department. Thus, merely because the Shrine has been taken over by Auqaf Department, it does not mean that the office of Sajjada Nashin has become extinct or subordinate to the Administrator Auqaf, whose status will be just that of a Mutawali.

The keys of "Khans Kaaba" are still being kept by the Hashmits and it is they who are to open the door of "Kaaba-Tulla" on the day of "Gussal". This tradition also shows that a spiritual privilege is recognized in Saudi Arabia. Similar is the position regarding Rauza-e-Athr of Holy Prophet (may peace be upon him), which is situated in "Masjid-e-Nabvi", doors whereof are also to be opened by the privileged persons, whose nature of privilege is that of Sajjada Nashin, therefore, the above referred tradition provides a support that office of Sajjada Nashin is well recognized in Islam.

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

----S.42---Civil Procedure code (V of 1908), S.9---Suit for declaring privilege/status of plaintiff as Sajjada Nashin of Darbar---Jurisdiction of civil Court---Scope---Such privilege would fall within term of "legal character" as used in S.42 of Specific Relief Act, 1877 and could be enforced by civil Court---Such suit was competent.

(e) Islamic Law---

----Sajjada/Gaddi Nashin of Darbar/Khankah, appointment of---Method to determine factum of such appointment stated.

It is well established proposition of law that factum of appointment of Sajjada Nashin can be determined on the basis of evidence produced in the Court, which can be a written will besides conduct of treatment of deceased Sajjada Nashin during his lifetime, which will make it clear as to who was the person who was nominated/appointed to act as Sajjada Nashin after his death.

In absence of written deed appointing a particular person as Sajjada Nashin, it is the custom or usage, which has to determine as to who is the person to act as next Sajjada Nashin and the Court on the basis of evidence can record its finding.

Usage and custom is well-recognized spice of law under the jurisprudence besides laws made by legislature and the precedents.

The devolution of the office of Sajjada Nashin firstly depends upon the provisions of Waqfnama or trust deed of the incumbent, but in its absence, the order of devolution will be regulated by the customs and usages, which prevailed with regard to the particulars of endowment.

The office of Sajjada Nashin is a spiritual one and it is logical that the incumbent Sajjada Nashin should have the authority to select a man as his successor, who after him can best look after the work of the office. He also has the power of taking measure, which is chief emblem of religious distinction.

Dastar Bandi is no root to the title to Gaddi Nashin, rather it is merely an installation ceremony.

It is customary that after the death of a person, Dastar bandi of his elder son is held, who then assumes the role of head of the family, which is quite distinct from the office of Sajjada/Gaddi Nashin. The head of the family only looks after the affairs of the family, whereas Sajjada/Gaddi Nashin is a spiritual office, who has to look after the affairs of the Darbar, welfare of the Mureeds and provide guidance to them in religious and temporal matters.

AIR 1970 Lah. 728; AIR 1938 PC 2002; AIR 1933 Lah. 905 and ILR 19 Calcutta 203 rel.

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

----Art.2(c)---Evidence---Probability is a piece of evidence and can be relied upon as an item to prove a fact.

The State v. Habib-ur-Rehman PLD 1983 SC 286 and Said Wali v. Yaqoob Khan and another PLD 1983 SC 440 rel.

(g) Custom---

----Usage and custom is well-recognized spice of law under the jurisprudence besides laws made by legislature and the precedents.

(h) Punjab Waqf Properties Ordinance (IV of 1979)---

----S.7--- Sajjada Nashin/Gaddi Nashin of a Darbar/Khankah, appointment of---Chief Administrator, Auqaf, power of---Scope---Chief Administrator had no jurisdiction to prohibit use of waqf place for spiritual ceremonies or appoint or interfere with appointment of Gaddi Nashin.

Mian Ahmad Ali and others v. Rehabilitation Authority and others PLD 1964 SC 229; Altaf Husain v. Chief Settlement Commissioner and others PLD 1965 SC 68 and Sheikh Inayatullah and others v. M.A. Khan and others v. M.A. Khan and others PLD 1964 SC 126 rel.

(i) Islamic Law---

----Sajjada Nashin/Gaddi Nashin of Darbar Hazrat Baba Farid Ganj Shakar)---Custom of succession relating to Darbar stated.

Hazrat Baba Farid himself had nominated three Gaddi Nashins namely Shah Badaruddin, Sheikh Alauddin of Pakpattan Sharif and Sheikh Baharuddin of Hansi. The custom of succession to the shrine of Hazrat Baba Farid is that Sajjada Nashin in the office is competent to nominate his successor during his lifetime, provided the nominee is an agnate and Mureed. The office of Gaddi Nashi/ Sajjada Nashin of Baba Farid is governed by custom and usage that prospective Gaddi Nashin is appointed by the incumbent Gaddi Nashin through written will or oral or implied. Muhammadan Law of Inheritance or the Law of Primogeniture does not govern the said office. The descendants of Alauddin Maoj Darya or their followers are not entitled to make the nomination of the prospective Gaddi Nashin.

Dastar Bandi is no root to the title to Gaddi Nashin, rather it is merely an installation ceremony.

It is customary that after the death of a person Dastar Bandi of his elder son is held, who then assumes the role of head of the family, which is quite distinct from the office of Sajjada Nashin/Gaddi Nashin. The Head of the family only looks after the affaris of the family, whereas Sajjada/Gaddi Nashin is a spiritual office, who has to look after the affairs of the Darbar, welfare of the Mureeds and provide to them guidance in religious and temporal matters.

ILR 22 Cal. 324 P.C. rel.

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

----S.96 & O.XIII, R.4---Appeal---Documents exhibited in statement of plaintiff's counsel---Non-raising of objection by defendant at relevant time before trial Court---Held: defendant was estopped to raise objection to admissibility in evidence of such documents.

(k) Islamic Law---

----Sajjada/Gaddi Nashin of Darbar, office of---Competent Sajjada Nashin during his lifetime could always change his will or cancel nomination made by him to such office-No legal impediment is attached to such acts of incumbent Sajjada Nashin.

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

----S.107, O.I, R.10 & O. XLI, Rr.23-A, 33---Appeal---Claim to office of Sajjada Nashin of Darbar---Application by non-party to suit for impleading him as party for being in possession of will showing his appointment as Sajjada Nashin by late incumbent Sajjada Nashin---Appearance of applicant as witness on behalf of defendant---Applicant remaining silent for six years during pendency of suit before trial Court---Appellate Court dismissed such application in circumstances.

Ch. Mushtaq Ahmad Khan and A.D. Nasim for Petitioner.

Abid Hassan Minto and Syed Afzal Haider Shah for Respondent.

Date of hearing: 15th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2577 #

2006 Y L R 2577

[Lahore]

Before Nasim Sikandar and Jawwad S. Khawaja, JJ

ZAHID WAHEED KHAN---Appellant

Versus

CRYSTAL CHEMICALS LTD.

through Chief Executive---Respondent

Intra-Court Appeal No.1-C of 2006, decided on 26th June, 2006.

Contempt of Courts Ordinance (I of 2004)---

----S. 19---Appeal---Scope---Appeal would be competent only against an order of conviction or sentence, but not against an order refusing to interfere or convict contemnor---Judge keeping pending contempt application while hoping/ expecting compliance of his direction/order by contemnor---Not an order of conviction or sentence---Contemnor in such case would have to wait till final disposal of contempt application pending against him---Discretion of Judge not to convict contemnor even though finding him to have disobeyed earlier order/direction--- Principles.

Bakhtawar and others v. Amin and others 1980 SCMR 89; M.H. Khondkar and another v. The State and another 1971 SCMR 743 and West Pakistan Water and Power Development Authority through its Chairman v. Chairman, National Industrial Relations Commission PLD 1979 SC 912 reel.

Asif Mehmood Butt for Appellant.

Mehmood A. Sheikh for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 2579 #

2006 Y L R 2579

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD DIN alias MAHANA and 7 others---Petitioners

Versus

WAZIR ALI---Respondent

Civil Revision No.1521 of 1999 and C.M. No.1266-C of 2002, decided on 20th June, 2006.

Civil Procedure Code (V of 1908)---

----Ss. 12(2) & 115---Qanun-e-Shahadat (10 of 1984), Arts. 79, 118 & 119---Revision against decree passed in plaintiff's favor by Courts below, pendency of---Order of High Court dismissing plaintiff's suit on conceding statement of his Special Attorney and counsel alleging compromise between parties---Application for setting aside such order on ground of misrepresentation and fraud---Plaintiff's plea was that he did not appoint Special Attorney and Counsel, rather a fictitious person on basis of forged Power of Attorney had appeared as attorney on his behalf---Proof---Plaintiff by deposing in support of his plea discharged initial burden of proof, which thereafter switched over to defendant (beneficiary of impugned order)---Defendant was obliged to produce such Attorney to prove that he was validly appointed and had necessary authority to compromise matter on plaintiff's behalf---Defendant did not prove execution of disputed Power of Attorney by producing its attesting witnesses---Defendant did not examine such counsel to prove as to how he was engaged, upon whose instructions he appeared and made conceding statement before Court---Defendant did not bring on record written compromise or original Power of Attorney or copy thereof---Held: Defendant being beneficiary of impugned order had procured same by practicing fraud upon plaintiff-High Court set aside impugned order, resultantly revision petition stood revived for its hearing on merits.

Sardar Qasim Ahmad AIi and Ch. Muhammad Luqman for Petitioner.

Zahid Hussain Khan for Respondents/revision Petitioners.

YLR 2006 LAHORE HIGH COURT LAHORE 2582 #

2006 Y L R 2582

[Lahore]

Before Muhammad Muzammal Khan, J

ABD ULLAH---Petitioner

Versus

NAILA ASLAM and 4 others---Respondents

Writ Petition No.1468 of 2006, decided on 22nd June, 2006.

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

----S.5 & Sched.---Suit for recovery of dower amount enhanced by agreement---Agreement sent by husband through Embassy of Pakistan from abroad--- Husband through his attorney alleging agreement to be forged-Proof-Wife in support of her claim produced agreement, examined herself and its marginal witnesses---Husband did not appear in witness-box, but his attorney and witnesses denied his signature on agreement---Signature of husband on agreement and his admitted signature found by Court tallying to each other---Husband did not make application for comparison of his signatures by Handwriting Expert---Husband could enhance dower during subsistence of marriage---Suit was decreed in circumstances.

(a) Islamic Law---

----Dower, enhancement of---Scope---Husband during subsistence of marriage could enhance dower amount fixed in Nikahnama.

----S.5 & Sched.---Suit for maintenance by wife and child---Non-discharging of marital obligations by husband---Wife leading an isolated life and having devoted herself for bringing up of offshoot of parties---Maintenance claim was decreed in

circumstances.

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

----Art.199---Lawful decision of Court below within ambit of its jurisdiction---Not liable to be substituted in constitutional jurisdiction.

Rana Muhammad Saleem Akhtar for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 2589 #

2006 Y L R 2589

[Lahore]

Before Muhammad Muzammal Khan, J

MEHTAB RAZA---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, JHANG and 2 others---Respondents

Writ Petition No.200 of 2006, heard on 26th June, 2006.

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

S.17---Civil Procedure Code (V of 1908), Preamble---Proceedings before Family Court---Applicability of C.P.C.---Civil Procedure Code, 1908, though not directly applicable, but principles thereof would be adopted and applied to such proceedings.

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

----Ss.5,14, 17 & Sched. ---Civil Procedure Code (V of 1908), O.XLI, R.27---Constitution of Pakistan (1973), Art.199---Constitutional petition---Jactitation of marriage, suit for---Plaintiff claimed to be legally wedded wife of one "G ", while defendant claimed her to be his wife on basis of oral Nikah---Application by plaintiff to produce copy of her Nikahnama with "G" after close of evidence by both parties---Dismissal of application as well as suit by Family Court---Remand of case by Appellate Court while permitting plaintiff to produce further evidence to substantiate her earlier marriage with "G"---Validity---Evidence sought to be produced by plaintiff was necessary for just/fair decision between parties---Necessity of production of such evidence was also felt by Appellate Court, which was competent to adjudge order of dismissal of application---Appellate Court had given right to defendant to lead evidence in rebuttal---No injustice had been done to defendant---Remand order was, proper.

----Art.199---Lawful decision of Court below within ambit of its jurisdiction---Not liable to be substituted in constitutional petition.

?Munir Ahmad Khan Zai for? Petitioner.

Syed Sarfraz Hussain Gillani for Respondents.

Date of? hearing: 26th June, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2591 #

2006 Y L R 2591

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Muhammad Khalid Alvi, JJ

SALAMAT ALI---Appellant

Versus

THE STATE---Respondent

Murder Reference No.191 and Criminal Appeal No.126-J of 2001, decided on 27th February, 2006.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Prosecution without disclosing any reason had withheld most important witness, who could have been safely termed as the only eye-witness---Immediate cause of murder as stated by prosecution witness was that accused were trying to convince deceased to marry one of accused persons and to give a statement in their favor before a Court of law---Said cause was also belied by Nikahnama of deceased with one of co-accused and her statement recorded before Magistrate---Nikah of deceased, in circumstances had already taken place and her statement in favor of accused had also been recorded much before date of occurrence---No reason in circumstances, existed for accused persons to convince deceased for such an object which they had already achieved---Recovery of gun was allegedly got made by accused from house of co-accused, which by no means could be said to be in exclusive possession of accused---Neither any empty was recovered from the spot nor same were recovered from accused nor were found in the gun at the time of recovery---Articles recovered by Doctor from dead body of deceased after post-mortem, were not taken into custody by Investigating Officer nor were sent to Forensic Science Laboratory so as to establish that same matched with crime weapon---Gun allegedly recovered from accused was sent to Forensic Science Laboratory with considerable delay---Said unreasonable delay had cast shadow of doubt at prosecution case---Conviction and sentence recorded by Trial Court against accused, were set aside and he was acquitted and released.

Miss Lubna Ghulam Murlaza for Appellant.

Mirza Abdullah Baig and Riasat Ali for the State.

Date of hearing: 27th February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2594 #

2006 Y L R 2594

[Lahore]

Before Muhammad Muzammal Khan, J

ABDUL MAJEED KHAN---Petitioner

Versus

SENIOR MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 4 others---Respondents

Writ Petition No.6845 of 2006, decided on 26th June, 2006.

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

----S.36---West Pakistan Land Revenue Rules, 1968, R.19---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appointment of petitioner as Village Officer/Headman---Validity---Petitioner had been removed from government service on charge of nepotism and tampering with official record---Such order of removal from service remained intact up to Supreme Court---Petitioner was also defaulter of Agricultural Bank---Petitioner, in circumstances, was debarred from holding office of Village Headman---Such post was declared to be open for fresh appointment after inviting applications from residents of concerned village.

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

----S.36---West Pakistan Land Revenue Rules, 1968, R.19---Constitution of Pakistan (1973), Art.199---Constitutional petition---Village Officer/Headman, appointment of---Exclusive discretion of Revenue Authorities to make such appointment---High Court not a court of facts---No scope for interference of High Court in such discretion unless exercised arbitrarily or fancifully.

Muhammad Younis v. Member (Revenue), Board of Revenue 1988 SCMR 447; Muhammad Ramzan v. Member (Revenue), Board of Revenue and others 1989 SCMR 614; Ghulam Ahmad v. Member, Board of Revenue and 2 others PLD 1989 SC 344 and Haji Ahmad Yar v. Allah Ditta and another PLD 1989 SC 373 rel.

----Art.199---Lawful decision of court below within ambit of its jurisdiction---Not liable to be substituted in constitutional petition.

Petitioner in Person.

YLR 2006 LAHORE HIGH COURT LAHORE 2596 #

2006 Y L R 2596

[Lahore]

Before Mian Sagib Nisar, J

Mst. MASHAN through Legal Heirs---Petitioners

Versus

FAKHAR IMAM through Irshad Bibi---Respondent

Civil Revision No.24-D and Writ Petitions Nos.521 and 384 of 1999, heard on 3rd April, 2006.

Civil Procedure Code (V of 1908)---

----Ss.96, O.XXIII, R.3 & S.12(2)--- Specific Relief Act (1 of 1877), Ss.9 & 42---Qanun-e-Shahadat (10 of 1984), Art.114---Islamic Law---Gift---Proof---Gift by an unmarried old pardanashin lady in favor of her nephew, son of her deceased brother, was subsequently challenged by lady under S.12(2), C.P.C.---Contention of nephew was that gift in question confirmed by virtue of consent decree could not be assailed by the lady as consent decree operates as an estoppels---Validity---Courts below had properly analyzed the evidence on record produced by the both parties and given cogent reasons concurrently and correctly concluded that it was the lady who had appeared before the Court and had conceded the suit of the defendant nephew through which she admitted the making of the valid gift in his favor and there was no ambiguity or doubt about her identification or presence before the Court---Such findings, being concurrent were not shown to be the result of any misreading or non-reading of evidence and therefore, could not be set aside---Certain discrepancies in sanctioning the mutation had occurred as lady was an old illiterate woman and that nephew had never applied for comparison of thumb-impression of lady through Finger Print Expert but those had lost their significance and could not be made basis of upsetting the concurrent finding of fact recorded by Courts below specially because of lady's acknowledgment of the gift vide consent decree which had rightly not been upset by Courts below in proceedings under S.12(2), C.P. C.-Plea about lack of advice to lady by a male member of her family was irrelevant because lady was not married and both of her brothers were dead by the time, moreover, it was proved on record that admittedly throughout her life she had been living with her brother, father of defendant nephew, and even after demise of brother she was being looked after by the defendant's family, hence if she had made the gift in favor of her minor orphan nephews, it appeared to be very natural and for valid consideration---Held, it was the lady who executed the compromise deed, appeared before the Court, made the statement and was duly identified through her photograph and photocopy of the identity card and that was sufficient proof of her appearing before the Court and admitting about the gift---No misreading or non-reading of evidence had been pointed out for interference in the concurrent finding of Courts below.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Khajooroonissa v. Rowshan Jehan 1876 ILR-2 Cal 184; Mst. Azra Sultana v. Mst. Ashran Bibi 2000 PSC 107; Walayat v. Mst. Kaneez Fatima 1994 MLD 1955; Mst. Amir Bibi v. Ata Muhammad Khan and 14 others 1992 SCMR 553; Karam Bakhsh and another v. Mst. Saira Bibi 2000 MLD 318; Mst. Raj Bibi and others v. Province of Punjab through District Collector, Okara and 5 others 2001 SCMR 1591; Muhammad Iqbal v. S.A.M. Khan Member Board of Revenue and others PLD 1970 Lah. 614; Mst. Kishwar Sultana v. The Land Commissioner, Sargodha PLD 1976 Revenue 30; Naja and 2 others v. Shamand and 4 others PLD 1985 Lah. 607; Tooti Gul and 2 others v. Irfan-ud-Din 1996 SCMR 1386; Muhammad Sharif v. Mst. Rehmat Bibi and 2 others 2001 YLR 893; Mst. Umri v. Ghulam Rasool and 2 others 1998 CLC 291; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Ashiq Hussain v. Ashiq Ali 1972 SCMR 50; Azim Khan v. Malik Mobeen Khan and others 2001 SCMR 34; Mst. Sohab Kulli and 3 others v. Mst. Balour Jan and 8 others 1989 CLC 407; Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Nasrullah Khan v. Rasul Bibi 2001 SCMR 1156; Muhammad Lehrasab Khan v. Mst. Aqeelun-Nisa and 5 others 2001 SCMR 338; Nazir Ahmad v. Ghulam and another 1987 SCMR 1704; Srimati Saratkumari Dasi v. Amulyadhan Kundu and other AIR 1923 PC 13; Ananda Priya Baishnwavi v. Bijoy Krishna Ray AIR 1926 Cal 643; Mst. Unirao Begum and others v. Sheikh Rahmat Ilahi AIR 1939 Lah. 439; Ghulam Zahoor and 6 others v. Faisal Farooq and 5 others 2000 YLR 1971; Rahim Shah v. The Chief Election Commissioner of Pakistan and another PLD 1973 SC 24; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal PLD 1987 SC 447; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322; Hassan Din v. Hafiz Abdus Salam and another PLD 1991 SC 65; Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518; Government of Sindh and others v. Ch. Fazal Muhammad and another PLD 1991 SC 197; Ejaz Ahmad v. Muhammad Ali and 2 others 2003 SCMR 1768; Muhammad Rashid and others v. Shahid Aziz and others 2003 SCMR 789; Ghulam Muhammad and others v. Ali Asghar and another 2003 CLC 936; Ghulam Muhammad alias Gama and another v. Waryam 2004 CLC 1 and Alamdar Hussain v. Nazir Hussain and others 2004 SCMR 595 ref.

Ch. Imdad Ali Khan for Petitioners.

Nauman Qureshi for Respondent.

Date of hearing: 3rd April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2607 #

2006 Y L R 2607

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASLAM---Petitioner

Versus

MUHAMMAD ANWAR and others---Respondent

Civil Revision No.55-D of 2006, heard on 22nd May, 2006.

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

----Ss.12 & I8---Colonization of Government Lands (Punjab) Act (IV of 1912), S.19---Transfer of Property Act (IV of 1882), S.43---Specific performance of agreement to sell---Imperfect title--- Subsequently acquiring interest in property ---Prior to grant of proprietary rights to defendant, plaintiff entered into agreement to sell for the land to be allotted---After grant of proprietary rights, defendant declined to execute the agreement---Suit filed by plaintiff was decreed in his favour by Trial Court but Appellate Court allowed the appeal and dismissed the suit---Validity---Appellate Court remained in oblivion of S.43 of Transfer of Property Act, 1882 and more particularly S.18 of Specific Relief Act, 1877---Promise of an agreement was vested under S.18 of Specific Relief Act, 1877, for transfer of property, with a right to compel the promissory to transfer the land where he perfected his title subsequent to the agreement---Such agreement to sell did not fall within the mischief of S.19 of Colonization of Government Lands (Punjab) Act, 1912---Judgment and decree passed by Lower Appellate Court were set aside and that of Trial Court 'was restored---Revision was allowed accordingly.

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

----S.27 (b)---Principle of "bona fide purchaser for valuable consideration without notice"---Applicability---Plaintiff claimed to have entered into agreement to sell with owner of the suit land prior to its transfer to defendant---Contention of defendant was that he was bona fide purchaser for valuable consideration without notice of prior agreement--- Defendant during cross-examination admitted that a few days before registration of the sale deed he came to know that there was a dispute between plaintiff and owner of suit-.land regarding suit-land and for two months he had tried to effect a compromise---Effect---No case of bona fide purchase without notice was made out within the meaning of S.27 (b) of Specific Relief Act, 1877, in circumstances.

Mian Mushtaq Ahmad for Petitioner.

Muhammad Iqbal Khan for Respondents.

Date of hearing: 22nd May, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2612 #

2006 Y L R 2612

[Lahore]

Before Sheikh Azmat Saeed, J

WAPDA through Chairman, and 5 others---Petitioners

Versus

MUHAMMAD AMIR MALIK and 2 others---Respondents

Writ Petition No.13740 of 2005, decided on 20th April, 2006.

Electricity Act (IX of 1910)---

----Ss.24(2) & 26(6)---Detection bill---Jurisdiction of Electric Inspector---Scope---Under provisions-of S.26(6) of Electricity Act, 1910, after lapse of statutory period of 90 days, it was Provincial Government which alone was vested with authority to decide the matter---Electric Inspector, in circumstances, had become functus officio---Impugned orders of Electric Inspector and that of Advisory Board, were set aside and matter was referred to Provincial Government for decision in accordance with law.

Saeed Ahmad Bhatti for Petitioners.

Hafeez-ur-Rehman and Malik Asif for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 2613 #

2006 Y L R 2613

[Lahore]

Before Maulvi Anwarul Haq and Muhammad Nawaz Bhatti.

MUHAMMAD NAWAZ---Petitioner

Versus

MUHAMMAD SHAFI and another ---Respondents

Review Petition No.5-C and C.R. No.91-D of 1997, heard on 22nd May, 2006.

Civil Procedure Code (V of 1908)---

----Ss.96, 114, 115 & O.XLI, R.1- -Review of judgment---Dismissal of revision application for non-filing of certified copy of decree sheet---Contention of petitioner was that copy of decree sheet was not prepared by Trial Court, hence was not available---Petitioner further contended that revision application could not be dismissed for such objection raised by the office as the revision application was filed within time---validity---High Court was empowered under S.115 C. P. C. to call for records of any case decided---Proviso to S.115 C.P.C. called upon the applicant to furnish copies of pleadings, documents and order of subordinate Court---Unlike S.96 C. P. C. read with O. XLI, R.1 C. P.C., there was no mandate for filing of the copy of decree---Only objection which appeared to be substantial was not warranted by law and further that it had come on record that the decree sheet had not been prepared---Order passed by High Court dismissing the revision application was set aside and office was directed to list the revision application before any available bench---Review application was allowed in circumstances.

Sultan Muhammad v. Muhammad Ashraf and 4 others 1991 CLC 269 and Muhammad Ishaque v. Administrator (PR) and others 1994 CLC 1195 ref.

Mst. Sabiran Bi and Ahmad Khan and another 2000 SCMR 847 rel.

Athar Hassan Bokhari for Petitioner.

Mian Mushtaq Ahmad for Respondents.

Date of hearing: 22nd May, 2006

YLR 2006 LAHORE HIGH COURT LAHORE 2619 #

2006 Y L R 2619

[Lahore]

Before Jawwad S. Khawaja, J

SHAHID HAMEED KHAN

CHANDIA---Petitioner

Versus

TEHSIL NAZIM, TEHSIL

ADMINISTRATION. D.G. KHAN and 4 others---Respondents

Writ Petition No.3598 of 2004, decided on 19th January, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Locus standi---Auction of collection right in respect of tae on transfer of immovable property---Terms of auction provided the condition that all prospective bidders were required to pay amount of -call deposit in cash to the nominated functionary of Tehsil Municipal Officer or the convener of auction committee, prior to the time of auction---Time of auction was 9-00 a. m. ---and according to petitioner's own showing he had obtained a call deposit on the very date of auction and opening time of Bank was 9-00 a.m.---Petitioner had not been able to show that he had deposited call deposit at the relevant time to enable him to fulfill condition of auction---Petitioner therefore, had not been able to establish that he had fulfilled pre-conditions for participation in the auction---Petitioner, in circumstances had no locus standee in the matter.

M. Atif Murtaza for Petitioner.

Malik Muhammad Rafique Rajwana for Respondent No.5.

Pirzada Wali Muhammad Naseem Jaffari with Muhammad Safdar, T. M.O. D.G. Khan.

YLR 2006 LAHORE HIGH COURT LAHORE 2620 #

2006 Y L R 2620

[Lahore]

Before Umar Ata Bandial, J

RAZZAQ AHMED and 6others---Petitioners

Versus

FALAK SHER and 2 others---Respondents

Civil Revision No.2354 of 2005, heard on 22nd December, 2005.

Specific Relief Act (I of 1877)---

----S.12---Qanun-e-Shahadat (10 of 1984), Art. 79 --- Suit for specific performance of agreement to sell---Trial Court decreed suit filed by petitioner, but appellate Court dismissed the same---Appellate Court dismissed application of petitioner to produce secondary evidence, which. presented a flimsy and superficial ground for non-production of original document---Nothing was in the said application to suggest that document in question had been lost or destroyed---Reasoning given by appellate Court below was sound and pertinent---Apart from that defect in petitioner's case, his failure to produce second attesting witness of said document for proving it on record without establishing its non-availability to the satisfaction of trial Court, was another serious flaw in petitioner's case---Petitioner was unable to point out any legal defect in impugned order whether by way of misreading or non-reading of record or by commission of any illegality in the exercise of jurisdiction by appellate Court---High Court did not find merit in petition for modifying or otherwise revising impugned order.

Qasim Ali v. Khadim Hussain PLD 2005 Lah. 654 ref.

Sameer Ijaz for Petitioners.

Arshad Ali Chohan for Respondents.

Date of hearing: 22nd December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2622 #

2006 Y L R 2622

[Lahore]

Before Jawwad S. Khawaja, J

ABDUL HAMID ---Petitioner

Versus

MUNAZA FAKHAR and others---Respondents

Civil Revision No.316-D of 1996, heard on 17th January, 2006.

Specific Relief Act (I of 1877)---

----S.12---Limitation Act (IX of 1908), Art.113---Suit for specific performance of agreement---Mutation---Plaintiff had impugned concurrent judgments and decrees of Courts below whereby his suit for specific performance of agreement had been dismissed being time-barred as suit was filed after more than five years of execution of agreement, while such suit was to be filed within three years from date of agreement under Article 113 of Limitation Act, 1908---Courts below found that case fell within the first part of Art.113 of Limitation Act, 1908 and not under second part thereof---Two suits were pending adjudication between vendor/defendant and third party and it was stipulated in agreement of sale that defendant would be bound to get sale registered within one week after decision of said two suits---Agreement of sale, in circumstances fell within second part of Art. 113 of Limitation Act, 1908 and limitation was to start running only after refusal of vendor to perform his part of the agreement---Courts below, in circumstances fell in error in interpreting provisions of Art. 113 of Limitation Act, 1908---Impugned decrees being not sustainable, were set aside---Suit filed by plaintiff was decreed accordingly.

Mst. Bibi Khatoon and 7 others v. Abdul Jalil PLD 1978 SC 213 and Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314 ref.

Ch. Hafeez Ahmad for Petitioner. Syed Farooq Hassan Naqvi for Respondents.

Date of hearing: 17th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2623 #

2006 Y L R 2623

[Lahore]

Before Muhammad Muzammal Khan, J

ARSHAD AHMAD---Petitioner

Versus

MUHAMMAD SHARIF---Respondent

Civil Revision No. 1260 of 2002, decided on 24th January, 2006.

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

----S. 42---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration---Rejection of plaint---Petitioner filed suit for declaration to the effect that alleged Nikahnama between respondent and deceased daughter of petitioner duly registered was fictitious, fabricated, based on fraud and void, having no effect upon his rights---Respondent claimed himself husband of deceased daughter of petitioner on basis of alleged forged Nikahnama and he in that capacity was attempting to inherit property coming to the share of predeceased daughter of petitioner by virtue of S.4 of Muslim Family Laws Ordinance, 1961; besides that respondent by virtue of said Nikahnama would claim himself to be son-in-law of petitioner, creating in him a right to intervene in his family affairs---Validity---Petitioner certainly had a cause of action about adjudgment of Nikahnama---Petitioner's plaint as it stood, disclosing a cause of action, could not have been rejected under O. VII, R.11, C.P.C.

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

----S. 5 & Sched.---°Jactitation" and "Jactitation of marriage ", defined and explained.

Goldstone v. Goldstone (1922) 127. LTR 32 ref.

----Ss. 39 & 42---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.---Civil Procedure Code (V of 1908), 0. VII, R.11 --- Suit for declaration---Jactitation---Rejection of plaint---Petitioner filed suit for declaration to the effect that alleged Nikahnama between respondent and deceased daughter of petitioner might be declared fictitious, fabricated, based on fraud and void having no effect upon his rights---Respondent contested suit and raised preliminary objection in his written statement that petitioner had no cause of action to file suit---Trial Court, after framing preliminary issue regarding cause of action, rejected plaint---Appeal against judgment of Trial Court was also dismissed by Appellate Court---Validity---Law promulgated for settlement of dispute between husband and wife 4vas that in case any part of married couple disputes his or her marriage, such suits certainly would come before the Courts ojt' exclusive jurisdiction established in that behalf and he/she could not maintain civil suit, but where such relief was claimed by a person other than husband or wife, suit in that behalf would be entertained, adjudicated, tried and decided" by Civil Court of ultimate jurisdiction---Present suit was triable by Civil Court and was correctly filed by petitioner as same was filed for adjudication of document/Nikahnama and he had reasonable apprehension that, if that was left outstanding same would cause him serious injury---Suit in circumstances was maintainable under 5.39 of Specific Relief Act, 1877 requiring determination on merits---Both Courts below had acted with illegality and irregularity in rejecting petitioner's plaint and in dismissing his appeal, whereas his suit should have been decided on merits putting the parties to trial in accordance with law---High Court accepting revision, set aside impugned orders/Judgments/decrees.

Mrs. Rizwana Anjum Mufti for Petitioner.

Khan Muhammad Bajwa for Respondent No. 1.

Shahid Azeem for . Respondent No.2.

Date of hearing: 24th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2628 #

2006 Y L R 2628

[Lahore]

Before Mian Saqib Nisar, J

SARDAR ALI through Legal Representatives and others ---Appellants

Versus

Major GHULAM HAIDER KHAN NIAZI through Legal Representatives and others---Respondents

Civil Revisions Nos.1364 and 1751 of 1993, heard on 22nd February, 2006.

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

----Ss.10 & 36---Specifc Relief Act\ (I of 1877), S. 42---Allotment of land. under Tube-well Scheme---Cancellation of " allotment---Suit for declaration---Jurisdiction of Civil Court---Scope---Suitland was allotted to respondent under Tube-well Scheme, but subsequently said allotment was cancelled, suit-land was resumed and allotted to petitioner---Suit for declaration filed by respondent against Authorities and petitioner subsequent allot tee, was dismissed by the Trial Court holding that Civil Court had no jurisdiction in the matter and that suit was barred by time---Judgment of Trial Court, was set aside by Appellate Court holding that Civil Court had jurisdiction in the matter---Validity---Held, in view of bar contained in S.36 of Colonization of Government Lands (Punjab) Act, 1912, Civil Court had no jurisdiction in the matter because jurisdiction under that section had been vested exclusively with Authorities under the said Act, but no attempt had ever been made to avail appropriate remedy in that hierarchy---Respondent, whose allotment was cancelled in 1959 and he was out of possession since 1964, had filed suit after about 30 years of cancellation of his allotment---Suit was rightly held being barred by time---Impugned judgment and decree of Court of appeal was set aside and that of the Trial Court was upheld---Suit filed by respondent would remain dismissed.

Karam Din v. Member Board of Revenue, West Pakistan, Lahore and others PLD 1968 Lah.321; Abdul Hamid and others v. Province of the Punjab through Collector, Faisalabad and others 1989 SCMR 1741; Muhammad Ishaq v. Abdul Ghani and 3 others 2000 SCMR 1083 and Muhammad Ishaq v. Abdul Ghani 2000 CLC 159 ref.

Ch. Khurshid Ahmad for Appellants.

Nemo for Respondents Nos.1 (i) to (vi).

Rana Amir Ahmad Khan, A.A.-G. for Respondents Nos.2 and 3 (Petitioner in C.R. No.1751 of 1993).

Date of hearing: 22nd February, 2006.

2006 Y L R 2646

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD SARWAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.852 of 2003, heard on 14th January, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---No specific role whatsoever was attributed to accused either on the person of the deceased or the injured prosecution witnesses and he was merely shown to be present at the spot---Accused was not even attributed any firing at the place of occurrence---Co-accused alleged to have made firing at the spot had been acquitted by the trial Court and petition for special leave to appeal filed against his acquittal was also dismissed by High Court---Recovery of gun from the accused was of no avail to the prosecution as no crime empty was recovered from the spot---Accused was acquitted in circumstances.

Muhammad Yar Khan Daha for Appellant.

Abdul Qayyum Anjum for the State.

Date of hearing: 14th January, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2648 #

2006 Y L R 2648

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AHMED BUKSH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.289 of 2005, decided on 11th July, 2005.

Criminal Procedure Code (V of 1908)---

----S. 514---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Forfeiture of surety bond---Validity---Petitioners had stood surety for the appearance of the accused in the Court who had been granted ad interim bail before arrest by the Sessions Court---Accused appeared to have intentionally disappeared from the Court after obtaining interim bail to avoid disposal of the bail application on merits---Petitioner, thus, had become liable to forfeiture of surety bond---Accused persons after grant of interim bail generally used to start efforts to linger on disposal of bail petitions and even did not care to appear in the Court---Lenient view, in such circumstances, could not be taken regarding forfeiture of the surety bonds and the accused could not be allowed to misuse the concession of bail---Petitioner had already been dealt with leniently by the Sessions Court in the quantum of penalty which had been reduced to half of the total surety amount---Impugned order did not call for any interference in circumstances--- Petition was dismissed in limine accordingly.

Mukhtar Ali v. The State and others 1991 PCr. LJ 1625 distinguished.

Malik Abdul Rashid Khaira for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 2650 #

2006 Y L R 2650

[Lahore]

Before Khawaja Muhammad Sharif, J

Rana MUNIR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4732-13 of 2005, decided on 15th July, 2005.

Criminal Procedure Code (V of 1998)---

----S. 498---Penal Code (XLV of 1860),S.419---Drugs Act (XXXI of 1976), S,27(4)---Pre-arrest bail, refusal of---Accused was allegedly running a medical store and a hospital without a valid licence and was also indulged in the business of narcotics---Accused, thus, was playing havoc with the lives of the people---No authority whatsoever was shown by the accused under which he was running the said sensitive business---No mala fide was also shown against the District Health Officer in this regard---People attached with such a destructive business were going scot-free after joining hands with the police and the Authorities in the Health Department and they needed to be dealt with iron hands---Pre-arrest bail was refused to accused accordingly.

Syed Muhammad Asghar Naeem for the Petitioner.

Chaudhry Muhammad Hanif Khatana Add1.A.-G. Punjab with Ijaz Ahmad Bajwa for the State along with Dr. Muhammad Nawaz, DHO, Hafizabad, Mehmood S.-I./S.H.O., Yagoob A.S.-I. and Zulfiqar A.S.-I. in person.

YLR 2006 LAHORE HIGH COURT LAHORE 2652 #

2006 Y L R 2652

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

MUHAMMAD ASHRAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.976, Murder Reference No.407 and Criminal Revision No.474 of

2000, heard on 3rd February, 2005.

Penal Code (XLV of 1860)---

---- Ss. 3O2(a) & 302(b) --- Appreciation of evidence---Sentence, reduction in---Case being of single accused, substitution by the kith and kin of the deceased by leaving the real culprit is a rare phenomenon---Accused had committed the cold-blooded murdered of the deceased during day light---Eyewitnesses had given a clear account of the occurrence implicating the accused---Ocular testimony inspired confidence which was corroborated by the statement of the deceased made before his death, medical evidence and the recovery of crime weapon---Prosecution case, thus, had been proved against the accused beyond any doubt---Conviction of accused under 5.302(a), P.P.C. being erroneous was altered to S. 302 (b), P.P.C. as Tazir---Deceased had died after two months of the occurrence and during this period he remained under treatment of different doctors---Death of the deceased did not appear to be the direct result of the fire-arm injury caused by the accused and the possibility of the doctors' negligence during his treatment could not be ruled out---Death sentence of accused was reduced to imprisonment for life in circumstances.

Ch. Ghulam Hussain for Appellant.

Syed Kaleem Ahmad Khursheed for Complainant.

Malik Muhammad Aslam for the State.

Date of hearing: 3rd February, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2656 #

2006 Y L R 2656

[Lahore]

Before Fazal-e-Miran Chauhan, J

INAYAT MASIH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1042-B of 2005, decided on 29th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392---Bail, grant of---Accused was not named in the F.I.R., but had been involved in the case by the complainant in his supplementary statement recorded after more than three months of the registration of the case---Such involvement of the accused being an afterthought could not be given any weight---Picking of the accused in the identification parade by the complainant held after 20 days of his arrest, was also of no significance---No incriminating recovery was effected from the accused---Bail was allowed to accused in circumstances.

2003 PCr.LJ 986; 1997 PCr.LJ 70 and 1978 PCr.LJ 176 ref.

Sh. M. Farooq for Petitioner.

Syed Mukhtar Masood Bokhari for the State.

Javed Ashraf, S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 2657 #

2006 Y L R 2657

[Lahore].

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ARIF and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 197 of 1992, heard on 31st May, 2005.

Penal Code (XLV of 1860)---

----Ss. 395 & 412---Appreciation of evidence---Accused were alleged to have arrived at the factory of the complainant only to commit dacoity after covering a distance of 120 miles from their place of abode, but did not commit any such offence at any other place---Police appeared to be in league with the complainant who was a factory owner and had lodged the case for some ulterior motive---Complainant had made certain dishonest improvements in his statement at the trial which did not inspire confidence---Eye-witnesses seemed to have concocted a false story to enrope the accused in the false case and their testimony was not reliable---Watchman of the factory, the only independent witness of the alleged occurrence, was not examined by the prosecution---One co-accused of the accused nominated in the present case, was already under arrest in some other case and strangely enough' some amount was also shown to have, been recovered from him, belonging to the present dacoity and he had been declared not guilty ---Occurrence had not taken place as narrated by the prosecution witnesses---Recovery evidence had also been created to falsely implicate the accused for some hidden reasons---Accused were acquitted on benefit of doubt in circumstances.

Malik 'Muntazir Mandi and Ch. Ashraf Hameed Sindhu for Appellants.

Mian Kamran-bin-Lateef for the State.

Date of hearing: 31st May, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2662 #

2006 Y L R 2662

[Lahore]

Before Syed Zahid Hussain, J

ABDUL GHAFOOR---Petitioner

Versus

ALAMGIR and 4 others---Respondents

Writ Petition No. 15506 of 2005, decided on 20th December, 2005.

Civil Procedure Code (V of 1908)---

----0.1, R.IO---Constitution of Pakistan (1973), Art.199---Impleading of party ---Application for---Constitutional petition---Pending revision petition filed by respondents Nos.1 & 2 against respondent No.4, application filed by petitioner for being impleaded as party was rejected---Such order had been assailed by petitioner in his constitutional petition, alleging that said order was not only shorn of reasoning, but was a non=speaking order---Petitioner had further contended that he had vital interest in the subject-matter of revision petition and was entitled to be impleaded as a party ---Application of petitioner for Impleading him as party was dismissed without due application of mind, which was not maintainable in law---Said order was declared as without lawful authority---Application filed by petitioner would be deemed pending---Petition was accepted to that extent.

