YLR 2007 Judgments - Pakistan Legal Archive

Courts in this Volume

Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan

Nadeem Azhar Siddiqui, D.A.-G. and Shafaat Nabi K. Sherwani, D.P.G.-N.A.B. for Respondents.

Date of hearing: 23rd August 2005.

YLR 2007 KARACHI HIGH COURT SINDH 128 #

2007 Y L R 128

[Karachi]

Before Rahmat Hussain Jafferi, J

MUHAMMAD HAYAT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.S-131 of 1998, decided on 30th August, 2006.

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

----S.5(2)---Penal Code (XLV of 1860), S.161---Appreciation of evidence---Evidence of prosecution witness, alleged detenu, had revealed that he was called by accused at the police station and he was put in the lock-up---Evidence of other two prosecution witnesses had revealed that after coming to know about the detention of said prosecution witness alleged detenu, they went to the police station where they met accused (Head Constable) who demanded amount as illegal gratification from them for release of detenu---Evidence of both said prosecution witnesses went unchallenged as defence counsel did not cross-examine them on that point---Not a single question was asked from said witnesses denying said fact by alleging that accused did not demand illegal gratification from complainant party---Allegation of demand and accepting illegal gratification, in circumstances had remained undisputed---No enmity or ill-will had been suggested between the complainant party and accused---Prosecution, in circumstances had proved its case against accused beyond any reasonable doubt---Appeal against conviction and sentence of accused (Head Constable) was dismissed in circumstances.

Haji Khan Panhwar for Appellant.

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

Date of hearing: 30th August, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 133 #

2007 Y L R 133

[Karachi]

Before Rahmat Hussain Jafferi, J

DURO alias DUR MUHAMMAD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.6, 11 and 12 of 1998, decided on 8th September, 2006.

Penal Code (XLV of 1860)---

----Ss. 332, 148 & 149---Appreciation of evidence---Benefit of doubt---Case of prosecution was that first police officials seized the buffaloes from the house of one of accused persons and then complainant prepared the Mashirnama but prosecution did not produce said Mashirnama to support the oral version---Prosecution further alleged that encounter took place between the culprits and police party, but no empties were found at the place where police party had fired at the culprits---When the police officials reached the police station after alleged encounter from the place of incident, they were required to account for ammunition given to them When they left the police station---No evidence had been produced to show as to how much ammunition was given to each police personnel and how much was returned to concerned officer which had created doubt in the prosecution story---Medical evidence having shown that distance between culprits and injured witnesses, was quite long, error in identifying culprits who were 10 in number, could not be ruled out---One of the prosecution witnesses had identified accused in the Court after seeing them in the dock---No other evidence was produced connecting accused with the commission of the crime---Assistant Advocate General had also not supported impugned judgment---Prosecution having failed to prove case against accused beyond any reasonable doubt, they were entitled to the benefit of doubt, which accordingly was given to them.

Aziz Ahmed Khawaja for Appellants.

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

Date of hearing: 8th September, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 138 #

2007 Y L R 138

[Karachi]

Before Rahmat Hussain Jafferi, J

KAURO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.S-10 of 1997, decided on 29th August, 2006.

Penal Code (XLV of 1860)----

---S. 302---Appreciation of evidence---Benefit of doubt---Case of prosecution rested upon ocular testimony and alleged confession of accused---Oral evidence which was full of exaggerations, contradictions, discrepancies and improvements, being unbelievable and unreliable, could not be safely relied upon---None of the witnesses was present at the place and time of incident and incident was un-witnessed---Alleged confession was retracted by accused---Retracted confession could be made the basis of . conviction without any corroboration, if it was found to be voluntary and true, but as a rule of procedure and prudence, it should be supported and corroborated on material particulars by some other source---Doubt had been created about voluntariness of confession of accused in circumstances---Conduct of Magistrate and the police, in peculiar circumstances of the case, had supported said doubt---Alleged confession of accused, being not voluntary, same could not be relied upon---Assistant A.G. had also not supported confession---In absence of other evidence connecting accused with commission of crime, case of prosecution was highly doubtful---Accused, in circumstances, was entitled to the benefit of doubt, which was accordingly given to him--Appeal was allowed.

Ghulam Shabbeer Shar for Appellant.

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

Date of hearing: 29th August, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 145 #

2007 Y L R 145

[Karachi]

Before Nadeem Azhar Siddiqui, J

ZAHID alias NAZIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.419 of 2006, decided on 19th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offences against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Further inquiry---F.I.R., was lodged after delay of 27 days and no explanation was available for said delay---Accused was in custody for the last more than 7 months, but no recovery had been made on his pointation---Case against accused had become doubtful and of further inquiry into his guilt---Accused was released on bail, in circumstances.

Jai Jai Veshnu Mange Ram for Applicant.

Muhammad Ismail Bhutto for the State.

YLR 2007 KARACHI HIGH COURT SINDH 146 #

2007 Y L R 146

[Karachi]

Before Rahmat Hussain Jafferi and Nadeem Azhar Siddiqui, JJ

MIR HASSAN and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.D-99 of 2004, decided on 24th August, 2006.

(a) Police Rules, 1934---

----Vol.III, Chap.XXV, Rr.25.3 & 25.4---Functionaries of Police Station concerned, which were highly interested in the matter, went to the place in jurisdiction of other Police Station to arrest the accused in other case---Police having no connection whatsoever in any case, had acted illegally to perform the functions of different Police Station---Police started to perform functions and duties of police of another Police Station without sanction or approval of Senior Police Officers of the District which they were neither competent nor legally required to perform same as case of said accused was not' transferred to their Police Station---Action of Police, in circumstances was not protected under the law.

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

----Ss. 302, 336, 337-F(v), 353, 324 & 149---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Appreciation of evidence--All accused in the case did not share common intention to commit the offence of murder---Each accused in circumstances would be responsible for his own act---Prosecution however, proved recovery of rifles from the possession of accused and out of said rifles five empties with guns---Prosecution had failed to prove other offences mentioned in charges against accused, except offence punishable under S.13(d) of West Pakistan Arms Ordinance, 1965 and accused were liable to be convicted and sentenced for said offence only and were liable to be acquitted from the charges of remaining offences---Accused were charged and sentenced accordingly.

Gul Bahar Korai for Appellants.

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

Date of hearing: 24th August, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 161 #

2007 Y L R 161

[Karachi]

Before Anwar Zaheer Jamali and Syed Zawwar Hussain Jaffery, JJ

Messrs SHAMS AND BROTHERS---Petitioners

Versus

GOVERNMENT OF PAKISTAN and others ---Respondents

Civil Petition No.D-1437 of 2005 and C.M. As. Nos.6030, 5807, 5366 of 2005, and C.M.A. No.2005 of 2006, decided on 27th October, 2006.

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

----Ss. 10 & 37---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope---Invitation of bids/offers---Highest offer not accepted---New conditions having no nexus with purpose and nature of contract---Ulterior motive and mala fide of tendering authority---Petitioner, a registered partnership firm, filed constitutional petition against respondents to the effect that one respondent being a corporate body under administrative control of Government of Pakistan, invited bids/offers to run and maintain Marriage Lawns on built, operate and transfer basis at a certain plot---Petitioner's offer being the highest was accepted by respondent who verbally asked petitioner to start development work at the site---Respondent then cancelled petitioner's offer on ground that on assessment and verification of business profile and experience of petitioner, it was found unsatisfactory---Fresh offers, thereafter, were invited by the corporate body with addition of new set of conditions and qualifications---Petitioner again stood as the highest bidder but respondent with ulterior motive did not accept petitioner's bid, but contemplated to award contract to another party with meagre offer---Petitioner contended; that due to nepotism, favouritism and underhand dealing between respondents and the party and in order to harm interest of petitioner and also to cause huge loss to public exchequer, his highest offer was rejected by respondent; that first highest bid of petitioner .had been accepted by respondent who even encashed pay order deposited by petitioner; that in second invitation of tenders certain uncalled for and unreasonable conditions were incorporated to ensure that petitioner was kept out of process due to non fulfilment of flimsy conditions and qualifications--Respondents argued that petitioner had no resources available with it, therefore due to non-meeting of minimum requirement of bid, respondent was fully justified in rejecting its highest bid; that mere highest bid of a party was not to give it locus standi to challenge rejection of its bid and that petitioner firm was not member of Chamber of Commerce and Industry---Validity---Transparency in process where doubted and mala fides or ulterior motive to oblige any particular party to cause financial loss to public exchequer was alleged, the powers of High Court under Art.199 of the Constitution could be invoked and exercised to examine such aspects and to undo such wrongs to avoid financial loss to exchequer due to acts of misdeed, collusion or favouritism by individuals involved in such process---Court was not to sit as silent spectator to approve underhand devices, aimed to eliminate one party and to accommodate another, causing heavy financial loss to the exchequer---Terms and conditions imposed by respondent for awarding contract were to have nexus with nature of contract and its objectives---Security deposit paid by petitioner and encashed by respondent gave strong presumption in favour of petitioner that his highest bid was accepted, being in accordance with specified terms and conditions and to the satisfaction of respondents---Petitioner was vigorously pursuing its case for execution of final agreement in its favour but respondent was putting up new conditions beyond scope of terms and conditions provided in advertisement just to frustrate claim of petitioner---Substantial difference existed between petitioner's offer and second highest offer of other party which aspect put heavy burden on respondent to justify his action of non-acceptance of petitioner's highest offer---Ulterior motive and mala fide of respondents was clear from comparison of contents of their two advertisements for invitation of offers as a number of additional conditions and qualifications were incorporated in second advertisement which had no nexus with purpose and objective of respondent which were solely to get maximum financial benefits for public exchequer---For establishing and managing a marts hall on built, operate and transfer basis, an experience of minimum five years in relevant field was not much relevant from point of view of respondent who after award of contract were to be concerned only with receipt of maximum monthly income---Petitioner though was member of Chamber of Commerce and Industry but such registration was not that much material as the same could have been obtained by petitioner later on---Respondents could not give a satisfactory reply to query that why several additional technical terms and conditions were incorporated in second tender notice which did not find place in the first advertisement---Acceptance by respondent of offer of other party and awarding contract to the latter was illegal, without lawful authority and of no legal effect---Respondent was directed by High Court to invite fresh bids/offers for granting lease of plot for purpose of marriage lawn by incorporation of only such conditions which were available in first advertisement and were necessary to safeguard their interest properly---Constitutional petition was accepted.

Rehmat Ali and 2 others v. The Revenue Board, West Pakistan, Lahore and others 1973 SCMR 342; Calicon (Pvt.) Ltd. v. The Federal Government of Pakistan and 5 others 1994 SCMR 1758; Munshi Muhammad and another v. Faizanulhaq and others 1971 SCMR 533 and City Schools (Pvt.) Ltd., Lahore Cantt. v. Privatization Commission, Government of Pakistan and another 2002 SCMR 1150 distinguished.

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

----Ss. 10 & 37---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope---Award of contract by State functionaries---Judicial review of administrative action---Scope---State functionary in awarding contracts was to act fairly, reasonably, honestly and justly---Court though was not to substitute its opinion with that of State functionary, yet it certainly had powers to judicially review administrative actions to check their fairness, reasonableness and transparency---In the context of tenders and award of contracts the prescribed conditions were not to be unreasonable, irrational and were to have direct nexus with performance of work sought to be performed by contractors in totality of circumstances---Condition whether had or did not have nexus with the object was to depend upon facts and circumstances of each case.

Balochistan Construction Company v. Port Qasim Authority SBLR 2001 Karachi 661 and Ramana Dayram Shetty v. International Airport Authority of India AIR 1977 SC 1628 rel.

----Art. 199---Award of contract by State functionaries-Judicial review---Scope.

Balochistan Construction Company v. Port Qasim Authority SBLR 2001 Karachi 661 and Ramana Dayram Shetty v. International Airport Authority of India AIR 1977 SC 1628 rel.

Sardar Muhammad Yousuf for Petitioner.

Muhammad Aslam for Respondents Nos. 1 and 2.

Rehman Aziz holding brief for Muhammad Aziz Malik for Respondent No.3.

Muhammad Sher Awan holding brief for Mr. A. Rauf Kasuri for Respondent No.4.

YLR 2007 KARACHI HIGH COURT SINDH 181 #

2007 Y L R 181

[Karachi]

Before Rahmat Hussain Jafferi and Nadeem Azhar Siddiqui, JJ

QAMARUDDIN and another---Appellants

Versus

THE STATE---Respondent

Cr. A. T.A. Nos. 54, 55 and 59 of 2004, decided on 29th August, 2006.

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

----S. 365-A/34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---West Pakistan Arms Ordinance (XX of 1965), S.13(d) & (e)---Appreciation of evidence---Evidence on record proved involvement of accused---Abductee having been recovered from the accused, he had further been connected with commission 'of crime---Prosecution having been able to prove case against the accused beyond any reasonable doubt, Trial Court had rightly convicted and sentenced him.

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

----S. 365/34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---West Pakistan Arms Ordinance (XX of 1965), S.13(d) & (e)---Appreciation of evidence---Benefit of doubt---Police had prepared a .false record to involve accused in the case---Apprehension and allegation of said accused that he had been falsely involved in the case by complainant with the connivance of police; had been supported by said facts---Enmity existed between accused and prosecution witnesses---Evidence of said witnesses which had not been corroborated by independent evidence, could not he safely relied upon for involvement of accused---Case of prosecution being highly doubtful against said accused with regard to his involvement in the incident of abduction and recovery of unlicensed gun from his possession, benefit of doubt was given to him and he was acquitted of the charge and was released, accordingly.