Sardar Abdul Majid Dogar for Petitioner.

Ch. Aamir Rehman, A.A.-G. for Respondents.

Date of hearing: 20th December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2663 #

2006 Y L R 2663

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

SANA ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1814 and Murder Reference No.719 of 2000, heard on 13th July, 2005.

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

----Ss. 302(b) & 302(c)---Appreciation of evidence---Inordinate delay of 12 hours in lodging the F.I.R. appeared to be on account of due deliberation and consultation---Acquittal of six co-accused by the trial Court was not challenged by the State or the complainant--Complainant party had failed to produce any documentary evidence to prove their possession over the land in question and any aggression committed by the accused---Accused, on the other hand, had successfully proved his possession over the said land, where the occurrence had taken place---Fatal shot, however, was attributed to accused which had caused fracture of left temporal and both parietal bones of the deceased---Plea of right of self-defence of accused was accepted, but he was held to have exceeded the same as none from the side of the accused party had received even. a scratch on his body---Conviction of accused under S.302(b), P.P.C. was consequently altered to S.302(c), P.P.C. and his death sentence was reduced to ten years' R. I. with benefit of S. 382-B, Cr. P. C. in circumstances---Order of compensation payable to the heirs of the deceased was, however, set aside as the same was not be awarded in such-like cases.

PLD 1982 SC 294 ref.

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

----S.544-A---Penal Code (XLV of 1860), S. 302 (c) --- Compensation to the heirs of the person killed, etc---Compensation to the heirs of the deceased is not to be awarded in cases of exercise of right of self defence or of grave and sudden provocation.

PLD 1982 SC 294 ref.

Syed Zahid Hussain Bukhari for Appellant.

A.H. Masood for the State.

Date of hearing: 13th July, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2668 #

2006 Y L R 2668

[Lahore]

Before Ali Nawaz Chowhan and M.A. Shahid Siddiqui, JJ

HASSAN RAZA alias TAIDI---Appellants

Versus

THE STATE---Respondent

Criminal Appeal Nos. 61-J and 17-J of 2002, decided on 23rd February, 2006.

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

----Ss. 9 & (c)--- Appreciation of evidence---Record had shown that recovered narcotic substance was never exhibited as a case property nor it was put to accused during their statement under S.342, Cr. P. C. ---Non production of recovered substance in the Court during the trial, was fatal to the case of prosecution---Narcotic substance which was taken as sample and sent to Chemical Examiner for analysis, was proved to be narcotic substance in view of report of Chemical Examiner and that report had been put to accused during their statements under 5.342, Cr. P. C. which had brought the case of accused under S.9 (a) of Control of Narcotic Substances Act, 1997---Accused were convicted under S.9(a), Cr.P.C. of Control of Narcotic Substances Act, 1997 but their sentences were reduced to R.I. for one year each besides fine of Rs. S, 000, accordingly.

Riasat Atli v. The State 2004 PCr.LJ 361 ref.

Aftab Ahmad Bajwa and Sher Afghan Asadi for Appellants.

Sardar Zahid Gul Khan for State.

Date of hearing: 23rd February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2671 #

2006 Y L R 2671

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

MUHAMMAD SALEEM KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1976 of 2002 and Criminal Revision No. 1200 of 2002 (in Murder Reference No. 898 of 2002), heard on 27th April, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 449---Appreciation of evidence---Sentence, reduction in---Occurrence took place in Haveli of the deceased ---F.I.R.' was promptly lodged---Presence of eye-witnesses at the spot was natural---No previous enmity or ill-will existed between the accused and deceased---Motive was not supported by any independent source---Ocular evidence was supported by medical evidence only to the extent that injury was caused by fire-arm --- Prosecution had alleged that the accused caused a burst fire which hit on the right leg of deceased but according to medical evidence there was single entry wound and two exit wounds---Matching of crime empties with the weapon allegedly recovered from accused was doubtful---Incident was an outcome of sudden quarrel which erupted between the accused and deceased while playing Ludo game---Conviction of accused under S.302(b) was maintained but death sentence awarded by Trial Court was reduced to imprisonment for life with benefit under 5.382-B, Cr.P.C.---Conviction and sentence under S. 449 of P. P. C. were set aside.

Khawaja Sultan Ahmad for Appellant.

Kazim Ali Bhangoo (in M.R.) and Mian Abdul Qayyum Anjam (in Crl.A.) for the State.

Masood?????????? Mirza?? for??????? the Complainant.

Date of hearing: 27th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2675 #

2006 Y L R 2675

[Lahore]

Before M. Bilal Khan, J

JABBAR ALI and others---Petitioners

Versus

THE STATE---Respondents

Criminal Miscellaneous No.667-8 of 2006, D decided on 27th February, 2006.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.337-A(i), (ii), 337-F(i), (v), 337-L(2), 367, 148 & 149---Pre-arrest bail, recalling of---Accused had been found to be guilty during course of successive investigations conducted by two D. S. Ps. and said opinion of guilt had been verified by District Police Offcer Medico legal report of injured, had revealed that he had suffered as many as fifteen injuries at the hands of accused---Offence under S.367, P.P.C. with which accused had been charged for, attracted prohibitory clause of S.497(l), Cr.P.C.---Accused had not been able to point out any malice either on the part of complainant or the police to falsely rope in accused in the case, which was pre-requisite for extending concession of pre-arrest bail to accused---No case for pre-arrest bail having been made out, interim anticipatory bail allowed to accused, was recalled.

Imran Chaudhry for Petitioners.

Tanvir Ahmad Shami and Talib Hussain, A.S.-I. for the State.

Ijaz Ahmad Khan for the Complainant.

2006 Y L R 2685

[Lahore]

Before Jawwad S. Khawaja, J

NAZIR AHMAD---Petitioner

Versus

MUHAMMAD TUFAIL another---Respondents

Civil Revision No. 556 of 2006, heard on 25th May, 2006.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Civil Procedure Code (V of 1908), O.X, R. 4(2) --- Pre-emption suit fled by two brothers/pre-emptor who made Talb-e-Muwathibat in same assembly---Non-appearance of one of pre-emptor as a witness without lawful excuse---Effect---Appearance of all pre-emptor to prove Talb-e-Muwahibat was not a legal requirement if there were valid reasons explaining the non-appearance of a pre-emptor as a witness -Since there was no 'explanation on record as to why the pre-emptor did not take the witness stand, testimony of his brother (another pre-emptor) was not sufficient and did not absolve the said absent pre-emptor from appearing in the Court and to face cross-examination.

Mian Shah Abbas for Petitioner.

Sheikh Naveed Shehatyar for Respondents.

Date of hearing: 25th May, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2686 #

2006 Y L R 2686

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Sadar SAJJAD HAIDER KHAN and others---Petitioners

Versus

HABIBULLAH AAMIR and others---Respondents

Criminal Revision No. 185 of 2006, decided on 13th July, 2006.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4, 5 & 9---Criminal Procedure Code (V of 1898), Ss. 190, 193, 265-K & 439---Quashing of proceedings---Illegal Dispossession Act, 2005 was a special law and procedure was also provided therein---Provisions of Criminal. Procedure Code, 1898 however, would apply to proceedings under said Act, wherever required---Contention of petitioner that Sessions Judge could only try complaint under S.4 of Illegal Dispossession Act, 2005, if it was routed through a Magistrate following the provisions of Ss.190(2) and 193, Cr. P. C., was not tenable---Any complaint which disclosed contravention of S.3 of Illegal Dispossession Act, 2005 was triable by the Court of Session as it was clearly provided in S.4 of the Act---Section 5 of Illegal Dispossession Act, 2005 had further clarified the provisions as it required that upon a complaint, the Court could direct the officer-in-charge of the Police Station to investigate and complete investigation and forward same within 15 days to the Court---If a person had a grievance as mentioned in S.3 of Illegal Dispossession Act, 2005, Sessions Court was competent to entertain and try complaint, the Court could take cognizance itself as mentioned in S.4 of said Act or entrust same to Additional Sessions Judge---Court would generally follow procedure provided in Illegal Dispossession Act, 2005, however, provisions of Cr.P.C. would be applicable during proceedings, but subject to provisions of the said Act---Complaint filed under Illegal Dispossession Act, 2005 did not require to be routed through a Magistrate under Ss. 190(2) & 193, Cr. P. C.

PLD 1973 SC 49; Muhammad Younas v. Shahid Cheema and 2 others, 2006 PCr.LJ 636 and Capt. M.S. Aslam v. State PLD 2006 Kar.221 ref.

S.M. Ayub Bukhari for Petitioners.

YLR 2006 LAHORE HIGH COURT LAHORE 2689 #

2006 Y L R 2689

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD RAFIQUE---Applicant

Versus

LIAQAT ALI and another---Respondents

C.M. No.44-C of 2000 in Civil Revision No.1091-D of 1991, decided on 27th January, 2004.

(a) Counsel and client---

----Duty of counsel towards Court---Counsel moved application with the request that he could not comprehend the order passed by the Court about the issuance of Commission to inspect the spot and he may be absolved of the responsibility to inform his client---Validity ---Counsel was duty bound to produce his client before the Court as and when it was so directed by the Court.

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

----0.X, R.1(A) & S.115---Requirements of justice---Counsel moved an application with the request that he could not comprehend the order passed by the Court about the issuance of Commission to inspect the spot and he may be absolved of the responsibility to inform his client---Court in order to do complete justice can adopt any legal course for decision of the revision---Appointment of Commission was within powers of the High Court---Court, under 0. X, R.1 (A), C.P.C., could adopt alternate method with consent of parties, to resolve the dispute---Application having no merit was dismissed in circumstances.

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

-----S.115---Revision--- Judgments at variance---Reappraisal of evidence---Courts below had rendered judgments at variance and placed different interpretations to the statements of witnesses---High Court re-examined the pleadings of the parties as well as the evidence on record.

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

----S.42---Suit for declaration---Forgery---Fraud---Onus to prove---Existence of documents was clearly, concisely and categorically admitted by the plaintiffs---Contention was that the plaintiffs were not in possession of the documents---Plaintiffs were to prove the said documents as forged and fabricated---Plaintiffs had failed to seek the production of documents from the defendant as they could seek discovery of documents or produce secondary evidence---Plaintiffs had failed to discharge the onus to prove the documents as forged or fabricated. (e) Specific Relief Act (I of 1877)---

----Ss.8, 39 & 42---Civil Procedure Code (V of 1908), O. VI, R. 7---Suit for declaration---Plaintiffs had filed suit for declaration annulment of documents and decree for possession---Trial Court dismissed the suit---Appellate Court decreed the same---Plaintiffs had changed their case in evidence as well as in appeal before the First Appellate Court---Plaintiff had deposed that they were in possession of the suit property---Plaintiffs contradicted their pleadings, through their evidence and memo. of appeal and by doing so they had deprived themselves of the equitable and legal assistance of the Court---Judgment and decree of Appellate Court were set aside and that of the Trial Court was restored.

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

---- S.136---Shamlat land---Status of the rights of the parties is determined by possession of the Shamlat land.

Shaukat Haroon for Applicant.

Mian??? Shahid? Iqbal??? for

Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 2694 #

2006 Y L R 2694

[Lahore]

Before Tariq Shamim, J

MUHAMMAD SHOAIB---Petitioner

Versus

THE STATE and 3 others---Respondents

Writ Petition No.2179 of 2006, decided on 30th May, 2006.

Penal Code (XLV of 1860)---

----Ss. 409, 411 & 34---General Clauses Act (X of 1897), S.24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner and his co-accused, were found to be innocent after investigation and a discharge report was prepared and submitted before Magistrate Section 30, who, disagreed with discharge report and observed that since offence under S.409, P.P.C. incorporated in F.1. R. being a Scheduled offence, could only be tried by a Special Judge---Local Police then submitted discharge report before Special Judge, who did not accept report in question by verbally observing that 5.409, P. P. C. was no more a Scheduled offence--- Magistrate then passed order in which it was observed that prosecution should submit report under S.173, Cr. P. C. before competent Court having jurisdiction in the matter---Both orders passed by Magistrate had been challenged through constitutional petition on ground that impugned orders were against law and facts of the case and were mechanically passed without examining record---Orders passed by Magistrate had revealed that same were passed in a mechanical manner without application of judicious mind and without perusing police file---Validity---Section 24 of General Clauses Act, 1897, provided that any Authority, whether judicial or gas judicial or even an executive Authority vested with any power to pass an order, was required to give reasons in respect thereof---Impugned orders could not be termed as a judicial or a speaking order---Said orders were set aside---Observation of Magistrate that offence under 5.409, P. P. C. being Scheduled offence was triable by Special Judge, however was correct and legal---Special Judge should have taken cognizance of the matter.

Federation of Pakistan V. Muharrunad Tariq Pirzada and others 1999 SCMR 2744 and Ahmad Din v. Illaqa Magistrate and others 2003 YLR 1049 ref.

Ahmad Raza for Petitioner.

M.R. Khalid Malik, A.A.-G. for Respondent.

Javed, Inspector Investigation, P.S. Fateh Sher.

YLR 2006 LAHORE HIGH COURT LAHORE 2696 #

2006 Y L R 2696

Lahore

Before Khawaja Muhammad Sharif and Mian Muhammad Najum-uz-Zaman, JJ

MUHAMMAD INAYAT and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.906 and 1143 of 2000 and Murder Reference No.392 of 2000, heard on 1st February, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence--Sentence, reduction in---Defence plea that the deceased was killed under "Ghairat" as he wanted to outrage the modesty of the sister of accused, was not taken by the accused immediately after their arrest and the same was an afterthought--- Statement of the said sister of accused recorded during investigation by the police had completely belied the defence plea taken by the accused at the trial---Eye- witnesses, who were the residents of the place of occurrence were natural witnesses whose presence at the scene of occurrence stood established on the record---Ocular testimony was corroborated by medical evidence and the recovery of crime weapons from the accused---Promptness in lodging the F.I.R. had also made the prosecution evidence reliable---Parties were closely related to each other due to cross- marriages---Brutal and cold-blooded murder of the deceased by giving him numerous injuries only for creating hurdles' in the marriage of the daughter of accused, judgme was not believable---Parties seemed to have concealed the true facts and had not come to the Court with clean hands---Genesis of the occurrence was shrouded in mystery---Prosecution had failed to prove the motive---Conviction of accused was maintained, but their sentence of death was reduced to imprisonment for life in circumstances.

Mian Muzaffar Ahmad for Appellants.

Khalid Ikram Khatana for the Complainant.

Malik Suleman Awan for the State.

Date of hearing: 1st February, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2701 #

2006 Y L R 2701

Lahore

Before M.A. Shahid Siddiqui, J

Mst. IQBAL BIBI and 3 others---Petitioners

Versus

NOOR DIN and others ---Respondents

Civil Revisions. Nos.2375 and 2376 of 2002, decided on 19th January, 2004.

Displaced Persons Land Settlement Act (XLVII of 1958)---

---- Ss. 5 & 14---Scheme for Allotment of Evacuee Agricultural Land to Jammu and Kashmir Displaced Persons---Rehabilitation Settlement Scheme Paras. 4-A & 44-A---Temporary allotment to Jammu and Kashmir Refugees ---Fard Taqseem---Family members---Suit for declaration---Jammu and Kashmir Regugees were registered with Jammu and Kashmir Refugees Department---Certified copies of Fard Taqseem showing the number and names of family members was inconsistent with Revenue Record of disputed property---Certified copies of the original Record were given preference---Judgment and decree passed by the Appellate Court were set aside and those Judgments of Trial Court were restored and suit of the plaintiffs was dismissed.

Ch. Muhammad Yaqoob Sidhu for Petitioners.

Syed Ijaz Hussain Rizvi for Respondents.

Date of hearing: 16th January, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2704 #

2006 Y L R 2704

Lahore

Before Ijaz Ahmad Chaudhry, J

UMAR HAYAT---Petitioner

Versus

MUHAMMAD ASGHAR ALI and another---Respondents

Criminals Miscellaneous Nos.5792-B and 2715-B of 2006, decided on 17th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5) ---Penal Code (XLV of 1860), Ss.295-8, 436, 452, 427, 337-H (2), 148 & '. 149---Petition for cancellation of bail---Petitioner/complainant had sought cancellation of bail already granted to respondent/accused, mainly on the ground that after having been released on bail, accused appeared before the Trial Court on some dates and then absented himself without any justification to cause delay in the trial---Order sheet of the Trial Court attached with petition, had shown that non- bailable warrants had already been issued against respondent/ accused and the Trial - Court was fully competent to cause his arrest for his failure to appear in the Court and to conduct other proceedings against him under Ss. 87 & 88, Cr. P. C. for , forfeiture of surety bonds and could separate his case under 5.512, Cr.P.C. by declaring him proclaimed offender---Grievance of petitioner/complainant having already been redressed by the Trial Court by issuing non-bailable warrants against respondent/accused, there was no need to take further action---Petition was disposed of accordingly.

Ch. Ghulam Murtaza Virk for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 2705 #

2006 Y L R 2705

Lahore

Before Muhammad Muzammal Khan, J

Mst. MAJEEDAN BIBI---Petitioner

Versus

Mst. ZAINAB BIBI and 2 others---Respondents

Civil Revision No.700 of 2003, decided on 18th February, 2004.

Civil Procedure Code (V of 1908)---

---- 0. XLI, R.23 & O. XIV, R.5 ---Specific Relief Act (I of 1877), S.42---Suit for declaration on basis of gift deed---Remand---Additional issues framed by Appellate Court---Suit for declaration on basis of gift deed was dismissed by the Trial Court---Appellate Court framed three additional issues and remanded the case for fresh decision---Trial Court had framed composite issue and the points raised in additional issues could be decided in the issue already framed---Parties were alive to the controversy between them---No evidence was available which could be led in post remand proceedings---Evidence on record was complete and no other evidence was needed for a just decision of the case---Remand order was set aside---Parties were directed to appear before the Appellate Court who would decide the appeal on the basis of evidence available on the file.

Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 quoted.

Ch. Shafqat Qadeer for Petitioner.

Ch. Muhammad Ikram-ul-Haq for Respondent No.1

Nemo for Respondents Nos.2 and 3, being ex parte.

YLR 2006 LAHORE HIGH COURT LAHORE 2709 #

2006 Y L R 2709

Lahore

Before Khawaja Muhammad Sharif, J

MUHAMMAD WAKEEL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2684 of 2003, heard on 19th October, 2004.

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

----Ss. 302(6) & 364---Appreciation of evidence---Sentence, reduction in---Recovery of the weapon of offence being a joint one was not admissible in evidence---No eye-witness of the occurrence was available---Accused, according to evidence on record, had taken away the deceased from his house---Prosecution witnesses, who had last seen the accused with the deceased had fully implicated him in the offence punishable under section 364, P. P. C. and they had no animus against the accused for his false involvement in the case---Mere relationship of the prosecution witnesses with the deceased was not enough to discard their testimony---No background of enmity even existed between the parties---Conviction of accused under S.302 (b), P. P. C. was set aside in circumstances and instead he was convicted under S.364, P.P.C. though he was not charged there under and sentenced to fourteen. Years' R.I. with fine of Rs.25, 000 taking a lenient view as he was less than eighteen years of age---Appeal was disposed of accordingly.

Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53 ref.

(b) Criminal trials---

----Interested witness---Interested witness is one who is not only closely related to the deceased, but is also inimical towards the accused.

----Ss. 236 & 237---Accused can be convicted of an offence for which he was not charged---Accused may be convicted of an offence although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made.

Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53 ref.

Rao Abdul Jabbar Khan for Appellant.

Ashfaq Ahmad Ch. for the State.

Date of hearing: 19th October, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2713 #

2006 Y L R 2713

Lahore

Before M. Bilal Khan, J

MUHAMMAD SAFDAR---Petitioner

Versus

DIRECTOR ANTI-CORRUPTION

ESTABLISHMENT, PUNJAB and 2 others---Respondents

Writ Petition No.5636 of 2006, decided on 21st June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 173---Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, (1of 1983), Arts.9 & 14---Penal Code (XLV of 1860), Ss.420, 486 & 471---Prevention of Corruption Act (II of 1947), S.5(2) ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Complainant got registered F.I.R. against accused/petitioner regarding issuance of incorrect "Fard Malkiat " by accused/petitioner---Subsequently matter became sub judice before Civil Court---On a complaint filed by complainant/respondent, Ombudsman directed complainant to approach Director General Anti-Corruption Establishment---As matter was not finally concluded complainant again approached Ombudsman who re-issued direction to respondents/ officials of Anti-Corruption Establishment to re-investigate the matter---Petitioner/ accused challenged the order of Ombudsman as to re-investigation of the matter through writ petition, raising plea that order was passed by the Ombudsman without affording him an opportunity of being heard---Validity ---Case of the petitioner/accused needed a factual inquiry which the High Court could not undertake in constitutional jurisdiction---Accused/petitioner failed to prove that re-investigation had caused any prejudice to accused---Multiple investigations could be carried out in criminal cases even after submission of report under S.173, Cr. P. C. and fresh challan could also be submitted---Criminal proceedings were not barred in presence of civil proceedings rather both types of proceedings could be continued simultaneously---Accused/ petitioner's contention that Ombudsman's order was passed without affording accused/petitioner an opportunity of hearing was without force as requirement of an opportunity to be heard before adverse order was passed, did not in all situations mean giving of personal hearing.

Muhammad Yousaf v. The State and others 2000 SCMR 453; Syed Waqar Hussain Shah v. The State PLD 1988 Lah 666; Safia Begum v. S.H.O. Police Station Garh Maharaja, District Jhang and 3 others 1993 PCr. LJ 97; Ahmed Saeed v. The State and another 1996 SCMR 186; Talib Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177; The Deputy Inspector General of Police, Lahore and others v. Anis-ur-Rehman Khan PLD 1985 S.C. 134 and Union of India and another v. M/s Jesus Sales Corporation AIR 1996 SC 1509 ref.

Ch. Muhammad Aslam Sandhu for Petitioner.

Ch. Aamir Rehman, Addl.A.-G. assisted by Tanvir Ahmad Shami for the State.

Tariq Mehmood, Deputy Director (Investigation) and Hassan Raza, Assistant

Director, ACE Gujranwala with record.

YLR 2006 LAHORE HIGH COURT LAHORE 2716 #

2006 Y L R 2716

Lahore

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

ABDUR REHMAN and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.907 and Criminal Revision No.491 of 2001 and Murder Reference

No.391 of 2001, heard on 27th January, 2005.

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

----S. 302(6)134---Appreciation of evidence---Murder of the deceased had remained unwitnessed which had taken place at night---No eye-witness of the occurrence was examined in the case---Prosecution witnesses who had provided last seen evidence and Wajtakkar evidence had been expressly disbelieved by the Trial Court discarding their statements---Prosecution itself had not set up any motive against the accused, but had relied upon extra judicial confessions allegedly made by them before some prosecution witnesses to the effect that the deceased was maintaining illicit relations with their sister-in-law---Accused were real brothers and it was not believable that they and their acquitted father had confessed their guilt on the same day before four different persons living within a radius of about 100 Kilometers---Said four witnesses of the extra judicial confession had made divergent and contradictory statements and the same could not be relied upon---Recovery of the pistols and other incriminating articles from the accused as well as of the crime empties from the spot, had been found to be quite doubtful---Both the recovery witnesses, who were related to the deceased, had already been disbelieved in respect of the extra-judicial confession and the last seen evidence and they could not readily be relied upon regarding the recovery, which even otherwise suffered from various defects---Accused were acquitted on benefit of doubt in circumstances.

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

---- S. 302(b)/ 34---Appreciation of evidence---Recovery, if not corroborated had no evidentiary value---Mere recovery of the weapon of offence or of articles of the deceased may not, by itself, suffice to hold an accused person guilty on a capital charge because recovery is generally meant to provide corroboration, but it becomes of little evidentiary value if there is no other evidence left in the field to provide corroboration to it.

Aftab Farrukh for Appellants.

Masood Mirza for the Complainant.

Shahzad Saleem for the State.

Date of hearing: 27th January, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2721 #

2006 Y L R 2721

Lahore

Before M. Bilal Khan, J

LAKHMEER AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4785-B of 2006, decided on 5th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 364 & 201---Bail, grant of---Further inquiry ---Accused, who was an old man of about 70 years of age, his name did not feature in F.I.R.---No direct evidence was available qua accused and only incriminating evidence available with prosecution was a Fard Nishandahi and according to said Fard, co-accused had pointed out place from where incriminating articles were recovered and not the accused---Said recovery had allegedly been made from the house of co-accused---Complainant who was real son of deceased and who had seen his father sitting in the car of co-accused in a petrified condition, did not even ask his father's fright and why did he take 18 long hours to begin his inquiry about his deceased father---Material available with prosecution against accused, prima facie, was not sufficient enough to connect him with offence punishable with capital punishment or on offence entailing prohibitory clause of S.497(1), Cr.P.C.---Submission of challan or even commencement of trial, would not deter the Court from extending concession of bail, if otherwise accused was entitled to same on merits---Case of accused was one of further inquiry within subsection (2) of 5.497, Cr. P. C. in peculiar facts and circumstances---Accused was admitted to bail, in circumstances.

Ch. Muhammad Hussain Chhachhar for Petitioner.

Hafiz Muhammad Hanif Zafar for the Complainant.

Mian Abdul Qayyum Anjum for the State.

Asif Ali A.S.-I. P.S. 'A' Division, Kasur with police file.

YLR 2006 LAHORE HIGH COURT LAHORE 2723 #

2006 Y L R 2723

Lahore

Before Mian Hamid Farooq, J

FAROOQ IMRAN---Appellant

Versus

Mst. HAFEEZ MUNIR through Special Attorney---Respondent

F.A.O. No.179 of 2003, heard on 30th March, 2004.

Cantonment Rent Restriction Act (XI of 1963)---

----S. 17(5)---Default---Bona fide personal need of landlord---Rebuttal---Prerogative of landlord ---Mala fides---Petition for ejectment was decreed by the Tribunal on ground of personal need and default---Contentions of the tenant was that the Tribunal had not declared personal need as bona fide and rent deed was not proved and the period of default was not specified---Validity ---Word "bona fides was in the issue and mere statement of the landlord was sufficient to prove bona fides---Tenant could rebut the same by producing evidence that need was not bona fide---Landlord had the prerogative to have property of his own choice, such right being guaranteed by the Constitution---Lease deed was exhibited on the file and default period was specified in the petition for ejectment---Appeal was dismissed by the High Court being without any merits.

Jehangir Rustam Kaklia. through legal heirs v. Messrs Hashwani Sales and Services (Pvt.) Limited 2002 SCMR 241; Tahir Umar v. Messrs Bata Shoes (Pakistan Limtied through Managing Director and 3 others 1991 MLD 1236 and Mst. Akhtari Begum v. Muhammad Qasim 2000 SCMR' 1937 quoted.

Miss Akhtar Qureshi v. Nisar Ahmad 2000 SCMR 1292; Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613; Messrs F.K. Irani and Co. v. Begum Feroze 1996 SCMR 1178; Juma Sher v. Sabz Ali 1997 SCMR 1062 and Muhammad Siddiqui v. Muhammad Shoaib 1986 SCMR 1207 ref.

Nauman Qureshi for Appellant.

Dr. Khalid Ranjha for Respondent.

Dates of hearing: 29th & 30th March, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2729 #

2006 Y L R 2729

[Lahore]

Before Fazal-a-Miran Chauhan, J

THRIFT AND CREDIT SOCIETY through Treasurer---Petitioner

Versus

SECRETARY COOPERATIVES, GOVERNMENT OF PUNJAB and 4 others---Respondents

Writ Petition No.5570 of 2005, decided on 29th March, 2006.

Cooperative Societies Act (VII of 1925)---

----Ss. 22-A & 50-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recovery of bank loan---Mark-up beyond agreed date---Charging of running mark-up---Due to natural calamity, petitioner-Society could not return the loan by due date and became defaulter---Award under S.50-A of Cooperative Societies Act, 1925, was passed against the petitioner who, was directed to pay the principal amount along with mark-up and proceedings cost---Subsequently, the Authorities directed the petitioner to pay running mark-up---Plea raised by the petitioner was that charging of running mark-up was in violation of initial award passed under S.50-A of Cooperative Societies Act, 1925, and no mark-up could be charged beyond the date agreed between the parties---Validity ---Principal amount/ interest/mark-up or other charges would be realized by the bank according to the award/decree in each case and nothing beyond that---Subsequent order passed by the Authorities was based on conjectures and surmises---Interpretation made by the Authorities was not based on sound reasoning---Observation and directions given in similar case by Provincial Government was based on sound reasoning---Subsequent order passed by the Authorities was set aside and bank was directed to charge mark-up granted in initial award---Petition was allowed accordingly.

Malik Waqar Haider Awan for Petitioner.

Ch. Khalid Mehmood Arain for Respondents.

Ch.?????? Rub Nawaz,???? Assistant Registrar, Co-operative, Kabirwala, Tehsil Kabirwala,??????????? Distrcit Khanewal???????? for Respondent No.3.

YLR 2006 LAHORE HIGH COURT LAHORE 2732 #

2006 Y L R 2732

Lahore

Before M. Bilal Khan, J

Syed HAIDER ALI SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7388-B and 9170-B of 2005, decided on 31st January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, grant of---Further inquiry ---Allegation against accused was that he along with his co-accused raised Lalkara and thereafter indulged in reckless firing during course whereof two passersby suffered injuries---Case of accused was at par with one of co-accused against whom similar allegations had been brought and he had been allowed bail---Accused was admitted to bail, in view of rule of consistency ---Role assigned to co-accused was that he inflicted a fire-arm injury on left thigh of prosecution witness, whereas the co-accused had alleged that said injury to prosecution witness was a self-suffered one and that he should be reexamined---Injury allegedly suffered by injured on examination, had been declared to be one falling under 5.337-F(iii), P.P.C., which entailed maximum punishment of three years imprisonment---No allegation was leveled against co-accused that he ever caused any injury to either of the deceased persons---Question of vicarious liability of co-accused was to be gone into at the trial---Case against co-accused, in circumstances needed further inquiry within meaning of subsection (2) of S.497, Cr. P. C. ---Accused was admitted to bail in circumstances.

Muhammad Umar v. The State and another PLD 2004 SC 477 and Sarfraz alias Sarri v. State PLJ 2003 Cr.C. (Lahore) 612 ref.

Malik Muhammad Arif Bara for Petitioner.

Imtiaz Shahid for Petitioner (in Cr. M. No.9170-B of 2005).

Ms. Sarnia Bashir for the State with Muhammad Saleem, S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 2735 #

2006 Y L R 2735

Lahore

Before Muhammad Sair Ali, J

MUHAMMAD ASLAM through Legal Representatives - --Petitioners

Versus

MAHMOODA BEGUM alias Mst. MAHMOODA SABOOHI and others---Respondents

Civil Revision No.2018-D of 1999, decided on 21st June, 2006.

(a) Islamic law---

----Will---Validity---Will under Islamic law in favour of an heir---Onus of proof---Quality of evidence---Principles.

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

----S.4---Succession---Oral will---Proof---Principles---Daughter of predeceased son---Right to inheritance---Plaintiff filed suit claiming therein that she being the only issue/daughter of predeceased son, her grandfather made an oral will in her favour to the extent of 113 of his entire land holding and that plaintiff was entitled to her share in inheritance of her grandmother---One of the two defendants resisted suit, denying oral will in favour of plaintiff, and took plea of limitation---Trial Court rejected plaintiff's claim as to will but decreed suit to the extent of her share in inheritance of plaintiff's grandmother---Appellate Court decreed entire suit---Validity---Onus of establishing an oral will was a very heavy one and it was to be proved with utmost precision and considering every circumstance of time and space---Surrounding circumstances, time, place, conduct of parties, nature of their relationship, their credibility, their expediencies and their approaches qua subject-matter were material and relevant facts for proof of oral transaction---Discrepancies in statements of witnesses as to time, date, month, year, testator's words, reasons and circumstances of oral will needed careful and close examination and could not be lightly, vaguely or generally dealt with by Court---

Discrepancies could not have been excluded from consideration as minor or insignificant---Evidence on proof of an oral will needed to be clear, consistent, credible, unambiguous, unimpeachable, specific, precise and definitive---Inference and conclusion as to existence of will was to flow from such quality of evidence---Object thereto was to avoid prejudice to the vested rights of lawful heirs and to effect due devolution of inheritance as per law and Shariat---Evidence led by plaintiff did not appear to qualify the required test---Appellate Court also did not appreciate evidence in its true perspective---Plaintiff's suit regarding her share in inheritance of her grandmother was within time---Judgment and decree passed by Appellate Court was set aside and those of Trial Court were restored.

Venkat Rao and another v. Namdeo and others AIR 1931 Privy Council 285; Mahabir Prasad and another v. Syed Mustafa Hussain and others AIR 1937 Privy Council 174; Mt. Izhar Fatma Bibi and others v. Mt. Ansar Fatma Bibi and others AIR 1939 Allahabad 348; Ch. Muhammad Hussain and another v. Hidayat Ali and 6 others NLR 1981 SCJ 460 and Amina Rehman v. Mirza Karamat Hussain and others 1993 MLD 1898 rel.

----Oral will or transaction---Onus of proof---Principles.

Ch. Imdad Ali for Petitioners.

Ch. Mushtaq Ahmad Khan for Respondent No.1.

Anwaar Akhtar for Respondents Nos.2 to 6.

Date of hearing: 7th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2756 #

2006 Y L R 2756

Lahore

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1404 of 2003, decided on 1st March, 2006.`w

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in---Accused had not challenged his conviction recorded by the Trial Court against him, but had only requested for reduction of his sentence---Accused was apprehended red-handed while in possession of two kilograms of Charas and report of Chemical Examiner was positive ---Factum of recovery had been proved by two prosecution witnesses who had made consistent statements---Said recovery witnesses were public servants and apparently there was no background of ill-will or bitterness between such public servants and accused so as to prompt witnesses to falsely implicate accused in a case of such nature---Accused, in circumstances was justified in not challenging his conviction--- cused, however, had no history of involvement in offences pertaining to narcotics prior to registration of the case---Accused, who was an employee in a hotel, did not appear to be financially comfortable in life which fact was evident from filing of appeal from the jail rather than through a private counsel---Even before the Trial Court accused could. not afford a private counsel---Accused was not a dealer of narcotics and he could well be only a pusher or a carrier---Accused had spent about four years in jail in connection with the case---In view of said special circumstances of the case, appeal of accused was dismissed to the extent of his conviction recorded by the Trial Court, but same was partly allowed to the extent of his sentence of imprisonment which was reduced to that already undergone by him and sentence regarding payment of fine, also was set aside and accused was ordered to be released.

Mian Abdul Qayyum Anjum for Appellant.???????

M. Najam-uz-Zagib Raj for the State.

Date of hearing: 1st March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2758 #

2006 Y L R 2758

Lahore

Before Muhammad Khalid Alvi, J

MUHAMMAD MUKHTAR and others---Petitioners

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAISALABAD

and others---Respondents

Writ Petition No. 16653 of 2005, decided on 14th December, 2005.

Civil Procedure Code (V of 1908)---

----S. 94 & O.X, R.2(3)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Violation of status quo order---Legislature in its wisdom, had used the word person' and not 'party' in S. 94, C. P. C. and O. XXXIX, R.2 (3), C. P. C. in order to bring all those to justice who violated order of a Court whether they were party or not---Person brought to Court to face such allegation, however, could validly take a defence of ignorance of existence of such an order of the Court.

1999 MLD 297; 1993 CLC 489 and PLD 1967 Dacca 67 ref.

Rana Muhammad Arshad Khan and Majid Hussain for Petitioners.

Muhammad Sohail Majeed Chaudhry for Respondents.

Date of hearing: 14th December, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2759 #

2006 Y L R 2759

Lahore

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uiz-Zaman, JJ

GHULAM ABBAS and 2 others---Appellant

Versus

THE STATE---Respondents

Criminal Appeal No.241, Murder

Reference No.472 and Criminal Revision No. 141 of 1999, heard on 7th June, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 452, 34 & 337-A(ii)---Sentence, reduction in---Appreciation of evidence---Son acting under influence of father---Mitigating circumstance---Effect---Accused persons/appellants (father and two sons) entered in the house of deceased and murdered him, causing injuries to brother of deceased---Motive behind occurrence was stated to be in regard with disputed land---Trial Court awarded death sentence to accused who had given fatal "Churri " blow to deceased---Remaining accused were awarded sentences on various counts including imprisonment, Diyat and compensation to heirs of deceased---Validity---Accused was attributed two "Churri " blows but as per post mortem report there was only one sharp-edged injury on chest of deceased which proved fatal---Counsel for the accused did not contest case on merit rather requested for, lesser sentence due to the reason that accused/appellants had acted under influence of their father who had a dispute of land with complainant party---Accused, who was awarded death sentence, was 19 years of age at the time of occurrence---Death sentence awarded to accused under S. 302(b), P.P.C. was converted into life imprisonment---Life imprisonment awarded to co-accused was maintained---Sentences of accused were to run concurrently---Petition for enhancement of sentence of accused/appellants was dismissed---Appeal filed by accused was also dismissed with said modification.

Talat Mahmood Zaidi for Appellant.

Malik Rab Nawaz Noon for the Complainant.

Tahir Iqbal Khan, A.A.-G, Date of hearing: 7th June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2763 #

2006 Y L R 2763

Lahore

Before Syed Shabbar Raza Rizvi, J

Mst. MADIHA SULTANA and others---Petitioners

Versus

MUHAMMAD SHARIF and others---Respondents

C.M. No.10 of 2006, decided on 19th July, 2006.

Constitution of Pakistan (1973)---

----Art. 203---Power of High Court to supervise and control subordinate Courts---Scope---Article 203 of the Constitution was meant to give administrative control to High Court of each Province to supervise and control all Courts within respective Provinces---Said Article had linked administrative relationship between the High Court and Subordinate Courts within the Province---Article 203 of the Constitution did not confer any right on the litigant parties---Litigant parties could not invoke Article 203 for enforcement of any right among themselves---Article 203 also signified that High Court could take only an administrative action under that Article which did not include an action on judicial side.

A. Hameed v. Chief Settlement and Rehabilitation Commissioner, N.-W.F.P. and another PLD 1979 Pesh. 56; Abdul Rehman v. Chaman Ara PLD 1972 Kar. 164 and M. Yousaf Zaki v. Ch. Zafar Ullah 1982 NLR 504 ref.

Kanzus Saadat Siddique for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 2764 #

2006 Y L R 2764

Lahore

Before M. Bilal Khan, J

ATIQUE ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1554-B of 2006, decided on 26th June, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 302, 380 & 34---Ad interim pre-arrest boil, confirmation of---Further inquiry ---Divergent statements had been made not orb, by-complainant, but also by his witnesses- -Entire prosecution story was abounding with serious doubts and integrity of F.I.R., needed a thorough scrutiny at the time of trial---Case of accused, pre-eminently was one of further inquiry within the meaning of subsection (2) of 5.497, Cr. P. C. ---Ad interim pre-arrest bail already allowed to accused, was confirmed, accordingly.

Saifullah Khan for Petitioner.

Ch. Muhammad Hussain Chhachhar for the Complainant.

Sardar Bilal Ahmed for the State.

Muhammad Khalid, D. S. P., Regional Investigation Branch, Multan with Record.

YLR 2006 LAHORE HIGH COURT LAHORE 2767 #

2006 Y L R 2767

Lahore

Before Syed Shabbar Raza Rizvi, J

NADEEM AKHTAR and another---Petitioners

Versus

ELECTION TRIBUNAL and others---Respondents

Writ Petition No. 1616 of 2006, decided on 19th July, 2006.

Punjab Local Government Elections Rules, 2005---

----Rr. 12, 65, 75, 77 & 82---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Election of Nazim and Naib Nazim---Death of returned candidate---Declaration of respondent as returned candidate---Election petition---Returned candidate who, after election had also taken oath of office, died thereafter---Respondents, who remained unreturned in election filed election petition before Election Tribunal alleging that returned) deceased candidate had concealed his as well as his family members' assets in the nomination papers---Election petition was allowed on the ground that returned candidate having concealed his assets, was disqualified to participate in the election---Election Tribunal also declared one respondent as returned since he had secured second highest votes---Petitioners who were candidates in the election had impugned order of Election Tribunal with a prayer that a fresh election should be ordered and electorates of constituency be provided another chance to elect their representatives---Counsel for petitioners had not disputed findings of Election Tribunal that deceased returned candidate had concealed his true assets---Under Rule 75 of Punjab Local Government Elections Rules, 2005, Election Tribunal could decide in either way mentioned in the said section---Considering evidence and facts of petition, Election Tribunal opted to decide as mentioned in R. 75(c) of said Rules declaring election of deceased returned candidate to be void and declaring respondent duly elected---Validity---Discretion conferred upon Election Tribunal had been exercised by it on basis of evidence produced by parties---High Court in exercise of its constitutional jurisdiction, could not declare whether Election Tribunal had exercised his discretion judiciously or not---Nothing was on record to show that Election Tribunal had acted mala fide , without jurisdiction or passed impugned order in disregard of law or rule.

PLD 1968 SC 301; PLD 1996 SC 717; 2004 SCMR 1242; 2004 SCMR 1021 and 1986 CLC 2082 ref.

Sh. Zameer Hussain for Petitioners.

Maqbool Elahi Malik and Razzaq A. Mirza for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 2770 #

2006 Y L R 2770

Lahore

Before Sardar Muhammad Aslam, J

MUHAMMAD YASIN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2-Q of 2006, decided on 6th June, 2006.

Criminal Procedure Code (V of 1898)---

----Ss.561-A & 249-A---Penal Code (XLV of 1860), Ss. 379, 506, 279, 427, 337-G, 148 & 149---Private complaint---Quashing of proceedings---Scope---Complainant filed private complaint against accused, alleging therein that while riding on motorcycle, a car collided with his motorcycle causing him injuries---Complainant also alleged that he was beaten by accused and 'three unknown persons---Accused/petitioners moved an application under 5.249-A, Cr. P. C. before Trial Court for their acquittal which was dismissed---Revision filed there against was also dismissed---Validity ---Evidence of complainant and his witnesses was contradictory in material particulars---Complainant did not get himself medically examined---Whereabouts of driver of car and three unknown persons, who had beaten complainant were not given in complaint---Officials of traffic police who took complainant and accused to police station were not summoned/examined as' witnesses---Complainant was serving the cause of his employer who (employer) was involved in litigation with accused/ petitioners---Examination of complaint and preliminary evidence did not disclose any offence against accused---Proceedings launched by way of private complaint were motivated and would be sheer abuse of process of Court without any hope of resulting in conviction of accused---Proceedings were ordered to be quashed.

Raja Nadeem?? Haider? for Petitioners.

Z.A. Qudsi for Respondent No.2.

Ch. M. Suleman Addl.A.-G. for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2772 #

2006 Y L R 2772

Lahore

Before Khawaja Muhammad Sharif, J

GHULAM HAIDER---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, and others---Respondents

Writ Petition No. 19426 of 2005, decided on 14th April, 2006.

Criminal Procedure Code (V of 1898)

-------Ss. 22-A & 22-B---Powers of Justice of Peace---Prerogative of Trial Court at the time of framing of charge only that it could add or delete any offence, if it was made out from the facts---Additional Sessions Judge having powers of Justice of Peace, had no authority to direct the Police to add or delete any offence.

Khizer Hayat and others v. Inspector-General of Police PLD 2005 Lah.470 ref.

Zia Ullah Khan Niazi for Petitioner.

Ch. Muhammad Hanif Khatana Add1.A.-G. along with Najeeb Ullah, A.S.-I.

Saif-ul-Haq Ziay for Respondent No. 2.

YLR 2006 LAHORE HIGH COURT LAHORE 2773 #

2006 Y L R 2773

Lahore

Before M. Bilal Khan, J

UMAR DARAZ and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6259-13 of 2004, decided on 7th October, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.379/411/409---Bail, grant of---Accused were not the employees of the Forest Department---No wood or trees belonging to the Forest Department were stolen---Main accused named in the F. I. R. viz, the Block Officer and the Guard were still absconding---Case of accused needed further probe within the meaning of subsection (2) of S.497, Cr. P. C. ---Accused were in custody for the last three months and could not be retained as a measure of punishment---Bail was allowed to accused in circumstances.

Muhammad Ahmad Bakhsh Bharwana for Petitioners.

Saifullah Khalid for the State with Muhammad Khan, A.S.-I.

2006 Y L R 2779

Lahore

Before Abdul Shakoor Paracha, J

MUHAMMAD IQBAL---Appellant

Versus

KHURSHID AHMAD PERVAIZ---Respondent

Civil Revisions Nos.1960 and 1961 of 1997, heard on 20th January, 2004.

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

----Arts. 17, 78 & 79---Civil Procedure Code (V of 1908), O. VIII, Rr. 4 & 5---Limitation Act (IX of 1908), _4rt.113---Specific Relief Act (1 of 1877), 5.12---Suit for specific performance of agreement to sell---Document required by law to he attested---Evasive denial---Specific denial---Part performance---Limitation --- Plaintiff filed suit for specific performance of agreement to sell on the grounds that the defendant had agreed to sell---Plaintiff paid about 2/3rd of the agreed sale price and entered into possession, constructed a hall and installed machinery --- Electric and gas connections were in his name and lie also paid the property tax---Agreement was extended by another agreement---Defendant in his written statement did not deny his signatures, but alleged that they were obtained by fraud on blank stamp paper---Defendant filed suit for possession alleging the plaintiff as encroacher---Suit of the plaintiff was decreed by Trial Court---Appellate Court dismissed the suit---Appellate Court took the view that agreement to sell was a document required by law to be attested by two male witnesses under Art.17 of Qanun-e-Shahadat, 1984 and must have been proved by producing two marginal witnesses under Art. 79 of Qanun-e-Shahadat 1984, plaintiff leaving produced only one witness the document was not proved---Validity---Agreement to sell did not require attestation by witnesses therefore provisions of Articles 17 and 79 of the Qanun-e-Shahadat, 1984 were not applicable---Defendant's denial of the execution of the agreements was evasive---Defendant had admitted his signatures---Appellate Court had misinterpreted the law and wrongly set aside the well-reasoned judgment and decree of the Trial Court---Judgment and decree of the Appellate Court was set aside in circumstances.

Manzoor Hussain Khan v. Mst. Asia Begum and 21 others 1990 CLC 1.014 and Inam Naqshbandi v. Haji Sheikh Ijaz Ahmad PLD 1995 SC 314 quoted.

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

--- Art. 78 --- Transfer of Property Act (IV of 1882), Ss.3 & 54---Specific Relief Act (1 of 1877), 5.12---Agreement to sell, attestation of---Agreement to sell is not required by law to be attested by two marginal witnesses and its execution was to be proved in accordance with Article 78 or the Qanun-e-Shahadat, 1984.

Manzoor Hussain Khan v. Mst. Asia Begum and 21 others 1990 CLC 1014 quoted.

---- Art. 129(g)---Proof of document---Litigant is required to observe the rule of best evidence and if best evidence is available and withheld from the Court, then adverse presumption against the document can legitimately be attracted---Different modes of proving the documents are provided under Art. 78 of the Qanun-e-Shahadat, 1984---Defendant had admitted his signatures on the agreement---Defendant's denial was evasive---Scribe and one marginal witness had attested the same---Agreement to sell was proved.

Rana Muhammad Anwar and Rana Abdul Hamid for Appellant.

Rana Abdul Rahim Khan for Respondent.

Date of hearing: 20th January, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2787 #

2006 Y L R 2787

Lahore

Before Khawaja Muhammad Sharif, J

Ch. ABDUL MAJID---Petitioner

Versus

SHAHID alias SHADI---Respondent

Criminal Miscellaneous Nos.3211-BC and 3323-B of 2005, decided on 29th June, 2005.

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

----S. 497(5)---Penal Code (XLV of 1860), S.302(b)/ 34---Bail, cancellation of---Accused was the main culprit in the case who had allegedly fired a single shot after putting the barrel of the pistol on the neck of the deceased which proved fatal---Eyewitnesses had fully supported the prosecution case against the accused--- Pistol had been recovered from the accused---Police opinion was not binding on the Court---Charge against accused had been framed and his trial had commenced, his release on bail by trial Court at such stage was not proper---Case of accused also fell within the prohibitory clause of S.497(1), Cr. P. C. ---Bail allowed to accused by Trial Court was cancelled in circumstances.

PLD 1989 SC 585; Habibullah Khan Kundi v. The State 2004 SCMR 1164 and Shah Nawaz and 2 others v. The State PLD 1994 SC 65 ref.

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

----S.497---Penal Code (XLV of 1860), S.302 (b) /34---Bail, refusal of---Accused had gone to the house of the deceased and brought him on the pretext that another accused was calling hint, where after the occurrence started leading to the death of the deceased---Case of accused was hit by the prohibition contained in S.497 (1), Cr. P. C. and was not one of further inquiry ---Accused was declined bail ill circumstances.

PLD 2004 SC 477; 1997 SCMR 32; 1979 SCMR 9; 1983 SCMR 124; 1980 SCMR 142; 1996 PCr. LJ 1302; Sardar Munir Ahmad Dogar v. The State PLD 2004 SC 822; Amatullah Khan v. Bazi Khan PLD 1988 SC 621 and Nasreen v. Fayyaz Khan PLD 1991 SC 412 ref.

----S. 497(2)---Penal Code (XLV of 1860), S.302(b)/34---Bail---Further inquiry---Element of 'further inquiry " by itself is no ground for granting bail under subsection (2) of S.497, Cr. P. C. , because there would hardly be a case which should not require 'further inquiry "---Such orders are, on their every face, illegal which do not fulfil the second condition regarding tentative opinion about the prima facie guilt or otherwise of the accused.

Sardar Munir Ahmad Dogar v. The State PLD 2004 SC 822. Ammatullah Khan v. Bazi Khan PLD 1988 SC 621 and Nasreen v. Fayyaz Khan PLD 1991 SC 412 ref.

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

S.497(2)---Bail---Further inquiry---Connotation---Phrase "that there are sufficient grounds for further inquiry into the guilt of accused" means that such question should have nexus with the result of the case and may show or tend to show that the accused is not guilty of the offence with he is charged.

Sardar Munir Ahmad Dogar v. The State PLD 2004 SC 822 ref.

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

----S.497(2)---Bail---Principles---Merits of the case not to be gone into when case fixed for trial---When the trial is to commence shortly and a date has already been fixed by the Court, it is not fair to go into the merits of the case in the form of a bail application at such juncture.

Muhammad Sadik and others v. The State 1980 SCMR 203 ref.

Ehtesham Qadir Shah and Hassam Qadir Shah for Petitioner (in Criminal Miscellaneous No.3211-BC of 2005).

Ms. Erum Sajjad Gul for the Petitioner (in Criminal Miscellaneous No.3323-B of 2005).

Ms_ Zarqa Bashir for the State with Khalid Kalyar A.S.-I. with record'

Ch. Saeed Ahmad for the Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 2793 #

2006 Y L R 2793

Lahore

Before Muhammad Farrukh Mahmud, J

AMEER ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.277 and Criminal Revision No. 167 of 2005, heard on 13th July, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 109 & 34---Appreciation of evidence---Benefit of doubt---'Last seen' evidence---Evaluation of---Extra judicial confession---Scope---Deceased was last seen with accused/appellant and F.I.R. was registered against accused and co-accused---Motive of occurrence as alleged in F.I.R. was that the accused and co-accused murdered deceased for the latter's having illicit relations with sister of accused---Trial Court while acquitting co-accused, convicted and sentenced accused to imprisonment for life--- Validity- Admittedly, it was an unseen occurrence and possibility that accused was involved in the case on suspicion could not be ruled out---Prosecution evidence was not to be appreciated and analysed in isolated pieces rather its credibility was to be adjudged as a whole---Witnesses of extra judicial confession allegedly made by co-accused had been disbelieved by Trial Court--- Medical evidence did not lead to real culprit---Recovery of blood-stained dagger from accused/appellant could not be used as corroboratory evidence against accused for reasons; firstly that recovered weapon was not sent to Chemical Examiner so it was not established that weapon was stained with human blood; secondly that no reason was given for not sending weapon for Chemical Examination and thirdly that no independent witness was produced during trial to support recovery of dagger---Motorcycle allegedly recovered at the instance of accused was not produced before Trial Court and its recovery was not supported by any independent witness---Corroboration of last seen evidence should have come from independent source---Evidence of motive disbelieved by Trial Court qua co-accused could not be believed against accused/appellant---Prosecution case was full of doubts---Benefit of doubt was extended to accused---Accused/ appellant was acquitted.

Abdul Sattar Zafar and Sardar Muhammad Aslam Afghan for Appellant.

Mahmood Ahmad Bhatti for the Complainant.

Ghazanfar Ali Khan for the State.

Date of hearing: 13th July, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2797 #

2006 Y L R 2797

Lahore

Before Khawaja Muhammad Sharif, J

Mirza MUHAMMAD IQBAL BAIG---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.576 of 1999, heard on 2nd May, 2005.

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

----S. 2---Prohibition (Enforcement of Hadd) Order (4 of 1979), Preamble and Art. 314--- Control of Narcotic substances Act (XXV of 1997), Preamble & S.9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Placing of the name of the petitioner in the Exit Control List by the Federal Government---Validity---Cases against the petitioner under Prohibition (Enforcement of Hadd) Order, 1979 and Control of Narcotic Substances Act, 1997, were pending for the last ten years without any progress---Even the said enactments did not contain any bar on the travel of the petitioner outside the country ---Amount to be recovered from the petitioner could be realized by the Government from his property, if ultimately the case was proved against him by the final authorities---Petitioner had the fundamental right of Iiberty to travel abroad---Impugned action of the Government regarding placing the name of the petitioner on the Exit Control List was consequently declared to have been taken without lawful authority and his name was removed from the Exit Control List.

Wajid Shansui Hassan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad PLD 1997 Lah.617; Miss Naheed Khan v. Government of Pakistan and others PLD 1997 Kar.513; Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504 and Malik Mushtaq Awan v. Government of Pakistan and others PLD 1999 Lah.372 ref.

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

----S.2---Constitution of Pakistan (1973), Arts.2A, 4, 9, 15 & 25---Right to travel abroad, an important aspect of the citizen's liberty---Right of a citizen to travel abroad is an important aspect of his liberty and is closely related to the rights of free speech and association---Since nations in the world become politically and commercially more dependent upon one another and foreign policy decisions have greater impact upon the lives of the citizens, the right to travel has become correspondingly more important---Through travel by private citizens, Journalists and Governmental Officials, information necessary to the making of informed decisions can be obtained, and ultimate responsibility under the constitutional system for the making of informed decisions rests in the hands of the people.

Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504 ref.

----S.2---Constitution of Pakistan (1973), Arts.2A, 4, 9, 15 & 25---Right of a citizen to travel abroad, a fundamental right, abridgement thereof to be tested on the touchstone of the constitutional provisions---Right of a citizen to travel abroad is fundamental right guaranteed by Arts. 2A, 4, 9, 15 & 25 of the Constitution---Abridgement of this fundamental right by the State through the Legislation or an executive measure has to be tested on the touchstone of the constitutional provisions---Life, liberty or property of a citizen cannot be taken away or adversely affected except in accordance with law.

?Wajid Shansul Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad PLD 1997 Lah.617 ref.

Khawaja Haris Ahmad for Petitioner.

Yawar Ali Khan Dy.A.-G for Federal Government.

Date of hearing: 2nd May, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2801 #

2006 Y L R 2801

Lahore

Before Mian Muhammad Najum-uz-Zaman and Bashir A. Mujahid, JJ

MUHAMMAD NAEEM SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.285 of 2001, heard on 6th October, 2004.

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

----. 9(c)---Appreciation of evidence--- Defence despite lengthy and searching cross-examination, had failed to shatter the credibility of the recovery witnesses who belonged to police department---Nothing was brought on the record to show that the recovery witnesses had any malice or grouse against the accused to falsely implicate him in the case---Occurrence having taken place in the early hours of the day, raiding parry could not possibly obtain search warrants from the Magistrate and apprehending escape of the accused it could enter the place without obtaining search warrants in view of the provisions of Ss.47 & 48, Cr. P. C. ---Difference in the date for the deposit of the sample in the office of the Chemical Examiner was of no help to accused, because during cross-examination no suggestion was put to the concerned witness or to the Investigating Officer that the packet of the sample was tampered with---Evidence of all the recovery witness which was supported by the Chemical Examiner's report inspired confidence---Conviction of accused was consequently upheld---Accused did not have the notoriety as a drug pusher---Criterion for awarding sentence under the law was the quantity of narcotics recovered from the accused---Possibility that the quantity of narcotics was less than ten kilograms, could not be ruled out, as the evidence on record did not show that the said weight did not include the weight of the material of the packets in which the heroin was packed---Out of test kilogram only one gram of heroin was sent to Chemical Examiner for examination---Death sentence of accused was reduced to imprisonment for life in circumstances.

Ch. Anwar-ul-Haq Pannu for Appellant.

Ch. Imtiaz Ahmed for the State.

Date of hearing: 6h October, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2804 #

2006 Y L R 2804

Lahore

Before Ali Nawaz Chowhan and Sardar Muhammad Aslam, JJ

MUHAMMAD USMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 186, Murder Reference No.363 and Criminal Revision No.61 of

2000, decided on 26th October, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Accused was convicted and was sentenced to death with direction to pay compensation of Rs.1, 00, 000 to legal heirs of deceased---Occurrence in the case was an admitted fact to which accused had given his own version, though he failed to produce evidence in establishing the same---Extenuating circumstances however were present to the effect firstly that accused was of 17 years of age at the time of framing the charge and his age was scribed in hand on the charge-sheet by the Trial Court itself, secondly that only a single blow was attributed to accused which was not repeated, though he had opportunity of inflicting further injuries---Upholding conviction of accused, his death sentence was reduced to life imprisonment by the High Court---Amount of compensation, however, was increased from Rs. 1, 00, 000 to Rs. 1, 50, 000, accordingly.

Rab Nawaz Noon for Appellant.

Tanveer Igbal A.A.-G. for the State.

Dates of hearing: 25th and 26th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2808 #

2006 Y L R 2808

Lahore

Before Mian Saqib Nisar, J

REHMAT ALI and 12 others---Appellants

Versus

ABDUL HAMEED and 16 others---Respondents

Regular Second Appeal No.93 of 1998, heard on 20th February, 2004.

Punjab Land Revenue Act (XVII of 1887)---

----S.123---Specific Relief Act (I of 1877) S.42---Suit for declaration, injunction and possession---Old entries based on mutation of private partition---Instrument of partition---Long standing entries---Family settlement---Three real brothers had inherited the property of common ancestor---Income of suit property was dedicated to a shrine---Concession of land revenue was withdrawn on account of Martial Law Regulation 64 of 1960, and property was mutated in the names of heirs of one brother---Heirs of other two brothers brought a suit for declaration, injunction and possession challenging the said mutation---Such suit was dismissed by the Trial Court and appeal was also dismissed in second round of litigation---Validity---Mutation was sanctioned in 1888 giving effect to private partition by the three brothers---Objection was that the said mutation was not sanctioned according to law as no instrument of partition was drawn which was compulsory, and that from the document it was not established that common properties of all the brothers were partitioned and suit-land was given to the propositus of the defendants---Mutation was sanctioned by the Revenue Officer, though presumption of correctness was not attached to the mutation yet long-standing entry was never challenged---No fraud or misrepresentation was alleged---Parties had orally entered into family settlement---Such partition and settlement was acted upon---Concurrent findings were given by Courts below---High Court did not find it proper to interfere and appeal was dismissed in circumstances.

Ahmed Waheed Khan for Petitioners.

Ghulam Sabir for Respondents.

Date of hearing: 20th February, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2811 #

2006 Y L R 2811

Lahore

Before Muhammad Farrukh Mahmud and Muhammad Khalid Alvi, JJ

CHARAGH SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.212 of 2006, heard on 5th July, 2006.

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

----S. 9(b)---Appreciation of evidence---Recovery of narcotic substance---Sentence, reduction in---Accused had prayed only for reduction of sentence in the circumstances of the case---Prosecution witnesses had no previous enmity or ill-will against accused so as to involve him in a false case---Both prosecution witnesses had corroborated each other on almost all material points and their statements were also supported by the report of Chemical Examiner---Both defence witnesses produced by accused, had not given any convincing evidence and their statements were general in nature---Prosecution having successfully proved its case against accused, he had wisely not pressed for acquittal---Validity ---According to prosecution case itself, recovered Charas was in the shape of different pieces; either the specimen from all the pieces should have been sent to Chemical Examiner or all the recovered substance should have been sent to Chemical Examiner for establishing whether it was narcotic substance or not and it could not be said with certainty that rest of the pieces also contained Charas--- Extending benefit of doubt to accused, sentence was altered from S.9(b) of Control of Narcotic Substances Act, 1997 to S.9(a) of the Act and sentence was reduced to the period already served out by accused.

Rao Muhammad Sadiq for Appellant.

Awais ur Rehmar. for the Sate.

?Date of hearing: 5th July, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2813 #

2006 Y L R 2813

Lahore

Before M. Bilal Khan, J

ASAD R. SHEIKH---Petitioner

Versus

NASIR MEHMOOD and 4 others---Respondents

Writ Petition No.2162 of 2006, decided on 15th June, 2006.

Penal Code (XLV of 1860)---

----S.409---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Quashing of F.1. R. ---Petitioner had been specifically nominated in F.I.R. and he was saddled with definite allegations---F.I.R., prima facie, disclosed commission of cognizable offences---In order to appreciate contention of counsel for petitioner, a factual inquiry needed to be taken, which could not be embarked upon by High Court in summary proceedings under Art. 199 of the Constitution---No occasion having been found by High Court for interference in the matter, petition for quashing F.I.R., were dismissed.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SMCR 276 and Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 ref.

Mansoor-ur-Rehman Khan Afridi for Petitioner.

Syed Ehtesham Qadir Shah for Respondents Nos.1 and 2.

Ch. Aamir Rehman, Add1.A.-G. assisted by Tanvir Ahmad Shami for the State with Arshad Hayat, Inspector.

YLR 2006 LAHORE HIGH COURT LAHORE 2815 #

2006 Y L R 2815

Lahore

Before Muhammad Farrukh Mahmud, J

MUHAMMAD NAWAZ---Petitioner

Versus

THE STATE and 3 others---Respondents

Writ Petition No.559 of 2003, heard on 10th July, 2006.

Criminal Procedure Code (V of 1898)---

----Ss.144 & 195(1) (a) ---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---F.I.R. had been sought to be quashed on the ground that the case had been registered on the statement of a private person, whereas according to provisions of S.195(1)(a), Cr. P. C. , no Court was competent to take cognizance of the offence unless a complaint in writing was made by the public servant concerned or by some other public servant to whom he was subordinate---Validity---Undeniably in the present case, order under 5.144, Cr. P. C. having been passed by District Nazim, cognizance could only be taken on the complaint in writing either made by him or by Authority to whom lie was subordinate, whereas F.I.R. was lodged on statement of a private person---Proceedings as initiated vide F.I.R., being void ab initio, were ordered to be quashed.

Ghulam Qadir v. The State 1990 PCr.LJ 1554 ref.

Ahmad Mansoor Chishti for Petitioner.

Mian Ameer Ahmad for the Complainant.

Ch. Shafi Muhammad Tariq, Addl. A.-G. for the State.

Date of hearing: 10th July, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2820 #

2006 Y L R 2820

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD AHMAD---Petitioner

Versus

THE STATE and 5 others---Respondents

Criminal Revision No.95 of 2006, decided on 2nd June, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 161, 173, 342 & 540---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Witness given up by complainant---Application under S.540, Cr. P. C. for summoning of witness---Scope---During trial, on complainant's application witness was given up as unnecessary---Complainant, after lapse of seven months, moved an application under S.540 Cr. P. C. for summoning of given up witness along with police official - who had arrested the accused---Trial Court dismissed the application---Validity ---Application for summoning of witness was moved after closing of prosecution evidence and after recording of statement of accused under S.342, Cr. P. C. ---Application moved by complainant was intended to prolong agony of accused---Contention of complainant that summoning of given up witness was necessary for conviction of accused was fallacious for the reasons; firstly, the witness was given up on application of complainant who since date of framing of charge knew the worth of given up witness; secondly, for conviction under law witnesses were to go through process of Tazkia-al-Shuhood which could only be done by Muzakkis but that facility was not available and thirdly complainant could not be allowed to fill up gaps left by prosecution---Police official who was summoned was not the Investigating Officer nor his statement was recorded under S.161, Cr. P. C.--Statement of said police official intended to be summoned by complainant was not necessary for just decision of case---Petition was dismissed in circumstances.

Jaffar v. The State 1997 PCr.LJ 87 distinguished.

Ch. Muhammad Afzal Cheema for Petitioner.

Syed Shaheen Masood Rizvi, A.A.-G. on Court's call.

YLR 2006 LAHORE HIGH COURT LAHORE 2821 #

2006 Y L R 2821

[Lahore]

Before Ijaz Ahmad Chaudltry, J

MUHAMMAD YOUSAF KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Revisions Nos. 1037 and 932 of 2005, decided on 1st March, 2006.

Penal Code (XLV of 1860)---

----Ss. 324, 337-D & 337-F(v) ---Appreciation of evidence---Complainant filed F.I.R. against accused and co-accused---Accused was attributed with a .12 bore gun shot which hit the victim at his abdomen and other part of his body---Co-accused was found innocent---Trial Court convicted accused under Ss.324, 337-D & 337-F(v), P.P.C. and passed on him a sentence for seven years---Accused filed appeal against judgment of Trial Court, for reduction in sentence and complainant filed revision for enhancement of sentence---Appellate Court dismissed revision filed by complainant and maintained conviction in appeal filed by accused, reducing sentence under S. 324, P.P.C., and also directed for running of sentences concurrently---Validity---Presence of injured victim on the spot was not doubtful---Victim himself appeared before the Court as prosecution witness and there was no chance of false implication of accused as it was a daytime occurrence and accused was resident of sane locality---Ocular account was supported by medical evidence---Trial Court rightly convicted accused for the injury caused to victim---Accused, had faced agony of trial for about fiveyears and he had also fired a single shot---Victim was found in perfect condition by Trial Court---Punishment awarded to accused included payment of Arsh and Daman---Judgment passed by Appellate Court reducing sentence from seven to four years and directing for concurrent running of sentences did not call for interference---First revision for enhancement of sentence having been filed by complainant before Appellate Court, second revision before High Court was not maintainable---No jurisdictional defect or misreading or non-reading of material evidence having been found in the judgment of Appellate Court---Revision petitions were dismissed by the High Court accordingly.

M. A. Zafar for Petitioner (in Crl. Revision No. 1037 of 2005).

Imtiaz Hussain Khan for Petitioner (in Crl. Revision No.932 of 2005).

YLR 2006 LAHORE HIGH COURT LAHORE 2826 #

2006 Y L R 2826

Lahore

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

IFTIKHAR AHMED alias ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.29 and 62 of 2006, heard on 6th February, 2006.

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

----Ss. 6, 9, 36(2) (1) & 47---Control of Narcotic Substances (Government Analysts) Rules 2001, R.6---Criminal Procedure Code (V of 1898), S.510---Report of Chemical Examiner ---Evidenciary value---Scope---Non-observance of R.6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 and S.36(1) of Control of Narcotic Substances Act, 1997 by Chemical Examiner---Effect---Applicability of Cr. P. C. in trial Court under Control of Narcotic Substances Act, 1997---Scope---Accused while facing trial under Ss.6 & 9 of Control of Narcotic Substances Act, 1997 moved applications before Trial Court for summoning of Chemical Examiner for purpose of cross-examination on ground that report of Chemical Examiner was not in accordance with prescribed Form-II provided under R.6 of Control of Narcotic. Substances (Government Analysts) Rules, 2001 and the Report also lacked in necessary ingredients---Applications were dismissed by Trial Court---Validity---Control of Narcotic Substances Act, 1997 was a special low to be regulated by its own procedure---Section 47 of Control of Narcotic Substances Act, 1997 provided that Cr. P. C. was also applicable to procedure of trial conducted under Control of Narcotic Substances Act, 1997---Under S.510, Cr. P. C. , Report of Chemical Examiner was admissible in evidence without calling Expert witness but proviso to S.510, Cr. P. C. authorized Court that if it deemed necessary, it could summon and examine the person by whom such Report was prepared---Section 36(2) of Control of Narcotic Substances Act, 1997 provided that Chemical Examiner's Report would, be admissible in evidence without formal proof and such evidence would, unless rebutted, he conclusive proof---Purpose of Report in prescribed form was to ensure that Chemical Examiner had given his report after weighing Charas received by him, including certain details to ensure that proper care had been taken it arriving at his opinion---Report, in the present case, was not prepared in accordance with S.36(1) of Control of Narcotic Substances Act. 1997 on prescribed form---If law provided things to be done in a particular manner, those were to he done in that manner as any change there to could cause doubt in its veracity---Trial Court was directed by the High Court to summon Chemical Examiner as Court witness and afford opportunity to accused to cross-examine him.

2005 YLR 742 and Criminal Appeal No. 1463 of 2005 rel.

Malik Imran Chingari for Appellant (in Criminal Appeal No.29 of 2006).

N. A. Butt for Appellant (in Criminal Appeal No.62 of 2006).

Muhammad????? Sharif,? Special Prosecutor for ANF.

Dr. M. Zaman Cheema, ACE, Office of Chief Chemical Examiner, Punjab.

Muhammad Azam S.-I.

Date of hearing: 6th February, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2829 #

2006 Y L R 2829

[Lahore]

Before Muhammad Sayeed Akhtar, J

RAHIM SHAH and another---Petitioner

Versus

DIN MUHMMAD through Legal Heirs and others---Respondents

Civil Revisions Nos.814 and 815 of 1996, heard on 17th February, 2004.

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

---S.42---Suit for declaration---Oral sale---Mutation---Onus to prove---Plaintiffs challenged oral sale mutation alleging the same to be without consideration, illegal, ineffective and void upon their rights---Defendant also filed suit for declaration and permanent injunction that he was owner in possession of the suit property---Suits were consolidated in the suit of the plaintiffs---Suits of the plaintiffs was decreed by the Trial Court---Appellate Court dismissed the same---Validity---Plaintiffs had pleaded minority but failed to prove the same---Sale was oral and was denied by the plaintiffs---Onus to prove the sale had shifted to the vendees/beneficiary defendant---Revenue Officer was not produced---Witnesses who identified the plaintiffs were not produced---Only one attesting witness of the mutation was produced---Sale having not been proved in circumstances, judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored.

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

----S.42---Limitation Act (IX of 1908), S.18---Suit for declaration---Fraud---Knowledge---Limitation runs from the knowledge of the fraud---Defendants had failed to prove that plaintiffs had knowledge of the sale mutation---Suit was not barred by time in circumstances.

Ghulam Nabi Bhatti for Petitioner.

Ch. Ilyas Kamal for Respondents.

Date of hearing: 17th February, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2832 #

2006 Y L R 2832

Lahore

Before Muhammad Nawaz Bhatti, J

MUMTAZ alias TAJU and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.557 of 2002, heard on 19th October, 2005.

Penal Code (XLV of 1860)---

---- Ss. 302(b), 109 & 34---Appreciation of evidence---Change of motive---Extra-judicial confession---Reliability ---Ocular account not given before police investigation---Complainant revealed in F.I.R. that accused persons murdered his brother on suspicion that deceased had developed illicit relations with sister of one of the accused---No eye-witness appeared in police investigation---Ali accused persons except a female accused, were found innocent during police investigation---Trial Court, while relying on ocular account of one prosecution witness, sentenced accused to life imprisonment and acquitted the rest of accused---Validity---Complainant, while deposing before Trial Court changed his alleged motive from the one mentioned in the F.I.R--If complainant had asserted a motive in F.I.R., he was to prove it on the same line as mentioned in F.I.R.--- Prosecution witness before whom accused made extra judicial confession did not appear before Court to verify the guilt of accused---Such extra judicial confession had no value in the eye of law---Prosecution witness who gave ocular account of occurrence neither appeared before police nor his statement was corroborated by any other prosecution witness---Complainant failed to produce any eye-witness of occurrence during police investigation---Statement of eye-witness who did not appear before police, was wrongly relied upon by Trial Court while recording conviction against accused---Both accused/ appellants had been declared innocent during five police investigations along with other co-accused who were acquitted by Trial Court---Incident was an unseen occurrence:--Prosecution failed to prove its case against accused beyond reasonable doubt---Judgment of conviction and sentence passed against accused was set aside---Appeal was accepted.

Altaf Ibrahim Qureshi for Appellants.

Raja Sultan Khurram uz Zaman for the State.

Date of hearing: 19th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2843 #

2006 Y L R 2843

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

LOONAY KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.25 of 2002 and Murder Reference No.41 of 2002, heard on 15th February, 2006.

Penal Code (XLV of 1860)----

----Ss. 302, 109 & 34---Appreciation of evidence--- Single blow--- Effect_ Complainant registered F.I.R. to the effect that accused along with four co-accused had murdered complainant's son at midnight with hatchet blow---Motive behind occurrence as alleged by complainant was that deceased married with sister of accused after she got divorce from her former husband---Accused denied motive of occurrence and raised question as to identity of real culprit---Trial Court while passing death sentence on accused acquitted four co-accused---Validity---Occurrence took place at midnight and matter was reported to police on the same night---Presence of eye-witnesses on the spot was natural---Real sister of accused deposed against her brother (accused)--Real sister could, even in the night, establish identity of brother by fall of foot and from his voice---It was not imaginable that real sister would leave actual culprits and falsely involve her own brother---Acquittal of co-accused was of no help to accused because Court was to sift grain from chaff especially when false implication was at its peak---Even in oath proceeding no one was ready to give oath on behalf of accused---Criminal cases though were not decided on oath, but this fact also went against accused---Gravity of blow caused by accused to deceased transpired intention and knowledge of accused as to its fatality and therefore accused did not repeat the blow---Motive was always in the mind of accused, who knew when and where he was to take his revenge---Ocular account was corroborated by medical evidence and also by positive reports of Chemical Examiner and Serologist---Conviction and sentence recorded against accused were maintained---Death sentence was confirnted---.Appeal was dismissed.

Ch. Ncsar Ahmad for Appellant.

Malik Muhammad Aslant for tine Complainant.

Shafi Muhammad Tariq, A.A.-G. for the State.

Date of hearing: 15th February. 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2847 #

2006 Y L R 2847

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ZAFAR and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1251-B of 2006, decided on 7th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324134---Bail, refusal of---Accused while armed with .30-bore pistol had fired hitting injured on the lower part of his left leg---Said injury was noted down by Medical Officer at the time of examination of the injured---Co-accused while armed with Danda had caused injury to injured on the back of his head besides causing injuries to other injured persons on different parts of their body---One of the injuries on the head of prosecution witness attributed to co-accused had resulted into fracture of bone---Both accused had actively participated in the occurrence as per allegation levelled against them, which, prima facie, were supported by medical evidence---Offences under Ss.324 & 337-A(iii), P.P.C. were prima facie, attracted to the case which fell within the prohibitory clause of S.497, Cr. P. C. ---Accused having failed to make out a case of further inquiry his bail application was dismissed.

Shahid Nazir Khan for Petitioner.

Malik Muhammad Akbar Awan for the Complainant.

Syed Khalid Bukhiarim for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2848 #

2006 Y L R 2848

[Lahore]

Before Mian Saqib Nisar, J

GHULAM MUSTAFA---Petitioner

Versus

NAZIR AHMED and 14 others---Respondents

Civil Revisions Nos.666 and 667 of 1992, heard on 9th March, 2004.

Civil Procedure Code (V of 1908)---

----O.VII, R.11 & O.XXXII, R.15---Specific Relief Act (I of 1877), 5.42---Suit for declaration by person of unsound mind---Enquiry as to unsoundness of mind---Rejection of plaint---Plaintiff filed suit for declaration alleging that he was a person of unsound mind and general power of attorney and sales made by such attorney were invalid---Suit was filed through next friend/wife of the plaintiff---Plaintiff died before the written statements were filed and his wife and son were impleaded as plaintiffs---General attorney had made two sale transactions through registered deeds in favour of his maternal uncle and other in favour of his own wife---General attorney, his wife and uncle and a third person who acquired interest as a pre-emptor were defendants in the suit---Suit was decreed by the Trial Court---Appellate Court allowed the appeal on the ground that inquiry into the question about the state of mind of the plaintiff was not made---Suit on his behalf through the next friend was not conducted with competency, resultantly, the plaint was rejected under Order VII, R. 11, C. P. C. ---Validity ---Defendants had not taken the plea that suit could not proceed without inquiry in terms of O. XXXII, R.15, C.P.C.--- Defendants were estopped by their conduct---Plaintiff had died before the written statements were filed --- Question of competency and holding -of inquiry had subsided---Plaintiffs could pursue the cause---Appellate Court should have decided the matter on merits---Plaint could not be rejected on account of lack of inquiry ---Judgment and decree of the Appellate Court were set aside and case was remanded to be decided on merits in circumstances.

Sheikh Naveed Shaharyar for Petitioner.

Ras Tanvir Chaudhry for Respondents.

Date of hearing: 9th March, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2851 #

2006 Y L R 2851

Lahore

Before Muhammad Khalid Alvi, J

M. IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 198-B of 2006, decided on 2nd February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 467, 468 & 471---Pre-arrest bail, grant of---Delay in registration of case, did not appear to be fatal, if story put forward by complainant was believed to be true---Amount in question had already been deposited by co-accused who was recorded to be a guarantor on the part of complainant---Prima facie, no evidence was available to show that accused had any connivance or interest of personal gain in the matter, there could be some negligence on part of accused in not properly examining the record of the loan---Pre-arrest bail already granted to accused, was confirmed, in circumstances.

Tariq Zulfiqar Ahmad Chaudhary for Petitioner.

A.D. Naseem for the Complainant.

Tahseen Ifran for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2853 #

2006 Y L R 2853

Lahore

Before Umar Ata Bandial, J

MEHDI HASSAN---Petitioner

Versus

HANIF MUSA and 7 others---Respondents

Writ Petition No. 2341 of 1995, decided on 24th November, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition, allegations in---Proof---High Court would act on the basis of record.

Jawad Hassan for Petitioner.

Pervez Inayat Malik, D.A.-G.

Misbah ul Islam, A.A.-G.

Javed Mughal, 1.0. Customs Department, Karachi

YLR 2006 LAHORE HIGH COURT LAHORE 2854 #

2006 Y L R 2854

Lahore

Before Muhammad Jehangir Arshad, J

ALLAH RAKHA and others --- Petitioners

Versus

Mst. ASGHARI BEGUM and others---Respondents

Civil Revision No. 18/BWP of 2004, decided on 8th March, 2006.

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

----O. XII, Rr.23, 24, 25 & 26--- Remand of case---Case was remanded by Appellate Court below mainly on ground of want of issue regarding valuation of property in question for the purposes of court fee and jurisdiction---Said plea had not been seriously raised by respondents in their written statement before the Trial Court, which was further proved by the fact that despite framing of issues by the Trial Court in the presence of parties and their counsel, no objection to that effect was raised till the decision of the suit by the Trial Court, giving an impression that respondents were not seriously aggrieved of non framing of issues to that effect---Even the question of valuation of suit for the purposes of court-fee was always considered as a matter involving fiscal provisions and no suit could be thrown away for improper valuation and in the absence of evidence, valuation as determined by the plaintiff, was always deemed to be correct---Reasons given by Appellate Court in support of impugned order could not be considered as valid---Order of remand by Appellate Court was highly unjustified and was not covered by O. XLI, Rr. 23 & 23-A, C. P. C.

Ashiq Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10 and Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152 ref.

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

----S.42---Mutation---Mutation was neither a document of title nor would create or confer any right on a person---Title was to be determined on the preponderance of evidence independent of mutation proceedings and the decree passed by Civil Court determining the title, was not only binding on Revenue Authorities, but its incorporation in the Revenue Record was mandatorily provided in law.

Mian Ahmad Nadeem Arshad for Petitioners.

Mehmood Iqbal Khakwani for Respondents.

Date of hearing: 8th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2857 #

2006 Y L R 2857

[Lahore]

Before M. Bilal Khan, J

AQEEL BAIL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3062-B of 2006, decided on 10th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860, Ss.302, 324, 337-F(iii), 337-F(v) & 34---Bail, grant of---Further inquiry---Co-accused to whom main role of causing fatal injury to deceased had been attributed had neither been arrested nor was challaned by the police having been declared to be innocent---Both injuries allegedly caused by accused with his pump-action gun had been declared by the Doctor to be falling under Ss.337-F(iii) and 337-F(v). P. P. C, which provisions did not attract prohibitory clause of S. 497(1), Cr. P. C. ---Accused was in custody for the last 26 months and no tangible progress had been made in the trial ---Post-mortem report of deceased, had shown that site had received a wound 1-1/2 x 1 c.m. on front of abdomen which apparently appeared to have been caused with a pistol---Accused, admittedly was not armed with a pistol and it was also the claim of prosecution that a pump-action gun had been recovered from accused---In view of role attributed to accused by prosecution itself that accused had confined himself to causing injuries to complainant on non-vital part of his body with pump-action gun his complicity under S.324, P.P.C. and his liability under S.34, P.P.C., called for further inquiry ---Accused was admitted to bail, in circumstances.

Saif-ul-Malook for Petitioner.

Tanvir Ahmad Shami for the State.

Muhammad Riaz A.S.-I., Police Station, Saddar Sialkot with Police File.

YLR 2006 LAHORE HIGH COURT LAHORE 2859 #

2006 Y L R 2859

[Lahore]

Before Muhammad Muzammal Khan, J

MUJAHID HUSSAIN---Petitioner

Versus

ABDUL GHAFOOR through Ghulam Hussain and 3 others---Respondents

Civil Revision No.801 of 1998, heard on 14th January, 2004.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---Allotment of property in a Residential Scheme---Temporary injunction---Violation of injunction---Pleadings---Inference---Suit for declaration and permanent injunction was decreed against the Authority---Decree was upheld in appeal---Allotment in favour of the defendant was made by the Authority in violation of status quo order---Senior official of the Authority had admitted in evidence that entry with regard to disputed property did exist in favour of plaintiff---Entry showed that some money was paid and balance was payable---Certified copy of allotment was produced by plaintiff---No evidence existed to show such certified copy as forged or fake---Possession of plaintiff was not denied---Construction raised by plaintiff was considered enough to corroborate the stance of the plaintiff--- Courts below had rightly decreed the suit in circumstances.

Ch. Bashir Ahmad for Petitioner.

Abdur Razzaq Sheikh for Respondent No.1.

Ch. Muhammad Suleman, Addl. A.-G. for Respondent No.2.

Representative on Behalf of Respondent No. 3.

Muhammad Akbar Qureshi for Respondent No.4.