Ghulam Shabir Shar for Appellants.

Hubdar produced in custody.

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

Date of hearing: 17th August, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 192 #

2007 Y L R 192

[Karachi]

Before Faisal Arab, J

PORT QASIM AUTHORITY, A STATUTORY BODY HAVING ITS HEAD OFFICE AT BIN QASIM, KARACHI and others---Plaintiffs

Versus

OFFICIAL ASSIGNEE OF KARACHI and others---Defendants

Admiralty Suits Nos. 7 of 2000, 1254, 1292, 1293 of 1997, 14 of 1998 and 35 of 1999, decided on 16th October, 2006.

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

----Ss. 3(2) & 4(4)---Port Qasim Authority Act (XLIII of 1973), S.23---Scale B of S.R.O. No.04(KE)/2005 dated 12-5-2005 and S.R.O. No. 72(KE)/96 dated 2-5-1996---Sindh Chief Court Rules, (O.S.) R.731---Suits under Admiralty Jurisdiction of . High Court---Port Authority's preferential claim against rival claimants---Scope---Failure of Authority to seek relief of arrest of ship in suit---Effect---Six suits including that of Port Authority were filed under Admiralty jurisdiction of High Court in which plaintiffs raised their respective claims against ship arrested and then sold through official assignee---Buyer paid entire sale price to official assignee and took delivery of ship on 1-2-2000---Port Authorityin its suit averred that claim for Authority's dues and charges was to be given preference over all other claims and since claim of Authority was more than amount realized from sale of ship, therefore, nothing was to be left for distribution to other five claimants even if they established their respective claims against ship---Remaining five plaintiffs contended that suit filed by Authority was not for arrest of ship, hence its suit was not to be treated as a suit under Admiralty jurisdiction of High Court, and therefore Authority's claim did not enjoy any priority over claim of rival claimants; that Authority's claim was not covered by any clause of S.3(2) of Admiralty Jurisdiction of High Court Ordinance, 1980; that Authority being a statutory body under Port Qasim Authority Act, 1973, was provided alternate remedy of filing suit under S.23 of Port Qasim Authority Act, 1973 and having left with such remedy, any decree to be passed in present suit was to be treated as an ordinary decree enjoying no priority over other claims; that Authority did not charge mooring charges under Scale 'B' of S.R.O. No.04(KE)/2005 dated 12-5-2005 and that Authority did not provide details of expenses as to extra charges or contingencies and such amount was to be deleted from its claim---Validity---Arrest of ship was only an interim measure which might or might not be sought in suits filed under Admiralty jurisdiction of High Court, depending upon circumstances---Absence of plea for arrest of ship did not take out a suit from ambit of Admiralty jurisdiction of High Court, if claim otherwise fell under any of clauses mentioned in S.3(2) of Admiralty Jurisdiction of High Court Ordinance, 1980---Under R.731 of Sindh Chief Court Rules, arrest of a ship was not a condition precedent for bringing a suit within scope, of Admiralty jurisdiction of High Court---Relief of seeking arrest of a ship was optional---In the present case, by the time Authority filed suit,. ship was already arrested and ordered to be sold, therefore question of again seeking its arrest to secure the claim did not arise---Arrest of ship was not necessary to found jurisdiction in an action in rem as service of writ on res was sufficient---Authority's claim fell under Cl. (m) of subsection (2) of S.3 read with subsection (4) of S.4 of Admiralty Jurisdiction of High Court Ordinance, 1980---Authority's claim being a claim towards Port dues and charges, the same was to be given preferential treatment over and above the rest of claims made in remaining suits also filed under Admiralty jurisdiction---Section 32 of Port Qasim Authority Act, 1973, empowered Board of Authority to recover its dues and charges by filing a suit---Suit under Admiralty Jurisdiction of High. Court was in fact invocation of S.23 of the Port Qasim Authority Act, 1973, as for some reasons Authority in ordinary course had failed to recover its dues directly from ship or its owners and suit . was only alternate remedy left with Authority---Authority was entitled to claim mooring charges uptill the date when delivery of ship was handed over to new purchaser as liability of buyer to pay mooring charges commenced only after he was handed over delivery of ship---Authority's claim which was bereft of any detail or any lawful basis was liable to be outrightly rejected---Three other suits along with one filed by Authority were decreed as the same had established their respective claims against ship; however claim established by Authority was more than the amount recovered from sale of ship and said claim was to be preferred over claims of rest of claimants and no amount was to be left to satisfy their decrees---Official Assignee was to release entire amount recovered from sale of ship in favour of Port Authority---Suit was decreed.

Yukong Ltd. v. M.T. Eastern Navigator PLD 2001 SC 57; (1988) Lloyds Law Reports Volume 2, 454 (455) by Deichiand; (1989) Volume I by Lloyds Law Report 388 (392) Frecia Del Nord; 1967 Vol. 2 Lloyds Law Reports 113 by Monica S; (1980) in re: ARO Co. Ltd., (1980) Ch. 196; Muhammad Bashir Butt v. M.V. Taheri PLD 1980 Kar. 458 and Tawaha v. The Master M.V. Asian Queen PLD 1982 Kar.749 rel.

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

----Ss. 3(2) & 4(4)---Sindh Chief Court Rules (O.S.) R.731---Arrest of ship---Action in rem---Scope and object---Action in rem when resorted to under Admiralty jurisdiction of High Court meant an action against property or ship and in case plaintiff succeeded in its action, then property or ship was to be sold towards satisfaction of claim---Action in rem under Admiralty jurisdiction of High Court was legal proceedings against corpus of offending ship---Person could get decree in a proceeding in rem against a ship without suing its owner or any person---Object of such an action was to acquire jurisdiction over ship as owner of vessel might be located overseas over which Court might not have jurisdiction---Actual arrest of a res had ceased to be in majority of instances, the distinctive feature of an action in rem---Arrest, therefore, was not necessary in all cases, in majority of actions in rem no arrest was made.

Para.66 volume 14 of British Shipping Laws (1980) and Para. 232, Vol.1, of British Shipping Laws (1964) rel.

----R.731---Expression "any party may "---Connotation---Use of expression "any party may" in R.731 of Sindh Chief Court Rules (O.S.) made it clear that in proceedings initiated in rem, relief of arrest of property (ship) might or might not be sought---Relief of seeking arrest of a ship was optional.

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

----Ss. 3(2)(a) to (r) & 4(2)---Admiralty jurisdiction of High Court---Scope---Under Admiralty jurisdiction, High Court was to hear and determine the causes, questions or claims enumerated in Cls. (a) to (r) of subsection (2) of S.3 of the Admiralty Jurisdiction of High Court Ordinance, 1980 which included any claim regarding mortgage or charge on ship or any share therein.

Khalid Rehman for Plaintiff (in Suit No.1254 of 1997).

Mansoor A. Shaikh for Plaintiffs (in Suits Nos.1292 and 1293 of 1997).

Agha Faquir Muhammad for Plaintiffs (in Suit No.14 of 1998).

Arif Khan for Plaintiff (in Suit No.7 of 2000).

Munir-ur-Rehman for Defendant.

Muhammad Naeem for Defendant.

Dates of hearing; 24th, 30th November, 2005 7th, 13th and 14th December, 2005, 19th January, 2006, 21st February, 2006 and 16th March, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 207 #

2007 Y L R 207

[Karachi]

Before Muhammad Mujeebullah Siddqiui, J

HUBDAR ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.484 of 2006, decided on 14th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497----Penal Code (XLV of 1860), Ss.380 & 457---Bail, grant of---Counsel for accused had submitted that accused was entitled to be released on bail as according to entry in School Leaving Certificate, his date of birth was 1-1-1991---Medical Superintendent of Medical College Hospital who examined accused, had certified that on the basis of appearance and Radiological report, accused appeared to be of nineteen years of age---Possibility of error of one year in determining the age of a person on upper or lower side always existed and benefit, if any, was to be extended to accused for such error---Accused was granted bail,' in circumstances.

Nisar Ahmed G.Abdor for Applicant.

Muhammad Ismail Bhutto for the State.

YLR 2007 KARACHI HIGH COURT SINDH 211 #

2007 Y L R 211

[Karachi]

Before Rahmat Hussain Jafferi and Sajjad Ali Shah, JJ

LEEMON---Appellant

Versus

THE STATE-Respondent

Criminal Jail Appeal No.D-81 of 2003, decided on 9th September, 2006.

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

----S.7(2)---Penal Code (XLV of 1860), Ss.302(b), 324, 337-F(i), (iv), 353 & 149---Appreciation of evidence---Benefit of doubt---Out of eight witnesses examined by prosecution, seven were police officials and out of them no one was injured---Witnesses did not identify culprits at the place of incident---Identification of culprits with specific arms in their hands appeared to be highly doubtful and there was possibility of error in identifying culprits---One of the important witnesses, was not examined by the prosecution on the ground that his evidence was identical to other prosecution witnesses which was not valid ground for giving up such an important witness---If a party had a best piece of evidence with him and same was withheld, then it would be presumed that party had some sinister motive behind it; in such circumstances, an adverse inference could be taken that had the said piece of evidence been presented before the Court, it would have been unfavourable to prosecution---Prosecution had failed to prove the identity of accused at the place of incident---Ocular testimony was in direct conflict with medical evidence---Prosecution having failed to prove case against accused beyond any reasonable doubt, accused was given benefit of doubt.

Zuber Ahmed Rajput for Appellant.

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

Date of hearing: 5th September, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 216 #

2007 Y L R 216

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

HABIBULLAH alias HABIB---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-131 of 2006, decided on 26th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance, (VI of 1979), S.17(3)---Bail, grant of-State counsel had conceded the grant of bail on the ground that enmity existed between the parties over piece of land and that allegations against accused were of general nature and no specific role was attributed to accused---Accused, was admitted to bail, in circumstances.

Muhammad Saleem and G.N. Jesar for Applicant.

Muhammad Ismail Bhutto for the State.

YLR 2007 KARACHI HIGH COURT SINDH 218 #

2007 Y L R 218

[Karachi]

Before Rahmat Hussain Jafferi, J

SHER MUHAMMAD and 4 others---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeals Nos.S-123 and 125 of 1998, decided on 28th August, 2006.

Penal Code (XLV of 1860)---

----Ss. 324. 336, 504, 114, 148 & 149---Appreciation of evidence---Both complainant and injured prosecution witness were brothers inter se and prosecution had given up third prosecution witness, who was independent one, on the ground that he was won over by accused---Non-examination of said independent and uninterested witness had adversely reflected upon prosecution story---Accused had claimed enmity with the injured---There being enmity between parties, evidence of two interested, hostile and inimical witnesses could not be safely relied upon without corroborative piece of evidence as witnesses had cause to implicate accused because of alleged enmity---Oral evidence was not corroborated by medical evidence---Ocular testimony was neither supported nor corroborated by any piece of evidence including medical evidence---Reliance upon such type of evidence in circumstances, was very unsafe---Material contradictions in the evidence of witnesses coupled with other contradictions, had created doubts in the prosecution story and veracity of evidence---Prosecution having failed to prove case against accused beyond any reasonable doubt, accused were entitled to the benefit of doubt, which accordingly was given to them.

Qurban Ali Malano for Appellants Nos.1 and 2 (in Criminal Appeal No.123 of 1998).

Manzoor Ahmed Junejo for Appellants Nos.3 to 5 (in Criminal Appeal No.125 of 1998).

Abdul Sattar Soomro for the State.

Date of hearing: 28th August, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 223 #

2007 Y L R 223

[Karachi]

Before Rahmat Hussain Jafferi, J

MUHAMMAD SACHAL and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.S-68 of 1999, decided on 9th September, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 364 & 34---Appreciation of evidence---Benefit of doubt---Case of prosecution rested upon three pieces of evidence; (i) deceased last seen alive in the company of accused; (ii) discovery of dead-body on the pointation of accused persons; and (iii) confession of accused persons---Gap of about more than 12 days in between the deceased last seen alive with accused and his death; prosecution was required to show that during said period of 12 days, deceased was with accused as deceased had not died shortly after deceased was seen in the company of accused; it was possible that during period of 12 days deceased might have left the accused---Chain of circumstances having been broken, prosecution had failed to prove said piece of evidence---Regarding discovery of dead-body, evidence in that respect was not unanimous on the pointation of all accused and the place of recovery of dead body; further their evidence had been belied by Medical Officer---Prosecution, in circumstances had also not proved said piece of evidence against accused beyond any reasonable doubt---Complainant had stated about confession of accused persons, that the police maltreated and beaten accused, then they confessed their guilt and volunteered to point out the place where dead-body of deceased was buried---Said statement was sufficient to discard confessions for the reason that alleged confessions were not voluntarily made by accused---Trial Court did not put said pieces of evidence before accused to obtain their explanation---Trial Court, in circumstances had committed gross negligence in not putting incriminating evidence to accused violating provisions of S. 342, Cr. P. C. ---Said pieces of evidence could not be used against accused to convict him---Prosecution having failed to prove case against accused beyond any reasonable doubt accused were entitled to the benefit of doubt, which was given to them.

Syed Sardar Ali Shah for Appellants.

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

Date of hearing: 9th September, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 232 #

2007 Y L R 232

[Karachi]

Before Rahmat Hussain Jafferi and Muhammad Afzal Soomro, JJ

ABDUL QADIR TAWAKAL---Appellant

Versus

THE STATE---Respondent

Criminal Accountability Appeal No.39 of 2001, decided on 7th November, 2005.