2006 Y L R 2870

[Lahore]

Before Mian Saqib Nisar, J

Messrs MIAN AHMAD ZAFAR & CO. through Managing Partner

and another---Appellants

Versus

IJAZ AHMAD CHEEMA through Legal Representatives---Respondents

Regular First Appeal No.430 of 2000, decided on 23rd February, 2004.

Civil Procedure Code (V of 1908)---

---- O. XXXVII, R.2---Suit for recovery of money---Dishonoured cheque---Recovery of amount on the basis of dishonoured cheque---Defence was that the defendant had issued another cheque with the condition that if subsequent cheque was en-cashed first cheque will be returned---Defendants produced decision of arbitrator to prove that it was a case of rendition of accounts of dissolved firm between the parties---Trial Court decreed the suit---Validity---Alleged decision of arbitrator was an award which was not made rule of the Court and could not be considered as piece of evidence---Defendants had failed to prove the plea raised by them---Trial Court had rightly decreed the suit on basis of evidence---Appeal was dismissed in circumstances.

Malik Riaz Khalid Awan for Appellants.

Inayat?? Ullah??? Cheema??????????? for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 2872 #

2006 Y L R 2872

[Lahore]

Before M. Bilal Khan, J

BASHIR AHMAD---Petitioner

Versus

MUHAMMAD AKRAM and another---Respondents

Criminal Revision No.409 of 2006, decided on 3rd July, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 540 & 439---Penal Code (XLV of 1860), S.302/34---Summoning of material witnesses---Application for---Respondent, who was one of accused persons, moved an application to Trial Court under S. 540, Cr. P. C. to summon S. H. O. Police Station concerned and Investigating Officer, who had been given up by the prosecution---Trial Court after hearing parties accepted application and ordered summoning of both said officials as Court witnesses and said order of Trial Court had been challenged by petitioner/ complainant by means of revision---Validity---Trial Court had given elaborate reasons for summoning said two witnesses---Section 540, Cr.P.C., was intended to enable. Courts to get at the truth and mere fact that some important witnesses had been given up by prosecution, would not absolve the Court from said responsibility---Courts of law ought not to leave themselves to the mercy of parties---Section 540, Cr. P. C. conferred wide discretionary .,powers on the Trial Court to summon any witness at any stage of trial---While exercising powers under S.540, Cr. P. C. all that Courts required to ensure, was that evidence of witness who had been summoned, would have some bearing on determining the guilt or innocence of accused---Counsel for petitioner had not been able to point out any feature of case whereby, it could be said that discretion exercised by the Trial Court was absurd, arbitrary or fanciful---Mere fact that Trial Court previously had turned down plea of co-accused to summon two persons as Court witnesses under S.540, Cr. P. C. , was by itself no reason to turn down subsequent application of the respondent as well.

Ch. Muhammad Din Ansari for Petitioner.

Sardar Khurram Latif Khan Khosa for Respondent No. 1.

?Ch. Aamir Rehman, Addl. Advocate-General assisted by Tanvir Ahmad Shami, Advocate for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2874 #

2006 Y L R 2874

[Lahore]

Before Sardar Muhammad Aslam, J

SHANA---Petitioner

Versus

PUNJAB PROVINCE through

Collector and another---Respondents

Civil Revision No.2735 of 2000, heard on 22nd April, 2004.

Civil Procedure Code (V of 1908)---

----0. XXVI, R. 9 & O. XLI. R. 23---Demarcation---Local Commission---Plaintiff had filed suit for recovery of possession alleging that he had given the suit property for use to the defendant and he needed it back---Defendant department alleged that the suit property was evacuee house and was allotted to the department---Trial Court had decreed the suit but its findings were reversed by the Appellate Court---Validity---Both parties had produced oral evidence in support of their respective claim---Documentary evidence revealed that there were two different "Khasra Numbers" one of `Abadi Deh ' and other "Ghair Mumkin Chhapar"---Suit property could be located through demarcation---Keeping in view the valuable rights of the parties case was remanded to the Trial Court with direction to issue Commission for demarcation and allow the parties to lead evidence and decide the case afresh---Both judgments and decrees of both the Courts were set aside in circumstances.

Hasnat Ahmad Khan for Petitioner.

Mian Ghulam Hussain for Respondent.

Date of hearing: 22nd April, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2876 #

2006 Y L R 2876

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1594-B of 2006, decided on 9th March, 2006.

Criminal Procedure Code V of 1898)---

----S. 498---Penal Code (XLV of 1860); Ss.337-F(vi), 337-L(ii), 148 & 149---Prearrest bail, refusal of---Allegation against accused was that he along with his co-accused caused injuries on persons of complainant and prosecution witness---F. I. R. revealed that accused caused injuries on the right hand of prosecution witness with a 'Sota'---Medico-legal Report showed that fracture was on the right hand of prosecution witness---.Accused lead failed to show any mala fide on the part of complainant or police---Case being not fit for grant of pre-arrest bail to accused, Petition was dismissed, in circumstances.

Muhammad Zikria Sheikh and Ch. Muhammad Javaid Iqbal for Petitioner.

Pervaiz Akbar for the State with Muhammad Rafique, S.-I. along with Record.

YLR 2006 LAHORE HIGH COURT LAHORE 2877 #

2006 Y L R 2877

[Lahore]

Before Khawaja Muhammad Sharif, J

SUALEEN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.79 and 80 of 2001 and Criminal Revision No.54 of 2001, heard on 3rd February, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(6), 300 & 34---Qanun-e-Shahadat (10 of 1984), Art. 121---Appreciation of evidence---Grave and sudden provocation---Plea of---Scope---Complainant had stated in the F.I.R. that accused/appellants murdered complainant's sister and niece who were married with accused because accused persons had suspicion about their character---Accused took plea that as both ladies were found in night in compromising position with two. male persons, the accused murdered both ladies on grave and sudden provocation---Trial Court sentenced both accused to life imprisonment---Validity---When accused took specific plea under S.302(c) or within exception of S.300, P.P.C. then under Art.121 of Qanun-e-Shahadat, 1984 anus was on accused to prove such specific plea---Accused took plea of grave and sudden provocation before Trial Court but the said plea was not taken by accused in police investigation---As to their plea of grave and sudden provocation, accused failed to put question to Investigating Officer in his cross-examination before Court---Accused did not cause any injury to mate persons who were allegedly found by accused in compromising position with deceased ladies---No semen was found on private parts of deceased ladies---Prosecution had successfully proved its case against accused whereas defence version of accused was an afterthought---Trial Court had given reasons for awarding lesser punishment to accused---Petition of complainant for enhancement of sentence was dismissed---Conviction and sentence recorded by Trial Court against accused/appellants were maintained, in circumstances.

Muhammad Arif Raja for Appellant.

Sh. Mumtaz Ali for the State.

M. D. Tahir for the Complainant.

Date of hearing: 3rd February, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2883 #

2006 Y L R 2883

[Lahore]

Before Muhammad Muzammal Khan, J

Sayed IMRAN HUSSAIN alias MASOOD HUSSAIN and 2 others---Petitioners

Versus

Syed IBRAR HUSSAIN SHAH---Respondent

T.A. No.66-C of 2003 and T.A. Nos.83-C, 84-C of 2004, decided on 7th April, 2004.

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

----S.25-A---Transfer of cases---Husband had filed two suits one for restitution of conjugal rights and other for custody of minor children---Wife had filed suits for dissolution of marriage and maintenance at place of her residence---None was present before the Court---Keeping in view travel by female with minors, transfer applications were accepted and cases were transferred to the Court where cases of wife were pending.

No one present.

YLR 2006 LAHORE HIGH COURT LAHORE 2887 #

2006 Y L R 2887

[Lahore]

Before Khawaja Muhammad Sharif, J

Mst. BASHIRAN BIBI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.88-J of 2004, decided on 31st January, 2006.

Penal Code (XLV of 1860)---

----S. 302 (b)---Appreciation of evidence---Benefit of doubt---Case of circumstantial evidence and no evidence was, on record except alleged extra judicial confession which was always a weak type of evidence---Two co-accused, who also were tried along with accused, had been acquitted---Iron rod/offensive weapon was recovered on the pointation of co-accused who had been acquitted by the Trial Court and no appeal against acquittal had been filed by prosecution---Prosecution case only was hanging on extra judicial confession, but capital punishment could not be given without any corroboration which was lacking in the case---Case being of a very doubtful nature, impugned judgment passed by the Trial Court was set aside---Accused was acquitted from the charge granting him benefit of doubt.

Mian Liaqat Ali and Kh. Fabir Ejaz for Appellant.

Sh. Khalid Habib for the State.

Date of hearing: 31st January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2889 #

2006 Y L R 2889

[Lahore]

Before Abdul Shakoor Paracha, J

Malik SHER MUHAMMAD---Petitioner

Versus

IRSHAD BEGUM and others---Respondents

Civil Revision No.950 of 1997, heard on 2nd April, 2004.

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

----S.115---Revision---Applications for amendment of appeal, amendment of plaint and addition of party and for decision of suit on special oath before Appellate Court---Petitioner had filed three applications in the Appellate Court, two for amendments and one for decision on special oath---Appellate Court dismissed the appeal while the applications remained pending---Validity---Applications were to be decided before the decision on appeal---Revision was allowed and judgment and decree of the Appellate Court were set aside and case was remanded with the direction to decide the pending applications and appeal on merits.

Haji Ibrahim v. Ismail and 9 others PLD 1976 Kar. 1075; Pak Carpet Industries Limited v. Government of Sindh and 2 others 1993 CLC 334 and Khair Deen v. Rehm Deen and 4 others 1996 CLC 1731 quoted.

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

----O. XIV, R. 5---Striking of issues---Revisional jurisdiction---Trial Court had framed issue about adverse possession---Such assertion was not in the plaint---Appellate Court was directed to do the needful according to law.

Sh. Anwar-ul-Haq for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd April, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2891 #

2006 Y L R 2891

[Lahore]

Before Sheikh Azmat Saeed, J

NOOR MUHAMMAD---Petitioner

Versus

FAZAL AHMAD and 4 others---Respondents

Civil Revision No.982 of 1996, decided on 27th July, 2006.

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

----S. 115---Concurrent finding of fact by Courts below---Reappraisal of evidence on record---Not possible in revisional jurisdiction of High Court.

(b) West Pakistan Land Reforms Regulation, 1959 (M.L.R. 64)---

----Para. 7---Civil Procedure Code (V of 1908), S.9---Sale in violation of M.L.R. 64---Jurisdiction to set aside such sale vested only with authorities mentioned in M.L.R. 64, but not in Civil Court.

Sadiq Ali v. Taj Din and others PLD 1992 Lah 158; Nasir Ahmad Khan v. Mst. Ismat Jehan Begum 1968 SCMR 667 and Mst. Aisha Bibi v. Nazir Ahmad and 10 others 1994 SCMR 1935 rel.

Ch. Muhammad Anwar Bhindar for Petitioner.

Ras Tariq Ch. for Respondents.

Date of hearing: 12th July, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2893 #

2006 Y L R 2893

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD EHSAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.483-J of 2001, decided on 5th May, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence--F.I.R. in the case was promptly lodged---Accused had taken the deceased from his house on pretext of "Punchayat "---Accused allegedly gave two scissors blow on the person of deceased and injuries caused on person of deceased in that way were sufficiently mentioned in the post-mortem report---Dead body of deceased was recovered from the room of the house of accused---Lengthy cross-examination about 24 pages was conducted on prosecution witness who was father of deceased, which was totally irrelevant and wastage of precious time of public as well as the Court---Both complainant and other prosecution witness had corroborated their statements on material points---Accused led to recovery of said scissors and "Hamam Dasta" used as offensive weapons---Reports of Chemical Examiner and that of Serologist revealed that Scissors was found to be stained with human blood---Accused could not prove that it was a case of substitution as he could not produce any defence witness to prove that deceased was murdered by someone else---False implication of accused was not possible---Accused during the trial absconded and perpetual warrants of his arrest were issued against him by the Trial Court, which had shown his guilty mind---Accused was also found guilty by the police during course of investigation---Prosecution had been successful in proving its case against accused beyond any shadow of doubt---Conviction and sentence recorded against accused by the Trial Court, were maintained, in toto, in circumstances.

Iram Sajjad Gul for Appellant.

M. Aziz Qureshi for the Complainant.

Kazim Iqbal Bhangoo for the State.

Date of hearing: 5th May, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2896 #

2006 Y L R 2896

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD SADIQ HUSSAIN---Petitioner

Versus

S.H.O. MULTAN and 2 others---Respondents

Writ Petition No.5049 of 2005, decided on 26th August, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Disregard of the orders of the Justice of Peace by police---Effect---Police had disregarded the orders of the Additional Sessions Judge as Justice of Peace on one excuse or the other---Such conduct of the S.H.O. was also violative of judgment of High Court (PLD 2005 Lah.470), for which he could be hauled up for non-compliance---However, taking - a lenient view High Court had referred the matter to the District Police Officer concerned for looking into the same and passing an appropriate order---S.H.O. in the meanwhile was given a last opportunity to comply with the aforesaid orders of the Justice of Peace within two days positively---Constitutional petition was disposed of accordingly.

Khizar Hayat's case PLD 2005 Lah 470 ref.

Malik Muhammad Tariq Rajwana for Petitioner.

Malik M. Ramzan Khalid, A.A.-G. along with Ishtiaq Ahmad Gill, Inspector/S.H.O. and Zafar Sial, S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 2897 #

2006 Y L R 2897

[Lahore]

Before Fazal-e-Miran Chauhan, J

AMJAD ALI---Petitioner

Versus

Mst. AISHA NAUREENA and 3 others---Respondents

Writ Petitions Nos.12087 and 12088 of 2005, decided on 14th July, 2006.

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

----S. 5---Constitution of Pakistan (1973), Art.199---Constitution petition---Suit for recovery of maintenance as well as dowry articles---Family Court awarded maintenance to wife during her Iddat at the rate of Rs.2,000 per month till her Iddat period while minor daughter was found entitled to maintenance allowance at the same rate with 10% annual increase till her marriage---Husband was ready to pay the maintenance of minor daughter and in view of his generosity the maintenance of wife was reduced to Rs.500 per month in constitutional jurisdiction by the High Court after accepting husband's plea that amount of maintenance for wife was excessive---Orders of lower Courts whereby they awarded value in money of dowry articles was well-reasoned---No illegality or irregularity in impugned judgments and decrees was made out to interfere with the same in constitutional jurisdiction.

Miss Tasneem Amin for Petitioner.

Abdur Razzaq for Respondents Nos.1 and 2.

YLR 2006 LAHORE HIGH COURT LAHORE 2899 #

2006 Y L R 2899

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD SAGHEER and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6264-B of 2004, decided on 15th October, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/148/149/109---Bail, refusal of---F.I.R. had been lodged with reasonable promptitude nominating specifically both the accused with their roles played in the occurrence---Eye-witnesses mentioned in the F.I.R. had fully implicated the accused in the offence---Medical evidence had, prima facie, supported the allegations levelled against the accused in the F.I.R.---Accused apparently were connected with the motive for the incident---Case against accused was hit by the prohibition contained in 5.497(1) Cr. P. C. ---Police opinion that the accused were not present at the scene of crime was not based on sound material---Investigating Officers, however, had found the accused involved in the case as abettors and challan had been submitted in the Court placing them in Column No.3 thereof---Bail was declined to accused in circumstances.

Sikandar Zulqarnain Saleem for Petitioners.

Salah-ud-Din for the State.

Muhammad Akbar, S.-I. with record.

YLR 2006 LAHORE HIGH COURT LAHORE 2900 #

2006 Y L R 2900

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

ABDUL QADEER---Petitioner

Versus

ASHIQ ALI and 2 others---Respondents

C.R. No.334 of 2004 and C.M. No.804 of 1995, heard on 30th June, 2006.

Specific Relief Act (1 of 1877)---

----Ss. 42 & 8---Qanun-e-Shahadat (10 of 1984), Arts.79, 117 & 118---Suit-land---Registered sale-deed, execution of---Proof---No presumption is attached to a registered document regarding its execution when that document has been challenged as forged one and its execution is disputed---Defendant being beneficiary of such instrument, was under an obligation not only to have proved the execution of the document but also that the nature of transaction contained in document was fully understood by one of plaintiffs lady who was admittedly an illiterate Parda observing lady but he failed to comply with the requirements of law on this aspect---One of the marginal witnesses stated that instead of sale-deed, a mortgage deed was executed between parties while the other marginal witness was not examined by the defendant giving rise to presumption that had he appeared he would not have supported the version of defendant---Payment of consideration was not proved---Plaintiffs who were out of possession of suit-land, rightly asked for declaration of the title and for possession as S. 39 of the Specific Relief Act, 1877 was not attracted in circumstances---Since plea of fraud and misrepresentation had been taken by plaintiffs, limitation would have been deemed to start from the date of knowledge---Suit was therefore held to have been filed within time.

1990 SCMR 1031 ref.

Muhammad Yaseen Bhatti for Petitioner.

Syed Kabeer Mahmood for Respondents.

Date of hearing: 30th June, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2904 #

2006 Y L R 2904

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD LATIF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6841-B of 2004, decided on 13th October, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 447/337-H(ii)/506/511---Bail, grant of---Accused had allegedly made ineffective firing only---Gun recovered in the case was the licensed gun of the co-accused who had obtained the same on Superdari---Said co-accused had already been enlarged on bail---None of the offences mentioned in the F.I.R. fell within the prohibitory clause of section 497(1), Cr.P.C.---Accused was admitted to bail in circumstances.

Ch. Tahir Mehmood for Petitioner.

Muhammad Ali Chughtai for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2905 #

2006 Y L R 2905

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD RAFIQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1848-B of 2005, decided on 6th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.161/342-Prevention of Corruption Act (II of 1947), S.5(2)---Pre-arrest bail, grant of---Complainant had not spoken the whole truth but had concealed certain facts making the prosecution story not totally correct---Possibility of levelling false allegation against the police to avoid arrest for allegedly purchasing stolen gold, could not be ruled out---Complainant had subsequently admitted to have purchased stolen gold from dacoits before the members of Goldsmith Association who had confirmed so in writing on their Business Pad---Delay of six months in lodging the F.I.R. by the complainant without any explanation was very significant who had allegedly been deprived of about Rs.2 lac due to the act of accused---Accused had already joined the investigation---Only allegation to the extent of illegal confinement of the complainant was, prima facie, made out against the accused falling under S. 342, P.P.C. which was a bailable offence---Ad interim pre-arrest bail allowed to accused was confirmed in circumstances.

Haji Meraj Din v. The State KLR 2000 Criminal Cases 190; Khadim Hussain and another v. The State 2004 MLD 1000; Muhammad Arshad and another v. The State 2004 MLD 1836; Mukhtar Ahmad v. The State 2001 MLD 1563; Muhammad Anwar v. The State NLR 2004 Criminal 518; Safia Bani and others v. The State PLD 2003 Kar.679; Inayatullah Khan v. The State 1996 PCr.LJ 1548; Muhammad Khan and another v. State 1999 SCMR 1220; Khan Mir v. Aural Sherin alias Kamal and 2 others 1989 SCMR 1987; Mirza Javed Iqbal v. The State through Chief Prosecutor Ehtesab Bureau, Azad Kahsmrir PLD 2001 Azad J&K 46; Fazal Muhammad v. Muzaffar Hussain and others 1981 SCMR 959 and Aurangzeb v. The State 1999 Cr.L.J. 451 ref.

Tahir Munir Malik for Petitioner.

Altaf Ibrahim Qureshi for the Complainant.

Raja Sultan Khurram-uz-Zaman for the State.

2006 Y L R 2923

[Lahore]

Before Khawaja Muhammad Sharif, J

MANZOOR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2197-B of 2006, decided on 10th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Bail, refusal of---Accused while armed with fire-arm, caused an injury on the arm of complainant---Accused remained fugitive from law for about 20 months---Section 324, P.P.C. fell within prohibited clause of S.497(1), Cr.P.C.--Accused, in circumstances was not entitled to grant of bail.

The State through Advocate-General v. Zubair and 4 others PLD 1986 SC 173 ref.

Muhammad Ahsan Bhoon for Petitioner.

Allah Bakhsh Gondal for the Complainant.

S.D. Qureshi for the State.

M. Azam, A.S.-I. with record.

YLR 2006 LAHORE HIGH COURT LAHORE 2925 #

2006 Y L R 2925

[Lahore]

Before Sardar Muhammad Aslam and Sheikh Azmat Saeed, JJ

GULSHAN ARA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.365-J of 2003, heard on 24th January, 2005.

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

----S.9-C---Appreciation of evidence---Huge quantity of "Charas " weighing 17 K. gs. was recovered from the Kitchen of accused which was in her sole occupation---Defence pleas taken by accused of having been falsely implicated in the case at the behest of one of her relatives, was an after-thought, as the same was not raised by her before the Investigating Officer or even at the trial---Provisions of 5.20 of the Control of Narcotic Substances Act, 1997, being not mandatory, the Narcotic Agency had kept the information secret till the raid was conducted in order to make it successful, otherwise time to be consumed in obtaining search warrant might thwart the action---Delay in dispatch of the sample parcel had caused no prejudice to the accused in absence of any allegation of tampering with the same---No ill-will was pointed out against the police officials for false involvement of accused---Husband of accused being an addict was admittedly in jail and undergoing five years imprisonment---Huge quantity of "Charas" having been recovered from the accused, she did not deserve any leniency in the quantum of sentence---Appeal was dismissed in circumstances.

Fida Jan v. The State 2001 SCMR 36 ref.

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

----S.20---Power to issue warrants---Nature of the provisions---Provisions of 5.20 of the Control of Narcotic Substances Act, 1997, are directory in nature and compliance thereof cannot be urged as a strong ground holding that the trial was bad in the eye of law.

Fida Jan v. The State 2001 SCMR 36 ref.

Azmat Ullah Warraich for Appellant.

Ch. Imtiaz Ahmad for the State.

Date of hearing: 24th January, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2927 #

2006 Y L R 2927

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

RASHID AMUDALA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.935 of 2004, heard on 12th January, 2005.

Control of Narcotic Substances Act (XXV of 1977)---

----S. 9(c)---Appreciation of evidence---Heroin weighing 1300 grams contained in 89 Capsules was recovered from the stomach wash of the accused---Accused was stated to be a first offender who had been misled to act as a carrier for a person who was living outside the country---Conviction of accused was upheld, but his sentence of eight years' R.I. was reduced to six years' R.I. with substantial reduction in fine in circumstances.

Aftab Ahmad Bajwa for Appellant.

Rao Sharif for the State.

Date of hearing: 12th January, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2929 #

2006 Y L R 2929

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and M.A. Shahid Siddiuqi, JJ

GHULAM RASOOL---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.1496, 1629 of 2002 and Criminal Revision No.1040 of 2002, decided on 24th January, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 148 & 149---Appreciation of evidence---Benefit of doubt---F.I.R., showed that at relevant time accused was armed with .12 bore gun and had caused injuries to deceased, whereas two of the co-accused were armed with 7 MM rifle, but before the Trial Court both eye-witnesses while changing their stance, stated that at the relevant time, accused and his co-accused were armed with `Pakki Bandook'--Stand taken up by eye-witnesses before the Court stood contradicted by medical evidence---According to prosecution case accused persons were standing on the roof top of the house of accused, whereas rest of the accused persons were standing in the courtyard of his house and allegedly firing was made by accused from the said roof top, but according to site plan, house of accused was not near to the place of occurrence and it was not possible for accused to cause injuries while standing upon the roof top of said house---Crime empties recovered from the spot were sent to Forensic Science Laboratory for inspection with considerable delay---Possibility that evidence of recovery was tailored during investigation, could not be ruled out---Prosecution could not prove motive for commission of offence---Prosecution had thrown its net too wide to implicate as many people as possible because of close relationship of accused with other co-accused---Trial Court while disbelieving prosecution case having already acquitted eight co-accused, it was not safe to rely upon the same set of evidence qua accused in absence of any independent corroborative piece of evidence---Medical evidence had contradicted ocular evidence---During investigation while disbelieving prosecution's stand, a large number of accused involved in the case were found innocent---Trial Court, in circumstances, had erroneously convicted and sentenced accused---Accused as such was entitled to get benefit of doubt and was acquitted.

Atir Mahmood for Appellant.

Atta-ul-Mohsin for the Complainant.

Muhammad Azam for the State.

Date of hearing: 24th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2933 #

2006 Y L R 2933

[Lahore]

Before Mian Hamid Farooq and Syed Hamid Ali Shah, JJ

NASIR MAHMOOD---Appellant

Versus

Agha MUHAMMAD SIDDIQUE and others---Respondents

Regular First Appeal No.272 of 2003, decided on 11th April, 2005.

Civil Procedure Code (V of 1908)---

----S. 96---Regular First Appeal---Appeal against review order---Maintainability---Respondent raised preliminary objection that since appellant's review petition was dismissed through impugned judgment, appeal was incompetent---Additional District Judge as Trial Court through impugned composite judgment, besides deciding other matters, passed decree for recovery against appellant---Appeal against said judgment and decree, lay to the High Court---Appeal against judgment and decree of Trial Court was competent and maintainable---Objection of counsel for respondent, in that regard was repelled and appeal was directed to be fixed on specified date.

Mian Muhammad Waheed Akhtar for Appellant.

Nemo for Respondent No.1.

Zafar Iqbal Chowhan for other Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 2934 #

2006 Y L R 2934

[Lahore]

Before M.A. Shahid Siddiqui, J

Mst. NASREEN BIBI---Petitioner

Versus

ABDUL WAHEED and another---Respondents

Criminal Revision No.369 of 2005, decided on 16th May, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 154 & 200---Dismissal of complaint---Refusal to issue process against alleged accused---Petitioner widow of deceased who pleaded innocence and held another person responsible for the murder of her husband, filed constitutional petition for direction to S.H.O. concerned to record her version/statement under S.154, Cr. P. C. ---On instruction of High Court petitioner's version was recorded by the police and found it. to be false---S.H.O. in his report under S.173, Cr. P. C. placed petitioner in Column No.2 whereas said person in Column No.3---Just before said proceedings petitioner instituted a private complaint and trial Court to whom complaint was entrusted, recorded statement of petitioner and her son and daughter, but declined to issue process against other person/alleged accused, mainly on the ground that complaint had been filed 3-1/2 years after occurrence and also that it contained her defence version---Version of petitioner was brought on record and was found to be false---In view of delay of about 3-1/2 years in filing complaint and that too just before the conclusion of the prosecution evidence, was just an attempt to protract the trial---No illegality existed in impugned order warranting interference of High Court in exercise of revisional jurisdiction.

Hasnat Ahmad Khan for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 2936 #

2006 Y L R 2936

[Lahore]

Before Sh. Javaid Sarfraz, J

ALLAH BAKHSH---Petitioner

Versus

SAFDAR and others---Respondents

Criminal Misc. No.190-H of 2005, decided on 28th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 491---Child Marriage Restraint Act (XIX of 1929), Preamble---Habeas corpus petition---Alleged detenue was present in Court and stated that she had married the respondent and was living with him on her own free-will and consent as his wife and that she was not in illegal detention---Nikah had been duly registered---According to the medical report the alleged detenue was 15 years old and being sui juris she could marry on her own accord and choice even without permission of Wali/father---Even the Child Marriage Restraint Act, 1929, did not invalidate the marriage once it had been performed---Having attained puberty under Islamic law, the girl could marry---Her husband, who in order to prove his bona fides had undertaken to deposit Rs.50,000 in her name in any profitable scheme of National Savings Centre for five years---Alleged detenue having not been found in illegal custody, was set at liberty and allowed to accompany her husband.

Allah Dad v. Hazoor Bakhsh and others 1985 SCMR 942 distinguished.

Zarina Khatoon v. District Magistrate South Karachi and 5 others PLD 197$ Kar.374 and Mushtaq Ahmad v. Mirza Muhammad Amin and others PLD 1962 (W.P.) Kar 442 ref.

Mian Irshad Ali Qureshi for Petitioner.

Ch. Muhammad Sharif for Respondents.

M.R. Khalid, A.A.-G. on Court's call with Saleem, A.S.-I. and Mst. Jamila C-1275 with record.

YLR 2006 LAHORE HIGH COURT LAHORE 2938 #

2006 Y L R 2938

[Lahore]

Before Mian Hamid Farooq and Syed Hamid Ali Shah, JJ

CITIBANK N.A. through Branch Manager---Appellant

Versus

MUNIR AHMAD GILL and 2 others---Respondents

E.F.A. No.723 of 2002, heard on 26th September, 2005.

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

----Ss. 6, 41, 55 (1) (a) (b) (3) & 58--- ' Property mortgaged with bank by deposit of title-deeds---Vendee of such property claiming benefit of S.41 of Transfer of is Property Act, 1882---Validity---Vendee, while purchasing property, was under legal obligation to claim from vendor its original title documents---Inquiry through Revenue Record would not be sufficient---Proper verification of original title deed and inquiry to a valid and clear title of vendor was essential requirement---Such sale was by real owner and not by ostensible owner---Purchase from original owner and not from ostensible owner would take sale transaction out of purview of S.41 of Transfer of Property Act, 1882----Protection of 5.41 of Transfer of Property Act, 1882 could not be extended to such vendee---No one could deliver a better title than the one he had himself---Vendee, held, had purchased the property under encumbrance.

Mst. Tehmina Bashir v. Abdul Raul' and another 1995 CLC 973; Major Muhammad Tari v. Citibank Housing Finance Company 2002 CLD 1090 and Khalid Adeed Khanum v. Prudential Investment Bank Ltd. and others 2002 CLD 451 ref.

Nisiban Bibi v. The Australia Bank, Lahore and 2 others 1970 SCMR 657 and Maulana Riaz-ul-Hassan v. Muhammad Ayub Khan and another 1991 SCMR 2513 rel.

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

----S. 6. ---Property, transfer of---No one could deliver a better title than the one he had himself.

Shahid Ikram Siddiqui for Appellant.

Aamar Zahoor Chowhan for Respondent No.3.

Ex parte Respondent Nos.1 and 2.

Date of hearing: 26th September, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2941 #

2006 Y L R 2941

[Lahore]

Before M. Bilal Khan, J

GHULAM MUSTAFA---Petitioner

Versus

MUHAMMAD FAROOQ alias FAROOQI and others---Respondents

Criminal Miscellaneous No.3139-CB of 2005, decided on 21st December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), 5.302/34---Bail, cancellation of---Additional Sessions Judge proceeded to grant concession for post-arrest bail to accused without acquainting himself with the earlier order passed by his predecessor who had disallowed bail to accused---Additional Sessions Judge also lost sight of the fact that grounds, which weighed with him for grant of bail, had earlier been exhaustively dealt with by his predecessor---Consideration, which very heavily weighed with Additional Sessions Judge in granting bail to accused, that during course of investigation, he had been declared innocent, was also available to accused at the time when his earlier bail application had been turned down---Additional Sessions Judge had forgotten that it was he who himself had framed charge against accused under Ss.302 & 34, P.P.C., despite the fact that his name appeared in Column No.2 of the report under S. 173, Cr. P. C. ---Even otherwise, perusal of interim orders placed on record by counsel for petitioner/complainant, indicated that accused was playing fast and loose with the process of the Court and was not allowing the trial to proceed---Accused was getting adjournments on one flimsy pretext or the other, after getting bail---Discretion exercised by Additional Sessions Judge in granting bail to accused, militated against established principles for the grant of bail in cases involving capital punishment---Order granting bail, was recalled, accordingly.

Rana Iqbal Ahmad Khan for Petitioner.

Muhammad Akram Shahid for Respondent No.1.

Masood Parvez Chaudhry for the State with Zafarullah, S.-I. Khanqah Dogran.

YLR 2006 LAHORE HIGH COURT LAHORE 2943 #

2006 Y L R 2943

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ALLAH DITTA---Petitioner

Versus

THE STATE and others---Respondents

Criminal Revision No.301 of 2005, decided on 12th July, 2005.

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

----S. 11---Criminal Procedure Code (V of 1898), S.204---Summoning of subsequently nominated respondents in the private complaint as accused refused by trial Court---Validity---Complainant petitioner had lodged an F.I.R. under section 11 of the Office of Zina (Enforcement of Hudood) Ordinance, 1979, against three persons for the abduction of his daughter---Alleged abductee, after her recovery, when produced in High Court during the proceeding of a constitutional petition, claimed to have contracted marriage with her free-will and consent with one of the respondents and stated that she had left the house of her own accord after quarrelling with her parents and that nobody had abducted her---Police, after recording the statement of the abductee recommended for cancellation of the said F.I.R. and the complainant being dissatisfied with the same filed a private complaint against the aforesaid three accused---Alleged abductee in her statement in the private complaint, however, introduced a new story involving three other accused in the case, who were now being required to be summoned also as accused in the complaint---Abductee had been making inconsistent statements and the possibility of false implication of the said three new respondents by her at the instance of her father for some ulterior motive, could not be ruled out---Solitary statement of the said abductee, in view of her contradictory statements, could not be believed to summon the said respondents as well to face the trial in the private complaint, from whom she had even not been recovered, though according to her they had confined her for about one month---Trial Court, in circumstances, had rightly dismissed the application of the complainant for summoning the said respondents to face the trial---Revision petition was dismissed accordingly.

Malik Tahir Iqbal for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 2946 #

2006 Y L R 2946

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mst. IRSHAD BIBI---Petitioner

Versus

S.H.O., P.S. R.A. BAZAR, RAWALPINDI and others---Respondents

Writ Petition No.1891 of 2005, decided on 19th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Custody of the minor---Relationship of wife and husband existed between the parties---Son of the petitioner was two years old---Mother was entitled to the custody (Hizanat) of her male child until he had completed the age of seven years---Petitioner mother could look after the child in a better way than his father or other relations---Minor was given in the interim custody of the petitioner in circumstances till the final adjudication by the Guardian Judge, if any party approached that forum---Petition was accepted accordingly.

Mahomedan Law by Mulla, S.352 ref.

Fazal-ur-Rehman Khattak for Petitioner.

Ms. Nasreen Akhtar for Respondents.

Nasir Saeed Sheikh, D.A.-G. along with Colonel Iqbal Hashmi

YLR 2006 LAHORE HIGH COURT LAHORE 2947 #

2006 Y L R 2947

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

GHULAM ABBAS and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4224-B of 2005, decided on 16th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, grant of---F.I.R. showed that accused were armed with different weapons, but no injury had been attributed to them---Eleven persons were found to be innocent during investigation---Case was a cross-case as accused had filed complaint against complainant party and it would be seen at the time of trial as to who was aggressor---No injury had been attributed to accused---Accused were in judicial lock-up since they were arrested---Case being fit for grant of bail, accused were admitted to bail, in circumstances.

Zafar Iqbal Chohan and S. Tayab Mahmood Jafri for Petitioners.

M. Khalid Sajjad Khan and Rai Muhammad Tufail Khan Kharal for the Complainant.

Tabassuin Ansar for the State along with Muhammad Riaz A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 2948 #

2006 Y L R 2948

[Lahore]

Before Ijaz Ahmad Chaudhry, J

RAMZAN---Petitioner

Versus

AKHTAR HAYAT and 3 others---Respondents

Writ Petition No.4103 of 2005, decided on 13th July, 2005.

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

---Ss. 337-F(i)/337-F(ii)/148/149-Constitution of Pakistan (1973), Art.199--- Constitutional petition---Sessions Court in its revisional jurisdiction had directed to summon all the accused named in the private complaint-Validity-Magistrate, after recording preliminary evidence in the private complaint filed against twelve persons, only summoned three persons to face the trial, to whom specific role was attributed and dismissed the complaint to the extent of the remaining accused---Sessions Court vide impugned order, in exercise of its revisional jurisdiction, set aside the said order, directing all the twelve accused to face the trial---Magistrate had failed to appreciate that the prosecution witnesses had fully and consistently implicated all the accused regarding the roles attributed to them in the private complaint, against whom a prima facie case was made out---Revisional Court had rightly summoned all the accused on the basis of evidence on record at this stage as there were no distinguishable features between them---Sessions Court was equally competent to adjudicate upon the matter and could differ with the opinion of the Magistrate in revisional jurisdiction for issuance of process to the accused persons---Constitutional petition was dismissed in limine accordingly.

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

----S. 204---Issue of process---Scope---Trial Court at the initial stage of summoning of accused cannot go into deeper merits of the case, but has to form an opinion from the tentative assessment of the evidence, whether a prima facie case is made out or not.

----Art. 199---Constitutional jurisdiction---Scope---High Court in exercise of its constitutional jurisdiction can only see whether the impugned order was passed without jurisdiction, or the same was against the settled principles of law or it was the result of some material irregularity.

Malik Ashiq Hussain for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 2951 #

2006 Y L R 2951

[Lahore]

Before Syed Zahid Hussain, J

MUSHTAQ AHMAD BUTT---Appellant

Versus

DISTRICT COORDINATION OFFICER, GUJRAT and another---Respondents

F.A.O. No.181 of 2006, decided on 26th July, 2006.

Press, Newspapers, News Agencies and Books Registration Ordinance (XCVIII of 2002)---

----Ss. 19 & 20---Cancellation of declaration---District Coordination Officer (D.C-.O.) passed such order on basis of material brought against appellant ex parse---Validity---Before passing - such adverse order, D.C.O. had neither given show-cause notice of proposed action nor held an inquiry into such matter---D.C.O. had passed such order in absence of appellant without hearing him---High Court set aside such order and directed appellant to appear before D.C.O. for decision of complaint against him in accordance with law.

Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61 and Mansab Ali v. Amir and 3 others PLD 1971 SC 124 rel.

Hafiz Abdul Rehman Ansari for Appellant.

Ch. Aamer Rehman A.A.-G. Punjab for Respondents.

YLR 2006 LAHORE HIGH COURT LAHORE 2952 #

2006 Y L R 2952

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MAJID ALI and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7459-B of 2005, decided on 14th November, 2005.

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

--------S. 498-Penal Code (XLV of 1860), Ss.337-H-2, 337-A-2, 337-L-2, 452, 148 & 149---Pre-arrest bail, refusal of---Accused were alleged to have committed offences under Ss.452, 337-H-2, 337-A-2 &337-L-2, P.P.C., but Ss.452, 337-H-2, P.P.C. had been deleted later on and accused was challaned under other offences---Accused were named in F.I.R. with an act and tangible role---Accused since registration of case against them, had been availing extraordinary concession of pre-arrest bail, one way or the other---Principle on which an extraordinary concession of pre-arrest bail could be extended, was not available to accused in the case---Matter available on record, had disentitled accused for extraordinary concession of pre-arrest bail---Bail application was dismissed.

Hassan Akhtar for Petitioners.

Zafar Iqbal Chouhan for the Complainant.

Naseem Naureen for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2953 #

2006 Y L R 2953

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Syed RIAZ-UL-HASSAN SHAH---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, VEHARI and 3 others---Respondents

Writ Petition No.4295 of 2005, decided on 18th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 176(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Exhumation of the dead body directed by the Courts below---Validity---Exhumation on the dead body could be ordered on the request or information of even a stranger, purpose of which was to set at motion the criminal machinery into the commission of a cognizable offence in order to start investigation to unearth the true facts---Not necessary that such order might be passed only on the request of the legal heir of the deceased---Respondent admittedly being nephew of the deceased lady could not be declared as an unconcerned person---Suspicion having been raised regarding the unnatural death of the deceased lady, the process of exhumation of her dead body could not be stopped which was essential to ascertain only the cause of her death--Impugned orders at present stage could not be held to be adverse against the petitioner or others, who could prove their innocence during investigation if the deceased was found to have died an unnatural death in post-mortem examination---Process of collecting the evidence into commission of cognizable offence could not be restrained by High Court in constitutional jurisdiction---Impugned orders had been passed by the Courts below on valid and good reasons---Petition was dismissed in limine in circumstances.

2005 PCr.LJ 736 distinguished

Muhammad Moosa v. Abdul Aziz and others 1999 SCMR 1322 and Mst. Ghazala Begum and others v. The District Magistrate, Khanewal and others 1996 PCr.LJ 389 ref.

Ch. Muhammad Saddique Safdar for Petitioner.

YLR 2006 LAHORE HIGH COURT LAHORE 2955 #

2006 Y L R 2955

[Lahore]

Before Fazal-e-Miran Chauhan, J

Mst. HANIFA BIBI and another-Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.1931-B and 1932-B of 2005, decided on 28th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11---Bail, grant of---Alleged abductee admittedly had been returned by the accused ladies---Unexplained delay of 4/5 days in lodging the F.I.R. indicated a possibility of the false involvement of the accused, otherwise they would not have returned the daughter of the complainant as stated in the F.I.R.---Such gesture of the accused was bona fide---Case of accused needed further probe into their guilt as contemplated under S.497(2), Cr.P.C.---Trial was not likely to be concluded soon and the accused could not be kept in jail for an indefinite period---Accused were admitted to bail in circumstances.

Justin Gill for Petitioners.

Shaukat Riaz for the State in (Criminal Miscellaneous No.1931-B of 2005).

Sabir Ali for the State (in Criminal Miscellaneous No.1932-B of 2005).

Muhammad Shafi, S.-I. Police Station, City Mian Chanun, District Khanewal with record.

YLR 2006 LAHORE HIGH COURT LAHORE 2957 #

2006 Y L R 2957

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. YASMEEN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2006/B of 2005, decided on 25th July, 2005.

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

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11 /10---Pre-arrest bail, grant of---Lady accused being sui juris had contracted marriage with her co-accused and a child had also been born in wedlock---Accused, thus, were not guilty of any offence---Lady accused had also not supported the allegation of her abduction---Case had been got registered against the accused with mala fide intention and ulterior motive only in order to pressurize them to dissolve their marriage---Bail before arrest was meant to protect innocent citizens if found involved in criminal cases with mala fide intention---Ad interim pre-arrest bail allowed to accused was confirmed in circumstances.