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

----S. 19(1) (a)-Appreciation of evidence---Misappropriation of hypothecated stock by the debtor---Prosecution had established that without clearing the amount due against the company, the hypothecated stock, which -was kept as security for the loan, had been removed and sold without authority, consent and knowledge of the Bank---Such stock was in the possession and control of the company as such the company had misappropriated the stock---Prosecution had proved the case against accused beyond any reasonable doubt---No illegality or irregularity was found in the impugned judgment and also no misreading or non-reading of evidence was there--Impugned order, in circumstances did not require interference.

Muhammad Ashraf Baig for Appellant.

Shafat Nabi Khan Sherwani, DPGA for the State.

Date of hearing: 1st November, 2005.

YLR 2007 KARACHI HIGH COURT SINDH 239 #

2007 Y L R 239

[Karachi]

Before Rahmat Hussain Jafferi, J

TILOO and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.122 of 1998, decided on 5th September, 2006.

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

----S. 302---Appreciation of evidence---Benefit of doubt---Complainant did not support contents mentioned in F.I.R. or statement made by prosecution witness---Evidence of complainant had resiled from the statement made in the F.I.R. and also did not support the statement of one prosecution witness---Prosecution having not declared complainant hostile, it would be presumed that prosecution had accepted his evidence as given by him in the Court which was on oath---Evidence of one of the prosecution witnesses had not assigned causing of injuries to deceased by the accused---Other prosecution witness was not examined by prosecution to corroborate statement of said prosecution witness---Prosecution did not examine said witness on the ground that he was not supporting prosecution witness---Prosecution was required to examine said witness and after declaring him hostile, could have cross-examined him so that true picture could have emerged from his statement, but prosecution withheld said piece of evidence and did not allow the Trial Court to assess and evaluate evidence in its true perspective---Prosecution having failed to prove case against accused beyond any reasonable doubt, he was given benefit of doubt.

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

----S. 154---F.I.R.---F.I.R. was not a substantive piece of evidence---It could be used to contradict its maker only---Facts mentioned in the F.I.R., could not be taken against accused unless first informant was examined and supported.

Tufail Masih v. The State 1985 SCMR 838 ref.

Noor Hassan Malik holding brief on behalf of Abdul Fattah Malik for Appellants.

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

Date of hearing: 30th August, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 261 #

2007 Y L R 261

[Karachi]

Before Rahmat Hussain Jafferi and Nadeem Azhar Siddiqi, JJ

BAKHSHAN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.49 and Confirmation Case No. 4 of 2002, decided on 20th September, 2006.

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

----Ss. 302(b), 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Appreciation of evidence---Accused in his statement recorded under S. 342, Cr.P.C. admitted entire case of prosecution, except his involvement by taking the plea that culprits had abducted him, but he had not participated in the commission of offence---Statement of accused had made it clear that he was the person who was driving the car at the time of incident---All prosecution witnesses had deposed that person who was driving the car had fired at deceased from his pistol---Accused, in circumstances, could be held to be the person who was driving at the time of incident and he fired at deceased, because statement of prosecution witnesses on that aspect of the case went un-challenged as defence counsel did not ask any question denying the fact that accused was not driving the vehicle or did not fire at the deceased---Accused had been established to be the person who had fired at deceased---Appeal against order of Trial Court whereby accused was convicted and sentenced, was dismissed.

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

----Arts. 30 & 37---Admission and confession---Statement of admission and confession of accused was to be accepted as a whole, if conviction was based solely on his statement---Statement of accused, in such a situation, could not be relied upon in part by accepting inculpatory part and excluding exculpatory part of the statement---Exception, however was available to the general rule that, if conviction was not based solely on the confession, admission or statement of accused, then law would permit that same could be accepted in part by relying upon inculpatory part and excluding exculpatory part of the statement, confession or admission.

Faiz v. State 1983 SCMR 76; Sultan Khan v. Sher Khan PLD 1991 SC 520 and Shabber Ahmed v. State PLD 1995 SC 343 ref.

Maqbool Ahmed Awan for Appellant.

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

Date of hearing: 31st August, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 273 #

2007 Y L R 273

[Karachi]

Before Rahmat Hussain Jafferi, J

HAMZO---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.S-10 of 2004, heard on 1st September, 2006.

Penal Code (XLV of 1860)---

----S. 459---Appreciation of evidence---Benefit of doubt---Initial story of occurrence, had neither been fully supported nor corroborated by one prosecution witness and another prosecution witness was not examined by prosecution---Prosecution witnesses claimed that they had identified accused in moonlight, but complainant was silent about the distance from which he saw the accused---Another prosecution witness gave such distance as 6 to 7 feet, but his statement was not supported by medical evidence---Error and mistaken identity of accused, in circumstances, could not be ruled out and was highly doubtful---Place of incident had not been established as alleged by prosecution witnesses---Such fact also cast doubt on the identity of accused from longer distance---Prosecution case being highly doubtful against accused, benefit of doubt was given to accused and he was acquitted of charge against him.

Bashir v. State 1995 SCMR 276 ref.

Appellant in person.

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

Date of hearing: 1st September, 2006

YLR 2007 KARACHI HIGH COURT SINDH 282 #

2007 Y L R 282

[Karachi]

Before Rahmat Hussain Jafferi, J

GHULAM ABBAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.104 of 1996, decided on 31st August, 2006.

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

---- S.5(2)---Penal Code (XLV of 1860), S.161---Appreciation of evidence---Benefit of doubt---Private Mashir/Prosecution witness though had supported the incident, but did not state that complainant had paid the amount to accused or that he received same or that he transferred the amount to acquitted accused---Case being a very serious nature of bribery, Mashir should have been specific with regard to delivery, receipt and transfer of amount by a particular accused whom he should have named in the evidence so that he should have been saddled with responsibility---Evidence of witnesses was insufficient to implicate accused with responsibility of receiving the amount---Evidence of witnesses was contradictory to each other---No evidence was available to show that any conversation was held between accused and complainant at the time of alleged delivery of amount to him, nor any of the Mashirs deposed on such facts---Tainted amount was not recovered from the possession of accused, but from whom such amount was recovered, had been acquitted and prosecution was satisfied with said acquittal as no appeal was filed against acquitted accused---Case of prosecution being highly doubtful against accused, he was given benefit of doubt and was acquitted.

Shaikh Amanullah for Appellant.

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

Date of hearing: 28th August, 1996.

YLR 2007 KARACHI HIGH COURT SINDH 303 #

2007 Y L R 303

[Karachi]

Before Rahmat Hussain Jafferi, J

JASHAN LAL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.52 of 2000, decided on 29th August, 2006.

Probation of Offenders Ordinance (XLV of 1960)---

----Ss.3 & 5---Penal Code (XLV of 1860), Ss. 33 7-F(i) & 34---Appreciation of evidence---Sending accused on probation ---Accused who could not point out any material defect in the ocular testimony, had requested that they could be sent on probation as provided under Probation of Offenders Ordinance, 1960---Shops of accused persons and complainant, were adjacent to each other---As they belonged to a business community, there was rivalry between them over business---Accused who were first offenders, had taken the law in their own hands in the heat of passion---Accused had no criminal record---Case, in circumstances was fit where provisions of Probation of Offenders Ordinance, 1960 could be invoked---Offence of accused did not involve capital punishment nor did it fall within the debarring provisions of S.5 of said Ordinance---Accused, in circumstances could be safely sent on probation---Even otherwise sending accused on probation would help in reforming accused, because if accused were sent to jail, then they would be mixed up with hardened criminals and their future might be damaged---If accused were sent on probation then society would be benefited as accused during period of probation would not commit any similar offence or other offence and society, in circumstances would feel safe at the hands of accused---Accused were sent on probation for a period of one year, subject to furnishing surety---While maintaining conviction and sentence of accused, their appeal was disposed of accordingly.

Bhajandass Tejwani for Appellants.

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

Date of hearing: 29h August, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 363 #

2007 Y L R 363

[Karachi]

Before Muhammad Ather Saeed, J

Mrs. JUMANA KHURSHEED---Petitioner

Versus

IST A.D.J., KARACHI EAST and 2 others---Respondents

Constitutional Petition No.S-10 of 2005, decided on 10th August, 2006.

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

----Ss. 2(f), (j), 15, 16(1)(2) & 21---Constitution of Pakistan (1973), Art.199---Limitation Act (IX of 1908), S.5, Sched. & Art.152---Constitutional petition---Noncompliance of tentative rent order---Striking off defence---Relationship of landlord and tenant---Denial of---Tenant denied existence of relationship of landlord and tenant between the parties---Rent Controller before deciding issue regarding existence of relationship of landlord and tenant between parties struck off defence of tenant for non-compliance of tentative rent order--Appellate Court upheld order striking off defence passed by Rent Controller and also found that appeal filed by tenant was barred by time---Concurrent orders passed by Rent Controller and Appellate. Court, were sketchy and non-speaking orders which had led to inescapable conclusion that Appellate Court had passed judgment in a mechanical manner without giving cogent reasons for dismissing appeal of tenant---Appellate Court was wrong in concluding that S.5 of Limitation Act, 1908 was not applicable to appeals under Sindh Rented Premises Ordinance, 1979---Appellate Court did not consider explanation in support of application for condonation of delay filed by tenant under S.5 of Limitation Act, 1908---Order passed under S.16(1) of Sindh Rented Premises Ordinance, 1979 directing tenant to pay arrears and future rent without deciding main issue of relationship of landlord and tenant between the parties and order striking off defence of tenant under S.16(2), were nullity in the eyes of law---Appellate Court should have condoned the delay in filing appeal and should. have decided case on merit---Allowing constitutional petition, impugned orders were set aside by High Court and case was remanded to Rent Controller with directions to proceed with the case by first deciding issue whether relationship of landlord and tenant existed between the parties.

Abdul Hameed and others v. Haji Muhammad Javed 1999 MLD 3031; Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064; Abdur Rehman v. Wilayat Begum PLD 1974 Note 19 at p.55; Mst. Rehana Begum v. Mst. Shagufta 1995 SCMR 323; Mst. Miskina Jan v. Rehmat Din 1992 SCMR 1149; Hafeezuddin and 2 others v. Badaruddin and 3 others PLD 2003 Kar. 444; Dr. Arshad Kamal Khan v. Mrs. Saeeda Khalid Kamal Khan and others 1993 SCMR 1360; Hatim Ali v. Mst. Zulekha Bibi and others PLD 1964 W.P. Kar. 399; Messrs Muqtada Khan Iqtida Khan v. Allah Rakhi Begum 1981 CLC 568 and Akhtar Hussain Khan v. Noor Ahmed 2002 MLD 39 rel.

Adnan Karim for Petitioner.

S. Ali Ahmed Tariq for Respondents.

Date of hearing: 23rd January, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 420 #

2007 Y L R 420

[Karachi]

Before Amir Hani Muslim, J

MUHAMMAD SALEEM---Petitioner

Versus

Messrs SYMPHONY (PVT.) LTD. through Salim Motiwala and 2 others---Respondents

C.P. No.S-585 of 2004, decided on 4th December, 2006.

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

----Ss. 2(b), (j), 15(2) (ii) & 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Relationship of landlord and tenant---Change of ownership of premises---Default in payment of rent---Previous owners of premises in question sold the same to respondent and that fact was notified by previous owner to petitioner/tenant---When petitioner acquired knowledge that property had changed hands in June, 1995, he started depositing the rent in the joint names of previous landlord and new landlord after. the refusal of money order by respondent---Petitioner had claimed that he had not been served with notice of change of ownership of premises under S.18 of Sindh Rented Premises Ordinance, 1979---Petitioner, who was served with the notice of ejectment application, did not dispute the relationship of landlord and tenant between him and respondent, but despite that he did not care to deposit the rent either in Court in said ejectment proceedings or by changing the names of the parties---No plausible explanation was offered by the petitioner as to why he continued depositing rent like that despite the fact that petitioner never denied relationship of landlord and tenant with respondent the new landlord---Such deposit of rent by petitioner after acquiring the knowledge of change of ownership, was unwarranted which led to wilful default---Once ejectment application was filed, it was notice of change of ownership and it was incumbent upon petitioner to start depositing rent in the name of respondent, which was never done---Rent Controller and Appellate Court, in circumstances had rightly allowed ejectment petition filed by respondent, on ground of default in payment of rent by petitioner---In absence of any infirmity in the impugned orders passed by Courts below, same could not be interfered with by High Court in exercise of its constitutional jurisdiction.

Harjibhai Behrana Dar-e-Meher's case 2001 SCMR 1888; Mehboob Jewellers and others v. Nur Ahmed 1989 SCMR 1327; Abdul Malik v. Mrs. Qaiser Jehan 1995 SCMR 204; Fazal Elahi v. Gul Khan Ahmed Qureshi 1997 SCMR 945; Muhammad Yousuf v. Mehraj-ud-Din's case 1986 SCMR 751; Mobin Fatima v. Muhammad Yamin PLD 1006 SC 214; 1995 SCMR 204 and 1997 SCMR 945 rel.

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

----S. 15(2) (ii)---Ejectment application on ground of default in payment of rent---No restriction was for the landlord to file ejectment application after a lapse of a few years---It was the choice of landlord to file ejectment proceedings at any time and said lapse would not debar landlord from seeking ejectment on the ground of default in payment of rent.

Nasim Ahmad Khan v. Niaz Akhtar 1988 SCMR 1619 and L. Hussain v. Muhammad Nawab PLD 1992 Kar.307 rel.