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

----S. 498---Pre-arrest bail---Intent and import---Bail before arrest is meant to protect innocent citizen if they are found to have been involved in criminal cases with mala fide intention and ulterior motive.

Rafique Ahmad Malik for Petitioners.

Ch. Faqir Muhammad for the Complainant.

Rao Atif Nawaz for the State along with Fazal Hussain A.S.-I. with record.

YLR 2006 LAHORE HIGH COURT LAHORE 2959 #

2006 Y L R 2959

[Lahore]

Before Jawwad S. Khawaja, J

JALAL DIN and 4 others---Appellants

Versus

SARDARAN BIBI and 7 others---Respondents

R.S.A. No.103 of 1999, heard on 5th May, 2004.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.17---Suit for specific performance of agreement to sell---Trial Court decreed suit but Appellate Court allowing appeal, set aside judgment of Trial Court---Appellate Court below had non-suited plaintiffs, primarily on the ground that only one marginal witness had been examined by plaintiffs to prove alleged agreement, while Qanun-e-Shahadat, 1984 required two attesting witnesses for the purpose of proving the agreement---Validity---Agreement to sell in question having been executed prior to promulgation of Qanun-e-Shahadat, 1984, provisions of Qanun-e-Shahadat, 1984 were not applicable to the case---Witness produced by plaintiffs had not only proved agreement, but had also deposed that consideration was also paid to predecessor-in-interest of defendants in his presence---Scribe of agreement also appeared and had proved execution of agreement by predecessor-in-interest of defendants---Appellate Court had not met the reasoning of the Trial Court while reversing its findings and had also erred in law by holding that it was incumbent upon plaintiffs to produce both marginal witnesses who were alive to prove agreement to sell---Impugned appellate decree was set aside and that of the Trial Court stood restored.

Waqar Azeem for Appellants.

M. Farooq Qureshi Chishti for Respondents.

Date of hearing: 5th May, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 2960 #

2006 Y L R 2960

[Lahore]

Before Ali Nawaz Chowhan and Syed Sajjad Hussain Shah, JJ

MUHAMMAD ASHFAQ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1526 of 2003, heard on 9th March, 2006.

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

----Ss. 9(c), 15, 47 & 48---Appreciation of evidence---Witnesses, who had carried the raid, effected the seizure and arrested accused, though were all official witnesses, but nothing was on record to suggest any ill-will against any of the prosecution witnesses---Nothing was on record to suggest that premises from where recovery was effected, did not exist or was an imaginary place as was argued by counsel for accused---Main witness was subjected to unusually lengthy cross-examination, but accused side was not able to secure much benefit out of same nor accused had been able to establish that premises of recovery did not exist or was imaginary or was not owned by accused---Prosecution in circumstances had been able to establish its case beyond reasonable doubt wherein a huge quantity of Charas was recovered on the pointation of accused---Once a case beyond 10 K.gs. of narcotic was established, law would provide no flexibility in the matter of sentence of imprisonment and it could not be less than life imprisonment---Huge quantity of Charas having been recovered from accused, sentence awarded to accused by the Trial Court was maintained---Amount of fine, however was reduced from Rs.3,00,000 to Rs.30, 000 in case of each accused.

Muzaffar Ahmed Mian for Appellants.

Muhammad Sharif for the State.

Date of hearing: 9th March, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 2963 #

2006 Y L R 2963

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASLAM alias TADY and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.1589, 1569, 488-J and Criminal Revision No.1012 of 2003, heard on 28th January, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b), 460 & 392---Appreciation of evidence---Accused persons had made extra judicial confession turn by turn before the prosecution witness who was neither related to the deceased . nor to the complainant and had no reason for false implication of accused---Said witness had fully implicated all the accused persons in the commission of the offence and his statement was corroborated by the incriminating recoveries made at their instance---Accused being on friendly terms, had joined hands with each other to commit the offence---Prosecution evidence was trust-worthy and confidence-inspiring which had fully connected the accuse with the commission of the heinous offence in which a person linked with the medical profession had been killed---Prosecution had proved its case against the accused beyond any doubt---Convictions and sentences of accused were upheld in circumstances.

Muhammad Ahsan Bhoon for Appellants (in Criminal Appeal No.1589 of 2003).

Aurangzeb Mirza for Appellants (in Criminal Appeal No.1569 of 2003).

Muhammad Shareef Cheema for Appellants (in Criminal Appeal No.488-J of 2003 at State Expense).

Nemo for the State.

Hashim Sabir Raja for the Complainant.

Date of hearing: 28th January, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2968 #

2006 Y L R 2968

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMD PERVEZ alias PARVEZ IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4695-B of 2005, decided on 6th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.392 & 411---Bail, grant of---Further inquiry---F.I.R. in the case had been lodged with a delay of about a month and a half and in the F.I.R. only a suspicion had been expressed by complainant against accused and another person-Extra-judicial confession allegedly made by accused and co-accused before the Punchayat was a joint confession---Evidentiary value of such a joint confession was quite suspect---During investigation two motorcycles, one belonging to complainant and other belonging to some other person, allegedly had been recovered from accused and his co-accused, but memorandum of such recovery did not mention the place from where such recovery had been effected which had created an impression that alleged recovery was a joint recovery---Admissibility and evidentiary worth of said joint recovery was also quite doubtful---Nothing was available on record to connect the pistol allegedly recovered from possession of accused with the offence involved in the case---Challan of the case had already been submitted. before the trial Court after completion of investigation---Physical custody of accused in circumstances was no longer required for the purposes of investigation---Police Officer had categorically stated that no other case of similar nature stood registered against accused at relevant Police Station---Case against accused calling for further inquiry into his guilt within the purview of subsection (2) of 5.497, Cr.P.C. he was admitted to bail.

Nasim Ullah Khan Niazi for Petitioner.

Naeem Ahmad Lodhi for the State along with Muhammad Ramzan, S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 2969 #

2006 Y L R 2969

[Lahore]

Before Sardar Muhammad Aslam and Sh. Azmat Saeed, JJ

SHAMIM alias TANVIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.281-J of 2003, heard on 2nd February, 2005.

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

----S. 9(c)---Appreciation of evidence---Defence evidence had not furnished any basis to prove the innocence of accused---Positive report of the Chemical Examiner, admittedly, related to that particular slab of "Charas " out of which the sample was taken and dispatched for chemical analysis and it did not pertain to the remaining portion of the seized substance---Quantum and weight of the slab from which the sample was taken was not evident on the record---It was, thus, difficult to hold whether the offence fell within the mischief of Ss.9(a), 9(b) or 9(c) of the Control of Narcotic Substances Act, 1997---Sentence of accused was reduced to the imprisonment already undergone by him in circumstances---Sentence of fine was also set aside in the peculiar circumstances of the case.

Ms. Sabahat Rizvi for Appellant.

Zaheer ud Din Babar for the State.

Date of hearing: 2nd February, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2972 #

2006 Y L R 2972

[Lahore]

Before Sh. Abdul Rashid and M. Bilal Khan , JJ

M. ASLAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8660-B of 2005, decided on 20th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 21---Bail, grant of---Further inquiry---Case had been registered on the report of Assistant Sub-Inspector of police who prepared the recovery memo. and also recorded statements of all prosecution witnesses under S.161, Cr.P.C.---Entire investigation from registration of the case onwards had been conducted by the complainant himself, who was a police officer, in violation of provisions of S.21 of Control of Narcotic Substances Act, 1997---Medical Officer who examined accused had found that accused was suffering from night blindness and his vision during daytime, was also weak---Accused was also found to be a patient of Retinitis Pigmentosa for the last several years, which was getting more advanced with the passage of time and said ailment was the source of his very weak vision---Prosecution case to the effect that accused was carrying narcotic substance during the night time, in circumstances, had become a matter of further inquiry---Accused was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Abdul Haq Awan for the State along with Muhammad Aslam S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 2975 #

2006 Y L R 2975

[Lahore]

Before Maulvi Anwarul Haq, J

AMANULLAH---Petitioner

Versus

MUHAMMAD SALEEM---Respondent

Civil Revision No.5 of 2002, heard on 20th April, 2004.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Suit for pre-emption--Making of Talbs---Suit was concurrently dismissed by the Trial Court and Appellate Court below on ground that petitioner/preemptor had not duly made demands of pre-emption in accordance with law---Both Courts below had proceeded to non-suit plaintiff on the ground that he had not mentioned the time, place and source of knowledge pertaining to Talb-i-Muwathibat in the plaint---Dispute, in the present case, pertained to the question of performance of first Talb i.e. Talb-i-Muwathibat---Plaintiff in his plaint had detailed making of first Talb---Details, like time, place and source of knowledge, pertaining to Talb-i-Muwathibat would not be necessary to be mentioned in the plaint---Both Courts below, in circumstances had acted with material irregularity in the exercise of their respective jurisdictions while proceeding to discard testimony of plaintiff---Impugned judgments and decrees of Courts below were set aside and suit filed was decreed, accordingly.

Altaf Hussain v. Abdul - Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314 and Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 ref.

Taqi Ahmad Khan for Petitioner.

Rana Zulfiqar Ali Khan for Respondent.

Date of hearing: 20th April, 2004.

2006 Y L R 2989

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD NAWAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1496-B of 2006, decided on 26th June, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 156-B---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Bail, grant of---Further inquiry---Complainant had sworn an affidavit to the effect that he was satisfied about the innocence of accused and that he wanted to withdraw the case he got registered against him---Alleged abductee was in the custody of her parents--Question whether she was abducted by accused and subjected to Zina-bil-Jabr, needed further inquiry in view of affidavit submitted by complainant and admission of alleged abductee in her application filed before Justice of Peace, admitting her marriage with accused---Accused was behind the bars since long and incomplete challan had been submitted in the Court and trial of case was not likely to commence in the near future---Even otherwise legal validity of the arrest of accused without permission of the Court and investigation of the case so far carried out by a person below the rank of an S.P. as required by S.156-B, Cr.P.C., was also to be determined and resolved by the Trial Court after trial---Accused was allowed bail, in circumstances.

Ch. Shehzad Aslam for Petitioner.

Sh. Muhammad Arshad for the State with Muhammad Yousaf, D.S.P. Investigation) and Abdus Sattar, S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 2991 #

2006 Y L R 2991

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD RAFIQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9095-B of 2005, decided on 20th December, 2005.

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

---S. 497---Penal Code (XLV of 1860), Ss.302, 148 & 149---Bail, grant of---Accused was attributed only ineffective firing and he had been declared innocent during investigation by the police and nothing had been recovered from his possession---Keeping accused in jail in such circumstances, would serve no useful purpose for the prosecution and there was no likelihood of conclusion of the Trial in near future---Even otherwise, bail could not be withheld as a punishment---Accused was admitted to bail, in circumstances.

PLD 1972 SC 82 ref.

Khalid Masood Chaudhry for Petitioner.

Ashfaq Chaudhry for the State along with Amjad Javed, A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 2992 #

2006 Y L R 2992

[Lahore]

Before Maulvi Anwarul Haq, J

QAMAR-UZ-ZAMAN---Petitioner

Versus

MUNIR AHMAD---Respondent

Civil Revision No.2153-D of 1996, heard on 23rd July, 2003.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6, 13 & 35(2)---Suit for pre-emption---Making of Talbs---Trial Court dismissed suit for pre-emption against petitioner on the ground that neither there was any plea nor evidence led regarding performance of Talbs---Respondent filed appeal against judgment of the Trial Court and during pendency of appeal, a person appeared and stated that he was the special attorney of petitioner who was living abroad; that he had entered into a compromise agreement with respondent and in accordance with said agreement, let a decree be passed in favour of respondent in respect of two Kanals of land for consideration---Respondent having agreed, Appellate Court allowed appeal and decreed. suit---Counsel for petitioner had contended that alleged attorney of petitioner had no authority to enter into said agreement and according to terms of power-of-attorney, said attorney of the petitioner had no authority to enter into a compromise as he was given only authority to pursue the matter in the court of first instance as well as in the court of appeal, impugned judgment and decree thus were not maintainable, in circumstances---Validity---Even otherwise, no attempt had been made to prove a valid Talb-i-Ishhad in presence of two truthful witnesses in accordance with S.35(2) of Punjab Pre-emption Act, 1991, impugned judgment and decree passed by Appellate Court, was set aside.

Khan A. Hameed for Petitioner.

Rao Munawar Khan for Respondent.

Date of hearing: 23rd July, 2003.

YLR 2006 LAHORE HIGH COURT LAHORE 2995 #

2006 Y L R 2995

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD YAR---Petitioner

Versus

MUHAMMAD ARIF and 6 others---Respondents

Civil Revision No.454 of 2002, heard on 17th October, 2005.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6, 13 & 31---Suit for pre-emption--Making of Talbs---Limitation--- Sale in question was made through mutation sanctioned on 31-1-1995, whereas date of knowledge, alleged by pre-emptor in his plaint was 20-5-1995---Pre-emptor would be deemed to have due knowledge of attestation of mutation of sale within two weeks from the notice referred to in S.31 of Punjab Pre-emption Act, 1991---Preemptor, in circumstances was deemed to have had knowledge of sale latest by 14-2-2005---Talb-e-Muwathibat, allegedly made on 20-5-1995, was not sufficient for the purpose of S.13 of Punjab Pre-emption Act, 1991---Impugned appellate judgment and decree, whereby decree of Trial Court was set aside and suit filed by pre-emptors seeking possession of suit property through pre-emption, was decreed, were set aside and judgment and decree of the Trial Court dismissing suit filed by respondents/preemptors, was upheld.

Muhammad Ramzan v. Lal Khan 1995 SCMR 1510 ref.

Syed Iqbal Hussain Shah for Petitioner.

Malik Khizar Hayat Khan far Respondents.

Date of hearing: 17th October, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 2996 #

2006 Y L R 2996

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ANWAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2445-B of 2006, decided on 28th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance' (VII of 1979), Ss.10 & 16---Bail, refusal of---Accused was named in F.I.R. with specific role of abduction---Alleged abductee, on her application, was sent to Dar-ul-Aman---Accused had moved three applications showing himself as cousin of alleged abductee before Judicial Magistrate for meeting alleged abductee in Dar-ul-Aman---Said applications were allowed and meeting was held, but during investigation, it had transpired that accused was not cousin of alleged abductee, which prima facie had shown involvement of accused in the case as well---Even otherwise alleged abductee had joined investigation and in her statement under S. 161, Cr. P. C. before the Police, she stated that she was a married woman and in wedlock a boy aged 6 years was born---Alleged abductee had also stated that at the instance of accused, she had filed a suit for dissolution of marriage and left her parents' house as her parents were compelling her to rehabilitate in the house of her ex-husband, but she was against the same---Accused had become an instrument for dissolving marriage of alleged abductee with her ex-husband and also spoiled her life and her son by inducing her to leave the house---Accused who had committed heinous offence, if was released on bail, then there were chances of repetition of offence---Bail was declined in circumstances.

Muhammad Ahsan Bhoon for Petitioner.

Shahid Naeem Mirza for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 2998 #

2006 Y L R 2998

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD RAMZAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8918-B of 2005, decided on 21st December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497----Emigration Ordinance (XVIII of 1979), Ss.17 & 22---Prevention and Control of Human Trafficking Ordinance (LIX of 2002), S.3---Bail, refusal of---Previous bail application of accused was dismissed on merits---Only ground claimed to be fresh one urged by counsel for accused was a statement of father of one of a camel kids deported from abroad exonerating accused from crime recorded by Special Magistrate---Such statement was recorded in the absence of officials from F.I.A. and on order from Sessions Judge--Identity Card of father of said camel kid was not examined, nor any evidence about his identity was taken on-record---Statement of said person/alleged father of camel kid was of no help to accused---Bail petition was dismissed, in circumstances.

Ch. Mushtaq Saleem for Petitioner.

Ch. Jehangir Wahlah, Standing Counsel for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 3000 #

2006 Y L R 3000

[Lahore]

Before Muhammad Sayeed Akhtar, J

GOVERNMENT OF PAKISTAN through Ministry of Works, Islamabad

and another---Appellants

Versus

Messrs MALBROW BUILDERS, GOVERNMENT CONTRACTORS

through Partner---Respondent

Regular Second Appeal No.20 of 1998, heard on 14th May, 2004.

Administration of justice---

----No indulgence could be shown and no preferential treatment could be given to the Government Departments or autonomous bodies and their cases had to be dealt with in the same manner as the cases of an ordinary citizen.

West Pakistan Province through Collector, Mianwali v. Hakim Abdur Rahim Khan and 4 others 1988 CLC 1791; Chairman, District Evacuee Trust v. Abdul Khaliq through Legal Heirs and others PLD 2002 SC 436; Central Board of Revenue, Islamabad, through Collector of Customs, Sialkot Dry Port, Sambrial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others 1998 SCMR ;307; Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Govt. of Pakistan and 5 others v. Jamaluddin and others 1996 SCMR 727 and Govt. of Punjab, through Secretary (Services) SA&I Department, Lahore, and another v. Muhammad Saleem PLD 1995 SC 396 ref.

Sh. Javaid Sarfraz for Appellants.

Nemo for Respondent.

Date of hearing: 14th May, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 3001 #

2006 Y L R 3001

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAUKAT ALI---Appellant

Versus

THE STATE and another ---Respondents

Criminal Appeal No.1995 of 2003, heard on 25th April, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Ocular account was fully contradicted by Medical evidence---No identification parade was held in case and nothing incriminating was recovered from accused---Three co-accused were acquitted from the case and neither State nor complainant had filed appeal against their acquittal---Case of accused could not be distinguished from said three acquitted accused---Effect---When on same set of evidence some accused persons were acquitted from the case, then strong and independent corroboration was required to convict other accused, which was very much lacking in the present case---Accused was found innocent during investigation---Lantern in question was never taken into possession by police nor same was produced by prosecution during trial---Contradiction existed regarding time of occurrence between F.I.R. and private complaint subsequently filed by complainant---Prosecution case, in circumstances was full of doubts---Prosecution having failed to prove its case against accused beyond any doubt, impugned judgment of Trial Court was set aside and accused was acquitted.

Siddique Ahmad Ch. for Appellant.

Nemo for the Complainant.

S.D. Qureshi for the State.

Date of hearing: 25th April, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 3004 #

2006 Y L R 3004

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD NAWAZ---Petitioner

Versus

FATEH SHER and another---Respondents

Civil Revision No.1458 of 2000, heard on 13th May, 2004.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Both Trial Court and Appellate Court concurrently non-suited pre-emptor for non-performance of Talbs on account of lack of details of date, time, place and name of informer---Validity---Non-mentioning of date, time, place and name of informer in the plaint, was not fatal to pre-emption suit---Concurrent judgment of Courts below in the case were not in accordance with settled law---Preemptor had performed Talb-i-Muwathibat and Talb-i-Ishhad---Impugned judgments of Courts below being not maintainable, were set aside in revision by High Court and suit filed by pre-emptor was decreed, in circumstances.

Altaf Hussain v. Abdul Hameed 2000 SCMR 314 ref.

M. Iftikhar Shah for Petitioner.

Rab Nawaz Khan Niazi for Respondents.

Date of hearing: 13th May, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 3005 #

2006 Y L R 3005

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD MOSHIN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.9065-B of 2005, decided on 27th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497-Penal Code (XLV of 1860), Ss.458 & 459---Bail, refusal of---Name of accused though was not mentioned in the F.I.R., but through a supplementary statement on the same date co-accused, who was arrested by the complainant and other witnesses, gave the details of the occurrence in which he named accused and three others as participants in the occurrence-'-Same version had been supported by five witnesses in their statements under S.161, Cr. P. C. on the same day---Complainant was seriously injured by fire-arm injuries, but luckily, he survived---Offence under Ss.458 & 459, P. P. C. fell within the prohibitory clause of S.497, Cr.P.C.---Bail application of accused was dismissed, in circumstances.

Ch. Zubair Rafique Warraich for Petitioner.

Muhammad Sarfraz Khan for the Complainant.

Ms. Kubra Gilani for the State along with Muhammad Abbas, S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 3007 #

2006 Y L R 3007

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RAFIQUE ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.5048-B of 2005, decided on 22nd July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, refusal of---Danda/weapon of offence had been recovered from accused who was named in F.I.R. and he was attributed Danda injuries on head of deceased which according to opinion of doctor, were fatal and resulted into death---Accused was found guilty by police---Criminal cases could not be decided on basis of Punchayats---Offence against accused fell within the prohibitory clause of S.497(1), Cr.P.C.---Bail was refused.

Sardar Munir Ahmad Dogar v. The State PLD 2004 SC 822; Asmatullah Khan v. Bazi Khan PLD 1988 SC 621 and Nasreen v. Fayyaz Khan PLD 1991 SC 412 ref.

Nazir Ahmad Ghazi for Petitioner.

Shoaib Zafar for the State with

Mushtaq Dar, S.-I. with Record.

YLR 2006 LAHORE HIGH COURT LAHORE 3009 #

2006 Y L R 3009

[Lahore]

Before Sh. Abdur Rashid and M. Bilal Khan, JJ

GHULAM QADIR---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.3730-B of 2005, decided on 19th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Bail, grant of---Further inquiry---Accused had pleaded that motorcycle from which narcotic substance was allegedly recovered, did not belong to him and that he had no link with the same---Investigating Officer had examined record of Motor Registering Authority to find out ownership of said Motorcycle and it was found that the Motorcycle did not belong to accused, but belonged to some other person--Investigating Officer did not join said other person in investigation and had not recorded his statement under S. 161, Cr.P.C. to show that he had given said Motorcycle for use to accused or establish any other domain of accused over said Motorcycle---Prosecution case that narcotic substance was allegedly recovered from accused had become a matter of further inquiry---Accused was admitted to bail, in circumstances.

Ahmad Awais Khurram for Petitioner.

Rana Amir Ahmad, A.A.-G. assisted by Muhammad Naveed Shabbir Goraya for the State with Amir Ali, S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 3011 #

2006 Y L R 3011

[Lahore]

Before Muhammad Sayeed Akhtar and Syed Sakhi Hussain Bokhari, JJ

JAVED RAZZAQ---Appellant

Versus

UNIVERSITY OF THE PUNJAB, LAHORE, through Vice-Chancellor

(New Campus) and 3 others---Respondents

Intra Court Appeal No.393 of 2005, heard on 6th April, 2006.

Educational Institution---

----Examination--- Re-evaluation of papers---Grievance of candidate was that University Authorities had declined to re-evaluate his answer books---Decision of University Authorities was maintained by High Court---Validity---Regulation No.23 of Calendar of University of the Punjab, Volume-I, 2002, regarding re-evaluation of answer books stood amended---Vice-Chancellor or an officer authorized by him, under amended Regulation No.23 of Calendar of University of the Punjab, Volume-I, 2002, might, on receipt of application, satisfy himself that result of candidate had been correctly compiled and declared provided the same would not include re-evaluation of candidate's answer book---Candidate had admitted that there was no such power in the statute, rules/regulations of the University; as there was no rule/regulation under which direction for re-evaluation could be issued, therefore, High Court in intra court appeal declined to pass such order, as no infirmity was found in the order passed by High Court---Intra court appeal was dismissed.

Board of Intermediate and Secondary Education, Lahore through Chairman and another v. Mst. Salma Froze and 2 others PLD 1992 SC 263; Muhammad Fazil Khan's case PLD 1975 SC 331; Board of Intermediate and Secondary Education, Lahore v. Saima Azad 1996 SCMR 676 and Tahir Saeed Qureshi v. The Board of Intermediate and Secondary Education, Sargodha and 3 others 1996 SCMR 1872 ref.

S.M. Masud for Appellant.

Raja Muhammad Arif for Respondents.

Date of hearing: 6th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 3013 #

2006 Y L R 3013

[Lahore]

Before M. Bilal Khan, J

MAHMOOD-UL-HASSAN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.1687-B 2005, decided on 4th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.380, 408, 468, 471 & 109---Bail, refusal of---Accused had been duly ,nominated in F.I.R.---Accused in connivance with his co-accused had been using receipts of various companies showing purchase of different articles, which during course of inquiry by complainant-company, turned to be false transactions---Both accused persons had caused substantial loss to complainant---Even if no recovery was effected from accused, it would not make any difference because in such-like cases, sometimes recovery could not be effected as accused had been utilizing amount embezzled by them---Offence with which accused was charged, prima facie attracted prohibitory clause of S.497(1), Cr.P.C.---Petition for grant of bail, was dismissed, in circumstances.

Shahid Azeem for Petitioner.

Barrister Muhammad Kamran Sheikh for the Complainant.

Ms. Aneela jabeen for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 3014 #

2006 Y L R 3014

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUNIR AHMAD---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.422-B of 2006, decided on 8th June, 2006.

Criminal Procedure Code (V of 1898)---

-----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11 & 10(3)---Bail, grant of---Non-registration of Nikahnama---Allegation against accused was that he abducted daughter of complainant and committed rape with her---Accused asserted that alleged abductee was his wife and relied upon unregistered Nikahnama---Validity---Matter had been reported to police after delay of one month---Alleged abductee recorded her statement in favour of accused before judicial Magistrate and in company of accused moved from one place to another without raising any protest---Under Shariah it was not required that Nikah was to be performed by a registered Nikah Khawan---Allegations levelled against accused needed further inquiry---Accused was admitted to bail.

Mian Muhammad Saleem Akhtar for Petitioner.

Nadeem Iqbal Chaudhry for Respondent. No.2./Complainant

M.A. Farazi for the State with Muhammad Iqbal, A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 3015 #

2006 Y L R 3015

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Haji MUHAMMAD SADIQ---Petitioner

Versus

S.H.O., POLICE STATION, SADAR GUJRAT and 2 others---Respondents

Writ Petition No.17070 of 2002, decided on 27th October. 2005.

Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), S.489-F---Quashing of F.I.R.---Constitutional petition---Petitioner, no doubt had placed on record an application moved to D.P.O. at place 'R' and also application moved under S.22-A, Cr.P.C. for registration of the case against complainant as the cheques issued by him, were dishonoured, but Justice of Peace had directed petitioner to seek remedy at place 'G' as cheques were dishonoured there---Present case had been registered against petitioner that his cheque was lost which version, if was correct, could be appreciated only after recording of evidence and through probe by Investigating Officer, and High Court could not assume the role of Investigating Officer---If civil suit was filed, same was between petitioner and other party and complainant appeared to have no concern with said suit being not party in said suit, which could not be taken as a ground for quashing of F.I.R. in the case---Constitutional Petition was disposed of with direction to S.P. (Investigation) at place 'G' to entrust investigation of the case to another Police Officer not below the rank of Inspector, who would record version of petitioner as well and conduct investigation fairly and properly.

Brig: Imtiaz's case 1994 SCMR 2142 ref.

Abdul Hameed Tahir Kasuri for Petitioner.

Qamar-uz-Zaman for Respondent No.3.

YLR 2006 LAHORE HIGH COURT LAHORE 3021 #

2006 Y L R 3021

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD SALEEM---Petitioner

Versus

THE STATE---Respondent

Civil Revision No.184 of 2006, decided on 3rd April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 540---Penal Code (XLV of 1860), Ss.302, 324 & 34---Application for re-summoning defence witness for reexamination---Petitioners/accused filed application under S.540, Cr.P.C. for re-summoning their defence witness on the ground that said witness was examined in the absence of counsel for defence---Said application was dismissed---Validity---Witness sought to be re-summoned, had already been examined by the Trial Court---Certified copy of statement of said witness, had revealed that while deposing before the Trial Court, he had specifically admitted that during investigation conducted by him, he recorded statement of witnesses from both sides---Statements of the witnesses recorded under S.161, Cr. P. C. by said witness (Investigating Officer) had also been placed on record by the Trial Court---Said witnesses were also confronted by defence counsel with their such statements---Contentions of defence counsel had no force, in circumstances---Application seemed to have been filed with the intention to prolong proceedings which were pending before the Trial Court and the matter had been fixed for pronouncement of the judgment---Revision petition was dismissed.

Mian Muzaffar Ahmed for Petitioner.

Masood Abid Naqvi for Respondent.

Muhammad Akbar Tarar, Addl.A.-G. for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 3024 #

2006 Y L R 3024

[Lahore]

Before Maulvi Anwarul Haq, J

HAQ NAWAZ and another-Petitioners

versus

BASHIR AHMAD and 2 others---Respondents

C.R. Nos.302-D and 488 of 2003, heard on 26th June, 2006.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 20---Pre-emption suit---Pre-emptors and vandees both co-sharers in suit-land---Mode of apportionment of share in suit property between pre-emptors and vendees under S.20 of Punjab Pre-emption Act, 1991---Scope---Plaintiffs being co-sharers and Shafi Khalit and Shafi Jar in suit-lane filed two separate suits for pre-emptior against defendants who were also co-sharers in suit land---Both suits well decreed by Trial Court in equal shares it favour of plaintiffs---On appeal filed by defendants against finding of Trial Court, Appellate Court modified decree passed by Trial Court and apportioned suit-land it three shares; one share each in favour to two sets of plaintiffs i.e. one plaintiff or one hand, and other two plaintiffs on the other; and allowed defendants to retain remaining 1/3 share as being co-sharers it suit-land---Validity---Plaintiffs /pre-emptor: and defendants/vendees were co-sharers it suit-land prior to sale in question---Where pre-emptor (or pre-emptors) and vendee (o) vendees) fell within the-same class of pre-emptors under S.20 of Punjab Pre-emption Act, 1991, having equal right of pre-emption, they were to share property equally---Section 20 of Punjab Pre-emption Act, 1991 did not contemplate two different classes rather only one class to which pre-emptors as well as vendees belonged and that class was one having equal right of pre-emption---Plaintiffs and defendants, totalling five in number, being co-sharers in suit-land at the time of sale, were members of same class having equal right of pre-emption; hence they were to share property equally---Suitland was to be divided in five equal shares to be apportioned to each of the plaintiffs and defendants---Judgment and decree were modified and petition was decided accordingly.

Muhammad Hayat v. Faiz Ali and another 2002 MLD 938; Feroze Khan and 3 others v. Ahmad Yar 1992 MLD 1570; Sar Anjam v. Abdul Raziq 1999 SCMR 2167; and Kala Khan v. Ayub Khan 1993 SCMR 543 rel.

Muhammad Nawaz v. Ahmad Khan and another 2005 YLR 197 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption suit---Notice for Talb-e-Ishhad---Production of photo copy of postal receipt---Defendants contended that plaintiff, instead of producing original receipts produced photo copies of postal receipts which were not admissible in the matter of service of notices of Talb-i-Ishhad---Defendants did not allege that notices were not properly addressed---Plaintiffs had filed an application for permission to lead secondary evidence in the form of photo copies of postal receipts with the plea that original had been lost---Application was allowed with consent of defendants whereafter photo copies of receipts were tendered in evidence.

---- S.20--General Clauses Act (X of 1897), S.13(2)---West Pakistan General Clauses Act (VI of 1956), S.12(2)---Use of terms "pre-emptor" and "vendee" in singular in S.20 of Punjab Pre-emption Act, 1991---Grammatical "connotation "--- Under applicable rules of interpretation contained in General Clauses Act, 1897 and West Pakistan General Clauses Act, 1956 singular included plural and vice versa.

Syed Arshad Hussain Jafferi for Petitioners.

2006 Y L R 3039

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD FAISAL---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous Nos.7258-B and 7732-B of 2005, decided on 26th October, 2005.

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

----Ss. 497(2) & 561-A---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51(1)---Bail, grant of---Further inquiry---Nothing had been recovered from physical possession of accused or at his instance---Accused was not sitting on the driving seat of the vehicle and narcotic substance was recovered from the door opening towards the driving seat and at the instance of the driver---Question regarding complicity of accused with his co-accused and conscious possession of narcotic substance on the part of accused, required evidence which would be led before the Trial Court at the time of the trial--Investigation of case had already been finalized---Accused had no antecedents or credentials of a peddler of narcotics to his discredit as he did not stand implicated in any other case of similar nature---Co-accused in his statement recorded by Police Officer, had stated that accused was an innocent traveller in vehicle concerned---Offence under S.9(c) of Control of Narcotic Substances Act, 1997, though entailed punishment of death and by virtue of provisions of S.51(1) of said Act, bail could not be granted in such-like cases, but in an appropriate case which was found to be fit for admission of an accused to bail, accused could be admitted to bail invoking inherent jurisdiction of High Court under S. 561-A, Cr. P. C. ---Case against accused was such where he should have been admitted to bail---Accused was admitted to bail, in circumstances.

Gul Zaman v. The State 1999 SCMR 1271 and The State through Deputy Director Anti-Narcotics Force, Karachi v. Syed Abdul Qayyum 2001 SCMR 14 ref.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, refusal of---Co-accused was sitting on driving seat of relevant vehicle and he had himself got opium recovered from a cavity on the door of that vehicle towards the driver's side---Driver of a vehicle was to be saddled with the responsibility of conscious possession of narcotic substance found in vehicle driven by him-Quantity of narcotic substance recovered at instance of said co-accused was huge and report of Chemical Examiner regarding a sample of the recovered substance had already been received in positive---Challan had already been submitted against co-accused after completion of investigation---Offence under S.9(c) of Control of Narcotic Substances Act, 1997, entailed a punishment of death and by virtue of provisions of S.51(1) of said Act, a prohibition was mandated against grant of bail in such cases---No exceptional or extraordinary circumstances had been found to exist in the case so as to admit co-accused to bail---Bail application to his extent was dismissed.

Nadir Khan and another v. The State 1988 SCMR 1899 ref.

Muhammad Asif Ranjha for Petitioner.

M. Tounas Rana for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 3041 #

2006 Y L R 3041

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASHRAF---Petitioner

versus

NAZEER AHMAD and others---Respondents

Criminal Miscellaneous No.2008-B of 2006, decided on 7th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.109---Bail, cancellation of---Accused was named in F.I.R. and specific role was attributed to him---Accused joined investigation after one and half months of occurrence when police arrested him on spy information---Police during investigation, came to the conclusion that accused was not present at the spot and that he was accused of abetment---Effect---Opinion of police was not binding on the Court---Prosecution case was supported by more than three eye-witnesses---Offence alleged against accused fell within the ambit of S. 497(1) Cr. P.C.---Petition for cancellation of bail was accepted and bail granted to accused by the Trial Court, was cancelled.

2004 YLR 1515; 1999 PCr.LJ 1260; 1998 PCr.LJ 1652; 1996 PCr.LJ 1004; 1995 PCr.LJ 259; PLD 1994 Pesh 268; 2003 MLD 1466; 1987 PCr.LJ 1388 and 2002 PCr.LJ 1819 ref.

Zulfiqar Ali Noon for Petitioner .

Muhammad Mansoor Ahmad for Respondents.

Rana Muhammad Shabbir for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 3043 #

2006 Y L R 3043

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD NADEEM---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.2173-B of 2006, decided on 3rd April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, refusal of--Issuance of cheques in question by accused stood admitted---Accused during investigation, was found guilty---Prima facie there appeared to be material evidence available on record connecting accused with the commission of crime---Counsel for accused had not been able to point out any malice, the basic ingredient for the grant of pre-arrest bail, either on the part of complainant or the police to involve him falsely in the case---Complainant had been allegedly deprived of a huge amount at the hands of accused---Accused could not be admitted to pre-arrest bail---Bail petition was dismissed and interim anticipatory bail allowed to accused, was recalled.

Muhammad Ahmad for Petitioner.

Saeed-ul-Hassan Jafferyfor Complainant.

Ms. Jameela Barlas for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 3044 #

2006 Y L R 3044

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD QASIM---Appellant

versus

THE STATE---Respondent

Criminal Miscellaneous No.8696-B of 2005, decided on 22nd December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, refusal of---Occurrence though had taken place in the middle of a night, but matter had been reported to the police with reasonable promptitude---Accused had been nominated in the F.I.R. as the principal perpetrator of alleged offences and he had been ascribed a leading role in F.I.R.---F.I.R. showed that accused raised Lalkara and then opened assault by giving a Sota blow on head of deceased exposing bone of her head---Complainant remained consistent about role of accused even in supplementary statement, and had levelled identical allegations against accused---Eye-witnesses mentioned in F.I.R., including two injured victims, had stood by their statements made before the police fully implicating accused in alleged offence---Medical evidence had lent support to allegation levelled against accused in F.I.R.---Accused stood directly connected with the motive in the F.I.R. and during investigation, weapon of offence had already been recovered from possession of accused---Accused had statedly come to the place of occurrence after having armed himself with a weapon and had then played a leading role in the alleged incident which prima facie had shown sharing of common object by accused with co-accused--Offences under Ss. 302 & 324, P.P.C. attracted prohibitory clause contained in subsection (1) of S. 497, Cr. P. C. ---Local Police had already submitted challan against accused---Prima facie reasonable grounds were existing to believe involvement of accused in alleged offences---Bail petition of accused was dismissed.

C.M. Sarwar for Appellant.

Ishfaq Ahmad Chaudhry for the State with Mati Ullah A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 3046 #

2006 Y L R 3046

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD AKBAR---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.288 and Criminal Revision No.229 of 1992, heard on 19th May, 2005.

Penal Code (XLV of 1860)---

----Ss. 302, 304, 307 & 34---Appreciation of evidence---Sentence, reduction in---Delay in lodging of F.I.R.---Doubtful presence of complainant at place of occurrence---Concealment of facts by prosecution---Allegation against accused/appellant was that he committed the murder of son of complainant with fire-arm shot---Trial Court convicted accused and sentenced him to life imprisonment---F.I.R. was recorded after preliminary investigation and based on hearsay evidence---Presence of complainant at place of occurrence was doubtful---Eyewitnesses did not speak whole truth during their cross-examination---Occurrence took place during 'Baraat' ceremony in which another person along with deceased was injured by firing made by 'Baraatis' in the air but eye-witnesses concealed the factum of receiving of fire-arm injury by the person who was medically examined---Eyewitnesses though stated that accused/appellant committed intentional murder of deceased but after reading evidence it could be inferred that accused/appellant and a co-accused made firing in the air and a shot fired by accused/appellant had accidentally caused injury on the person of deceased---Accused/appellant had no motive for committing intentional murder of deceased, therefore, offence under S. 302, P.P.C. was not made out; rather accused was to be held guilty under S.304 Part-II, P.P.C.---Conviction of accused recorded by Trial Court under S.302, P.P.C. was converted to S. 304 Part-II P. P. C. (old) and his sentence of life imprisonment was reduced to imprisonment for five years---Appeal was partly allowed.

Sardar Balakh Sher Khosa for Appellant.

Altaf Ibrahim Qureshi for Complainant.

Muhammad Masood Sabir for the State.

Date of hearing: 19th May, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 3053 #

2006 Y L R 3053

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD SARFRAZ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.2091-B of 2006, decided on 3rd April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 337-F(i), F(v), L(ii), 148 & 149---Bail, refusal of---Accused had fired upon victim hitting on his thigh and medical evidence had supported allegation levelled against accused---Accused and his co-accused had allegedly launched a murderous assault upon victim while armed with fire-arms and offence under S.324, P.P.C., prima facie was made out which fell within the ambit of prohibitory clause of S. 497, Cr. P. C. ---Accused had failed to make out case of further inquiry---If complainant had resiled from his statement subsequently, same was of no avail as evidence of the victim whose presence at the spot could not be doubted, was there---Merely recording of cross-version, was no ground to enlarge accused on bail as he had been attributed specific injury with fire-arm on the thigh of victim---Even otherwise, trial had commenced and delay in the conclusion of the trial, was not attributed to prosecution as it had been claimed that accused had not engaged his counsel before the Trial Court and case was being adjourned due to non-availability of defence counsel---Case being not fit for grant of bail to accused, his bail petition was dismissed.

Muhammad Shahbaz Yasir for Petitioner.

Arif Ali for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 3055 #

2006 Y L R 3055

[Lahore]

Before Muhammad Sayeed Akhtar, J

Mst. NEELAM LADHANI---Petitioner

versus

DISTRICT POLICE OFFICER, MULTAN and 7 others---Respondents

Writ Petition No.2166 of 2006, decided on 17th May, 2006.

Constitution of Pakistan (1973)---

----Arts. 35 & 199---Constitutional petition---Protection to marriage and family of petitioner---Petitioner, a Hindu girl who was 'Sui Juris' aged 21 years, had embraced Islam of her own accord and she solemnized marriage with a Muslim at place 'K'---Father of petitioner, who was an influential person, was constantly illegally harassing her and her husband, who migrated to place 'M' which was place of abode of her husband---Notice was issued to father of petitioner and a meeting between petitioner and her father was arranged for more than one hour---Petitioner stated that she wanted to live with her husband and did not want to go with her father---Petitioner had made said statement free from any pressure or duress---Girl had contracted marriage of her own free volition and also embraced Islam after due deliberation---High Court was bound to protect marriage of petitioner under Art. 35 of the Constitution---High Court directed the D.P.O. place 'M' to provide protection to petitioner in all respects.

Sardar Balakh Sher Khosa for Petitioner.

Qazi Saddar-ud-Din Alvi for Respondent No.8 along with respondent No.8.

Muhammad Qasim Khan, A.A.-G. with Muneer Ahmad Chishti, D.P.O. Multan Ehtesham Hussain, D.S.P. and Maqbool Ahmad, Inspector/S. H .O. P.S. Gulgusht.

YLR 2006 LAHORE HIGH COURT LAHORE 3057 #

2006 Y L R 3057

[Lahore]

Before Sardar Muhammad Aslam, J

IJAZ AHMAD---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.2081 and Criminal Revision No.1224 of 2002, decided on 25th January, 2005.

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

----S.302(b)---Appreciation of evidence---Occurrence had taken place in broad-daylight which had excluded the possibility of the mistaken identity of the accused---Complainant, father of the deceased, had no reason to substitute real culprit of his son for the accused---No enmity was alleged by the accused with the complainant---Accused had not substantiated the plea taken by him in his defence on the record---Medical evidence ' had completely corroborated the ocular account of occurrence---Conviction and sentence of accused were maintained in circumstances.

Ameen Ullah v. The State PLD 1982 SC 429 and Rehmat and others v. The State PLD 1959 SC 109 ref.

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

----S.302(b)---Criminal Procedure Code (V of 1898), S.439---Revision petition for enhancement of sentence---Motive set up by the prosecution for the occurrence was proved to be false---Trial Court by adopting principle of safer administration of justice had refrained itself to pass normal death sentence and imposed lessor sentence of imprisonment for life under section 302(b), P.P.C.-Deceased did not enjoy clean respectable reputation and according to record he had teased sister of accused on various occasions who had disclosed this fact to the accused---Discretion exercised by the trial Court in awarding lesser sentence to accused, in the circumstances, was neither perverse nor arbitrary---Revision petition was dismissed accordingly.

Raja Muhammad Anwar for Appellant.

M. Akbar Tarar, Add.A.-G. assisted by Miss Kubra Gilani for the State.

Date of hearing: 12th January, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 3061 #

2006 Y L R 3061

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ARSHAD alias PAPPU---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1897-B of 2006, decided on 28th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 448, 380, 420, 471, 467, 468 & 34---Bail, refusal of---Agreement of sale, allegedly executed in favour of accused, was not executed by complainant and was forged one---Accused was also previously involved in 10 criminal cases out of which three cases were of similar nature for preparation of forged documents and five eases were under the Arms Ordinance---Accused appeared to be of criminal bent of mind and there were chances of repetition of offence, if he was enlarged on bail---Regarding contention of counsel for accused that complainant had raised no objection to the grant of bail to accused, . suffice it to say that offences in the case were not compoundable---Discretion for grant of bail could not be exercised at the option of complainant, but the Courts had to act judiciously according to the facts and circumstances of each case---Accused, prima facie, was connected with the commission of offence, who had failed to show any reason for his false implication in the case---Offence under S. 467, P. P. C. was also prima facie made out against accused as through alleged forged documents a huge amount of Rs.10 lac was shown to be received by complainant who then agreed to transfer his valuable property in favour of accused---Said offence fell within the prohibitory clause of S.497, Cr.P.C.---Bail petition filed by accused was dismissed.

Muhammad Ashfaq Mughal for Petitioner.

Rana Imtiaz Ahmad Khan for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 3063 #

2006 Y L R 3063

[Lahore]

Before Khawaja Muhammad Sharif and Tanvir Bashir Ansari, JJ

BASHIR KHAN and 2 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.199 and Criminal Revision No.167 of 1998, heard on 27th January, 2005.

Penal Code (XLV of 1860)---

----S.302/34---Appreciation of evidence---Accused, according to prosecution evidence had only raised "Lalkara" and resorted to aerial firing---Ocular testimony did not advance the case of prosecution against the accused---Statements on oath made by the accused and the defence witnesses supporting each other were not susceptible to any disbelief---Cross-examination on the defence witnesses also did not detract from the efficacy of their affirmative statements---Prosecution had failed to establish the case against the accused beyond any doubt---Accused was acquitted in circumstances.

Amir Khan and others v. The State 2002 SCMR 403 and Bahadur Ali and others v. The State 2002 SCMR 93 ref.

Shaukat Rafiq Bajwa for Appellants.

Munir Ahmed Bhatti for Complainant.

Ch. Nazir Ahmed for the State.

Date of hearing: 27th January, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 3065 #

2006 Y L R 3065

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AFTAB AHMAD---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.8591-B of 2005, decided on 12th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.459, 458 & 337-H(ii)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Bail, refusal of---Accused was named in F.I.R. and as per allegation against him he had entered into the house of complainant at the midnight---Allegation against accused was further supported by statement of victim girl to the effect that an attempt to commit Zina with her was made by accused---Witnesses ink their statements recorded under S.161, Cr.P.C. had also supported allegation against accused---No direct enmity, grudge or ill-will was found between accused and complainant for false implication of accused in the case---Contention of accused was that section 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 had been deleted by the police---Finding of the police was not binding on the Court, especially when victim girl had supported allegation of attempt to commit Zina by accused with her---Even otherwise sufficient evidence was available on record to connect accused with commission of crime---Accused having committed heinous offence by entering into the house of complainant at midnight, his bail petition was dismissed.

1994 SCMR 2060 ref.

Muhammad Arif Rana for Petitioner.

Sardar Zaid Gul Khan for the State.

Muhammad Sadiq A.S.-I. with record.

YLR 2006 LAHORE HIGH COURT LAHORE 3070 #

2006 Y L R 3070

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam uz Zaman, JJ

Mst. KAUSAR BIBI---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos.1441, 1442 and Murder Reference No.730 of 2000, heard on 2nd February, 2005.

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

----S. 302(b)---Burden of proof---Prosecution has to prove its case against the accused to the hilt through unimpeachable sources and if any dent is caused to it, then its benefit must go to the accused, and if the prosecution fails to discharge the said onus then it cannot derive any benefit from the defence pleas.

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

----S. 302/34---Appreciation of evidence---Prosecution case was full of contradictions and exaggerations---Eye-witnesses were closely related to the deceased and they had failed to prove their presence at the spot at the relevant time---Recovery of weapon of offence was doubtful---Conviction of accused could not be safely sustained on such an unreliable and concocted evidence---Accused were acquitted in circumstances.

Nadeem Siddiqui for Appellant (in Criminal Appeal No.1441 of 2000).

Iqbal Hameed-ur-Rehman for Appellant (in Criminal Appeal No.1442 of 2000).

Ashfaq Ahmad Ch. for the State.

Tariq Shafique Bhandhara for the Complainant.

Date of hearing: 2nd February, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 3085 #

2006 Y L R 3085

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Syed AHMAD SHAH HASHMI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8941-B of 2005, decided on 20th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.440, 448, 468, 471 & 419---Bail, grant of---Accused was aged about 71 years and the only allegation against him was that he was the witness of alleged sale-deed---Accused was not involved in any case falling within the prohibitory clause of S.497, Cr.P. C. and grant of bail in such like cases was a rule and refusal was an exception---To the extent of involvement of accused, no exceptional circumstances were available to refuse bail to accused as nothing was on record to show that he was the actual beneficiary of said sale-deed---As far as involvement of accused in other case was concerned, bail had already been granted to accused in that case---Accused was admitted to bail, in circumstances.

1972 PCr.LJ 852 ref.

Zafar Iqbal Chohan for Petitioner.

Mian Jameel Akhtar for the Complainant.

Ms. Raeesa Sarwar for the State along with Khuda Dad A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 3089 #

2006 Y L R 3089

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SAIFULLAH---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos.991, 1124 of 1998 and 593 of 2005, decided on 25th January, 2006.

Penal Code (XLV of 1860)---

----S. 302 (b) ---Appreciation of evidence---Benefit of doubt---Both eye-witnesses were closely related inter se and with deceased---Mere close relationship of witnesses was not sufficient to discard their evidence and term them as interested witnesses---Even the interested witnesses could be relied upon, if they had succeeded in proving their truthfulness; but in the present case both eye-witnesses resided far away from place of occurrence and they had seen the occurrence at the most per chance and could not give sound reason for their presence there---Possibility could not be ruled out that both witnesses did not know accused previously as they had never visited village where occurrence took place, but as accused were residents of said village, they had been falsely implicated on suspicion---F.I.R. was not lodged with promptitude, but was registered after preliminary investigation and due deliberations---Conduct of prosecution/eye-witnesses had also shown that they were not present at the spot at relevant time as their close relative was being beaten by accused who were not armed with any lethal weapon, but witnesses did not intervene to rescue deceased from the clutches of accused---Reason advanced by said witnesses for their presence at the place of occurrence at the relevant time, was not found plausible---Said witnesses having contradicted each other on various points, could not be relied upon to maintain conviction in a case entailing capital punishment---Prosecution story was further falsified by statement of Doctor who had conducted post-mortem examination of deceased on next day---Recovery of different articles of general nature from accused, was inconsequential and was not sufficient to connect accused with commission of crime in any manner as said articles were available in the market easily and could falsely be planted to strengthen prosecution case---Prosecution, in circumstances had failed to prove case against accused beyond any shadow of doubt---Impugned judgment of conviction and sentence passed by the Trial Court against accused was set aside and they were acquitted of the charge by extending them benefit of doubt.

Kh. Basit Waheed and Rai Haider Ali Khan Kharal for Appellant.

Muhammad Azam, Mian Abdul Qayyum Anjum and Abdul Majeed Chishti for the State.

Date of hearing: 25th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 3095 #

2006 Y L R 3095

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD RAMZAN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.7028-B of 2005, decided on 27th October, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 561-A---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 15 & 51(1)---Bail, grant of----Further inquiry---Prosecution's own case was that no narcotic substance had been recovered from physical possession of the accused---Nothing was available on record to establish that amount recovered from possession of accused, was sale proceeds of any narcotic substance---Question regarding complicity of accused with co-accused required further probe---Challan had already been submitted before the Trial Court after completion of investigation---Physical custody of accused, in circumstances, was not required for the purpose of investigation---Concession of bail, ought not to be withheld by way of premature punishment---Offence under S.9(c) of Control of Narcotic Substances Act, 1997, though entailed a punishment of death and by virtue of provisions of S.51(1) of said Act, bail could not be granted in such a case, but in an appropriate case bail could be granted to an accused in such a case by invoking provisions of S.561-A, Cr. P. C. ---Present case warranted admission of accused to bail---Accused was admitted to bail, in circumstances.

Gul Zaman v. The State 1999 SCMR 1271 and The State through Deputy Director, Anti-Narcotic Force, Karachi v. Syed Abdul Qayyum 2001 SCMR 14 ref.

Ahmad Baksh Bharwana for Petitioner.

Muhammad Afzal Butt for the State.

YLR 2006 LAHORE HIGH COURT LAHORE 3111 #

2006 Y L R 3111

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD RAFIQUE and another---Petitioners

Versus

SAROO and others---Respondents

Civil Revision No.1653 of 2002, decided on 14th November, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Defendants purchased suit-land vide mutation duly sanctioned---Plaintiffs filed suit seeking declaration that they were exclusive owners of land including land purchased by defendants---Both Courts below having concurrently decreed the suit---Validity---Plaintiffs could not have been granted declaration of title in respect of suit-land which was validly sold by its owner in favour of defendants ---Impugned decrees being the result of misreading of evidence, were not legally sustainable, which were set aside by High-Court in revision to the extent of land validly purchased by petitioners.

Nazir A. Javed for Petitioners.

Muhammad Yousaf Khan for Respondents.

Dated of hearing: 14th November, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 3114 #

2006 Y L R 3114

[Lahore]

Before Asif Saeed Khan Khosa, J

LIAQAT ALI and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8832-B of 2005, decided on 21st December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, refusal of---Occurrence had taken place in broad daylight and F.I.R. in respect of the same had been lodged with reasonable promptitude---Accused had been specifically nominated in the F.I.R. as members of accused party which had perpetrated alleged offences and definite allegations had been levelled against them therein---F.I.R. revealed that accused had caused a fire-arm injury on the chest of prosecution witness and co-accused had caused fire-arm injuries on the head and face of said prosecution witness---Eye-witnesses mentioned in F.I.R., including injured victims, had stood by their statements made before the police fully implicating accused in the alleged offences and prima facie, medical evidence had lent support to allegations levelled against accused in the F.I.R.---Accused had come to the place of occurrence along with their co-accused after having armed themselves with fire-arms and they had not only actively participated in the alleged occurrence, but had actually and effectively used them, which, prima facie, had shown sharing of common object by accused with their co-accused---Offences under Ss.302 & 324, P. P. C. attracted the prohibitory clause contained in subsection (1) of S.497, Cr. P. C. ---Challan had already been submitted before the Trial Court---Accused who, had absconded, were declared proclaimed offenders and proceedings under Ss. 87 & 88, Cr. P. C. were taken against them---Trial had already commenced and statement of at least one prosecution witness had already been recorded by the Trial Court---Prima facie 'reasonable grounds existed to believe in involvement of accused persons in alleged offences---Bail application was dismissed, in circumstances.

Ijaz Ahmad Khan for Petitioners.

Faisal Naseem Chaudhry for the State along with Muhammad Sadiq, S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 3117 #

2006 Y L R 3117

[Lahore]

Before Sheikh Azmat Saeed, J

RIAZ BEGUM---Petitioner

Versus

PROVINCE OF PUNJAB through Collector District, Khushab

and others---Respondents

Civil Revision No.482 of 2005, decided on 7th December, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration---Application for grant of temporary injunction---Plaintiff filed a declaratory suit claiming to be the owner in possession of land which was being irrigated from Moga out of the link Channel in accordance with Wara Bandi duly sanctioned---Plaintiff claimed that his land was situated at the tail end and that he had been using the Nigal Water, but Canal Authorities in collusion with defendants, manoeuvred to approve a new Wara Bandi whereby plaintiff was deprived of the use of Nigal Water---Plaintiff had challenged said order in a suit and sought restoration of previous Wara Bandi---Plaintiff along with suit filed application for grant of temporary injunction, which was accepted by the Trial Court, but Appellate Court. dismissed said application---Actual matter in controversy between the parties would have to be decided after recording evidence of parties and considering authenticity of reports of the Local Commissioner and Zila Dar who remained to be subjected to cross-examination; it could not be safe to say that petitioner did not have a prima facie case and it would be appropriate to maintain the status quo till final adjudication of Hs--Order of Appellate Court was set aside being not maintainable, and that of the Trial Court granting temporary injunction in favour of plaintiff, stood restored, accordingly.

Muhammad Iftikhar Ahmed Awan for Petitioner.

Malik Zafar Iqbal Awan, Addl. A.-G. and Mian Humayon Aslam, Advocate.

Arif Chaudhry for Respondents.

2006 Y L R 3158

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD QAISER and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.128-J of 2003 and M.R. No.78-T of 2002, decided on 13th March, 2006.

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

----Ss. 302(b), 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(a) (h)---Appreciation of evidence---Acquittal of co accused---Effect---During investigation four empties of .30 bore pistol were recovered from the spot and according to prosecution case co-accused also led to the recovery of pistol during investigation, but said articles were never sent to the Forensic Science Laboratory for comparison---Possibility that Investigating Agency deliberately never obtained said report only to create a lacunae in the case, could not be ruled out---Witness to whom fire-arm injury was allegedly caused by said co-accused, was never produced before the Trial Court in support of prosecution case---Said lacunae, were sufficient to create a doubt in the credibility of prosecution case qua involvement of said co-accused---Case against co-accused being full of doubt, he was entitled to get benefit of same---Present appeal to the extent of co-accused was accepted and his conviction and sentence was set aside in circumstances.

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

----Ss. 302(b), 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(a) (h)---Appreciation of evidence---Participation of accused in occurrence, stood established from statement of all eye-witnesses whose presence at the spot was free from doubt---Previous enmity of accused was also established from the data available on record---Accused was related to complainant party---Prosecution witness in his cross-examination had admitted that accused was remotely related to him---No question of mistaken identity existed qua accused, in circumstances---Ocular account also found support from medical evidence---Locale, duration and nature of injuries as stated by eye-witnesses found support from medical report---Defence plea raised before the Trial Court was nothing, but an afterthought and not trustworthy---Appeal to the extent of said appellant was dismissed and death sentence awarded to him was confirmed and murder reference answered in the affirmative.

2005 SCMR 1128 and 2005 SCMR 154 ref.

Ms. Irrum Sajjad Gull for Appellants.

Salman Safdar, Special Prosecutor ATA for the State.

2006 Y L R 3199

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD AKHTAR ---Applicant

Versus

THE STATE---Respondent

Bail Application No.4097-B of 2006, decided on 26th June, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Challan submitted in Court---Custody of accused not required for investigation --Accused remained in Jail for more than two months---Offence not falling within prohibitory clause of S. 497, Cr.P.C.---Accused was granted bail in circumstances.

Ch. Muhammad Ishtiaq for Petitioner. .

Ejaz Ahmad Bajwa for the State. M. Saleem, A.S.-I.

YLR 2006 LAHORE HIGH COURT LAHORE 3229 #

2006 Y L R 3229

[Lahore]

Before Mian Saqib Nisar, J

CHAN PEER SHAH---Petitioner

Versus

SHAFI ULLAH and others-Respondents

Civil Revision No.2324 of 2003, decided on 4th September, 2006.

Civil Procedure Code (V of 1908)---

----S.12(2)---Limitation Act (IX of 1908), Art.181---Application under S.12(2), C. P. C. ---Limitation---Suit for declaration dismissed----Appeal withdrawn through counsel---Plaintiff, after a period of seven years, moved application under S.12(2), C.P.C. challenging the withdrawal of appeal on account of fraud----One of plaintiffs admitted that knowledge of withdrawal in question had been gained 5 years prior to filing of the application---Validity---Time for making application under S.12(2), C.P.C. was governed by Art.18I of Limitation Act, 1908, whereby the maximum period of limitation for such an application was three years---Plaintiff filing application under S.12(2) C.P.C. after 3 years from the date of knowledge held was time barred.

Sh. Naveed Shahryar for Petitioner.

Malik Noor Muhammad Awan and Sarfraz Khan Gondal for Respondents Nos.1 to 30.

Nemo for Respondents Nos.31 to 36.

2006 Y L R 3236

[Lahore]

Before Muhammad Sayeed Akhtar, J

ZAHOOR MEHDI FAISAL and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others-Respondents

Writ Petition No.2779 of 2004, heard on 7th April, 2004.

Islamic law---

----Succession---Insurance money---Claim of share in such money---Death claim of petitioner with regard to his deceased wife having been accepted by Insurance Corporation, a cheque of insurance amount was issued to petitioner---Respondent claimed his share in the insurance money, which was resisted by petitioner, but respondent was held entitled to share in the death claim in accordance with Islamic law---Contention of petitioner was that death claim not being the property of deceased in her life time, same could not be considered as 'Tarka' and same was not heritable---Validity--Death claim, voluntary claim and group insurance though were not 'Tarka' to be inherited by the legal heirs, but those were grant/compensation to be distributed among the legal heirs according to Islamic share---One could not be excluded at the cost of other.

Federation of Pakistan v. Public at Large PLD 1991 SC 731; Mst. Amtul Habib and others v. Mst. Musarrat Perveen and others PLD 1974 SC 185 and Mst. Shaista Younus Khan and 2 others v. Mrs. Asia Khatoon and 3 others PLD 1995 Kar. 560 and Mst. Fatima Bi v. Mehnar Gul 1999 YLR 759 ref.

Petitioner in Person.

Liaqat Ali Butt for Respondents Nos.2 to 4.

Date of hearing: 7th April, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 3238 #

2006 Y L R 3238

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

IMDAD ALI and others---Appellants

Versus

THE STATE-Respondent

Criminal Appeals Nos.41-J of 2003 and 113-J of 2005, decided on 9th June, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 337-F(i) (ii), (iv) & 34---Appreciation of evidence---Eye-witnesses produced by prosecution had fully supported prosecution case---Such witnesses were consistent in their statements which were convincing and confidence-inspiring and nothing was on record to disbelieve the same---No material contradiction or discrepancy was found in statements of said - witnesses-Two of said witnesses were injured witnesses and nothing was on record to show that injuries on their persons were self suffered or by friendly hand---Presence of said witnesses at the scene of occurrence at the relevant time could not be doubted---Occurrence had taken place during daylight---Medical evidence conformed to the ocular account furnished by eye-witnesses---Chhurries allegedly recovered from accused having not been sent to concerned offices to find out whether same were stained with human blood or not, such recovery had no value---Defence version which was an afterthought and baseless, being not plausible, was rejected---Prosecution, in circumstances had proved its case against accused beyond any shadow of doubt---Sentence awarded by the Trial Court to accused was not on higher side and the Trial Court had already taken lenient view of the matter---Trial Court, in circumstances had rightly convicted and sentenced accused.

Malik Riaz Khalid Awan for Appellant.

M. Aslam Malik for the State.

Date of hearing: 9th June, 2006.

2006 Y L R 3247

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD IQBAL---Petitioner

Versus

MUHAMMAD ASHRAF and others-Respondents

Civil Revision No.2642 of 2002, heard on 25th January, 2006.

(a) Islamic law---

----Inheritance, opening of-Sale of land by co-sharer---Effect---Plaintiff filed a suit for partition seeking annulment of sale-deed executed by his uncle, a co-sharer in favour of defendant---Suit and appeal dismissed---Validity---Muslim's estates vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith---Plaintiff who was admittedly grandson of deceased was held entitled to his share according to Shariat in suit property---Plaintiff's uncle being a co-sharer could make alienation to the extent of his share hence right or interest acquired in suit property by defendant through sale could not be frustrated---Impugned sale had no adverse effect on rights of plaintiff and he might have claimed of his share from portion of undivided property---Matter was remitted to trial Court by the High Court for further proceedings in accordance with law.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

C.A. No. 986 of 1996, dated 29-3-2002 distinguished.

(b) Islamic law---

----Inheritance, opening of---Muslim's estates legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC I ref.

----Sale of land by co-sharer---Effect---Co-sharer can make alienation to the extent of his share.

Mian Shahid Iqbal for Petitioner.

Taqi Ahmed Khan for Respondents Nos. 1 and 3.

Nemo for other Respondents ex parte.

Date of hearing: 25th January, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 3249 #

2006 Y L R 3249

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

BASHARAT ALI---Appellant

Versus

THE STATE-Respondent

Criminal Appeals Nos.1439, 1544 and Murder Reference No.656 of 2001, heard on 7th September, 2006.

Practice and procedure---

----Appreciation of evidence---Evidence in one case could not be read in the other case and each case was to be decided on its own evidence led therein.

Muhammad Khurshid v. The State PLD 1963 SC 157; Wazid Moral alias Wazid Ali and 13 others v. The State and another 1970 SCMR 256 and Khushi Muhammad alias Natho v. The State 1986 PSC 571 ref.

Muhammad Saeed Ansari for Appellant.

Ch. Muhammad Jahangir Wahla for the Complainant.

Abdul Qayyum Anjum for the State (in Criminal Appeal No.1439 of 2001).

Ms. Tehsin Irfan for the State (in Criminal Appeal No.1544 of 2001).

M. Saleem Shad for the State (in Murder Reference No.656 of 2001).

Date of hearing: 7th September, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 3251 #

2006 Y L R 3251

[Lahore]

Before Abdul Shakoor Paracha, J

MUMTAZ AHMAD KHAN---Appellant

Versus

MUHAMMAD AQIF IQBAL-Respondent

Regular First Appeal No.511 of 2000, heard on 19th April, 2004.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2 & 3---Qanun-e-Shahadat (10 of 1984), Art.17(2)---Suit for recovery of amount on basis of pro note---Leave to appear and defend suit---Suit having been dismissed, despite rejection of petition for leave to appear and defend suit filed by defendant, plaintiff had contended that on refusal to grant leave to appear and defend suit to the defendant, decree ought to have been granted in favour of plaintiff---Validity---On refusal to grant leave to defend suit under O.XXXVII, C.P.C. it was not obligatory for the Court to decree the suit---Even otherwise receipt of pro note showing that amount was given by plaintiff to defendant as loan was required to be attested by at least two witnesses as required under Art.17(2) of Qanun-e-Shahadat, 1984---Promissory note was also not admissible in evidence for the reason that revenue stamps were not affixed on the face of it and same had not been cancelled---Suit of plaintiff was rightly dismissed, in circumstances.

Pervez Ahmad Khan Burki and 3 others v. Assistant Commissioner, Lahore Cantt. and 2 others PLD 1999 Lah. 31; Industrial Development Bank of Pakistan v. Messrs Nagi Beverages (Pvt.) Ltd. and 7 others 2002 CLD 712; Naeem Iqbal v. Mst. Zarina 1996 SCMR 1530 and Habib Bank Limited v. Nusrat Naheed and others 1989 MLD 3347 ref.

Muhammad Arshad Saleem Ramay for Appellant.

Nemo for Respondent. (Respondent Ex parte).

Date of hearing: 19th April, 2004.

YLR 2006 LAHORE HIGH COURT LAHORE 3252 #

2006 Y L R 3252

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD JAMIL and others---Petitioners

Versus

THE STATE---Respondent

Criminal Appeals Nos. 276-J, 998 and Murder Reference No.402 of 2001, heard on 18th September, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 308 & 201---Appreciation of evidence---Trial Court in the impugned judgment had observed that "proof of Qatl-i-Amd liable to Qisas in the case according to S. 304, P. P. C., was not available"-Accused, in circumstances were liable to be convicted and sentenced as 'Tazir'---Trial Court had convicted three accused under S.302(b)/34, P.P.C. and sentenced them to death, but accused/widow of deceased had been convicted under S.308, P.P.C.; while observing that under S.306, P.P.C., children of widow of deceased, were Walis of deceased and she was direct ascendant of her children---Case was not that of Qisas as witnesses had not undergone the test of Tazkia-al-Shahood, which was the prerequisite for recording conviction under Hadd and Qisas---Provisions of 5.308, P.P.C. were only attracted in cases of Qisas---If case was found to have been proved by the Trial Court, accused/widow of deceased could not be convicted and sentenced under provisions of S.308, P. P. C., but she should also be sentenced as Tazir---Conviction and sentence recorded by the Trial Court against accused/widow of deceased under S.308, P.P.C., was illegal on the face of it, which could not be sustained, if ultimately High Court would come to the conclusion that case against her was proved--High Court without commenting upon merits of the case, set aside impugned judgment, remanded case to the Trial Court for re-writing judgment in accordance with law independently after affording parties equal opportunity of hearing within specified period.

Faqirullah v. Khalil-uz-Zaman and others 1999 SCMR 2203 and Khalil-uz-Zaman v. The Supreme Appellate Court, Lahore and four others PLD 1994 SC 885 ref.

Muhammad Waseem for Appellants (In Crl. A. No.276-J of 2001).

Maqbul Ahmad Qureshi for Appellants (In Crl. A. No.998 of 2001 at State Expense).

Ch. Imtiaz Ahmad for the State (in Murder Reference No.402 of 2001).

Masood Sadiq Mirza for the State (in Crl. A. No.998 of 2001).

Miss Tasnim Amin for the State (in Crl. Appeal No.276-J of 2001).

Date of hearing: 18th September, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 3257 #

2006 Y L R 3257

[Lahore]

Before Syed Zahid Hussain and Muhammad Sayeed Akhtar, JJ

AHSAN RAZA---Petitioner

Versus

U.H.S. and others-Respondents

Writ Petition No.12807 of 2005, decided on 20th July, 2004.

Educational institution---

----Statutes and Regulations of University of Health Sciences Lahore Regulation, 2004, Regln.3---PMDC Regulations-Constitution of Pakistan (1973), Art.199---Constitutional petition---Student of B.D.S. failing in professional examination not to be promoted to next higher class---Scope---Petitioner, appeared in B.D.S. Second Professional Annual and Supplementary Examination 2004 but he remained unsuccessful---Petitioner, thereafter, participated in B.D.S. Annual Examination, 2005 and after qualifying the same, he sought permission from authorities for appearing in B.D.S. Third Professional Examination to be held in August 2005 but his request was turned down---Petitioner filed constitutional petition whereby he was allowed to take part in examination subject to result of his petition---Petitioner claimed that he was entitled to participate in BDS Third Professional Examination held in August, 2005 under "Carry on System"-Validity-Regulation 3 of Statutes and Regulations of University of Health Sciences Lahore, 2004, which were admittedly applicable to all Medical Colleges falling under its authority, imposed a bar on promotion of students to second year/next year until all the subjects in First Professional Part 1 Examination had been cleared---Regulation 3 was not only in conflict with restriction, imposed by PMDC but was a step further in achieving the objects for which Regulation 3 was incorporated, that is, to strengthen the academic competency of students---Students who failed in a professional examination were not to be promoted to next higher class until they had passed that examination in full---Petitioner could not qualify Second Professional in Annual and Supplementary Examination held in 2004 and thus he was detained---Petitioner qualified Second Professional Examination by appearing in Annual Examination, 2005, therefore it was not permissible to take examination of Third Professional in same Calendar year---Petition was dismissed, in circumstances.

Muhammad Umar Wahid and others v. university of Health Sciences Lahore and others PLD 2006 SC 300; Writ Petition No. 19217 of 2005 and Writ Petition No.1742 of 2006 rel.

Malik Muhammad Nadeem for Petitioner.

Syed Najam-ul-Hassan Kazmi, Rasal Hassan Syed and Shakeel Ahmad Shahzad for Respondent University.

YLR 2006 LAHORE HIGH COURT LAHORE 3259 #

2006 Y L R 3259

[Lahore]

Before Sh. Hakim Ali and Muhammad Khalid Alvi, JJ

MAKHDOOM AHMED---Petitioner

Versus

ABDUL HAMEED and others-Respondents

Criminal Appeal No.382-of 2003IBWP, decided on 26th April, 2006.

Criminal Procedure Code (V of 1908)---

----Ss.200 & 201---Trial of challan case and complaint case---Safe criminal administration of justice required that both the cases were decided at one and the same time---Mind of Presiding Judge would also not be prejudiced while trying the challan case and complaint case and leaning towards prosecution in the challan case in such manner would be avoided---From one and the same Court, an occurrence having two different versions, should and must be decided simultaneously, so that not only the confidence in the decision of the Court must gain impression of impartiality in the mind of accused, but the transparency should also appear floating on the surface by deciding both cases concurrently---When there were two versions of an occurrence, then it would be just and appropriate that after recording evidence in both these cases (complaint as well as challan case) versions of both be considered at one and the same time after keeping them in juxtaposition; and out of those two versions, real culprits, should be brought to book---By not adopting that procedure, justice would neither be done nor would be seen to have been done---If in the challan case, all evidence was recorded as well as in the complaint case, it would have been better for the correct understanding and just decision of the case to bring to book as to who was actual culprit and guilty of commission of murder of deceased---By not adopting settled rule, impugned judgment of the Trial Court, had suffered a legal defect which could not be approved.

Nur Elahi v. The State and others 1966 SC 708; Muhammad Sadiq v. The State and another PLD 1971 SC 713 and Abdul Rahman Bajwa v. Sultan and nine others PLD 1981 SC 522 ref.

Sh. Ikram-ud-Din for Appelant.

Talat Mahmood Kakezai for Respondent No.1.

Malik Muhammad Abbas for Respondent No.4.

M.A. Farazi for the State.

Date of hearing: 5th April, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 3267 #

2006 Y L R 3267

[Lahore]

Before Mian Hamid Farooq, J

Kh. ZIA ULLAH and 5 others---Petitioners

Versus

P.C.B.L. through Chairman and 3 others-Respondents

Co-op Petition No.9/C of 2005, decided on 25th September, 2006.

(a) Punjab Undesirable Co-operative Societies (Dissolution) Act (I of 1993)---

----S. 11---Civil Procedure Code (V of 1908), O. VII, R.11---Limitation Act (IX of 1908), S.5---Petition under section 11 of Punjab Undesirable Co-operative Societies (Dissolution) Act, 1993---Limitation---Delay, condonation of---Petition which was to be filed within sixty days from the decision of Judicial Officer, was filed after more than ninety days from such decision---Provisions of S.5 of Limitation Act, 1908 having not been made applicable to the proceedings under Punjab Undesirable Co-operative Societies (Dissolution) Act, 1993, petitioner's application for condonation of delay could not be entertained---With the dismissal of application under S.5 of Limitation Act, 1908, parent petition was also dismissed as time-barred.

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

----S. 5---Condonation of delay---Provisions of S.5 of Limitation Act, 1908 would not automatically apply to all enactments, unless same were specifically extended to such enactments.

Muhammad Hanif v. Collector/Deputy Commissioner, Kasur and 2 others PLD 1982 Lah.239 ref.

Pir Syed Shahid Ali Shah for Petitioners.

Ch. Safdar Mehmood for Respondent.

YLR 2006 LAHORE HIGH COURT LAHORE 3270 #

2006 Y L R 3270

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

SHAUKAT ALI-Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1493 and Murder Reference No.618 of 2001, 6th September, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---All three eye-witnesses though were related inter se and to deceased, but had no previous ill-will or enmity whatsoever against accused so as to depose falsely against him---Presence of said eye-witnesses at the place of occurrence was quite plausible---All said witnesses had given consistent account of the occurrence and despite lengthy cross-examination, no dent could be caused in the veracity of their statements---No discrepancy of consequence, could be pointed out by counsel for accused---Delay in reporting matter to the police, stood fully explained---Alleged delay in lodging F.I.R., in circumstances would be of no consequence and would not benefit accused---Medical evidence was in support of ocular account---Pistol recovered on pointation of accused which was sent to Forensic Science Laboratory was found in working condition---Would not be safe to rely upon recovery evidence, as no empty was recovered from the spot and it could not be said with certainty that it was same pistol which was used during occurrence---Prosecution, in circumstances had proved its case beyond doubt against accused through reliable ocular account, which was supported by medical evidence and was corroborated by the circumstances of the case---Accused had prayed for lesser penalty on the ground of weakness of motive and the factum of solitary blow---Accused came armed with fire-arm weapon and took life of an innocent girl aged 20/22 years---No premium could be given to accused for causing a single blow---Even if motive was shrouded in mystery, same could not be considered as a circumstance justifying non-awarding of normal penalty of death---In absence of mitigating circumstances, death sentence awarded to accused by the Trial Court was confirmed and murder .reference was answered in the affirmative.

Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

A.H. Masood for Appellant.

Badar Munir Malik (in Appeal No.1493 of 2001) and Abdullah Baig (in Murder Reference No.613 of 2001) for the State.

Date of hearing: 6th September, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 3276 #

2006 Y L R 3276

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD AFZAL through L.Rs. -Petitioners

Versus

GHULAM HASSAN and another---Respondents

Civil Revision No.666 of 2006, heard on 8th June, 2006.

Specific Relief Act (I of 1877)---

----S.42---Limitation Act (IX of 1908), Art.120---Declaratory suit against genuineness of mutation is governed by Art.120 of Limitation Act, 1908---Mutation sanctioned in 1970, suit filed in 1996, presence of plaintiff before Revenue Officer when mutation in question was sanctioned has been proved on record---Suit held was time barred---Appellate finding that impugned sale had been effected out of a joint Khata in which predecessor of defendant was a co-owner, was based on conjectures hence not sustainable.

Khalid Aseer Chaudhry for Petitioners.

Sh. Irfan Akram for Respondent No.1.

Ex parte for Respondent No.2.

Date of hearing: 8th June, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 3278 #

2006 Y L R 3278

[Lahore]

Before Mian Saqib Nisar and Syed Sakhi Hussain Bukhari, JJ

Mian MUHAMMAD RASHID and another---Appellants

Versus

MUSHTAQ AHMAD and 14 others---Respondents

Regular First Appeal No.157/A of 2003, decided on 6th April, 2004.

Civil Procedure Code (V of 1908)---

----O.XVII, Rr.2 & 3---Suit for damages on account of defamation---Closing of evidence and dismissal of suit---Appellants were given more than ten opportunities to produce their evidence, but on each date either their evidence was not available or their counsel was not present to conduct the case---Last opportunity was granted to appellants to produce their evidence, but on that date also evidence of appellants was not available---Trial Court, after closing evidence of appellant, dismissed their suit for lack of proof---Validity---Appellants having failed to produce evidence despite several opportunities were provided to them in that regard, the Court had the jurisdiction to dismiss the suit by invoking both the provisions of Rr.2 & 3 of O.XVII, C.P.C.---Trial Court was under no legal obligation to keep on adjourning the case for indefinite period of time, even subject to payment of costs, because it could result into grave injustice to opposite party which was facing the curse of litigation and the costs could not be a compensation for such suffering.

1982 CLC 1872; PLD 1993 Pesh.192; 1986 CLC 2399; PLD 1967 Lah. 154; 1999 MLD 818; 1999 SCMR 105; 1993 MLD 377; 1998 CLC 1680; 1990 MLD 171; PLD 1975 Lah. 386 and PLD 1960 Lah.1010 ref.

Dr. Hameed Ahmad Ayyaz for Appellants.

Mian Muhammad Ashraf for Respondent No.1.

YLR 2006 LAHORE HIGH COURT LAHORE 3280 #

2006 Y L R 3280

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ASHFAQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.141-J and Murder Reference No.245 of 2001, decided on 16th May, 2006.

Penal Code (XLV of 1860)---

---Ss. 302(b) & 324---Appreciation of evidence---Case was one of triple murder and murderous assault upon other and accused was solitary accused in the case---F.I.R. in the case had been lodged with reasonable' promptitude and accused was specifically nominated therein---Accused was living with complainant party and the victims since his childhood and occurrence had taken place inside the house where accused and victims resided---No question of any mistaken identity of accused existed as both eye-witnesses knew accused since his childhood---Occurrence though had taken place during the night, but site plan of the place of occurrence, had duly referred to availability of electric bulb of 200 watts at the place of occurrence at the relevant time---Complainant as prosecution witness, absolutely had no motive to falsely implicate accused in a case of such nature---Complainant had made a straightforward statement before Trial Court, which had inspired confidence--One of the prosecution witnesses who was aged about thirteen years at the time of making his statement before the Trial Court, had himself sustained many injuries on his person during occurrence---Said witness had clearly and categorically pointed his accusing finger towards none other than accused for causing of injuries to all three deceased---Said witness, too had made a straightforward statement before the Trial Court, which had inspired confidence---Other prosecution witness too had no reason to falsely implicate accused in a case of that nature---Third prosecution witness who was an immediate neighbour, his claim regarding having been attracted to the place of occurrence upon the noise emanating from the scene of crime, was not unbelievable or unusual---Motive part of occurrence was quite believable---Chemical Examiner and Serologist had subsequently confirmed that chhurri recovered from possession of accused, was stained with human blood---Medical evidence produced by prosecution had provided ample support to ocular account furnished by it---Accused who had accepted his presence at the scene of the crime at the time of occurrence, had advanced a different version of incident, but he could not establish or substantiate his version---Prosecution, in circumstances had succeeded in establishing guilt of accused and convictions recorded by the Trial Court, were amply justified---Accused had mercilessly butchered three innocent ladies and had launched a murderous assault upon a boy of tender age which had disentitled him to any sympathy from the Court in the matter of sentence---Normal wages of crime of murder was death and in peculiar circumstances of the case, accused deserved no less---Conviction and sentence awarded by the Trial Court, were upheld and maintained.

Miss Najma Parveen for Appellant.

Arif Ali Hazoor and Sh. Khalid Habib for the State.

Date of hearing: 16th May, 2006.

YLR 2006 LAHORE HIGH COURT LAHORE 3287 #

2006 Y L R 3287

[Lahore]

Before Umar Ata Bandial, J

MUHAMMAD BOOTA---Petitioner

Versus

DARA---Respondent

Civil Revision No.2967 of 2004, heard on 3rd June, 2006.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.17, 117 & 118---Suit for specific performance of oral agreement to sell, partly performed by parties---Possession of plaintiff over disputed property for about three decades was admitted by defendant/vendor alleging that possession of plaintiff was as tenant in suit-land while in documents i.e., Jamabandies and Khasra Girdawaries plaintiff had been recorded as co-sharer---Validity---Held, in such partly performed oral agreement to sell burden of proving the nature of possession, shifted to vendor who was denying the agreement---Defendant/vendor in the present case had failed to discharge the onus, on the other hand one witness produced by plaintiff to prove the agreement was sufficient as provisions of Art.17 of Qanun-e-Shahadat, 1984 did not apply to an oral agreement to sell---Suit filed by plaintiff was well within time because there was no limitation against a co-sharer.

Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217 ref.

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

----O. VI, R.1---Plea not set up in pleadings was not to be allowed to be raised in evidence.

Mst. Salima Bibi v. Mst. Halima Bibi 1994 SCMR 1858 and Muhammad Hashim v. Zulfiqar Ali Khan PLD 1963 (W.P.) Lah.418 ref.

M. Zafar Chaudhry for Petitioner.

Mian Riaz Ali for Respondent.

Date of hearing: 3rd June, 2005.

YLR 2006 LAHORE HIGH COURT LAHORE 3308 #

2006 Y L R 3308

[Lahore]

Before Mian Hamid Farooq and Abdul Shakoor Paracha, JJ

NADEEM WALI---Petitioner

Versus

THE STATE and another-Respondents

Criminal Revision No.96 of 2006 converted into Writ Petition No.1179 of 2006, decided on 9th May, 2006.

(a) Criminal trial---

----Right of accused to be defended by a pleader---Right to be defended by a pleader/counsel, was a statutory right of accused particularly in cases entailing capital punishment which could not be abridged by appointment of counsel, a day or two before trial.

Hakim Khan and another v. State 1975 SCMR 1 and Muhammad Sharif v. The State PLD 1973 Lah. 365 ref.

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

----Ss. 540 & 439---Penal Code (XLV of 1860), Ss.302, 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Re-summoning of witnesses for cross-examination---Section 540, Cr. P. C. had two portions; first portion empowered ordinary Courts to enter into any inquiry, trial and other proceedings under Cr.P.C. to summon any person as a witness or examine any person in attendance though not summoned as a witness or recall and re-examine' any person already examined and conferred discretionary power on the Court while in second part of S.540, Cr.P.C., empowered the Court to summon, examine or recall and re-examine any such person, if his evidence appeared to be essential for the just decision of the case which would make it obligatory on the Court to summon, examine, recall and re-examine such person, if his evidence appeared essential to the just decision of the case---Petitioner in the present case had engaged a private counsel---Cross-examination of prosecution sought to be re-examined, was conducted' by the State counsel depriving petitioner from his valuable right to defend himself through a private counsel of his own choice---Evidence of said witnesses appeared to the Court essential to reach a just conclusion of the case---Trial Court on the basis of second part of S.540, Cr.P.C. was obliged to summon, examine and recall said witnesses---Order rejecting application of petitioner to re-summon said witnesses for cross-examination was declared to be without lawful authority.