Kadir Bux Bhutto for Petitioner.

A. Aziz Khan and A. Qadir Khan for Respondent No.1.

YLR 2007 KARACHI HIGH COURT SINDH 425 #

2007 Y L R 425

[Karachi]

Before Gulzar Ahmed, J

KAMAL AHMED---Plaintiff

Versus

Messrs RAZI CONSTRUCTION COMPANY through Managing Director/Sole Proprietor and 2 others---Respondents

Suit No.1213 of 2003, decided on 11th December, 2006.

Specific Relief Act (I of 1877)---

----Ss. 12, 39, 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for specific performance of contract, declaration and cancellation of sale agreement and permanent injunction---Application for rejection of plaint---Plot in question was allotted by Development Authority to defendant and possession thereof was delivered to defendant---Defendant appointed another person as its attorney in respect of said plot and in said power of attorney, attorney was empowered to sell said plot---Plaintiff and defendant through his attorney had entered into an agreement to sell said plot---Plaintiff had alleged in his suit that attorney subsequently became dishonest and through its proprietor had tried to illegally occupy plot in question---Defendant in the present case, had entered into an agreement of sale of plot in question with plaintiff, which was prohibited by the very allotment order and Regulations under which allotment of said plot was made in favour of defendant---Defendant through mere allotment, did not get any title to land allotted to him, but had got permission to enter upon said land to raise construction of a house or multistoreyed flat, and thereafter to sell same according to Regulations and when construction of said houses/flats were completed then it was entitled to obtain a lease of 99 years only---Mere perusal of conditions contained in the allotment order and Regulations revealed that there was a clog on selling/transferring the open land by defendant and no sale of such land could be made---Agreement to sell open plot being contrary to law, same could not be enforced and the plaint of suit was liable to be rejected---Application under O. VII, R.11, C.P.C. was allowed and plaint was rejected.

Mirza Muhammad Ahmed Baig v. Mirza Amjad Baig PLD 1978 Lah. 421; Fida Muhammad v. Peer Muhammad Khan PLD 1985 SC 341; Rukhsana Yasmeen v. Muhammad Iqbal Mirza 2001 YLR 2759; Riaz Hussain Shah v. The State PLD 1995 SC 341 and Subedar Manzoor Hussain v. Mst. Mehmooda Begum PLJ 2004 SC 439 rel.

M. A. Khan for Plaintiff.

Aminuzzaman for Defendant No.1.

YLR 2007 KARACHI HIGH COURT SINDH 459 #

2007 Y L R 459

[Karachi]

Before Rahmat Hussain Jafferi, J

Syed MOHIB SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.75 of 2001, decided on 23rd August, 2006.

Penal Code (XLV of 1860)---

----Ss. 334 & 337-A-(iv)---Appreciation of evidence---Both prosecution witnesses supported injured and their evidence was further corroborated by medical evidence---All prosecution witnesses were subjected to cross-examination---Enmity was suggested between witnesses and accused---Witnesses admitted dispute between parties---All injuries on the person of injured had also been admitted by accused by taking the plea that tooth of injured was already broken---Evidence of defence witnesses had established the presence of the victim at the date, time and place of incident established and so also the dislocation of the tooth of injured---While keeping both the stories of prosecution and accused in juxtaposition to each other, it had been established beyond shadow of doubt that accused had caused injuries to the victim---Trial Court, in circumstances had rightly convicted and sentenced accused and judgment of the Trial Court could not be interfered with.

Abdul Ghafoor Mirani for Appellant.

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

Date of hearing: 23rd August, 2006.

2007 Y L R 505

[Karachi]

Before Khilji Arif Hussain, J

NAVEED ISHTIAQUE and another-Applicants

Versus

S.S. ASSOCIATES (PVT.) LTD. Through Chief Executive---Respondents

J. Miscellaneous No.Nil of 2006 in Suit Nos.1182, 1340 of 2004 and C.M.A. No.8144 of 2006, decided on 22nd December, 2006.

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

----Ss. 2-A, 5 & 21---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Appointment of arbitrator---Revocation of authority of appointed arbitrator---Application for---Pending suits for declaration and permanent injunction between parties, the Court, in the present case, appointed sole arbitrator to decide the dispute between parties including issues raised in the suits---Defendants/applicants in their application under S.5 of Arbitration Act, 1940, had sought revocation of authority of appointed sole arbitrator---Plea of applicants was that since no agreement of arbitration existed between the parties, appointment of arbitrator, was illegal, unlawful and same was liable to be revoked---Validity---No written application had been filed in the case by any party to appoint arbitrator, but despite that not only difference between the parties was referred to sole arbitrator, but parties were allowed to place before said arbitrator claims, which could not be subject-matter of the suits, which was not permissible within the Scheme of S.21 of Arbitration Act, 1940---Requirement of written application for appointment of arbitrator had become more significant when it was read with definition of 'Arbitration Agreement' given in S.2-A of Arbitration Act, 1940, which provided that arbitration agreement, would mean written agreement to submit present and future differences to arbitrator---If law required that a particular agreement was required to be in writing, then even if parties were at ad addendum, an oral agreement, could not be given effect---Agreement of arbitration, was the very foundation on which jurisdiction of the arbitrator to act rested and where that was not in existence at the time when arbitrator entered into reference, proceedings before Arbitrator, would be without jurisdiction, even if parties appeared before him---Sole arbitrator having been appointed without any written application as required under S.21 of Arbitration Act, 1940, application filed by applicants under S.5 of Arbitration Act, 1940, was granted and authority of said sole arbitrator was revoked and dispute which was not part of dispute in the suit, could not be referred to him.

Messrs AJ-Bag Corporation v. Pakistan through the Secretary, Ministry of Defence, Islamabad and 3 others 1973 SCMR 98; Noor Sahib Khan and 3 others v. Mir Jananson and 6 others 1989 CLC 1666; Military Estate Officer P.A. INC. Houston, U.S.A. and another v. Federation of Pakistan and 2 others PLD 1979 Kar.453; Zahoor Ahmed v. Muhammad Akram and others 1988 CLC 722; Madura Mills Co., Ltd. v. N.M.S. Krishana Ayyar AIR 1973 Madras 405; Waverly Jute Mills v. Raymaon and Co. AIR 1963 SC 90; Messrs Haji Muhammad Sharif Atta Muhammad v. Messrs Khoja Mithabhai Nathoo and others PLD 1960 (W.P.) Kar.10; Dilip Construction Co. v. Hindustan Steel Ltd. Air 1973 Madhya Pardesh 261; Hiralal Pannalall v. Dalhousie Jute Co. Ltd. AIR 1978 Calcutta 119; Chandmull Goneshmull v. Nippon Munkwa Kabushiki Kaisha AIR 1921 Cal. 342;. Abdur Rahman Khan and others v. Deputy Commissioner, Jessore and others PLD 1968 Dac. 367 and Bhuwalka Bros. Ltd. v. Fatehchand Murlidhar AIR 1952 Cal. 294 ref.

(b) Interpretation of statutes---

----Dictionary meanings be given to the word used in the statute, unless same led to absurdity---No word used in a statute be taken as surplus and meaning ought to have been given to it to discover the intention of Legislator.

Lt. Col. Prithi Singh Bedi v. Union of India and others AIR 1982 SC 1413 and The Member-Secretary, Andhra Pradesh, State Board for Prevention and Control of Water Pollution v. Andhra Pradesh Rayons Ltd. and others AIR 1989 SC 611 ref.

Ahmad Hassan Rana for Applicants.

Omair Nisar Mujahid for Respondents.

YLR 2007 KARACHI HIGH COURT SINDH 525 #

2007 Y L R 525

[Karachi]

Before Ali Sain Dino Metlo, J

QADIR BUX through Attorney and another---Plaintiffs

Versus

GOVERNMENT OF SINDH through Secretary Board of Revenue and 7 others---Defendants

Suit No.214 of 1996, decided on 2nd October, 2006.

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

----S. 10(2)---Specific Relief Act (I of 1877), Ss.8 & 54---Sindh Disposal of Plots Ordinance (VII of 1980), S.5---Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance (III of 2001), S.3---Suit for demarcation, possession and permanent. injunction---Lease of five acres of unspecified State land for 99 years for residential-cum-commercial purposes in urban area of Karachi during period, when general ban was imposed on disposal of State land in Sindh---Suit by plaintiff on basis of such lease---Validity---Lease of State land within urban areas in Sindh Province was to be made by open auction and that too after making appropriate plotting---Plaintiff after issuance of allotment letter sold away such land at a price four times higher than that at. which he obtained its lease---No reason had been assigned for leasing out secretly such a huge unspecified area without demarcation at a throw away price in utter violation of law for making unlawful gain---Such illegitimate transaction was incapable of conferring title or right and could not be legitimized by Court on any principle--Plaintiff for not having acquired any right or title to suit-land was not entitled to its possession or get same demarcated---Suit was dismissed in circumstances.

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

----Art.4---Equality of citizens before law---Principles.

Pakistan is a civilized society governed by law and not by men. Constitution and other laws provide a very good system of checks and balances. The country or for that matter a Province is not fiefdom of any person howsoever high he may be. Everybody is under the law. Nobody is above it. Indeed, all public power is a trust .and has to be exercised fairly, honestly and in the interest of public.

----Legal proceedings, pendency of---Event not having taken place could not be taken into consideration.

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

----S. 2(2) & O. XX, R.6---Decree could be passed on basis of existing rights of parties and not on basis of future rights, which they might or might not acquire--Illustration.

(e) Administration of justice---

----Party has to succeed on the strength of his own case and not on basis of weakness of defence---When both parties are equally at fault, then it is the plaintiff who shall suffer.

Khalil-ur-Rehman for Plaintiffs.

Muhammad Qasim Mir Jat, A.A,-G. for Defendants Nos.1 to 6.

Date of hearing: 18th May, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 541 #

2007 Y L R 541

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Afzal Soomro, JJ

GHULAM HAIDER JAMRO and another---Petitioners

Versus

CHAIRMAN, NAB---Respondent

Constitutional Petitions Nos. D-732 and D-908 of 2006, decided on 19th July, 2006.

Criminal Procedure Code (V of 1898)---

----Ss.497, 498 & 561-A---National Accountability Ordinance (XVIII of 1999), S.9(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Bail, refusal of---Petitioners had been assigned the pivotal role in commission of crime and had been recently sent up for trial before Accountability Court through reference---Prima facie prosecution had shown involvement of accused in the commission of crime causing huge financial loss to the national exchequer---Jurisdiction of High Court under Art.199 of the Constitution to grant bail to accused involved in NAB cases, though was not barred by virtue of S.9(b) of National Accountability Ordinance, 1999, but before exercising said jurisdiction the High Court had to see; whether such powers should be exercised so liberally as to totally nullify and make provisions of S.9(b) of the Ordinance, redundant; which on one hand made all the offences triable by the Accountability Courts non-bailable; and on the other hand barred applicability of Ss.497, 498 & 561-A, Cr. P. C. by the courts for grant of bail to accused involved in such cases---Relief of bail could not be granted to petitioners in circumstances.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Ghulam Ali v. State 2003 SCMR 597; Abdul Aziz Khan Niazi v. State PLD 2003 SC 668; Riaz Qayyum (Mrs.) v. State 2004 SCMR 1889 and State v. Haji Kabeer Khan PLD 2005 SC 364 rel.

Nuruddin Sarki (in C.P. No.D-732 of 2006) for Petitioners.

Abdul Wahab Baloch (in C.P. No.D-908 of 2006) for Petitioners.

Shafaat Nabi Khan Sherwani, DPG, NAB for Respondent.

YLR 2007 KARACHI HIGH COURT SINDH 549 #

2007 Y L R 549

[Karachi]

Before Sabihuddin Ahmad and Zia Pervez, JJ

Messrs OUT DOOR ADVERTISING WELFARE ASSOCIATION, KARACHI and others---Petitioners

Versus

UNION ADMINISTRATION and others---Respondents

Constitutional Petition No.D-1568 of 2003, decided on 17th March, 2004.

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

----S. 88, Sched., Part II(4)---Advertisement and Usage Bye-Laws, 2003---Constitution of Pakistan (1973), Art.199---Constitutional petition---Levy and collection of tax on advertisement---Renewal of licence---Power to levy and collect tax on advertisements had been conferred upon Licensing Authority and not on the Union Council under Sindh Local Government Ordinance, 2001---Under Advertisement and Usage Bye-Laws, 2003, framed by Licensing Authority powers of Licensing Authority however, were stated to have been delegated to the Union Council---In exercise of such powers Union Administration proceeded not to renew the licence of petitioners---Licence of petitioners was not renewed owing to the fact that though licence fee had been substantially increased but petitioners did not pay such fee even according to the far less old rates---Constitutional petition was disposed of by the High Court, directing that in case petitioners would deposit outstanding amount of licence fee, according to the old rates, within specified period Licensing Authority and Union Administration would renew their licences promptly---In case of a dispute regarding outstanding amount, same could be resolved at the appropriate level by Licensing Authority.

Khadim Hussain Abrofor Petitioners.

Ms. Munawar Sultana for Respondent No.1.

Manzoor Ahmad for Respondent No.2.

Abbas Ali, A.A.-G.

YLR 2007 KARACHI HIGH COURT SINDH 550 #

2007 Y L R 550

[Karachi]

Before Azizullah M. Memon and Ghulam Rabbani, JJ

NOOR QADIR TAWAKKAL---Petitioner

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD---Respondent

Constitutional Petition No.761-D of 2005, decided on 19th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.409, 420 & 109---National Accountability Ordinance (XVIII of 1999), Ss.5(r) & 16(A) (a) -Constitution of Pakistan (1973), Art.199---Constitutional petition---Bail, refusal of---While hearing a plea for bail only tentative assessment of the evidence collected by the prosecution against accused was to be had and detailed scrutiny thereof was not allowed---Prima facie allegations made against petitioner/accused were that he was a Director of the company which allegedly failed to repay outstanding dues advanced to it as loan facility and actually released to it--Petitioner had yet to prove that company cleared all such dues and nothing was outstanding against it---Petitioner was shown as an absconder in the challan submitted by FIA Police and was arrested on issuance of non-bailable warrants of arrest against him by Chairman Accountability Bureau---No satisfactory explanation of such abscondence had come forward---Accused/petitioner did not appear to have made out any case for admitting him to bail---Constitutional petition was dismissed.

Ajmal Siyai v. National Accountability Bureau 2004 SCMR 265 and Khan Asfandyar Wali PLD 2001 SC 607 ref.

Shahab Sarki for Petitioner.

Shafaat Nabi K. Sherwani, D.P.G., NAB.

YLR 2007 KARACHI HIGH COURT SINDH 554 #

2007 Y L R 554

[Karachi]

Before Sajjad Ali Shah, J

RAEES alias PINJO KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.245 of 2006, decided on 25th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.364---Bail, grant of---Further inquiry---Case against accused at the most was that they were last seen with alleged abductee---Since the very narration of F.I.R. reflected that alleged abductee voluntarily accompanied accused, it could not be said without further inquiry that they had abducted the alleged abductee---As to the allegation in F.I.R. that accused had taken alleged abductee fraudulently with intention to kill, was just an opinion/apprehension of complainant, which he had formed almost after 37 hours of the incident---Case being of further inquiry as envisaged under S.497(2), Cr.P.C., accused were enlarged on bail.

Muhammad Ayaz Soomro for Applicant.

Zahid Hussain Chandio for the Complainant.

Mushtaq Ahmed Abbasi, A.A.-G.

YLR 2007 KARACHI HIGH COURT SINDH 556 #

2007 Y L R 556

[Karachi]

Before Faisal Arab, J

GHULAM ABBAS---Applicant

Versus

THE STATE---Respondent

Cr. B.A. No.75 of 2005, decided on 7th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.205 & 416---Bail, grant of---Further inquiry---Case of prosecution was that accused, a jailor, allowed the real accused to escape and instead put his brother in custody---Contention of accused was that he being Jailor of sub jail concerned was handed over the custody of person "A" who was shown to be person 'S'---Defence plea and allegation against accused required further inquiry---Offence of accused also did not come within the prohibition contained in S. 497, Cr. P. C. ---Accused, was enlarged on bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto, State Counsel.

YLR 2007 KARACHI HIGH COURT SINDH 557 #

2007 Y L R 557

[Karachi]

Before Munib Ahmed Khan, J

MENGHO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.17 of 1994, heard on 22nd March, 2006.

Penal Code (XLV of 1860)---

----S. 459---Appreciation of evidence---Benefit of doubt---Medical report with regard to numbers of strokes of hatchet on person of injured father of complainant was different to statement of injured himself recorded under S.161, Cr.P.C. and it was also a question which could not be established, as to whether electricity was available at the place of wardat or not---Was quite impossible that at 2.00 a.m. in the night one would keep the electricity bulb illuminating to identify accused---Availability of electricity had not been proved and identification of the culprit of the incident was doubtful---Reasoning given by the accused had force and found support from material on record---Sentence awarded to accused by the Trial Court, was converted to one which had already undergone by him giving benefit of doubt to accused---Appeal by accused was allowed with said modification.

2003 PCr.LJ 1847 rel.

Allah Bachayo Soomro for Appellant.

Mashooque Ali Samoo, Assist. A.-G. for the Respondent.

Date of hearing: 22nd March, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 560 #

2007 Y L R 560

[Karachi]

Before Ghulam Rabbani and Azizullah M. Memon, JJ

RAUF B. KADRI---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondent

C.P. No.D-567 of 2005.

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

----Ss. 2 & 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Placing name on Exit Control List---Permission to perform Umra---Petitioner who had served out substantive sentence, had already furnished solvent surety of huge amount---Petitioner wanted to leave the country to perform Umra, which was a pious purpose to which D.A.G. and D.P. G., National Accountability Bureau had given their "no objection "---Counsel for petitioner had stated that petitioner would come back after performing Umra---Orders to the extent of deposit of Passport by petitioner and putting his name in the Exit Control List, were suspended for one month with directions that, on his return, petitioner would have to deposit his passport with Nazir of the High Court.

Raja Qureshi for Petitioner.

Shafaat Nabi, K. Sherwani, DPG NAB and Nadeem Azhar, D.A.G for Respondent.

YLR 2007 KARACHI HIGH COURT SINDH 562 #

2007 Y L R 562

[Karachi]

Before Rahmat Hussain Jafferi and Muhammad Afzal Soomro, JJ

ALI ASHGAR ABBASI---Appellant

Versus

THE STATE---Respondent

Cr. Acctt. Appeal No.1 of 2005, decided on 9th December, 2005.

National Accountability Ordinance (XVIII of 1999)---

----Ss.10 & 15---Appreciation of evidence---Case of prosecution against accused was that he being Manager, Small Business Finance Corporation, had obtained various loans in the names of other persons, but actually he himself was the beneficiary---Accused allegedly had obtained loans in the names of eight persons, and utilized amount of said loans for his own benefits---Prosecution had proved case against accused in respect of three borrowers out of said eight borrowers---Accused, in circumstances was liable to be convicted in respect of amount of said three proved borrowers---Accused having committed offence punishable under S.10 of National Accountability Ordinance, 1999, Trial Court had rightly convicted accused---Prosecution having failed to prove five other loan cases, sentence awarded to accused was liable to be reduced accordingly---While maintaining conviction of accused, sentence of 10 years was reduced to 7 years with benefit of S.382-B, Cr.P.C. and fine from Rs.42,20,000 to Rs. 20,00,000---Disqualification of accused within the meaning of S.15 of National Accountability Ordinance, 1999, was maintained.

Azizullah A. Shaikh for Appellant.

Shafat Nabi Sherwani, DPGA NAB.

Date of hearing: 2nd December, 2005.

YLR 2007 KARACHI HIGH COURT SINDH 568 #

2007 Y L R 568

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Sajjad Ali Shah, JJ

AL-RIAZ (PVT.) LTD.---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

Constitutional Petitions Nos.1279, 1260 and 1275 of 2003.

(a) Land Acquisition Act (I of 1894)---

----Ss. 3(f), 4, 5 & 6---Acquisition of land for `public purpose'---Persons who claimed to be owners of land sought to be acquired for development of Park for the use of general public and for the beautification of the area, had contended that sufficient land was already available for the purpose for which land in question was sought to be acquired---Contention was repelled because it was for the concerned Government/Authority to decide the extent of land required for a public purpose and not for the person whose land was under acquisition---Declaration by concerned Government under S.6 of Land Acquisition Act, 1894, would be the conclusive evidence of the fact that land was needed for the 'public purpose'---Only exception to such rule could be in a case where land was being acquired under colourable exercise of power.

(b) Land Acquisition Act (I of 1894)---

----Ss. 3(f), 4, 5, 6 & 9---Acquisition of land for public purpose'---Public purpose', defined and explained---In order to provide complete entertainment and refreshment to public at large, the acquisition could not be excluded from the ambit of term "land required for public purposes"---Term "Public purpose" as defined in S.3(f) of Land Acquisition Act, 1894, did not conclusively define or limit the scope of 'public purpose'--Term "Public purpose" had to be used in an elastic sense so that its true importance was appreciated and fulfilled---Expression `public purpose', would, however include any purpose in which general interest of the community as opposed to the particular interest of individuals was directly and vitally concerned---"Public purpose" was found to vary with the time and the prevailing conditions in a given locality, it was because of that reason that Legislature had left it to the concerned Government to say what was "public purpose" and also to declare the need of a given land for 'public purpose'---Public purpose, necessarily implied a purpose, which would benefit the public in general and not any individual.

Farooq Khan Laghari v. Pakistan PLD 1997 SC 57 and Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 ref.

Abrar Hasan, Muhammad Salam Mangrio and Mushtaq Ahmed Memon for Petitioners.

Muhammad Jamil for Respondents.

YLR 2007 KARACHI HIGH COURT SINDH 576 #

2007 Y L R 576

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

Begum SALMA AHMED---Petitioner

Versus

THE STATE and others---Respondents

Constitutional Petition No.D-109 of 2006, heard on 14th February, 2006.

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

----Ss. 4 & 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Plea of petitioner was that she was M.N.A. in the years 1985 to 1988, while amount in question was released to her in 1994; that as she was not holding public office at the time of sanction of release of the amount to her, National Accountability Ordinance, 1999 was not applicable in her case---Validity---Contention of petitioner was repelled as National Accountability Ordinance, 1999 was applicable to all citizens of Pakistan and persons who were or had been in the service of Pakistan as provided under S.4 of National Accountability Ordinance, 1999---Further, offence as defined under S.9 of National Accountability Ordinance, 1999, was in respect of offence of corruption and corrupt practices, if same were committed by holder of public office or any other person---National Accountability Ordinance, 1999, was applicable to petitioner who came within the ambit of "any other person" appearing in S.9(a) read with S.4 of the Ordinance.

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

----S. 9(a) (iii)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Amount of Rs.13.30 million were entrusted to petitioner (an Ex. M.N.A.) to be utilized in a particular manner within a specified period, but petitioner neither utilized amount for the purpose it was entrusted to her within required time nor she accounted for the same---Balance amount being with the petitioner, it would be presumed, in circumstances that petitioner had applied amount to her personal use---Deposit of amount subsequently or during the trial, would not absolve petitioner from her criminal liability---Ingredients of S.9(a)(iii) of National Accountability Ordinance, 1999 being attracted in peculiar circumstances of the case, there was no illegality or irregularity in the impugned order which did not require interference.

The State v. Abu Raza PLD 1959 SC 309 ref.

Farooq H. Naik for Petitioner.

Shafat Nabi Sherwani, DGPA for Respondents.

Date of hearing: 14th February, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 581 #

2007 Y L R 581

[Karachi]

Before Sabihuddin Ahmed, C.J. and Amir Hani Muslim, J

PAK AMERICAN SOLIDARITY SOCIETY and others---Petitioners

Versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional Petition No.1738 of 2002.

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

----S. 491---Habeas corpus proceedings---Case of detention without trial---Initial onus was on the detaining Authority to justify the detention by establishing the legality of its action and only after it had been done, the burden would shift on the detenu to show mala fides.

Government of West Pakistan v. Begum Aga Abdul Karim Shorish Kashmiri PLD 1969 SC 14 rel.

(b) Prisons Act (IX of 1894)---

----S.3---Sub-jail for temporary or permanent detention of prisoners---Any place for confinement of prisoners, who were exclusively in police custody, could not be declared as prison---Investigation Branch (Building), could not be declared a temporary sub-jail-Detention of detenu at the Investigation Branch, was in an unlawful manner.

----S.3---Detention order---Scope---Conditions---Section 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, only empowered passing of a detention order, if the government or any other officer authorized by it was satisfied that such detention was necessary to prevent any person from acting in any manner prejudicial to public safety or maintenance of public order---Impugned detention order, ex facie being not related to any of said conditions, was liable to he declared invalid.

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

----S. 21---West Pakistan Maintenance of Public Order Ordinance, (XXXI of 1960), S.3--Protection of witness who was detenu---Detenu, even if was witness in a serious offence under Anti-Terrorism. Act, 1997 order for his protection could only be passed by a court in accordance with S. 21 of Anti-Terrorism Act, 1997 and proceedings under West Pakistan Maintenance of Public Order Ordinance, 1960, were altogether unwarranted.

Ali Bin Adam Jafery, Syed Ghulam Shah, Noor Naz Agha and Asifa Rizvi for Petitioners.

Raja Qureshi, A.-G. and Sulleman Habibullah, Addl. A.-G., Sindh for Respondents.

YLR 2007 KARACHI HIGH COURT SINDH 585 #

2007 Y L R 585

[Karachi]

Before Munib Ahmed Khan, J

ALLWIN ENGINEERING INDUSTRIES LIMITED---Plaintiff

Versus

KESC LIMITED---Defendant

Suit No.107 of 1987, decided on 31st March, 2006.

Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)---

----Arts. 9 & 29---Proceedings before Wafaqi Mohtasib---Jurisdiction of High Court---Order of Ombudsman had attained finality after rejection of appeal by the President of Pakistan---Article 29 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 having barred jurisdiction of the Court, High Court had no jurisdiction to embark upon again for adjudication of an issue, which had already been decided by the Ombudsman---Suit being barred under S.29 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, plaintiff had no cause of action.

Arshad Tayebaly for Plaintiff.

Abdul Hameed Siddiqui for Defendant.

Date of hearing: 14th March, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 590 #

2007 Y L R 590

[Karachi]

Before Maqbool Baqar, J

ABDUL HABIB RAJWANI---Plaintiff

Versus

Messrs BROTHERS INDUSTRIES LTD. and others---Defendants

Suit No.1522 of 2005, decided on 30th October, 2006.