Mehr Khan v. The State PLD 1991 SC 430 ref.

Aazar Latif Khan for Petitioner.

M. Tanvir Iqbal Khan, A.A.-G. for the State.

Peshawar High Court

YLR 2006 PESHAWAR HIGH COURT 207 #

2006 Y L R 207

[Peshawar]

Before Muhammad Raza Khan, J

GUL REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Petition No.1151 of 2005, decided on 10th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Bail, grant of---Further inquiry---Tender age of accused was not denied and his status of being regular student was proved through Roll Number Slip issued by the Board of Intermediate and Secondary Education, concerned---Detention of accused in prison would not serve any useful purpose except damaging educational career of a young boy---Maximum punishment likely to be imposed in the case at the end of trial, could also bring case of accused within permissible limits--Investigating Officer had not collected any information to connect the accused with the prime accused who was driver of vehicle which was stated to be a taxi car---No evidence whatsoever was available on the record relating to the use of said car as a taxi or its engagement on contract by accused or even amount of fare decided to be paid for the trip---Record had merely shown that he was a casual passenger who was provided lift by driver of vehicle who was resident of village of accused---Scrutiny of evidence at stage of bail was not possible---Conscious knowledge about existence of contraband in the vehicle, had yet to be determined---Case being of further inquiry, accused was admitted to bail.

Noor Alam Khan for Petitioner.

Sohail Ali for Respondent.

Date of hearing: 10th November, 2005.

YLR 2006 PESHAWAR HIGH COURT 340 #

2006 Y L R 340

[Peshawar]

Before Ijaz-ul-Hassan Khan and Salim Khan, JJ

MUNIR KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.597 of 2005, decided on 2nd November, 2005.

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

----Ss. 9(c), 20 & 25---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Two recovery witnesses seemed to be independent witnesses having no reason to falsely implicate accused in the case---Unanimity existed in the deposition on the material aspects of the recovery---No material discrepancy at all in deposition of said witnesses, inter se, regarding recovery of Charas from possession of accused, had been pointed out---Huge quantity of Charas had been recovered from possession of accused and prosecution witnesses were consistent regarding the time, place of occurrence and recovery of articles and the manner in which it had been effected---Discrepancies pointed out by accused, were inconsequential and of no importance---Provision of S.103, Cr. P. C. had been excluded under S.25 of Control of Narcotic Substances Act, 1997 and provisions of S.20 of the Act, being directory in nature, its non-compliance could not be considered as a strong ground for holding that trial of accused was bad in the eye of law---Taking of small quantity out of each packet for chemical examination was enough to prove that entire recovered material was contraband---Contention that as samples separated from the seized Charas was received by Forensic Science Laboratory after considerable delay of seizure, whereas report prepared was sent after 15 days from receipt of samples and as such delay was illegal and had rendered seizure invalid in the eye of law, was repelled---Delay in sending incriminating articles to concerned quarters for expert opinion, could not be treated fatal in the absence of objection regarding same having been tampered with or manipulated---Prosecution had been successful in proving its case against accused and no exception could be taken to the judgment of Trial Court whereby accused was convicted and sentenced.

Jamil Shah v. The State 1997 SCMR 1494; State v. Hemjoo 2003 SCMR 881; Ghous Bakhsh alias Ghousa v. The State 2000 MLD 618; Mst. Iqbal Bibi v. State 2000 PCr.LJ 1812; Ghulam Khan v. State PLD 2005 Pesh. 180; Muhammad Hashim v. State PLD 2004 SC 856; Johar Ali and another v. State 2003 PCr.LJ 680; Mirza Shah v. State 1992 SCMR 1475; Ali Muhammad and another v. The State 2003 SCMR 54 and Mst. Anwar Bibi v.' The State 2004 PCr.LJ 692 ref.

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

-------S. 103-Search and recovery proceedings---Main aim and object of enacting S.103, Cr. P. C. , was to ensure that search and recovery was conducted honestly and fairly and to exclude any possibility of concoction and transgression and was never meant to disbelieve the statements of official witnesses in any other circumstances.

---S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Appreciation of evidence---Delay in dispatching samples for test or analysis--Contention of accused was that samples separated from the seized Charas was received by Forensic Science Laboratory after considerable delay of seizure, whereas report prepared was sent after 15 days and in the process sufficient time had been consumed; and in view of Rr.4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, the samples dispatched for analysis beyond seventy-two hours and report received, was illegal and rendered seizure invalid in the eye of law---Contention was repelled because said Rules had placed no bar on Investigating Officer to send samples beyond seventy-two hours of the seizure, receive the F.S.L. report after fifteen days and report so received to place before Trial Court---Said Rules were directory and not mandatory and could not control the substantive provisions of Control of Narcotic Substances, Act, 1997 and to be applied in such a manner that its operation would not frustrate the purpose of the Act under which those Rules were framed---Failure to follow Rr.4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 would not render search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity and make entire case doubtful, except for the consequences provided in the Rules---Substantial compliance was sufficient in directory provisions and even where there was no compliance at all, act was not invalidated by such non-compliance if act otherwise was done in accordance with law---Delay otherwise in sending incriminating articles to concerned quarter for expert opinion could not be treated fatal in absence of objection regarding same having been tampered with or manipulated.

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

----S. 9(c)---Appreciation of evidence---Defence version---When an accused at a criminal trial would take a specific plea, the onus invariably would shift on him and he would be required to produce evidence and prove his plea which at least should be supported by attending circumstances and it should not be unfounded altogether.

Noor Alam Khan for Appellant.

Pir Liaqat Ali Shah for the State.

Date of hearing: 2nd November, 2005.

YLR 2006 PESHAWAR HIGH COURT 378 #

2006 Y L R 378

[Peshawar]

Before Ijaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

Mst. SABIHA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.498 of 2005, decided on 14th November, 2005.

Control of Narcotic Substances Act (XX V of 1997)-------

-----S. 9(c)-Appreciation of evidence---Prosecution witnesses produced to prove factum of apprehension of accused and recovery of contraband Charas from her possession, had fully supported prosecution story---From perusal of statements of said witnesses and lengthy cross-examination on them, no reason was found for false implication of accused in the case---Accused had failed to bring on record any mala fide or ulterior motive on the part of police to falsely implicate her in the case---Prosecution witnesses had remained absolutely consistent, coherent and had successfully faced the test of cross examination---Defence could not shatter testimony of prosecution witnesses or pin-point any ill-will, which could have prompted them to depose falsely against accused---Mere fact that said witnesses belonged to Police Department, by itself, could not be considered a good ground to discard their statements---Contradictions pointed by accused, were of minor nature and those could not be considered sufficient to vitiate the trial or to make recovery doubtful---Plea taken by accused was not at all worthy of any belief and seemed to have been fabricated just to save her skin---Samples of recovered narcotics sent to office of Chemical Examiner were intact and report of Analyst received back was in positive, which had supported prosecution story as well as recovery of narcotics in the case---Prosecution, in circumstances, had successfully brought home the guilt to accused beyond any shadow of doubt and defence had miserably failed to extract any material discrepancy or contradiction from the statements of prosecution witnesses---Accused did not appear as his own witness as required under S.340(2), Cr.P.C. to contradict prosecution story which fact was also fatal to her case---Accused, however, was first offender and she, along with suckling baby, were languishing in jail for sufficient long time---Taking lenient view, her sentence was reduced from 4 years' R.I. to 2 years' R. I. and her amount of fine was also reduced accordingly.

Muhammad Arif Khan for Appellant.

Ms. Neelam Khan for the State.

Date of hearing: 14th November, 2005.

YLR 2006 PESHAWAR HIGH COURT 401 #

2006 Y L R 401

[Peshawar]

Before Shahzad Akbar Khan and Fazalur Rehman Khan, JJ

MAMOOR SHAH-Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.635 of 2005, decided on 11th November, 2005.

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

----S. 9(b)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6---Appreciation of evidence---Prosecution, in case of narcotics, was under a heavy legal obligation to prove that material recovered from the possession of accused was narcotic in any form recognized by Control of Narcotic Substances Act, 1997; for that purpose report of Forensic Science Laboratory, would assume great importance as nature of substance could be determined only on Chemical Examination---Report of Chemical Laboratory in the present case, not only was not prepared on requisite pro forma, but also did not bear the signatures of Chemical Examiner and Chief Chemical Examiner despite the fact that designation of both authorized officers was provided at the bottom of the report---Requisite Form II, meant for the result of Chemical analysis, was requirement of R.6 of Control of Narcotic Substances (Government Analysts) Rules, 2001-Non-preparation of F. S.L. report on the prescribed Form was in fact violation of statutory rules and such a legal infirmity would render report of chemical analysis nullity in the eyes of law---Impugned report being short of requisite description, it could not be said that said report was related to the present case---Such report could not be used against the accused---Prosecution had not been able to prove that material recovered from the possession of accused was in fact Charas---Conviction and sentence of accused were set aside and he was ordered to be released from jail.

Abdul Karim Khan for Appellant.

Salahuddin Khan, Deputy Attorney-General for the State.

Date of hearing: 11th November, 2005.

YLR 2006 PESHAWAR HIGH COURT 622 #

2006 Y L R 622

[Peshawar]

Before Ijaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

QAISAR SHAH---Appellant

Versus

ABDUL KARIM and another-Respondents

Criminal Appeal No.566 and Criminal Revision No.156 of 2005, decided on 24th October, 2005.

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

----Ss. 302, 318 & 319---Appreciation of evidence---Initially F.I.R. was blind which did not contain names of any accused and in supplementary statement of complainant, accused was charged for the crime in question---Trial Court had not appreciated prosecution evidence in its correct legal and factual perspective---Implication of accused in the case by complainant at belated stage was the figment of his imagination and it was difficult to believe that close relatives of deceased allegedly present on the spot, witnessing the occurrence would come forward and claim to be eye-witnesses after 7/8 days---Absolutely no evidence was available regarding commission of homicide or 'Qatli-Khata' by accused---Trial Court had acted on surmises and its findings regarding culpability of accused was contrary to material on record---Trial Court itself had rejected alleged ocular testimony---No direct evidence was produced by prosecution to prove any event having taken place immediately before occurrence---Motive had not been satisfactorily proved---Ocular testimony having been found not confidence-inspiring or having intrinsic worth, could not be used to support same---Prosecution evidence had come through interested, partisan and related witnesses which was not corroborated by other evidence---Impugned judgment was based on incorrect appreciation and appraisement of evidence which was full of improbabilities and incoherencies---No independent corroboration of unimpeachable character was found in the case---Case trumped up against accused was destitute of any valid foundation and not even a shred of valid piece of evidence was found in support of prosecution version, it would not be safe to sustain conviction of accused in circumstances---Prosecution having failed to prove its case beyond reasonable doubt, conviction and sentence awarded to accused by Trial Court were set aside and accused was acquitted of charge of murder.

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

----Ss. 302, 318 & 319---Appreciation of evidence---Motive, proof of---Where prosecution alleged a particular motive in the case against accused for committing an offence, same was to be proved by it---If such a motive was not so proved by prosecution, then such circumstances would adversely affect case of prosecution and benefit whereof would go to accused, more particularly in a case where incident of case was based on such a motive and giving a reasonable presumption that had there been no such motive, then no incident could have taken place.

----Ss. 302, 318 & 319---Appreciation of evidence---Medical evidence---Medical evidence by itself would not establish either the identity or the complicity of accused in the crime---Only when involvement of an accused in the crime was established through other evidence, beyond reasonable doubt that further corroboration could be sought with the help of medical evidence---Medical evidence could at best be used to support ocular testimony or any other incriminatory evidence of the type and for no other purpose.

(d) Criminal trial---

----In order to do complete justice and to ensure that real culprit may not escape legal punishment, grain was to be sifted from chaff--If it was found that it could not be possible to sift the grain from the chaff and testimony of a witness was not confidence-inspiring, then it would be unsafe to record conviction---Conviction must be based on unimpeachable evidence and certainty of guilt and that any doubt arising in prosecution case must be resolved in favour of accused.

Muhammad Khan and others v. The State 1990 SCMR 1220 ref.

Khawaja Muhammad Khan for Appellant.

Qazi Zakiuddin for Respondents.

Arbab Usman Khan, D.A.-G. for the State.

Date of hearing: 24th October, 2005.

YLR 2006 PESHAWAR HIGH COURT 934 #

2006 Y L R 934

[Peshawar]

Before Ijaz-ul-Hassan Khan and Fazl-ur-Rehman Khan, JJ

Mian RAHIM SHAH---Petitioner

Versus

CHIEF ELECTION COMMISSIONER OF PAKISTAN and others---Respondents

Writ Petitions Nos.1628 and 1742 of 2005, decided on 21st December, 2005.

North-West Frontier Province Local Government Elections Rules, 2000---

----Rr. 39 & 40---Constitution of Pakistan (1973), Art.199---Constitutional petition--Election for Nazim and Naib Nazim---Re polling at two Polling Stations---Petitioner, who was a returned candidate in the election, had called in question the order of District Returning Officer whereby re-polling in two Polling Stations was ordered---Record had revealed that more than 100 female voters at two Polling Stations, were not permitted w cast their votes and were interrupted and obstructed during election process and that fact was verified by Presiding Officer of concerned Polling Stations---District Returning Officer, after thorough probe and inquiry, issued order for re-polling of said two Polling Stations---Re-polling having been ordered to promote justice and give female voters of said two Polling Stations their due right of vote, impugned order was neither arbitrary, illegal, mala fide, discriminatory nor same had taken any right of the petitioner---Complete justice having been done between the parties, discretion under constitutional jurisdiction could not be exercised in favour of the petitioner.

PLD 2002 SC 184; PLD 1989 SC 166; 1981 SCMR 919; 1981 SCMR 1250 and PLD 1989 Pesh.112 ref.

Qazi Muhammad Anwar for Petitioner (in Writ Petition No.1628 of 2005).

Ali Jamil Qazi and Ms. Musarat Hilali for Petitioner (in Writ Petition No.1742 of 2005).

Iftikhar Hussain Gillani, Barrister Masood Kausar and Ejaz Khan for Respondents.

Date of hearing: 12th December, 2005.

YLR 2006 PESHAWAR HIGH COURT 960 #

2006 Y L R 960

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

Haji AZIZ UR REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Q.P. No.194 of 2005, decided on 27th January, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 499, 513 & 516-A---Penal Code (XLV of 1860), Ss.411, 420, 468 & 471---Motor car was taken into possession by police from applicant, who applied for return of said car on 'Superdari', but his application was rejected---Applicant applied for return of vehicle in the Court of Additional Sessions Judge, which was rejected, but applicant was directed to furnish Bank guarantee in the sum of Rs.1,50,000---Validity---Order demanding cash security was illegal as there was no provision in the Code of Criminal Procedure, 1898 to support such order---Court could accept cash security to such an extent as it could think fit, if such security was offered by accused under S.513, Cr.P.C., but the Court could not insist on cash security---Section 499, Cr.P.C., had contemplated execution of a bond with surety and not a cash deposit---Accused as well as surety, in circumstances had to execute, only bonds which were sufficient;; but section 499, Cr. P. C. did not authorize demand of cash in lieu of bond by a Court---Impugned order was modified to the extent that vehicle in question would be released on 'Superdari', subject to furnishing bond by applicant in the sum of Rs.1,50,000, instead of requiring applicant to furnish Bank guarantee.

Muhammad Yousaf v. The State 1986 MLD 2632; Amir Sardar v. the State 1990 PCr. LJ 414; Lakhi Narayan Kandu v. the Crown PLD 1955 Dacca 1984; Rajballam Singh v. King Emperor, Abdul Gani and others v. Emperor 48 Cr. LJ 773 and R.R. Chari v. Emperor 49 Cr.LJ 282 ref.

Hussain Ali for Petitioner.

Aminur Rehman for the State.

Date of hearing: 20th January, 2006.

YLR 2006 PESHAWAR HIGH COURT 982 #

2006 Y L R 982

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

UMER JAN---Appellant

Versus

THE STATE and 2 others---Respondents

Criminal Appeal No.33 of 2004, decided on 27th February, 2006.

(a) Criminal Procedure Code 1898)---

----S. 417---Appeal against acquittal---Standards of assessing evidence---Standards of assessing evidence in appeal against acquittal, were quite different from those laid down for appeal against conviction---In appeal against conviction, appraisal of evidence was done strictly and in appeal against acquittal, such rigid method of appraisement was not to be applied as there was already finding of acquittal given by the Court after proper analysis of evidence on record-In appeal against acquittal, interference would be made only when it appeared that there had been gross misreading of evidence which amounted to miscarriage of justice---When accused was acquitted from the charge by a Court of competent jurisdiction, then double presumption of innocence would be attached to its order, with which Superior Courts would not interfere, unless impugned order was arbitrary, capricious, fanciful and against record.

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

----S. 417---Penal Code (XLV of 1860), Ss.324 & 34---Appeal against acquittal---Judgment of acquittal of accused returned by the Trial Court was fair judgment, based on proper, just and legal appreciation of evidence on record---Appellant had failed to show that impugned judgment of acquittal was fanciful or based on no evidence nor it had been demonstrated that some material evidence was .not taken into consideration by the Trial Court, which had caused gross miscarriage of justice---Whole prosecution case was shrouded in mystery and was full of doubts appearing at every step---On basis of such a shaky evidence, which could not be believed at all, the Trial Court, had valid reasons to extend benefit of doubt to accused and pass a finding of acquittal---Mere presence of injury on the person of a prosecution witness, was not sufficient to declare him a truthful witness, if same was not believable from other circumstances available on record---Medical evidence, furnished by Doctor, which though was confirmatory in nature but could not be considered corroborative evidence---No other incriminating evidence was on record which was sufficient to support complainant and his brother on material points---Where otherwise evidence on record was not credible and worth reliance, mere fact that accused remained absconder, could not remedy the defects and infirmities in prosecution case---Sometimes even innocent persons could become fugitive from law due to fear and harassment and victimization at the hands of police, secondly because abscondence at its best could be taken as corroborative and not evidence of the charge---Prosecution had failed to produce? trustworthy and confidence-inspiring evidence against accused---Doubt arising in respect of one fact of circumstances was enough to discard prosecution case as a whole---Appeal against acquittal was dismissed and impugned judgment of acquittal was maintained.

Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659; Allah Nawaz v. The State and another 2004 PCr.LJ 1564; Muhammad Jamil v. The State and others 2005 PCr.LJ 1991; Muhammad Usman and 2 others v. The State 1992 SCMR 498; State v. Muhammad Sharif and others 1994 SCMR 635 and Akhtar Jan and another v. State and another 2005 PCr.LJ 1459 ref.

Muhammad Waheed Anjum Appellant.

Chaudhary Muhammad Ayaz the State.

S. Gohar Ali Zaidi Respondents.

Date of hearing: 27th February, 2006.

YLR 2006 PESHAWAR HIGH COURT 1008 #

2006 Y L R 1008

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

MUHAMMAD ARIF---Petitioner

Versus

THE STATE---Respondent

Criminal Revisions Nos.43 and 44 of 2005, decided on 1st March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), Ss.324, 148 & 149---Forfeiture of surety bond---Accused for whom petitioners stood sureties, having remained absent and petitioners having failed to produce him, they were burdened to pay sum of Rs.20,000 each or in default to undergo three months simple imprisonment---Petitioners had maintained that impugned order was harsh and their financial condition had not been taken into consideration while imposing penalty and that petitioners stood surety for accused out of benevolence without any monetary gain---Validity---Petitioners, for whatever reason had become sureties, they were under legal obligation to discharge their liability under bail bond furnished by them---After undertaking the liability by petitioners, it would not lie in their mouth to say that on account of their financial condition, they could not pay amount of bond executed by them and stood sureties of accused out of benevolence and without any monetary gain---No legal embargo existed to the effect that amount of bail bond in full could not be forfeited---Where an accused jumped bail bond, entire surety amount would become liable to confiscation---Surety was liable to produce accused in the Court in view of his undertaking---Trial Court, having already taken lenient view by reducing amount of surety bond front Rs.50, 000 to 20,000, there was no reason to further reduce said amount---Impugned order being correct, proper and legal, would not call for interference of High Court in its revisional jurisdiction.

Muhammad Shah and others v. The State 1994 PCr.LJ 2316; Amanullah and others v. The State 1997 PCr.LJ 1927; Muhammad Khan v. The State 1986 PCr.LJ 2028; Shatab Khan and another v. The State PLD 1996 Lah 600; Zeshan Kazmi v. The State PLD 1997 SC 267 and Muhammad Aslam and another v. The State 2004 SCMR 211 ref.

Attaullah Khan Kundi for Petitioner.

S. Abid Hussain Shah for the State.

Date of hearing: 1st March, 2006.

YLR 2006 PESHAWAR HIGH COURT 1031 #

2006 Y L R 1031

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

ADNAN ALI SHAH and another---Appellants

Versus

MAQSOOD JAN and another---Respondents

Criminal Appeal No.6 of 2005, decided on 27th February, 2006.

Penal Code (XLV of 1860)--

-----Ss. 324, 337-F(iv) & 34---Appreciation of evidence---Ocular account of incident, had been proved before the Trial Court by complainant and other prosecution witnesses---Stamp of injuries on the person of complainant and prosecution witnesses proved their presence at the scene of occurrence and could not be disputed---Accused had been specifically nominated in F.I.R. which was lodged with reasonable promptitude---Accused had failed to point out any background of ill-will or bitterness between witnesses so as to falsely implicate accused in a case of that nature---Judgment returned by the Trial Court was a fair judgment, based on proper, just and legal appreciation of evidence on record---Complainant and his witnesses, had given a straightforward and honest account of the incidence in a truthful manner charging accused and absconding co-accused for the commission of the crime and they had faced the test of cross-examination successfully---Minor discrepancies in their statements, were quite natural due to lapse of a period of almost three years of occurrence---Mere relationship of witness was no reason for disbelieving his version until and unless it was established that he had enmity against accused and had motive for his false implication---Prosecution had succeeded to establish its case against accused beyond reasonable doubt by producing trustworthy and confidence-inspiring evidence---Acquittal of one of the co-accused would not detract credibility of ocular version as he was acquitted on ground that only role of proverbial 'Lalkara' was attributed to him and main role of firing was assigned to accused and absconding co-accused---Medical evidence was in complete harmony with the ocular testimony and no conflict could be pointed out to demolish prosecution case---Unexplained hiding of accused for sufficient long time, along with other evidence, weighed heavily against him---Accused could not point out any serious defects in investigation, other than certain minor lapses, which did not affect the validity of the trial---Prosecution having successfully brought home the guilt to accused beyond any shadow of doubt and defence having miserably failed to extract any material discrepancies or contradictions from statements of the witnesses, appeal being destitute of force, was dismissed and impugned judgment was maintained.

Akhtar Jan and another v. State and another 2005 PCr.LJ 1459 and Shamsud Doha v. The State and another 2005 PCr.LJ 788 ref.

Abdul Latif Khan Baloch and Khawaja Nawaz Khan for Appellants.

Chaudhary Muhammad Ayaz for the State.

Sanaullah Khan Gandapur for the Complainant.

Date of hearing: 27th February, 2006.

YLR 2006 PESHAWAR HIGH COURT 1093 #

2006 Y L R 1093

[Peshawar]

Before Muhammad Raza Khan, J

IRFANULLAH alias IRFAN KHAN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Revision Petition No.49 of 2005, decided on 14th February, 2006.

Juvenile Justice System Ordinance (XXII of 2000)---

----Ss.2(b), 4, 5, 6, 7 & 12(a)---Penal Code (XLV of 1860), Ss.302/324/34---Criminal Procedure Code (V of 1898), 5.439---Age of accused, determination of---Observation of trial Court that accused might be 21 and 23 years old---Validity---Entirely different mechanism would be put in motion in case of juvenile as per provisions of Ss.4, 5, 6 & 12(a) of Juvenile Justice System Ordinance, 2000---Duty of Trial Court was to get a medical report for determination .of age of accused---Conclusion of trial in absence of such determination would result in complications on remand of matter and bifurcation of case of accused, if proved later on that accused or anyone of them had not attained age of eighteen years on the date of occurrence---School leaving certificates of both accused, prima facie, indicated their age to be 13 and 14 years on date of occurrence-Age of accused could further be verified from scientific means of ossification test etc.---High Court accepted revision petition and set aside impugned order with directions to trial Court to refer such matter to Medical Board and thereafter proceed with the case in accordance with law.

Muhammad Yaqoob Khan Marwat for Petitioners.

Ehsanul Haq Malik for the State.

Hummayun Khan Wazir for Respondent No.2.

Date of hearing: 14th February, 2006.

YLR 2006 PESHAWAR HIGH COURT 1100 #

2006 Y L R 1100

[Peshawar]

Before Muhammad Raza Khan, J

AKRAM---Petitioner

Versus

THE STATE ---Respondent

Cr. M.B. No.298 of 2005, decided on 30th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3---Control of Narcotic Substances Act (XXV of 1997), S.9(a)---Bail, grant of-Recovery of 15 kilograms "Shang" from house of accused---Raid was conducted at 10 p.m. without search warrant, but accused was not found in house, where other persons were also residing---Such recovery could not be deemed to have been made from possession of accused---Maximum punishment provided under Art.3 of Prohibition (Enforcement of Hadd) Order, 1979 would not fall within prohibitory clause of 5.497, Cr.P.C.---Accused was not a previous convict and was a P.T.C. teacher in Education Department---Accused was granted bail in circumstances.

Ghulam Hur Khan Balooch for Petitioner.

Muhammad Yaqoob Khan Marwat for the State.

Date of hearing: 30th June, 2005.

2006 Y L R 2099

[Peshawar]

Before Salim Khan and Hamid Farooq Durrani, JJ

MIR AFZAL---Petitioner

Versus

CIVIL JUDGE/FAMILY COURT, GHAZI and 4 others---Respondents

Writ Petition No.204 of 2005, decided on 10th May, 2006.

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

----Ss. 5 & Sched. & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Aggrieved person---Suit for recovery of maintenance amount---Appeal against judgment and decree of Family Court---West Pakistan Family Courts Act, 1964 had prescribed only two stages for

proceedings regarding cases of family nature---Such case could be dealt with in original- Court and only an appeal was allowed regarding the same and judgment and decree in appeal would become final, unless and until some illegality or irregularity or misuse or non-use of jurisdiction by Appellate Court in granting judgment and decree had occasioned---Constitutional petition was a special right of an `aggrieved person', independent of civil of criminal proceedings in a Court of law which had to be exercised with due care---Brother/attorney of petitioner, who had not been specially authorized for the purpose of constitutional petition by his brother, who was party to his family case by his wife and children, was not "aggrieved person "---Power of Attorney in favour of brother, was not a permission to attorney brother on behalf of his brother---Nothing was on record to show that petitioner did not have sufficient means to meet requirements of decree passed by Appellate Court below---Constitutional jurisdiction, could not be exercised in favour of petitioner---Appellate Court below had rightly exercised jurisdiction by increasing maintenance allowance of respondents in view of fact that petitioner had been serving outside the country and was in a financial position to send amount to respondents.

PLD 2001 Lah 495 ref.

Akhtar Nawaz Khan for Petitioner.

Iqbal Ahsan Tahirkheli for Respondents.

Date of hearing: 10th May, 2006.

YLR 2006 PESHAWAR HIGH COURT 2121 #

2006 Y L R 2121

[Peshawar]

Before Salim Khan and Hamid Farooq Durrani, JJ

Mst. RASHIM JAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE-I, HARIPUR and another---Respondents

Writ Petition No.106 of 2006, decided on 5th May, 2006.

Administration of justice---

----Court had power to proceed with the cases in accordance with law and was bound not only to do justice, but to ensure that it was seen that justice was being done and had been done to the parties.

Nazakat Hussain for Petitioner.

Nemo for Respondent.

Date of hearing: 5th May, 2006.

YLR 2006 PESHAWAR HIGH COURT 2198 #

2006 Y L R 2198

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

SHER MUHAMMAD and 5 others---Appellants

Versus

MOMIN KHAN and 5 others---Respondents

F.A.O. No. 65 of 2005, decided on 2nd May, 2006.

(a) Cantonment Rent Restriction Act (XI of 1963)---

----Ss. 17(2) (i) & (vi) & 24---Ejectment of tenant on ground of default in payment of rent and reconstruction of premises---Evidence on record had established that landlords had become owners of suit shops on the basis of a registered sale-deed---Landlords, after purchase of the property, sent registered notice to tenants regarding change of ownership, payment of future rent and reconstruction of premises in question, but said notice remained un-responded---Tenants, despite said notice of change of ownership, neither paid rent to the landlords nor vacated suit premises---Tenants, in circumstances, had rightly been adjudged rent defaulter by Rent Controller---Finding recorded to that effect was unexceptionable and did not warrant interference by High Court in appeal---Requirement of S.17(2) (vi) of Cantonment Rent Restriction Act, 1963 in respect of reconstruction was to obtain necessary sanction from Cantonment Board and it was not incumbent under law that landlord seeking ejectment of tenant on ground of reconstruction should also attach approved plan in that regard with application for ejectment---If landlord would fail to obtain extention of time and was consequently unable to demolish or reconstruct building within prescribed period, he would expose himself to consequences provided under subsection (7) of S.17 of Cantonment Rent Restriction Act, 1963---Rent Controller had done his job in accordance with law---In absence of any misreading and non-reading of evidence, findings of Rent Controller regarding default in payment of rent and reconstruction of premises, could not be interfered with in appeal.

Syed Hasan Askari Rizvi v. Muhammad Aziz PLD 1988 SC 1; Iqbal Yousuf v. Kishwar Jehan 1991 SCMR 864; Rais Ahmad v. Mian Abdul Jabbar and another PLD 1972 Lah.711; Messrs Delite House Ltd. v. Fayyaz Akbar 1988 CLC 1363 and Wall Muhammad v. Mukhtar Hussain 1991 SCMR 224 ref.

(b) Cantonment Rent Restriction Act (XI of 1963)---

----S. 15---Costs of improvement made by tenant---Entitlement---Tenant had contended that improvements were made by them from time to time in the premises with permission and consent of landlords and in case of ejectment they were entitled to recover costs of said improvements---Contention was repelled---Person who would come to Court and assert facts to be believed true by the Court, would have the burden to prove it by bringing cogent evidence on record---No plea of improvements had been taken by tenants in written statement---No issue to that effect had been formulated and no evidence had been brought on record---Appeal was dismissed by High Court.

Malik Haroon Iqbal for Appellants.

Fazle Karim for Respondents.

Date of hearing: 14th April, 2006.

2006 Y L R 2236

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

HIDAYAT ULLAH KHAN---Petitioner

Versus

YAQOOB KHAN MARWAT---Respondent

Civil Revision No.1381 of 2004, decided on 8th May, 2006.

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

----O. VII, R.11---Tort---Malicious prosecution, suit for---Rejection of plaint---Averment made in plaint was that defendant allegedly involved the plaintiff in a false case of corruption and damaged his reputation and had caused him mental torture, in the case in which he was exonerated---Both Trial Court and Appellate Court rejected plaint mainly on ground that defendant having acted in his official capacity, could not be prosecuted in any manner and that suit was not maintainable---True or false, allegation apparently had disclosed commission of a tortuous act on part of defendant and plaintiff was made to suffer for more than two years---Plaintiff complained of agony and humiliation at the hands of defendant and ostensibly could ask for compensation in the shape of damages---Courts below had committed an illegality by passing impugned order for rejection of plaint---Controversy could not be decided without recording evidence---Court, no doubt, should reject a plaint which was manifestly meritless and vexatious and did not disclose a clear right to sue, as fruitless litigation was required to be buried at its inception to avoid wastage of time of Court and unnecessary harassment to opposite party, but in the present case, plaint of plaintiff had vividly disclosed cause of action; and law of damages was clearly attracted to facts as narrated in the plaint---Where issues had been framed, including one on question of maintainably of suit, parties must be allowed to lead evidence and plaint could not be summarily rejected---Contents of plaint had to be kept in view and if plaint disclosed a cause of action, it could not be rejected simply because quite formidable objections were raised in defence---Impugned judgments and decrees of Courts were set aside in revision by High Court and case was remanded to trial Court with direction to decide same on merits within specified period.

Mst. Karim Bibi and others v. Zubair and others 1993 SCMR 2039; Muhammad Zaman and others v. Shah Wazir Khan PLD 2002 Pesh. 45; Kanwar Qutubuddin Khan v. Karachi Development Authority through Director General CLC 2002 Kar. 634; 1994 SCMR 826; PLD 2002 Pesh. 45; Nazeer Ahmad and others v. Ghulam Mehdi and others 1988 SCMR 826; 1986 CLC 1181 and Irshad Ali's case PLD 1995 SC 629 ref.

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

----S. 2(18)---Rules framed in Code of Civil Procedure---Object---Rules framed in Code of Civil Procedure, were Rules made for advancement of justice and those should not, as far as possible, be allowed to defeat the ends of justice.

Muhammad Sarwar's case 1980 CLC 946 ref.

----O. VII, R.11---Rejection of plaint---Scope---Where plaint did not disclose any cause of action, it had to be rejected and for that purpose only plaint was to be looked into and nothing else---Court should reject a plaint which was manifestly meritless and vexatious and did not disclose a clear right to sue---Rejection of plaint was possible at preliminary stage when plaintiff had not led evidence in support of his case---Court could reject plaint only if Court reached at such conclusion after considering statement made in plaint and other material available on record which plaintiff admitted as correct.

Muhammad Arif Khan for Petitioner.

Abdus Samad Khan for Respondents.

Date of hearing: 21st April, 2006.

YLR 2006 PESHAWAR HIGH COURT 2243 #

2006 Y L R 2243

[Peshawar]

Before Salim Khan, J

AKHTAR-UL-ISLAM---Appellant

Versus

THE STATE---Respondent

Cr. A No.83 of 2005, decided on 24th May, 2006.

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

----Ss. 9(c), 20, 21 & 25---Criminal Procedure Code (V of 1898), 5.103---Appreciation of evidence---Neither a search warrant was obtained nor a lady constable was taken to the house of accused for the purpose of raid---Provisions of S.103, Cr. P. C. though were not applicable to the cases conducted under Control of Narcotic Substances Act, 1997 in the light of S.25 thereof and provisions of Ss.20 & 21 of the Act, were directory in nature and their non-compliance was not fatal to prosecution case, but directory provisions of law were framed to provide guidance to the vigilant and efficient officials---Intention of the Legislature was not to frame directory provisions of law and expect the careless, ignorant or inefficient officials to unnecessarily ignore the same---Accused in the present case, were not expected to run away from their house at the night time, if Investigating Officer had tried to obtain, search warrant, as there would be no source of information to accused persons generally regarding obtaining of search warrant---In emergency cases, taking of search warrant and taking of a lady constable to a house, could be ignored, but, keeping in view the fundamental rights of the citizens regarding family, such extraordinary concession could be given only in very special circumstances, which were not available in the present case---Only one doubt in a criminal case, like the one in the present case, had always been considered enough for giving benefit to accused---Neither circumstances and proceedings before recovery nor at the time of recovery nor the fact of recovery and recovery memo. had been proved, but instead had been contradicted by two star prosecution witnesses themselves---Benefit of such doubt was to be given to accused---Judgment of Trial Court was set aside and accused was acquitted of the charges levelled against him and was set free.

Sajjad Afzal Khan for Appellant.

Waliullah Khokhar for the State.

Date of hearing: 24th May, 2006.

YLR 2006 PESHAWAR HIGH COURT 2247 #

2006 Y L R 2247

[Peshawar]

Before Salim Khan, J

ZULFIQAR ALI JADOON---Appellant

Versus

GUL HAMEED and another---Respondents

R.F.A. No.18 of 2005, decided on 9th June, 2006.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of pro note---Suit was filed on ground that defendant obtained suit amount from plaintiffs by executing pro note and agreement deed whereby he had promised that amount in question would be paid up to stipulated date, which was not paid by him---Additional District Judge, decreed the suit---Validity---Additional District Judge had properly appreciated evidence and had correctly come to the conclusion through impugned judgment and decree---No interference was required with said judgment and decree---Impugned judgment and decree, were maintained by the High Court with clarification that interest/profit would he paid by borrower to plaintiffs on amounts from date of their delivery to defendant to the date of payment at the rate of 6% per annum along with cost of litigation throughout.

2000 CLC 759, PLD 1995 Lah. 395; 2005 YLR 2614; 1987 MLD 767; PLD 1978 SC 279; PLD 2003 Lah. 173 and 2002 YLR 1468 ref.

Malik Mehmood Akhter for Appellant.

Sultan Ahmad Jamshaid for Respondents.

Date of hearing: 15th May, 2006.

YLR 2006 PESHAWAR HIGH COURT 2250 #

2006 Y L R 2250(2)

[Peshawar]

Before Fazlur Rehman Khan and Salim Khan, JJ

RASHID AHMAD and another---Petitioners

Versus

CHIEF ELECTION COMMISSIONER, ISLAMABAD and 6 others---Respondents

Writ Petitions Nos. 20991 of 2005 and 18 of 2006, decided on 2nd June, 2006.

North-West Frontier Province Local Government Elections Rules, 2005---

----Rr. 12, 14 & 65---Constitution of Pakistan (1973), Art.I99---Constitutional petition---Declaration of election of returned candidates to he void on the ground of disqualification of one of the joint candidates on account of Sanad---Principle of sinker---Applicability of---Election petition against election of returned candidates, was accepted and election of returned candidates was declared void on the ground that one of the returned candidates was not qualified and contesting candidates (election petitioners) were declared as returned candidates---Validity---Presiding Officer of Election Tribunal was best Judge of the circumstances in the case and he had not opted to exercise his discretion to dismiss election petition under the Rules---No cause was available on record for interference in the order of Election Tribunal---Other returned candidate had to sail or sink along with his joint returned candidate, with whom he wanted to get the fruit of success in election---Not the result of election, but the nomination for election which was to be taken into consideration for the purpose of application of doctrine of sinker---Both candidates were joint candidates which they had chosen by their own will and consent---Such candidates, in circumstances, were jointly responsible for each other---Disqualification of one candidate due to educational Sanad was not notorious and the right of franchise of voters could not be snatched, in circumstances--- Election Tribunal, however, was not justified in declaring the contesting candidates (election petitioner) as successful candidates in place of returned candidates---Fresh election could have been ordered instead---Petitioners, who had not submitted election petition against the returned candidates , prima facie, had no locus standi, but they had a right to ask the contesting candidates to show law under which they were holding, or were to hold office---Constitutional petition was accepted by the High Court to the extent that order of Election Tribunal to the extent of declaration of contesting candidates as successful candidates and non-declaration of holding of fresh election, was set aside.

Abdul Latif Afridi for Petitioners.

D.A.-G. along with Sher Afghan DEC H. Division and Saifur Rehman Assistant for Respondents.

Date of hearing: 24th June, 2006.

YLR 2006 PESHAWAR HIGH COURT 2364 #

2006 Y L R 2364

[Peshawar]

Before Salim Khan and Hamid Farooq Durrani, JJ

Mst. GUL FAREEN---Petitioner

Versus

AHMED NAWAZ and another---Respondents

Writ Petition No. 26 of 2005, heard on 5th May, 2006.

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

----Ss. 5, Sched. & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance amount---Appeal against judgment of Family Court---Maintainability---Embargo imposed by S.14(2) of West Pakistan Family Courts Act, 1964, was a beneficial legislation in favour of wife and children, but to the extent of Rs.1000 or less for a month as maintenance allowance---Inherent right of appeal of judgment-debtor, had been curtailed to that extent (Rs.1000 or less) in order to avoid difficulties for the wife and children who were considered weaker in the structure of the society but a beneficial legislation in favour of one party could not be detrimental to the interest of other party; except to the extent that difficulty was bearable by other party---Legislature, in their wisdom, had considered that payment of maintenance allowance up to Rs.1000, per month was not unbearable for father, howsoever lower his financial position in the society may be---As Legislation having been made, keeping in view all the citizens, right of appeal would revive to the judgment-debtor when total sum of maintenance allowance granted against him would exceed Rs.1000 per month---Amount decreed in the present case having exceeded Rs.1000, Appellate Court below had rightly accepted appeal partially---Petitioner could not show that evidence was not properly appreciated by Appellate Court below or by the original court---Judgment of two Court below could not be interfered with under extraordinary constitutional jurisdiction of High Court.

PLD 2005 Lah. 324 and PLD 2005 Lah. 296 ref.

Fazal-e-Gul Khan for Petitioner.

Muhammad Asim Khan for Respondents.

Date of hearing: 5th May, 2006.

YLR 2006 PESHAWAR HIGH COURT 2367 #

2006 Y L R 2367

[Peshawar]

Before Hamid Farooq Durrani, J

KHAIR ALI and 254 others---Petitioners

Versus

DEPUTY SETTLEMENT COMMISSIONER/D. D.O.R. (E), ABBOTTABAD and 5 others---Respondents

Writ Petition No. 247 of 2004, decided on 31st May, 2006.

Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 10 & 11---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cancellation of allotment of land---Land duly allotted was alienated by allottee for valuable consideration in favour of petitioners through different mutations and possession of the land was also transferred in favour of petitioners who had raised constructions over the land---Respondent filed application before Revenue Officer/Deputy Settlement Commission alleging that allottee was allotted the land in excess to his claim, which had to be cancelled from his name and same he allotted to him---Deputy Settlement Commissioner, after completion of enquiry, cancelled said allotment---Original application filed by respondent was not available on record, but only photocopy thereof was on the record and said application also did not bear any date of its filing---Non-availability of original application, purportedly filed by respondent No.5 and absence of reason for said non-availability, had cast doubt regarding maintainability of the application---Corresponding order sheet, which was not available in original, also did not complement application by respondent---Crucial date for closing door on Settlement Authority to decide fresh matters was 1-7-1974 and due to non-availability of date on said application, it was yet to be determined in the light of S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, whether or not the case of applicant was pending on the crucial date---Cases not pending on crucial date before any forum in the Settlement hierarchy, could not be competently reopened by Notified Officer---Allotment of land in question was confirmed in favour of allottee and petitioners, who were subsequent transferees against valuable consideration from original allottee, were entitled to notice before cancellation of land in question, but no such notice was issued to them---Petitioners, who were condemned unheard, had filed constitutional petition competently and High Court could entertain cause of petitioners through constitutional petition---Accepting constitutional petition, impugned order passed by Deputy Settlement Commissioner, was set aside and matter was remitted to be decided afresh after providing opportunity of hearing to the parties.

2003 SCMR 629; 2004 SCMR 1232; 1982 SCMR 638; 2005 MLD 80 and PLD 2004 SC 271 ref.

Mir Afzal Mehdi for Petitioners.

D.A.-G. for Respondents Nos.1 to 4.

Abdul Shakoor Khan for Respondent No.5.

Respondent No.6 ex parte.

Date of hearing: 29th May, 2006.

YLR 2006 PESHAWAR HIGH COURT 2504 #

2006 Y L R 2504

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

WISAL MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Cr. A. No.22 of 2006, decided on 5th June, 2006.

(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts.3 & 4---Appreciation of evidence--All prosecution witnesses were unanimous on all the broad features of the case and their statements bore all shades of truthfulness---No reason appeared from the record for rejection of testimony of said witnesses---Mere fact that the witnesses were official witnesses, would not rob their testimony of its evidentiary worth---Members of police force were competent witnesses in the eyes of law and could be credited with veracity unless there could be demonstrated that they were false witnesses and had maliciously implicated an innocent person of the commission of an offence for ulterior motive---Counsel for accused had failed to point out any background of bitterness or ill-will between recovery witnesses and accused so as to prompt them to falsely involve accused in a case of that nature---Seizeable quantity of contraband 'Charas' and 'heroin' had been recovered from possession of accused---Report of Chemical Examiner regarding sample of recovered material was in positive-.--Discrepancies highlighted by counsel of accused were minor in nature and insignificant and same were not fatal to main allegation of recovery of narcotics---Such variations in the statements of prosecution witnesses could have been the result of efflux of time between the recovery and making of statements by those witnesses before the Trial Court---Case against accused stood fully proved in the most convincing and logical order---Even a single ambiguity or doubt could not be convincingly urged in entire prosecution version at the trial---Appeal against conviction and sentence of accused was dismissed and impugned judgment was maintained.

Karim and another v. The State 2004 PCr.LJ 37; Muhammad Altaf v. The State 1996 PCr.LJ 440; Muhammad Ibrahim an another v. The State 2000 PCr.LJ 374; Muhammad Daud v. The State PLD 2006 Pesh. 74; Muhammad Mushtaq v. The State PLD 2006' Pesh. 39; Saleem Khan v. The State PLD 2006 Pesh. 47 and Mian Gul Bacha Khan and another v. The State PLD 2004 Pesh. 246 ref.

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

----Arts. 3 & 4---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence--Delay in sending sample to Forensic Science Laboratory---Effect---Recovery proceedings---Control of Narcotic Substances (Government Analysts) Rules, 2001 had placed no bar on the Investigating Officer to send samples beyond seventy two hours of the seizure, receive the Forensic report after fifteen days and the report so received to place same before the Trial Court----Language employed in the Rules and the effects of its breach provided therein, had made the Rules directory and not mandatory---Said Rules could not control the substantive provisions of Control of Narcotic Substances Act, 1997 and to be applied in such a manner that its operation would not frustrate the purpose of the Act under which those were framed---Failure to follow said Rules would not render the search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity and non-est and make the entire prosecution case doubtful, except for the consequence provided in said Rules---Substantial compliance was sufficient in directory provisions, and even where there was no compliance at all, action was no' invalidated by such non-compliance, if the action otherwise was done in accordance with law---Delay otherwise in sending the incriminating articles to the concerned quarter for expert opinion, could not be treated fatal in absence of objection regarding same having been tampered with or manipulated---Contention that dispatching samples for analysis beyond seventy two hours and report received was illegal and had rendered seizure invalid in the eyes of law, was repelled.

Saitullah Khan Khattak for Appellant.

Ilyas Ahmad Qureshi for the State.

Date of hearing: 22nd May, 2006.

YLR 2006 PESHAWAR HIGH COURT 2513 #

2006 Y L R 2513

[Peshawar]

Before Shah Jehan Khan and Ijaz-ul-Hassan Khan, JJ

AZIM KHAN and 3 others---Petitioners

Versus

MUHAMMAD AKBAR and 13 others---Respondents

Writ Petition No.2093 of 2005, decided on 25th May, 2006.

Civil Procedure Code (V of 1908)---

----O. XXVI, R.10(2)---Constitution of Pakistan (1973), Art.199---Specific Relief Act (I of 1877), Ss.42 & 54---Constitutional petition---Suit for declaration and permanent injunction---Appointment of Local Commission---Report of Local Commission---Local Commissioner after proper investigation and inquiry', in the presence of Patwari Halga and parties to the suit, prepared a detailed and comprehensive report, which was nor open to exception---Mere assertion of counsel for petitioners that report of Local. Commissioner, was incomplete, ineffective and Commissioner had failed to resolve the real controversy between parties, without a positive attempt on his part to substantiate same, was of no consequence---Under O.XXVI, R.10(2), C.P.C., report of Commissioner to whom commission had been issued by the Court, was to be treated as evidence in the suit, though it was not binding on the Court which could arrive at its own conclusion on the basis of evidence on record---Orders of courts below were not shown to have been tainted with any illegality or irregularity in absence of which no interference was permissible in constitutional jurisdiction of High Court.

Muhammad Anwar v. Tahira Jabeen and 3 others 2003 CLC 878; Muhammad Samiullah Khan v. Additional District Judge, Sargodha PLD 2002 Lah. 56 and Aziz Fatima Begum v. Oils and Gas Development Corporation, Karachi PLD 1978 Kar.316 ref.

Malik Zeb Khan for Petitioners.

M. Taufiq Qureshi for Respondents.

Date of hearing: 25th May, 2006.

YLR 2006 PESHAWAR HIGH COURT 2584 #

2006 Y L R 2584

[Peshawar]

Before Salim Khan, J

MUHAMMADSULTAN KHAN---Petitioner

Versus

GOHAR AMAN and another---Respondents

C. R. No.132 of 2005, decided on 6th July, 2006.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss.6 & 13---Suit for pre-emption--Superior right of pre-emption---Making of Talbs---Suit for pre-emption having been concurrently dismissed by Trial Court and Appellate Court---Plaintiff had been fully proved to be the owner of property contiguous to suit property, having superior right of pre-emption, whereas defendant/ vendee, who was a stranger in the area, had no right of pre-emption in respect of suit property---Sale consideration of suit property as admitted by plaintiff through his plaint, was determined as market value of suit-land and same was taken and sale consideration paid by vendee to vendor---Plaintiff had made Talb-i-Ishhad properly which was not objected to by defendant and plaintiff had properly made Talb-i-Muwathibat which was duly proved by him through his own statement, contents of note of Talb-i-lshhad and through statements of his witnesses---Suit filed by plaintiff was within time---Concurrent judgments and decrees passed by two Courts below, were set aside by High Court in revision---Decree for possession through pre-emption was granted to plaintiff, accordingly.

M. Shoab Khan for Petitioner.

Abdul Khan (sic).

Date of hearing: 27th June, 2006.

YLR 2006 PESHAWAR HIGH COURT 2744 #

2006 Y L R 2744

Peshawar

Before Salim Khan and Hamid Farooq Durrani, JJ

Molvi TAJ-UD-DIN and another ---Petitioners

Versus

CHIEF ELECTION COMMISSIONER, ISLAMABAD and 6 others---Respondents

Writ Petitions Nos.9 of 2006 and 2076 of 2005, heard on 26th April, 2006.

(a) North-West Frontier Province Local Government (Conduct of Elections) Rules, 2005---

----Rr. 61, 62, 63, 68 & 69---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election of Nazim and Naib Nazim---Disqualification of candidate---Election petition---Petitioners, who contested election for office of Nazim and Naib Nazim of Union Council as a joint panel, were declared as returned candidates and notified as such---Respondents, who were also contestants for said office as a panel and remained unsuccessful, fled election petition before Election Tribunal mainly on the ground that Naib Nazim did not have requisite academic qualification and that Nazim would also suffer, being a joint candidate---Election Tribunal accepted election petition and declared respondents as returned candidates, in place of petitioners ---Petitioners had filed constitutional petition against order of Election Tribunal---Disqualification of Naib Nazim being not notorious among the public/voters before and at the time of election, no efforts were made by anybody to make disqualification publicly known to the voters and no objection was raised to the qualifications of Naib Nazim immediately after submission of nomination papers---Sanad of Naib Nazim which was not equal to Matriculation or S.S.C., would disentitle him to be a candidate---Disqualification of Naib Nazim due to said Sanad, however, was not notorious and right of franchise of the voters could not be snatched in circumstances---Votes of voters could not be considered as intentionally thrown away as they were entitled to exercise their right of franchise according to their knowledge---Election Tribunal, in circumstances was not justified in declaring respondents as successful/returned candidates in place of petitioners, instead of declaring that fresh election be held---Constitutional petition was accepted to the extent that order of Election Tribunal to the extent of declaration of respondents as successful candidates and non-declaring the holding of fresh election, was set aside with the direction that voters of concerned union council be provided their right of franchise by holding fresh election.

(a) Administration of justice---

----Technicalities should not deprive litigants of their valuable rights, except at the cost of accrued rights of contesting parties---It was the satisfaction of the Presiding Officer of a Court or other judicial or quasi-judicial forum which would set the direction of a decision in given circumstances of a case---Such satisfaction could not be controverted unless it was fully established that it was based on arbitrariness or perverseness.

PLD 1967 SC 486; PLD 2004 SC 485 and 2005 CLC 686 ref.

----Ss. 152 & 157---Election for office of Nazim and Naib Nazim---Qualifications ---Doctrine of sinker---Union Nazim and Union Naib Nazim, would contest election in their respective electoral wards as joint candidates, provided that on occurrence of a casual vacancy, a candidate of the office or Nazim or Naib Nazim, would contest election for such office in his individual capacity which would mean that a person could contest election for such an office in his individual capacity only in the case of occurrence of casual vacancy/otherwise there would be joint candidacy for the office of Union Nazim and Union Naib Nazim---Since an individual could not become a candidate for the seat of Union Nazim and Union Naib Nazim, provisions of S.152 of North-West Frontier Province Local Government Ordinance, 2001 would be applicable---If anyone of the two persons, who were joint candidates for the offices of Nazim and Naib Nazim of a Union, failed to have prescribed educational qualifications, other joint candidate would not be able to contest election in his individual capacity and would become ineligible for such election---Such doctrine was generally called the 'doctrine of sinker' which would mean that person having right would lose his right if he joined or associated himself with a person who did not have such a right---If one of the joint candidates for the offices of Nazim and Naib Nazim lacked academic qualifications, his joint candidate would become ineligible and would also become disqualified like his joint candidate.

PLD 2004 SC 505; 2003 SCMR 1611; Sanaullah Khan and others v. District Returning Officer and others PLD 2005 SC 858; Abdul Khaliq and another v. Maulvi Muhammad Noor and others PLD 2005 SC 962; PLD 2003 SC 268; 2004 SCMR 1484; PLJ 2005 SC 226; PLD 2004 SC 505; PLD 2004 SC 570; PLD 2003 SC 270; Lai Muhammad v. Muhammad Usman and others 1975 SCMR 409; Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6; Junaid Ahmad Soomro v. Haji Mehboob Ali Ghayo and others PLD 1986 SC 698 and PLD 2006 SC 78 ref.

Barrister Masood Kausar for Petitioners.

D.A.-G along with Sher Afghan D.E.C., H. Division, Saifur Rehman, Assistant and Sardar Nasir Aslam Khan for Respondents.

Date of hearing: 26th April, 2006.

YLR 2006 PESHAWAR HIGH COURT 3156 #

2006 Y L R 3156

[Peshawar]

Before Dost Muhammad Khan and Jehanzeb Rahim, JJ

MUHAMMAD IRSHAD---Petitioner

Versus

SECRETARY HEALTH, GOVERNMENT OF N.W.F.-P., PESHAWAR and 4 others---Respondents

Writ Petition No.36 of 2005, decided on 22nd March, 2006.

Educational Institution---

----Admission in Medical College---Petitioner was refused admission in Ist year M.B.,B.S. on the reserved seat of 'Amazai' a backward area, and instead respondent was given admission---Case of petitioner was that he was domiciled of 'Amazai' a backward area and one seat for admission in the college was reserved for that area and that ''Utmanzai", adjoining area was not included in `Amazai' and that respondent who was domiciled of Utmanzai area was not entitled to admission in Medical College---Validity---Held, different areas across the Indus River of Haripur District had been merged into 'Amazai' area and no additional seat had been allocated after merger of said area into 'Amazai' area---Respondent was possessed of high merit as compared to petitioner, he was therefore, rightly given preference and was allowed admission in the college on said quota seat reserved for the said backward area---Both on legal and factual premises, petitioner having failed to make out case for indulgence of High Court, his constitutional petition was dismissed--Constitution of Pakistan (1973), Art.199.

PLD 2005 Pesh 116 ref.

Dr. Babar Awan for Petitioner.

Qari Abdul Rashid, D.A.-G. for Respondents.

Fawad Saleh Waseemud Din Khttak, D.A.-G. for Respondents No.1 to 3.

Malik Manzoor Hussain for Respondent No.4.

M.A. Tahir Khaili for Respondent No.5.

Date of hearing: 9th March, 2006.

Quetta High Court Balochistan

YLR 2006 QUETTA HIGH COURT BALOCHISTAN 858 #

2006 Y L R 858

[Quetta]

Before Akhtar Zaman Malghani and Ahmad Khan Lashari, JJ

ABDUL RAZAQ---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.96 of 2002, decided on 5th October, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S.367(5)---Appreciation of evidence---Enhancement of sentence---Unnatural death of deceased which had not been denied by defence, had been proved through overwhelming evidence on record---Though no medical examination of deceased was carried out, but in view of evidence on record it could be safely concluded that deceased met with violent death---Mother of deceased, who had explained occurrence, her presence at the relevant time could not be doubted---Statement of mother of deceased, was further corroborated by other prosecution witnesses who reached at the spot and found. accused present there in injured condition---Another prosecution witness being father of accused, it could not be expected from him to have deposed falsely against the accused---Mother of deceased, who had no ill-will or motive to falsely implicate accused in the commission of offence, could not be termed as interested witness, merely because she was mother of deceased nor on such account her evidence could be discarded, more particularly when story narrated by her was supported by prosecution witness to whom she informed about the incident soon after its happening; and same was further corroborated by recovery of pistols lying by the side of accused and deceased as well as recovery of empty lying near the accused---Presence of accused in injured condition in the house, had further shown that mother of deceased had furnished true account of incident---Accused having entered into the house of deceased during night at about one O'clock duly armed, deceased might have reasonable apprehension of danger to her person and property at the hands of accused---Deceased, in circumstances was within her right to have dispel such danger by resorting to firing at an armed person without waiting for actual harm caused to her person or property---Accused, himself being a trespasser, had no right of private defence---Accused, having fully been proved beyond reasonable doubt that he had committed Qatl-i-Amd of deceased, accused was rightly found guilty by the `Trial Court---Sentence of life imprisonment awarded to accused by Trial Court, however, was enhanced to that of death sentence by High Court in exercise of its suo motu revisional jurisdiction.

PLD 2003 SC 644; 1998 SCMR 1778; AIR 1926 Lah.28; PLD 1983 SC 135 and 1987 SCMR 293 ref.

Nasir Kasi for Appellant.

Amanullah Tareen, Asstt.A.-G. for Respondent.

Date of hearing: 21st September, 2005.

YLR 2006 QUETTA HIGH COURT BALOCHISTAN 871 #

2006 Y L R 871

[Quetta]

Before Raja Fayyaz Ahmed, C. J. and Tariq Mehmood, J

HABIB KHAN---Petitioner

Versus

THE STATE---Respondent

Constitutional Petition No.619 of 2000, decided on 2nd May, 2001.

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

----S. 344---Remand---Essentials---Remand order was a judicial order and must be passed by a Court on judicial application of mind keeping in view the request for remand and the material produced before the Court justifying for remand of accused to police custody for the purpose for which such request had been made or to be made.

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

----Art. 199(1) (b) (i)---Constitutional petition---Keeping a citizen in custody---No person or citizen could be apprehended/ arrested or kept in custody by the police or any other agency operating or functioning under the authority of a Federal or Provincial Government except in accordance with law for the purpose of investigation of a criminal case---Ambiguity was found in the present case, in view of available material regarding alleged confinement of detenus, no consequential order thus could be passed by the High Court---Aggrieved persons, however could have recourse to any remedy that could be available to them under the law for the redressal of their grievance---Suo motu proceedings, stood terminated accordingly.

1993 MLD 1167; 1997 PCr.LJ 508; PLD 1999 Kar.134; 1992 PCr.LJ 1387 and 2000 SCMR 1046 ref.

Syed Ayaz Zahoor for Petitioner.

Ashraf Khan Tanoli, A.-G. and K.N. Kohli, D.A.-G. for Respondents.

Date of hearing: 14th March, 2001.

YLR 2006 QUETTA HIGH COURT BALOCHISTAN 891 #

2006 Y L R 891

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Muhammad Nadir Khan, J

Syed AMIN ULLAH---Petitioner

Versus

SELECTION COMMITTEE FOR BOLAN MEDICAL COLLEGE through

Chairman and others---Respondents

Constitutional Petition No.294 of 2005, decided on 19th August, 2005.

Educational Institution---

----Admission in Medical College---Petitioner applied for admission in Bolan Medical College against seat reserved for children of non-doctors government servants working in Balochistan Health Services and Paramedical Staff for whom one seat was allocated under para.3(c)4 of Chapter-1 of the Prospectus, but he was refused admission and instead respondent was admitted in the college---Respondent, after entry test, stood at Serial No.1, whereas petitioner stood at Serial No.2 on the merit list---Apart from that respondent had fulfilled condition of para.3(c)4 of Admission Policy being son of Lady Health Visitor who was in service of Provincial Health Department, since 1978---Father of respondent since his arrival in year 1964, was residing in Quetta---Respondent was born in Quetta and had received all his education in Quetta---Status of respondent as well as his father being domicile of Quetta, Balochistan, he could not be denied admission in the College only because his present address did not tally with address mentioned in domicile certificate obtained in year 1998---Respondent being son of Lady Health Visitor had fulfilled condition of Para 3(c)4 of Prospectus and he being domicile of Quetta, Balochistan as per domicile issued to his father wherein his name was also mentioned, had fulfilled condition of Prospectus---Findings of Selection Committee granting admission to respondent in the Medical College, could not be termed as illegal or against Prospectus so as to make any roars for interference by High Court exercising its constitutional jurisdiction---Constitution of Pakistan (1973), Art.199.

Muhammad Qahir Shah for Petitioner.

Addl. A.-G. and Raja M. Afsar for Respondents.

Date of hearing: 16th August, 2005.

YLR 2006 QUETTA HIGH COURT BALOCHISTAN 915 #

2006 Y L R 915

[Quetta]

Before Akhtar Zaman Malghani and Raja Fayyaz Ahmed, JJ

ABDUL WAHID---Petitioner

Versus

THE STATE and another-Respondents

Criminal Miscellaneous No.487 of 2004, decided on 28th December, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 235 & 397---Penal Code (XLV of 1860), Ss.64, 409 & 468---Prevention of Corruption Act ,(II of 1947), S.5(2)---General Clauses Act (X of 1897), S.25---Sentence of imprisonments in lieu of fine---Running of said sentence concurrently in addition to substantive sentences---Petitioner had prayed that sentences of imprisonments in lieu of fine be directed to run concurrently in addition to substantive sentences---Provisions of S.64, P.P.C. which had also been made applicable to the offences under local and special law by virtue of S.25 of General Clauses Act, 1897, had provided that in default of payment of fine, the offender would suffer imprisonment for a certain term which imprisonment would be in excess of any other imprisonment to which an accused could have been sentenced---Sentence of imprisonment in default was not a sentence of imprisonment within the meaning of S.235 or 5.397, Cr.P.C. and court had no power to direct sentences of imprisonment in default of payment of fine to run concurrently---Provisions of S.35, Cr.P.C. deal only with substantive sentences and they have no application to the sentence of imprisonment ordered in default of payment of fine.

PLD 1959 Kar.56; AIR 1940 Lah.388; AIR 1941 Lah.209; AIR 1944 Mad. 448 and 1991 PCr.LJ 255 ref.

Ashraf Khan Tanoli for Petitioner.

Inayatullah Kansi for the State.

Date of hearing: 16th December, 2004.

YLR 2006 QUETTA HIGH COURT BALOCHISTAN 954 #

2006 Y L R 954

[Quetta]

Before Amanullah Khan Yasinzai and Ahmed Khan Lashari, JJ

ABDUL MAJEED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.63 of 2003, decided on 5th October, 2005.

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

----S. 13(e)---Anti-Terrorism Act (XXVII of 1997), Ss.6(3) & 25---Appreciation of evidence---Witnesses had corroborated each other on material point and proved the factum of recovery---Said witnesses were subjected to lengthy cross-examination but no material contradiction or improvement cropped up damaging the case of prosecution---Raid at the house of accused having been conducted at mid-night, non-association of private persons in the raid or recovery proceedings was quite understandable---Defence had not alleged that independent witnesses were available at the spot and the Levies intentionally did not ask them to witness the recovery---Levies or police witnesses were as good as any other citizen and their character or credibility on that score could not be impeached---Accused had not specifically alleged or brought on record any material to believe that prosecution witnesses with a motive had falsely involved him in the case---Defence had pleaded that prosecution in order to strengthen its case ' had involved accused in the matter---Ocular account furnished by prosecution witnesses was more probable and appealed to prudent mind---Report of Expert with regard to Kalashnikov recovered from accused and empty collected from the place of incident, was positive---Prosecution having successfully proved case against accused beyond reasonable doubt, judgment of Trial Court, whereby accused was convicted and sentenced, not suffering from any misreading or non-reading of evidence, could not be interfered with.

Naseer Ahmed Bangulzai and Farooq Anwar for Appellant.

Khalid Dogar, Public Prosecutor for Respondent.

Dates of hearing: 8th August and ,13th September, 2005.

YLR 2006 QUETTA HIGH COURT BALOCHISTAN 1036 #

2006 Y L R 1036

[Quetta]

Before Amanullah Khan, C.J. and Mehta Kailash Nath Kohli, J

NIAMATULLAH and another---Petitioners

Versus

ABDUL QAHAR and 2 others---Respondents

Criminal Revision No.108 of 2005, decided on 28th December, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.7 & 10(3)---Anti-Terrorism Act (XXVII of 1997), S.21-M(2)---Juvenile Justice System Ordinance (XXI! of 2000), S.12---Sentence, enhancement of---Competence---Under provisions of S.12 of Juvenile Justice System Ordinance, 2000, accused being Juvenile, could not be awarded punishment of death and they could not be ordered to labour, etc.---In view of clear bar contained in the law, which was applicable to facts and circumstances of the case, petition for enhancement of sentence was not competent---Legislature had clearly provided maximum punishment for the Juvenile, who was covered under Juvenile Justice System Ordinance, 2000---Petition for enhancement of sentence to death, was not maintainable and same was dismissed.

Azizullah Kakar for Petitioners.

Nemo for Respondents.

Date of hearing: 22nd December, 2005.

YLR 2006 QUETTA HIGH COURT BALOCHISTAN 2228 #

2006 Y L R 2228

[Quetta]

Before Amanullah Khan and Ahmed Khan Lashari, JJ

ABDUL MAJEED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.62 of 2003 and Murder Reference No.12 of 2003, decided on 5th October, 2005.

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

----Ss. 302(b) & 395---Anti-Terrorism Act (XXVII of 1997), S. 7(a)-Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Appreciation of evidence---Occurrence was a broad day incident and there was sufficient time for witnesses to identify the accused---Identification parade was conducted under supervision of Naib Tehsildar with powers of Magistrate Third Class as there was no hard and fast rule that identification parade must be supervised by Magistrate with powers of 1st Class, even two notables of the area could inspect identification tests---Naib Tehsildar with powers of Third Class Magistrate competently conducted identification parade and witnesses in his presence and in presence of other prosecution witness identified accused for three counts individually out of ten dummies in line and he signed the memo. ---Witnesses were subjected to lengthy cross-examination, but no contradiction was brought on record damaging evidentiary value of identification parade---Nothing was on record to show that witnesses had any enmity with accuse. nor any ill-will was suggested to them in cross-examination for false implication of accused in the case---Witnesses had correctly identified accused and they had no reason to implicate accused falsely---Evidence furnished by witnesses was straightforward, natural and reliable, their testimony remained unshaken in cross-examination and no material contradiction or improvement cropped up damaging the case of prosecution---Crime empty collected from place of incident and recovered Kalashnikov were sent to the expert for examination, whose report was positive and corroborated ocular account as well as identification of accused in the Court and during parade---Delay in lodging F.I.R. which otherwise was explained, neither was fatal nor had adversely affected case of prosecution---Chance of adulteration of true account or concocting a false story against accused, was ruled out, in. circumstances---Interested witness was one who had a motive to involve accused falsely in the case, but only friendship with deceased was not sufficient to discredit a witness particularly when there was no motive to falsely implicate accused and evidence was worthy of reliance and satisfied judicial conscience of Judge---Case against accused having been proved beyond any shadow of doubt, conviction and sentence awarded to him by the Trial Court, were maintained and murder reference was replied in affirmative.

2002 PCr.LJ 518; 1996 PCr.LJ 503; 1995 SCMR 127; PLD 2004 Kar. 319; 1996 PCr.LJ 662; PLD 1996 Kar. 246; Shafique Ahmed and four others v. The State 2002 PCr.LJ 518; Muhammad Bashir Alam v. The State PLD 1958 (Pak) 1 and Ibrahim Bhak v. The Crown PLD 1955 FC 113 ref.

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

----Art. 22---Identification parade--Identification parade was conducted under supervision of Naib Tehsildar with powers of Magistrate Third Class as there was no hard and fast rule that identification parade must be supervised by Magistrate with powers of Ist Class, even two notables of the area could inspect identification tests.

Naseer Ahmed Bangulzai and Farooq Anwar for Appellant (in Criminal Appeal No.62 of 2003).

Khalid Dogar, Public Prosecutor, A.N.F. for the State (In both cases).

Date of hearing: 8th August and 13th September, 2005.

YLR 2006 QUETTA HIGH COURT BALOCHISTAN 3106 #

2006 Y L R 3106

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Akhtar Zaman Malghani, J

ABDUL KHALIQ---Petitioner

Versus

ABDUL MALIK and 7 others---Respondents

C.P. No.374 of 2004, decided on 28th December, 2004.

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

----S. 540---Interpretation, scope and application of 540, Cr. P.C.---Application for calling a person' as Court witness---Court under S. 540, Cr. P. C. no doubt, had plenary powers for summoning a person as witness or re-examining any person already examined at the stage of earlier proceedings, if such evidence appeared essential for just determination of controversy involved in the matter---First part of S. 540, Cr. P. C. had given discretionary powers to Court to summon or recall any person, whereas second part of said section had imposed an obligation on the Court to summon and examine or re-call and re-examine any person if his evidence appeared essential to the just decision of the case---Where witnesses, who had been summoned as Court witnesses, were neither named in F.I.R. nor examined by police nor their names were mentioned in the calendar of witnesses, nor any witness examined in the case had mentioned any one of them, it could not, be said that their evidence appeared from the record to be essential---By summoning those witnesses, it could always be alleged that the Trial Court had passed the order to assist the party in building up his case and thereby cast a shadow on itself of not being impartial---Court, while exercising powers under S. 540, Cr. P. C. , was required not to abandon its high place of an impartial arbiter and should always refrain from acting as an Investigating agency or assuming role of Investigator, however, altruistic motive, could be.

1995 PCr.LJ 730; PLD 1987 Lah.252; PLD 1984 SC 95; 1993 SCMR 550; PLD 1994 Lah.93; PLD 1983 Lah.139; 1987 SCMR 56; 1974 SCMR 64; PLD 1981 Quetta 15; 1985 SCMR 491; 1991 MLD 17; PLD 1975 Lah.1431 and 1998 PCr.LJ 2059 ref.

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

----Art. 59---Criminal Procedure Code (V of 1898), S.540---Expert evidence---Evidentiary value---Scope---Expert evidence had neither any independent evidentiary value nor same could form sole basis for conviction or acquittal of accused---Sending of crime empties for examination of expert, in the present case being not essential for the just decision of the case Trial Court had erred in law by allowing application under S. 540, Cr. P. C. ---Impugned order had shown that Trial Court had not found the proposed evidence essential to just decision of the case, but allowed application filed under S. 540, Cr. P. C. after coming to the conclusion .that it might help the Court---Impugned order being illegal, void and nullity in law was set aside.

PLD 1964 Pesh.59 and PLD 1987 Lah.252 ref.

----Art. 199---Criminal Procedure Code (V of 1898), S.540---Constitutional jurisdiction---Scope---Where exercise of discretion was wholly unjust, unreasonable or perverse, High Court could interfere with impugned order in its supervisory jurisdiction---Trial Court, in the present case, while allowing application under S.540, Cr.P.C., had assumed the part of Investigator and acceptance of application amounted to be a device for creating evidence in favour of one party disadvantageous to other party which had never been the intention of the law and discretion exercised by the Trial Court was wholly unjust and unreasonable warranting interference by the High Court in exercise of its constitutional jurisdiction.

Muhammad Zafar and Baz Muhammad Kakar for Petitioner.

Ehsan-ul-Haq and Naeem Akhtar for Respondents.

Date of hearing: 30th November, 2004.

Shariat Court Azad Kashmir

YLR 2006 SHARIAT COURT AZAD KASHMIR 1599 #

2006 Y L R 1599

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

Raja MUHAMMAD ASGHAR and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.107 and Reference No.108 of 2005, decided on 31st March, 2006.

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

----Ss. 302, 319 & 322---Appreciation of evidence---Evidence on record had shown that deceased was hit accidentally by firing of lethal weapon by participants of marriage ceremony, who were firing to celebrate marriage ceremony---Record had further shown that complainant did not lodge F.I.R., but his statement was recorded at his residence after delay of 24 hours and in spite of that he did not nominate accused in F.I.R.---Statements of other prosecution witnesses were recorded after delay of 10 days, but none of them implicated accused with commission of murder---Prosecution witnesses neither had been nominated in F.I.R. nor during statement of complainant recorded under S.161, Cr. P.C.---According to prosecution, at the time of alleged occurrence about 200/250 persons were present, but not a single independent witness was produced in support of prosecution version---Almost all prosecution witnesses, were being closely related to deceased, evidence of said witnesses coupled with other coherent defects, could not be taken into consideration---Mere relationship, though was not sufficient to discard deposition of eye-witnesses, but in case of interested witnesses, the Court had to appreciate evidence with care and corroboration of such evidence, had to be insisted---Evidence of such interested and closely related witnesses, which otherwise was inconsistent and self-contradictory, being doubtful, could not be considered and relied upon; it was an inherent worth of testimony of a witness to determine his credibility because statement of worst enemy could be considered if it inspired confidence and its intrinsic worth was not shaken---Testimony of an independent witness could also be brushed aside if it did not ring true---Defence plea was more appropriate and trustworthy---Burden of proving its case always rested on prosecution which was duly bound to prove its case against accused beyond reasonable doubt---Such duty would not change or vary even in a case in which no defence plea was taken by accused---Defence plea was always to be considered in juxtaposition with prosecution case and in final analysis, if defence plea was proved or accepted, then prosecution case would stand discredited/shattered---Corroboratory evidence also did not extend any support to ocular version and inquest report also negated prosecution story---When evidence of eye-witnesses would become doubtful, prosecution case as a whole would also become doubtful---Prosecution having failed to prove case of intentional murder against accused, impugned conviction and sentence recorded against him was set aside and he was acquitted of the charges against him and was set at liberty.

1984 SCMR 930; PLD 1993 Lah. 434; 1996 MLD 919; 2005 SCR 1; 1978 SCMR 136; PLD 1984 SC (AJ&K) 107; PLD 1998 Pesh. 130; 2001 PCr.LJ 503; PLD 2001 SC 107; 2001 SCMR 324; PLJ 2002 Lah. 159; 2003 PLC (C.S.) 424; 2004 MLD 1769; 2005 SCR 166; 2005 MLD 486; 2005 YLR 578; 2005 PCr.LJ 1352; PLD 2004 Quetta 123; 2005 SCMR 1906; 2005 SCMR 1568; 2005 YLR 2298; 2005 MLD 1425; PLD 2005 Pesh. 221; Budho v. The State PLD 1965 (W.P.) Kar. 76; Muhammad Iqbal v. The State 1984 SCMR 930 and Ashiq Hussain v. The State 1993 SCMR 417 ref.

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

----Ss. 302, 319 & 322---Qanun-e-Shahadat (10 of 1984), Art.164---Appreciation of evidence---Evidence through modern devices and techniques---Evidence of interested witnesses, consideration of---Video cassette had shown that accused was making aerial firing with Kalashnikov with one hand along with some other persons, but it did not- show that shots fired by accused hit the deceased---Court under Art.164 of Qanun-e-Shahadat, 1984, could allow and use any evidence available through modern devices and techniques, but it was only the circumstance which had to lend support to reliable evidence and could not hold the position of a conclusive proof---Video cassette, in the present case, would not even provide any supportive evidence to the prosecution tale---Where ocular testimony of witnesses was clear, convincing and confidence-inspiring, evidence of interested witnesses could not be thrown away, but it had to be appraised with care and caution and same could only be taken into consideration, if otherwise found truthful and worthy of credence---If the Court, after close scrutiny of incriminating evidence, would conclude that prosecution evidence appeared to be trustworthy and reliable then delay in lodging F.I.R. could be ignored keeping in view peculiar circumstances of each case, otherwise delay caused in lodging F.I.R. was always considered fatal to prosecution case.

----Ss. 302, 319 & 322---Appreciation of evidence---Benefit of doubt---Principle of criminal jurisprudence was that benefit of doubt, had to be given as a right to accused, but reasoning given by the Trial Court in its judgment, were fallacious, arbitrary, unfounded and were not available on record for recording an order for extreme penalty of death---Intrinsic and probative value of ocular account was vague, inconsistent and self-contradictory and it would not be safe to place explicit reliance on such highly doubtful evidence without corroboration from an independent source in view of intrinsic nature and glaring flaws, legal infirmities and material irregularities appearing in the case.

Abdul Majeed Malik for Appellant.

Ch. Jahandad for the Complainant.

Sardar Muhammad Raziq Khan, Addl. A.-G for the State.

Date of hearing: 31-3-2006.

YLR 2006 SHARIAT COURT AZAD KASHMIR 3264 #

2006 Y L R 3264

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

RAHAT and 2 others---Petitioners

Versus

THE STATE and others-Respondents

Criminal Revision Petitions Nos.3 and 11 of 2006, decided on 7th September, 2006.

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

----S. 497---Penal Code (XLV of 1860), Ss.324, 337, 341 & 34---Bail, refusal of---Co-accused was alleged to have caused fatal injury to deceased---Weapon of offence was recovered at the instance of co-accused---Post-mortem report supported allegation against co-accused and dying declaration also confirmed role played by said co-accused in the occurrence---Prima facie case was made out against co-accused and he was not entitled to concession of bail---Accused was rightly refused bail by the Trial Court.

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

----S. 497(2)-Penal Code (XLV of 1860), Ss.324, 337, 341 & 34---Bail, grant of---Further inquiry---Case of accused persons was distinguishable from case of co-accused who was refused concession of bail---Mere presence of accused at the place of occurrence was not sufficient to constitute offence under S.34, P. P. C. ---Some substantial material to prove that accused was intending to commit alleged offence in furtherance of common object was required for the purpose---Accused persons had not been ascribed any overt act towards deceased, role of causing simple injuries at the person of prosecution witnesses was attributed to them---No evidence regarding any conspiracy or common intention was brought on record---Question whether accused persons had committed offence in furtherance of common object or not required further probe---Accused persons, were admitted to bail, in circumstances.

Raja Sajjad Ahmad Khan for Petitioners (in Criminal Revision No.11 of 2006).

Sardar Atta-Elahi Abbasi for Petitioner (in Criminal Revision No.3 of 2006).

Raja Ibrar Hussain Khan, Advocate-General for the State.

Sardar Arif Abbasi for the Complainant.

YLR 2006 SHARIAT COURT AZAD KASHMIR 3291 #

2006 Y L R 3291

[Supreme Court (AJ&K)]

Present: Raja Muhammad Khurshid, C.J and Sardar Said Muhammad Khan, J

ABDUL KARIM and 6 others---Appellants

Versus

TAHIR-UR-REHMAN---Respondent

Criminal Appeal No.18 of 1987, decided on 22nd January, 1990.

(On appeal from the order of the Shariat Court dated 11-4-1987 in Criminal Appeal No.33 of 1986 and Criminal Reference No.36 of 1986).

Per Raja Muhammad Khurshid Khan C. J. ---

(a) Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act (IX of 1974)--

----Ss. 25(2) & 32(2)---Appeal against acquittal---Party competent to file appeal---Appeal by complainant or any other aggrieved party to the District Criminal Court or the Shariat Court, was not competent against order of acquittal passed by Tehsil Criminal Court, as under provisions of Ss.25(2) & 32(2) of Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act, 1974, it was only the State who could lodge an appeal---Appeal to Shariat Court by any other person against acquittal order passed by a Tehsil Criminal Court or District Criminal Court, was incompetent.

Ghazi v. The State PLD 1962 Lah.662; Hakim Muhammad Zaki v. Rehabilitation Commissioner, Hyderabad and Khairpur Divisions PLD 1962 Kar. 285 and Jamshed Ahmad Khan v. Aurangzeb Khan PLD 1964 Pesh. 250 ref.

Per Sardar Said Muhammad Khan, J. Contra.

Per Raja Muhammad Khurshid Khan, C.J. agreeing with Sardar Said Muhammad Khan, J.

(b) Interpretation of statute---

----Principles---While interpreting a statutory provision, words or phrases were to be assigned their ordinary meanings, unless same were defined in the relevant law; besides no word or phrase should be added to or substracted from the statutory' provision---Intention of the law giver was to be gathered from actual words used and not on the basis of extraneous considerations or by reading the words or phrases which were not there---Basic principle of interpretation of law was that words were not to be employed in a statute, if there was no ambiguity---Omission in a statute could not as a general rule, to be supplied by construction---If a particular word was omitted from the terms of a statute, even though such a word was within the obvious purpose of the statute, the Court could not include the omitted word by supplying the omission---Intention of the Legislature could be ascertained after reading the statute as a whole and that was always, safer rule to follow---While interpreting a statute, the Court should presume that no part of it was intended to be meaningless and that the provisions of a statute could not have been intended to operate against each other.

Turner v. State 40 Ala 21; Smith v. State 66 Mad. 215; Commissioner of Income-tax v. Messrs. Hossen Kasam Dada PLD 1961 SC 375; M.A. Khuhro v. The Federation of Pakistan PLD 1950 Sind 49; Model Industries v. Rambau Narain Patil AIR 1946 Nag. 152; Dad Muhammad Khan v. Bassa PLD 1965 Lah.77 and Khizar Hayat v. The Commissioner, Sargodha Division PLD 1965 Lah 349 ref.

----Ss. 25 (2) & 32---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(2)---Appeal to Supreme Court by complainant or any other aggrieved party---Competency---Appeal against the judgment of Shariat Court filed by complainant before Supreme Court was competent as provisions of Code of Criminal Procedure did not apply in regard to appeals to the Supreme Court.

PLD 1964 SC 26 ref.

(d) Interpretation of statute---

----General Principles of interpretation of statute detailed.

PLD 1957 SC 219; Darshan Singh Balwant Singh v. The State of Punjab AIR 1953 SC 83; Poppatlal Shah v. The State of Madras AIR 1953 SC 274; Mada Nagaratnam v. Puvvada Seshayya AIR 1939 Mad.361; Pratap Singh v. B. Gulzari Lal AIR 1942 All. 50; Harkishan Das v. Emperor AIR 1944 Lah.33; Commissioner of Income-Tax v. Messrs Hoosen Kasam Dada PLD 1960 Dacca 506; Sardar Zorawar Singh v. Jasbir Singh AIR 1938 Lah.606; Abdul Ghafoor v. The State PLD 1965 Quetta 10 and Khudabur v. Punjo AIR 1930 Sind 265 ref.

Mujeeb-ur-Rehman, Advocate assisted by Ch. Muhammad Azam, Advocate for Appellants.

Ch. Muhammad Taj, Advocate for Respondent.

Date of hearing: 22nd January, 1990.