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

----S. 202---Agency coupled with interest---Concept---Protection of interest of agent---Concept of an "agency coupled with interest" was a. special one; it envisaged a pre-existing interest of the agent in the subject matter of the agency which was sought to be protected through creation of agency on interest arising therefrom---Interest of the agent, forming subject matter of the agency, was to be some sort of an adverse nature, qua the principal---True construction and scope of S.202 of Contract Act, 1872, was that the agency could be said to be coupled with interest where the authority of an agent was given for the purpose of effectuating a security or of securing an interest of the agent which could be inferred from document forming the basis of agency or from the course of dealings between the parties and from the other surrounding circumstances.

Muhammad Aref Effendi v. Egypt AIR 1980 SCMR 588; Messrs Beecham Group and another v. Universal Trading Corporation (Pvt.) Ltd. v. General Motors Overseas Distribution Corporation and 2 others PLD 1982 Kar. 796; Zubair Ahmed v. Pakistan State Oil Co. Ltd. and another PLD 1987 Kar. 112; Messrs Universal Trading Corporation (Pvt.) Ltd. v. Messrs Beecham Group PLC and another 1994 CLC 726; Roomi Enterprises (Pvt.) Ltd. v. Stafford Miller Ltd. and others 2005 CLD 1805; West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi PLD 1973 SC 222; Messrs Al-Mumtaz Agencies v. Millat Tractors Limited through Managing Director and another 2006 MLD 367; Huma Enterprises and 3 others v. Pir Ali Shah and others 1985 CLC 1522; Mubarak Ali v. Tula Khan alias Sadullah Khan 1985 SCMR 236; Syed Nasir Ahmed Kazmi v. Syed Muhammad Zulfiqar Ali and others PLD 1987 Kar. 261; Puri Terminal Ltd. v. Government of Pakistan through Secretary, Ministry of Communications and Railways, Islamabad and 2 others 2004 SCMR 1092; Government of Pakistan and 3 others v. Kamruddin Valika 1996 CLC 1086; Messrs Universal Business Equipment (Pvt.) Ltd v. Messrs Kokusai Commerce Inc. and others 1995 MLD 384; Messrs World Wide Trading Co. Ltd. v. Sanyo Electric Trading Co. Ltd. PLD 1986 Kar.234; M/s Farooq and Co. v. Federation of Pakistan and 3 others 1996 CLC 2030; Phalippine Airlines Inc. v. Paramount Aviation (Private) Limited and others PLD 1999 Kar. 227; Messrs Business Comuting International (Pvt.) Ltd. v. IBM Trade Corporation 1997 CLC 1903; and Palani Vannan v. Krishnaswami Konar AIR 1946 Madras 2036 rel.

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

----Ss. 201 & 202---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Termination of agency---Injunction against---Agent in his application under O.XXXIX, Rr. 1 & 2, C.P.C., had sought an order restraining the principals from conferring on any party, any right, benefit or interest pertaining to the sole distribution agreement adverse to the rights, interest and benefit of agent and to direct principals and all persons through or under them not to interfere with such rights and interest of agent---Agency in question being not an agency coupled with interest, would not attract exceptional status of irrevocability as provided under 5.202, Contract Act, 1872 and in view of 5.201 of the Act which had provided for termination of an agency by the principal revoking his authority---Order restraining principal from revoking agency and forcing them to continue with relationship eternally, would be unjustified---Agent could not seek perpetuity of relationship on the ground that he had made huge investment or had incurred heavy expenditure; and more so for the reason that agreement itself had provided for its termination.

West Pakistan Industrial Development Corporation, Kar. v. Aziz Qureshi 1973 SCMR 555 ref.

Raja Qasit Nawaz Khan for Plaintiff.

YLR 2007 KARACHI HIGH COURT SINDH 635 #

2007 Y L R 635

[Karachi]

Before Khilji Arif Hussain, J

B & H INTERNATIONAL (PVT.) LTD.---Plaintiff

Versus

SINGAPORE TELECOMMUNICATION INTERNATIONAL (PVT.) LTD. and another---Defendants

Suit No.193 of 1994, .decided on 21st December, 2006

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration, permanent injunction and compensation for damages---Valid and binding contract---Conditions---Claim of damages of breach of contract---Essentials---Except the relief pertaining to claim of compensation, plaintiff did not press remaining reliefs asked for---Right of plaintiff to claim damages depended upon the facts, whether there was any concluded contract between the parties for breach whereof plaintiff could claim damages---In order to constitute valid and binding contract between the parties, one of the essential conditions was that conscious ad idem, must exist between the parties with regard to the terms of the contract, in case of ambiguity, same could adversely reflect upon the existence of the contract---Plaintiff though claimed a sum of Rupees three Million as damages, but he failed to give any detail/break up amount in memo of his plaint nor he produced any documentary evidence in support of his claim---For claiming damages, onus to prove loss lay upon the plaintiff who could not succeed without producing evidence in positive terms---Plaintiff had failed to establish that there was any concluded contract between the parties so as to entitle him for damages in case of breach of contract; and even if there was any concluded contract, he had failed to prove losses/damages suffered by him in consequence of breach---Suit filed by plaintiff, in circumstances, was dismissed.

Morton v. Morton, (1942) 1 All ER 273; Messiniaki Bergen (1983) Lloyd's Rep. 424; Chilling Worth v. Esche (1924) I Ch. 51; Messrs Vinder Textile Mills Ltd. v. Industrial Development Bank of Pakistan, 1999 YLR Kar. 1188; Sandoz Limited and another v. Federation of Pakistan and others, 1995 SCMR 1431; Cohen v. Nessdale Ltd. (1982) All ER 97; AIR 2000 SC 2003; Syed Ahmed Saeed Kirmani v. Muslim Commercial Bank Limited 1993 SCMR 441; Chief Officer, District Council, Sheikhupura and 2 others v. Haji Sultan Safdar and 2 others, 1999 YLR 1963; Islamic Republic of Pakistan v. Sheikh Nawab Din and Sons, PLJ 2002 Lahore 1998 and Messrs Sagaria Brothers v. Messres Azam Markaz and 2 others, PLD 1994 Kar. 149 ref.

Naveedul Haq for Plaintiff.

Sajid Zahid for Defendants.

Date of hearing: 21st September, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 694 #

2007 Y L R 694

[Karachi]

Before Sarmad Jalal Osmany, J

MUHAMMAD SAQIB---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.163 of 2006, decided on 28th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Two eye-witnesses had been declared hostile and the third one had admitted under cross-examination that he never saw accused running away from the scene of the crime---One witness remained to be examined and it was possible that upon his testimony alone, the Trial Court might come to the conclusion that accused was or was not guilty of the charge against him---Accused remained behind bars for over two years and the trial had not concluded---Remaining eye-witness was not traceable, though coercive process had been issued against him---Case of prosecution was not that accused was a hardened, dangerous or desperate criminal---Delay in conclusion of the trial could not be attributed to accused---Accused was entitled to bail on the ground of hardship alone.

Atta Ullah v. The State 2002 SCMR 1412; Muhammad Manha v. The State 2006 PCr.LJ 47; Haji Maa Din and another v. The State and another 1998 SCMR 1528 and Muhammad Hashim v. The State 2004 MLD 458 rel.

Amir Mansoob Qureshi for Applicant.

Sardaruddin Qureshi for the State.

YLR 2007 KARACHI HIGH COURT SINDH 697 #

2007 Y L R 697

[Karachi]

Before Munib Ahmad Khan, J

MUHAMMAD SIDDIQUE---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.945 of 2006, decided on 11th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Foreigners Act (XXXI of 1946), Ss.3/2(a) (b), 13 & 14---Penal Code (XLV of 1860), Ss.420, 468, 471 & 109---Bail, grant of---Accused who was citizen of Pakistan, allegedly was found involved in using a passport of another person by changing his name and photograph---Until the report was received from issuing place of passport, involvement of accused could not be determined---Since accused was citizen of Pakistan and was holding Pakistan Passport, Ss.13 & 14 of Foreigners Act, 1946, were not applicable---Sections 420 & 471, P.P.C. being non-cognizable offences, while S.468, P.P.C., provided sentence up to 7 years and did not fall within the prohibitory clause, accused was granted bail, in circumstances.

2000 YLR 539 and 1996 SCMR 1132 rel.

Aamir Mansoob Qureshi for Applicant.

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

YLR 2007 KARACHI HIGH COURT SINDH 700 #

2007 Y L R 700

[Karachi]

Before Zia Perwaz and Nadeem Azhar Siddiqi, JJ

ABDUL GHAFOOR---Applicant

Versus

THE STATE---Respondent

Criminal Revision No.D-78 of 2006, decided on 6th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 397---Two different cases registered for same offence and on the same date---Both cases decided by separate judgments---Sentences to run concurrently---Accused/applicant was apprehended on 3-12-1997 with a jute sack from which charas weighing 20 Kgs. was recovered---On the same date and in the same police station another criminal case was registered against accused on allegation that on his pointation charas weighing 40 Kgs. was recovered from his house---Both cases were proceeded before Trial Court/Special Court and were decided by separate judgments---Trial Court while .passing judgments had not ordered for concurrent running of sentences---Accused, after passing of judgments, sent application to Trial Court with prayer that two sentences might be ordered to run concurrently---Trial Court rejected application and stated that accused was convicted in two separate cases for two distinct offences which were separately registered and tried---Validity---Perusal of judgments showed that both cases were registered at the same police station on the same date and Investigating Officer was also the same and in second case recovery was made on pointation of accused himself after recovery in first case---Judgments revealed that both crimes were one and the same and prosecution had malafidely separated it into two crimes---Power available under S.397, Cr.P.C. could be exercised where transaction/incident was one and the same---Trial Court while passing conviction and sentence in second case ought to have exercised its discretion in favour of accused---Non-exercise of discretion in favour of accused/applicant amounted to miscarriage of justice and could be interfered with---Trial Court had also not done substantial justice by not exercising jurisdiction in favour of accused---Second crime being an off-shoot of first crime, therefore, it was in the interest of justice to order that both sentences were to run concurrently.

Shamshad Hussain alias Shamla v. State 2002 MLD 1079 rel.

Sikandar Ali alias Sikoo v. The State 'PLD 2003 Kar. 260 distinguished.

Ghulam Muhammad Khan Durrani for Applicant.

Ghulam Dastagir Shahani, Addl. A.-G. for the State and Muhammad Roshan Aslam S.P.P.

YLR 2007 KARACHI HIGH COURT SINDH 705 #

2007 Y L R 705

[Karachi]

Before Sajjad Ali Shah, J

MUHAMMAD JAMEEL and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.935 and M.A. No.4308 of 2006, decided on 12th January, 2007.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 322---Bail, grant of-Further inquiry---Incident was un-witnessed and F.I.R. was result of second dying declaration allegedly made by deceased in the presence of her mother after about four hours of the incident .wherein deceased implicated accused---F.I.R. was lodged after approximately 52 hours of the alleged declaration and 44 hours after the death of deceased; whereas the first declaration was recorded within three hours of the incident in the presence of Medico-legal Officer wherein deceased had admitted to have put herself to fire---Said declaration further did not reflect the presence of any relative to infer inducement and/or undue influence--Such. declaration, could not be discarded altogether---On account of said two conflicting dying declarations case had become one of further inquiry entitling accused to concession of bail---Contention of State counsel that absconsion of co accused had established the guilt of accused disentitling him to concession of bail, was absolutely misconceived as it could hardly be a ground to refuse bail to accused who otherwise was found entitled to concession of bail.

Syed Amanullah Shah v. The State and another PLD 1996 SC 241 ref.

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

----S. 322---Detaining accused in jail pending investigation or decision---Counsel for accused had contended that since accused had been charged under S.322, P.P.C., which did not provide punishment by way of imprisonment, accused was entitled to bail---Validity---Held, in an offence punishable under Hadd, Qisas and Diyat an accused could, of course, be detained if the dictates of justice and public good so demanded and for that very reason, the Legislature, in its wisdom, had placed the offence under S.322, P.P.C. under the head of non-bailable offences.

Aamir Mansoob Qureshi for Applicants.

Agha Zafir for the State.

2007 Y L R 824

[Karachi]

Before Munib Ahmed Khan; J

ALI GUL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.658 of 2006, decided on 4th January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 147, 149 & 114---Bail, grant of---Accused remained in jail for more than two years and delay in holding trial was due to the fact that complainant had been moving adjournment applications---Bail was granted in circumstances.

1999 SCMR 2149 rel.

Muhammad Ayaz Soomro for Applicant.

Muhammad Saleem Jessar for the State.

YLR 2007 KARACHI HIGH COURT SINDH 830 #

2007 Y L R 830

[Karachi]

Before Munib Ahmed Khan, J

KHATTAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.708 of 2006, decided on 3rd January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 336, 353, 147, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance, (VI of 1979), S.17(3)---Bail, grant of---Delay in lodging F.I.R. and no recovery had been effected, despite allegation of involvement of several armed persons---Accused was behind the bars for the last more than three years and recording of evidence had not started---Rule of consistency was also applicable keeping in view the bail granted to two co-accused---Accused, in circumstances, was entitled to bail.

Muhammad Ayaz Soomro for Applicant.

Muhammad Saleem Jessar for the State.

YLR 2007 KARACHI HIGH COURT SINDH 838 #

2007 Y L R 838

[Karachi]

Before Munib Ahmed Khan, J

NOOR-UL-HAQ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.486 of 2006, decided on 5th January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 506/2, 337-H(2), 148 & 149---Bail, refusal of---Incident took place before three witnesses---Accused, were armed with fire-arms and had fired directly at the deceased---Incident having taken place in the light at 7-00 p.m. in the month of June, there could not be mistaken identity; especially when parties were known to each other---Discrepancies between the medical and ocular evidence in respect of the bullet injuries could be termed as minor---Even complainant in F.I.R. had not stated as to which part of the body of deceased was hit---Opinion of Doctor regarding time of death of deceased, could not be taken as certain as same was based only on his observation---Evidence of other witnesses recorded by the police after fourteen days could not be considered, as same could not replace ocular evidence; but to be considered only after witnesses were subjected to evidence---Minor issues and discrepancies, could be sorted out only after evidence was recorded and not at the bail stage---Bail application was rejected in circumstances.

Muhammad Ayaz Soomro for Applicant.

Muhammad Saleem Jessar for the State.

YLR 2007 KARACHI HIGH COURT SINDH 844 #

2007 Y L R 844

[Karachi]

Before Muhammad Sadiq Leghari and Nadeem Azhar Siddqi, JJ

MAZAR alias MAZHAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.D-4 and M.A. No.89 of 2006, decided on 17th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---Control of Narcotic Substances Act (XXV of 1997), S.48(1)---Suspension of sentence---Appellant had contended that sentence awarded to accused being short, same could be suspended till the decision of appeal; that accused was in jail since 6-6-2005 and benefit of S.382-B, Cr. P. C. had been extended to him and at present sentence, remained little, more than three years only---Sentence awarded to accused was suspended by the High Court till the decision of the appeal---Accused was directed to be released on bail.

Muhammad Sharif H. Qazi for Appellant.

Muhammad Ismail Bhutto for the State.

YLR 2007 KARACHI HIGH COURT SINDH 853 #

2007 Y L R 853

[Karachi]

Before Munib Ahmed Khan, J

AKHTAR HUSSAIN alias AKHTAR ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-265 of 2006, decided on 30th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-F(i), (vi), H(ii), 447, 504, 147, 148 & 149---Pre-arrest bail, confirmation of---State counsel had no objection to the confirmation of bail of accused on the ground that case did not fall within the prohibitory clause of S.497, Cr. P. C. and challan had already been submitted and investigation or the proceedings, would not be affected in any way, if accused would remain on bail---In view of nature of injury and allegations in respect of civil dispute and rival claims, interim pre-arrest bail granted to accused was confirmed on the same terms.

Abdul Rasool Abbasi for Applicant.

Riazuddin Siddiqui for the State.

YLR 2007 KARACHI HIGH COURT SINDH 860 #

2007 Y L R 860(1)

[Karachi]

Before Munib Ahmed Khan, J

ALI NAWAZ---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.S-61 and M.As. Nos.1045 to 1047 of 2006, decided on 12th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Application for suspension of conviction and sentence---Counsel for accused had contended that there was no private witness, while accused was allegedly arrested from Bus stand; that there was material contradiction in the evidence of prosecution witnesses which was not appreciated by the Trial Court or even by the Appellate Court and that accused was falsely involved in another case, and in that case he was acquitted---Operation of impugned judgment was suspended subject to furnishing of surety.

Abdul Rasool Abbasi for Applicant.

YLR 2007 KARACHI HIGH COURT SINDH 875 #

2007 Y L R 875

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

Haji ABDUL GHAFOOR through Legal Heirs ---Applicants

Versus

MUHAMMAD HAYAT through Legal Heirs---Respondents

R.A.No.249 of 1984, decided on 3rd June, 2005.

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

----S. 12---Evidence Act (I of 1872), Ss. 101 & 102---Suit for specific performance of agreement for sale---Denial of execution of agreement and receipt of amount by defendant---Denial of delivery of possession of suit-land to plaintiff under agreement---Effect---Plaintiff's version in such circumstances could not be termed to be unchallenged---Burden of proof would not lie on defendant to establish that he had not executed sale agreement---Principles.

Shamsul Hassan v. Karachi Transport Corporation 2001 CLC 942 and Chief Engineer, Irrigation v. Mazhar Hussain PLD 2004 SC 682 ref.

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

----S. 12---Specific performance of written agreement of sale, suit for---Denial of execution of agreement by defendant---Failure of plaintiff to prove execution of written agreement---Statement of defendant in his earlier suit showing his intention to sell land to plaintiff after passing of decree therein---Plaintiff's plea that he was entitled to be granted decree on basis of such statement of defendant while considering same to be an oral agreement---Validity---Parties could not be allowed to allege anything beyond pleadings---Plaintiff's such plea was beyond pleadings in his suit---Defendant's statement would not amount to sale agreement---Suit was dismissed in circumstances.

----Parties cannot be allowed to allege anything beyond their pleadings.

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

----S. 2(a) (e)---Statement of plaintiff during evidence showing his intention to sell land to defendant after passing of decree therein---Effect of such statement---Such statement would not amount to sale agreement.

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

----S. 12---Oral agreement-Validity--Specific performance of contract could be sought even on basis of oral agreement.

Mrs. Mussarat Shasta Ali v. Mrs. Safia Khatoon 1994 SCMR 2189 fol.

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

---S. 115---Concurrent findings of fact and law of courts below---Interference in such findings by High Court in exercise of revisional jurisdiction---Scope stated.

Ordinarily the concurrent findings of fact are not to be disturbed in exercise of revisional jurisdiction, but if findings of the two Courts below are totally perverse and violative of the provisions of law as well as against the material available on record, the concurrent findings of fact as well can be set aside by High Court in exercise of revisional jurisdiction.

Syed Madad Ali Shah for Applicants.

Jhamat Jethanand for Respondents.

Dates of hearing: 2nd and 3rd May, 2005.

YLR 2007 KARACHI HIGH COURT SINDH 894 #

2007 Y L R 894

[Karachi]

Before Muhammad Moosa K. Leghari and Shamsuddin Hisbani, JJ

ALI MUHAMMAD and 2 others-Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.D-10 of 2005, heard on 20th December, 2005.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 353---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Appreciation of evidence---Accused were not known to complainant prior to incident and their names were disclosed at Vardat by two witnesses---One of said witnesses had neither supported the version given by the complainant on factum of the incident nor the case of prosecution as set up in F.I.R.---Said witness was declared hostile by Special Prosecutor---Evidence given by said witness, had not only damaged the very foundation of the prosecution case on factum of incident, but also rendered the ocular account of the incident furnished by other witnesses as doubtful---Other prosecution witness, during cross-examination had admitted that accused were not previously known to him---Said prosecution witness neither had named nor pointed out accused who had fired at the deceased---Material discrepancies appeared in the statement of prosecution witnesses as they had contradicted each other on material particulars of the case---Law required that prosecution was duty bound to prove its case beyond any reasonable doubt; and if any single and slightest doubt was created, benefit of the same must go to accused and it was sufficient to discredit prosecution story---Despite presence of independent persons of the vicinity at vardat at the relevant time, no one was examined as witness in the case to support case of prosecution on factum of incident---All such circumstances had rendered case of prosecution as doubtful---Eye-witness account of incident furnished by prosecution witnesses being interested, discrepant, unreliable, inconsistent, untrustworthy, inspired no confidence---Evidence adduced by prosecution was never subjected to legal scrutiny and without appreciating the same in accordance with law, Trial Court concluded that the prosecution had succeeded to establish the charge against accused beyond shadow of doubt---Prosecution, in circumstances had failed to bring home guilt to accused beyond reasonable doubt and impugned judgment being based on non-reading and misreading of evidence, was not maintainable in law and was set aside.

Muhammad Iqbal Kalhoro for Appellants.

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

Date of hearing: 20th December, 2005.

YLR 2007 KARACHI HIGH COURT SINDH 899 #

2007 Y L R 899

[Karachi]

Before Gulzar Ahmed, J

MEERAL alias MEERO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-412 of 2006, decided on 28th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 353, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Pre-arrest bail, confirmation of---Delay in lodging F.I.R. was not satisfactorily explained---Driver of the vehicle in question though had informed the police officer that accused persons had robbed amount, some mobile phones, documents and N.I.Cs. but neither the driver nor any other passenger of the vehicle had made complaint of robbery---None of accused persons was named in statement under' S,161, Cr.P.C. by private witnesses including the driver of the vehicle and Investigating Officer had not bothered even to hold identification of accused through private witnesses---Private witnesses in their statements under S.161, Cr.P.C. had not specified the amount of cash and number of mobile phones and documents that were stated to be robbed from them and only a general allegation had been made against accused---Complainant in the F.I.R. had alleged that encounter lasted about fifteen minutes, in which both police officials, as well as accused had fired---Complainant had stated that he had fired 30 shots from his official gun and with regard to further firing, other police officials gave the number of shots fired by them---Recovery of 28 empties from the place of vardat was not consistent with the number of shots as alleged in F.I.R.---No injury was suffered by any of the parties---Case of accused being of further inquiry he was entitled to the grant of bail---Fact that accused had been implicated due to enmity, could not be ruled out---Pre-arrest bail already granted to accused, was confirmed, in circumstances.

Abdul Rasool Abbasi for Applicant.

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

YLR 2007 KARACHI HIGH COURT SINDH 903 #

2007 Y L R 903

[Karachi]

Before Mrs. Qaisar Iqbal, J

GHULAM ABBAS alias ABBAS and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-463 of 2006, decided on 28th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 33 7-A (iii), 337-F(i), 337-H(iv), 504, 114, 147, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Further inquiry---Final medical report stood cancelled by Medical Board duly constituted, which had itself belied the prosecution story and had created doubt, which speaks volumes about investigation conducted and ultimately accused were challaned in the commission of crime---Alleged licensed gun was not recovered by investigating agency---Case of accused required further inquiry as contemplated by subsection (2) of S.497, Cr.P.C.-Accused were admitted to bail, in circumstances.

Muhammad Iqbal Kalhoro for Applicants.

Riazuddin Siddiqui for the State.

YLR 2007 KARACHI HIGH COURT SINDH 914 #

2007 Y L R 914

[Karachi]

Before M.A. Shahid Siddiqui, J

ABDUL REHMAN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 2531-B and 2630-B of 2006, heard on 18th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.440, 448, 148 & 149---Bail, grant of---Dispute between parties was with regard to land, which parties first tried to get it resolved through Revenue Department---Primarily it was a dispute of civil nature---Offences with which accused had been charged, did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused were admitted to bail, in circumstances.

Malik Munisf Awan for Petitioners.

Ch. Muhammad Lateef Sarra for the Complainant.

Irfan Gul for the State.

Fateh Muhammad, S.I. Police Station Musa Khel, District Mianwali with record.

YLR 2007 KARACHI HIGH COURT SINDH 921 #

2007 Y L R 921

[Karachi]

Before Munib Ahmed Khan, J

OMED ALI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.353 of 2006, decided on 3rd January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/149---Bail, grant of---Accused were not named in F.I.R., while specific names of other four persons were mentioned in F.I.R.---Accused in circumstances were entitled to bail---Trial Court though had narrated the cause of death and injuries while rejecting bail application, but Court had not looked at the factual position regarding allegations against accused---Trial Court had not taken notice of the fact that four persons, who had been named in the F.I.R. and had not been sent for prosecution, would have also been issued a notice as their involvement in the case was alleged by complainant---Trial Court was directed to issue notice to all said four persons who had been placed in Column No.2 of the challan.

Syed Amanullah Shah's case PLD 1996 SC 241 rel.

Asif Ali Abdul Razzak Soomro for Applicants.

Muhammad Salaam Jassar for the State.

YLR 2007 KARACHI HIGH COURT SINDH 924 #

2007 Y L R 924

[Karachi]

Before Ali Sain Dino Metlo, J

ALI SHER---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.652 of 2006, decided on 13th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 337-H(ii) & 392---Offences Against Property (Enforcement of Hudood) Ordinance (VII of 1979), S.20---Bail, grant of---Further inquiry---Matter was reported to the police on the next day of occurrence and accused was not put to identification by complainant and other witnesses---One of the prosecution witnesses; after four days of incident stated before the police that he had identified one of the robbers to be accused---Said witness had not assigned any plausible explanation for not disclosing his name for four days---Neither the robbed mobile phone-set nor any weapon was recovered from accused---Where prosecution witness did not disclose name of accused to anybody for four days and accused was not put to identification of said five persons including complainant, who had seen the robbed property nor any weapon was recovered from him, case of accused required further enquiry as contemplated by S.497(2), Cr. P. C. ---Accused was admitted to bail, in circumstances.

Nisar Ahmed Abro for Applicant.

Muhammad Ismail Bhutto for the State.

YLR 2007 KARACHI HIGH COURT SINDH 927 #

2007 Y L R 927

[Karachi]

Before Rahmat Hussain Jafferi and Muhammad Afzal Soomro, JJ

Choudhry ARIF HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal A.T. Revision Application No.132 of 2003, decided on 1st March, 2006.

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

---S.27---Petition was directed against order passed by Special Judge Anti-Terrorism Court by which Court had imposed fine of Rs.50,000 upon the petitioner as he had violated the terms of bond executed by him for his regular appearance in the Court---Proceedings were terminated as petitioner was convicted by imposing a fine of Rs. 100,000---Request of petitioner for extention of time to pay fine was allowed, but subsequently he failed to appear before the Court and the Trial Court, without forfeiting the bond imposed penalty of Rs.50,000---Proceedings against petitioner having been terminated after decision, the case was not 'pending' and bond executed by petitioner ceased to operate after the date when proceedings were terminated---No justification existed for imposition of fine on the basis of said bond---Before imposing fine on violation of bond, the Court was required to first forfeit the bond and then issue notice to the concerned person to show cause as to why a penalty should not be imposed---Said proceedings had also not been adopted as the bond was not forfeited before imposing the fine upon petitioner---Impugned order being illegal, was set aside.

Mehmood A. Qureshi for .Applicant.

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

YLR 2007 KARACHI HIGH COURT SINDH 930 #

2007 Y L R 930

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

Peer GHULAM DASTAGIR and 2 others---Applicants

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No. 9 of 2006, decided on 20th November, 2006.

Criminal Procedure Code (V of 1898)---

----Ss.22-A, 173 & 561-A---Penal Code (XLV of 1860), S.506/34---Application for setting aside the order and quashing of proceedings---Complainant, instead of appearing at police station for lodging F.I.R., had filed criminal miscellaneous application under S.22-A, Cr.P.C. before Sessions Judge, who issued direction for registration of F.I.R. against accused/applicants which was registered---No offence was made out in the said application and during investigation, Investigating Officer found the case false and rejected the cognizance of F.I.R. in B-Class---Area Magistrate, without examining the material collected during course of the investigation, passed impugned order which was liable to be set aside---Civil suit in respect of disputed agricultural land was pending between the parties---Circumstances had reflected that prosecution story was concocted by the complainant---Investigating Officer during the course of investigation disbelieved the version of complainant and disposed of the case in B-Class, but proceedings were initiated on the basis of the challan submitted on the direction of Magistrate, which was the abuse of the process of Court---Impugned order being beyond the scope of S. 173, Cr.P.C., was set aside and further proceedings on the basis of said challan were also quashed.

Hussain Ahmed v. Mst. Irshad Bibi and others 1997 SCMR 1503; Sufi Abdul Qadir v. The State and others 2000 PCr.LJ 520 and Farooq Sumor and others v. The State and others 2005 PCr.LJ 1023 rel.

Mehmood A. Qureshi for Applicants.

Rizwan H. Nadeem for Respondent No.2.

Haji Abdul Majeed for the State.

YLR 2007 KARACHI HIGH COURT SINDH 938 #

2007 Y L R 938

[Karachi]

Before Sarmad Jalal Osmany and Azizullah M. Memon, JJ

FIRST PAK MODARABA---Petitioner

Versus

NAB and another---Respondents

C.P. No.D-396 of 2004, decided on 3rd April, 2006.

National Accountability Ordinance (XVIII of 1999)---

----S.18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Reference by National Accountability Bureau---Petition by consent of parties, was disposed of by ordering that petitioner company would not entertain any application for transfer of its shares from the shareholders---Petitioner company would be allowed to operate its account with respondent-Bank; however it was also ordered that since the rights of individuals were involved, National Accountability Bureau would move Accountability Court for obtaining a freezing order in so far as those shares were concerned, within specified period.

Saalim Salam Ansari for Petitioner.

Shafiq Ahmed for Respondent-Bank.

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

YLR 2007 KARACHI HIGH COURT SINDH 947 #

2007 Y L R 947

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

ARDESHIR COWASJEE and others---Petitioners

Versus

KARACHI BUILDING CONTROL AUTHORITY and others---Respondents

C.P. No.D-391 of 2003, decided on 23rd September, 2003.

Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance (VIII of 2002)---

----S. 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Illegal construction and illegal conversion and commercialization of residential plots and illegal and over-construction of buildings thereon---Word "constructed" used .in S.5 of Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, applied only to buildings completed in all respects on the date of commencement of said Ordinance, which was 19-3-2002---Contradictory statements made by the parties including the Building Authority; and documents available on the 'record including the report of the independent Surveyor, had made it impossible to decide whether the construction on the plot in dispute was complete in all respect on 19-3-2002---lf the construction had been .completed prior to that date, respondent would be entitled to the benefit available under the Sindh Regulation and Control (Use of ,Plots and Construction of Buildings) Ordinance, 2002---However, if regularization application under the said Ordinance was filed before the completion of the building in all respect, the benefit of the provisions of the Ordinance, would not be available to the builder; and the alleged regularization/occupation certificate issued by Building Authority would be illegal and void---High Court, in exercise of its extraordinary jurisdiction under Art.199 of the Constitution, did not record evidence and decided disputed question of fact which could only be done by filing a suit in competent court of general civil jurisdiction---Relief sought by the petitioners, in circumstances, could not be granted in constitutional petition, even though it was a matter involving general public importance relating to the quality of life of millions of citizens---Constitutional petition was disposed of as not maintainable and petitioners were allowed a period of 30 days to file a pit for obtaining necessary relief from an appropriate civil court having jurisdiction in the matter, accordingly.

Naimur Rehman with Ms. Rizwana Ismail for Petitioners.

Shahid Jamiluddin A. Khan with Anwar Ali Shah for Respondent No.1 (KBCA).

Ismail Memon for Respondent No.6 (KESC).

Abid S. Zuberi for Respondent No.10 (Seemco Estate).

Haider Imam Rizvi holding brief for Rasheed A. Razvi, for Respondent No.11.

Date of hearing: 23rd September, 2003.

YLR 2007 KARACHI HIGH COURT SINDH 960 #

2007 Y L R 960

[Karachi]

Before Munib Ahmed Khan, J

MIR MUHAMMAD and others-Applicants/Plaintiffs

Versus

MUHAMMAD PANNAH and others---Respondents/Defendants

Civil Revision Application No.159 and C.M.A. No.625 of 2005, decided on 29th June, 2006.

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

----Ss. 53 & 172(2) (vi)---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), S.115 & O. VII, R.11---Suit for declaration---Provision of Ss.53 and 172, West Pakistan Land Revenue Act, 1967---Distinction---Rejection of plaint---Jurisdiction of civil court---Petitioners claimed that they were granted `Eksala' land in 1974 which was in their continued possession as per Government Policy given in the Circular dated 14-5-1930 in respect of the grant of land in the desert portion of Tharparkar District---District Officer Revenue having changed the entry of possession of petitioner by his order dated 29-8-2003, without any notice or hearing, petitioners filed suit for declaration in terms of S.53 of West Pakistan Land Revenue Act, 1967---Civil court and Appellate Court concurrently rejected plaint of petitioners under O. VII, R.11, C.P.C. on the ground that suit filed by petitioners was barred in view of S.172(2) (vi) of West Pakistan Land Revenue Act, 1967---Validity---Lot of difference existed between S.172(2)(vi) of West Pakistan Land Revenue Act, 1967 and S.53 thereof, which dealt with suit for declaration---Section 172(2) (vi) of West Pakistan Land Revenue Act, 1967 related to the correction of entry in record of rights, periodical record or register of mutation, while S.53 of the Act was in respect of grievance of any person by an entry in the record .of rights and if petitioners were in possession, then they could institute suit for declaration under S.53 of West Pakistan Land Revenue Act, 1967---Suit filed by petitioners, was not barred under S.172(2)(vi) of West Pakistan Land Revenue Act, 1967 as they were in continued possession of land duly granted to them and they were cultivating the same---Petitioners, in circumstances could not be said to have no right to the land or had illegally occupied same---Both Courts below having not correctly appreciated the law applicable, were not justified to reject plaint of petitioners---Allowing revision, both orders of courts below were set aside and civil court was directed to record evidence on issue of entitlement of petitioners in respect of land in question.

1996 SCMR 78 and 1994 MLD 874 rel.

Deedar Hussain Baloch for Applicants.

Ch. Abdul Jabbar for Respondents Nos.1 to 4.

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

YLR 2007 KARACHI HIGH COURT SINDH 969 #

2007 Y L R 969

[Karachi]

Before Mrs. Qaiser Iqbal, J

ABDUL GHANI and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.257 of 2006, decided on 17th November, 2006.

(a) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Criminal Procedure Code (V of 1998), S.103---Appreciation of evidence---Recovery of material---Benefit of doubt---Entitlement---Prosecution had failed to produce evidence, determining as to whether the recovery was effected from the possession of accused or they were holding the same jointly---Joint recovery was not permissible under the law and could not be taken into consideration---Court, as a first step, had to be satisfied not merely about the recovery of the material from the "possession" or "control" of accused, but that they were conscious about the presence of such material on their person or on the premises or vehicle where it was kept---Further requirement was that the attending circumstances of recovery should be such as to induce any reasonable man to presume that the material was to be used for some mischievous and unlawful purpose---Prosecution had acted in violation of S.103, Cr.P.C. by not picking up private mashirs despite those were available-Since the fate of. case hinged on evidentiary value of corroboratory evidence, greater necessity was for obtaining the reasons of Ballistic Expert - in support of his opinion, but the Trial Court did not care to obtain reasons from the Ballistic Expert in the case---Expert report had not been prepared on the basis of format and pro forma provided by the Government and was contrary to the requirement of law---Charges against accused were that they were busy in planning for terrorism in city, but not a single word in that respect had been uttered by prosecution witnesses nor any evidence had been produced that accused belonged to any Jehadi Tanzeem---No chain having been built up by the prosecution to connect accused with particular Jehadi Tanzeem, question of planning for terrorism in the city by them, stood resolved otherwise---For giving benefit of doubt to an accused, it was not necessary that there should be many circumstances creating doubts---If a single circumstance created reasonable doubt in a prudent mind about the guilt of accused, then he would be entitled to such benefit not as a matter of grace or concession, but as a matter of right---In absence of any satisfactory basis for upholding conviction and sentence awarded to accused by the Trial Court, conviction and sentence was set aside and accused were directed to be released.

State v. Azeem Khan PLD 1987 Kar.538; Mishal Khan v. The State 1983 PCr.LJ 1628; Kuldip Chand v. Emperor AIR 1934 Lah. 18; Rafique alias Pheeki and 2 others v. The State 1993 PCr.LJ 1017; Muhammad Amin v. The State 1990 PCr.LJ 84; Sardar Ali v. The State PLD 1964 Lah. 386; Jahane v. The State 1978 PCr.LJ 157; The State v. Abbas Ali Shah alias Aba Umar and another PLD 1988 Kar. 409; Muhammad Nawaz Sharif and others v. President of Pakistan PLD 1993 SC 437 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----Art. 59---Report of Expert---Report of Expert; may he be a Ballistic Expert, after all was an opinion which could be fallible and not immune from judicial scrutiny---Opinion of an Expert was received in evidence because it either confirmed or falsified other evidence on record.

Habibur Rehman v. The State 1988 PCr.LJ 164 and Nawab alias Nawabi v. The State 1985 PCr.LJ 2217 rel.

----Art.164---Press clippings---Evidentiary value---Such clippings can be relied upon if not contradicted by the concerned authorities.?

Muhammad Nawaz Sharif and others v. President of Pakistan PLD 1993 SC 437 ref.

M. Ilyas Khan for Appellants.

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

2007 Y L R 1027

[Karachi]

Before Gulzar Ahmed, J

MUHAMMAD WASEEM SIDDIQUI-Plaintiff

Versus

SHAUKAT ARA SIDDIQUI and others-Defendants

Suit No.37 of 2005, decided on 16th January, 2006.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & 4---Suit for specific performance of agreement of sale--Interim order---Application for modification of interim order---Interim order was passed in the case wherein defendants were directed not to create any third party interest, subject to deposit of balance sale consideration by plaintiff with the Nazir of the Court within specified period---Defendants were also directed to deposit the original title documents with the Nazir of the court---Plaintiff did not comply with interim order as no deposit was made by him accordingly---Plaintiff filed application under O.XXXIX, R.4, C.P.C. praying for modification of interim order to the effect that he should be allowed to deposit documents of the property of the equivalent value of the balance sale consideration in place of cash deposit---Conduct of plaintiff did not appear to be bona fide, in circumstances and it appeared that plaintiff had filed said application only to gain time on an untenable basis---Interim order was equitable one and plaintiff, who had approached for such relief, was also required to do equity, but he had stretched the matter for whole one year without making deposit---Such conduct of plaintiff would not entitle him to discretionary relief---Application was dismissed.

Syed Arif Ali for Plaintiff.

Shaukat Ali Sheikh for Defendants.

YLR 2007 KARACHI HIGH COURT SINDH 1034 #

2007 Y L R 1034

[Karachi]

Before Faisal Arab, J

ZAHIDA TABBASAM LILAK---Plaintiff

Versus

PAKISTAN DEFENCE HOUSING AUTHORITY and others-Defendants

Suit No.795 of 2004, decided on 16th October, 2006.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration and permanent injunction---Rejection of plaint, application for---Maintainability---Defendant moved application under O. VII, R.11, C.P.C. for rejection of plaint on the grounds that plaintiff had filed suit for declaration, permanent injunction and recovery of amount on the basis of an arbitration award wherein other defendants were not party, suit was liable' to be dismissed as it combined two alleged causes of action i.e. monthly support, maintenance recovery and entitlement to 'property---Validity---Plaintiff sought enforcement of arbitration award which was outcome of an agreement of exchange of several properties including plot in question---No provision of law would prevent a party from seeking enforcement of a contract with .another party, anywhere in the world in relation to a property located in Pakistan by filing suit in Court of appropriate jurisdiction in Pakistan within whose jurisdiction the property was located---Where a suit was maintainable, even in relation to one out of several reliefs in the plaint, application under O. VII, R.11, C.P.C. was not maintainable, as plaint could not be partially rejected---All the reliefs could be sought by the plaintiff through present suit, application filed under O.VII, R.11, C.P.C. was not maintainable.

PLD 1982 Kar. 107 and 1986 MLD 710 rel.

Zafar Hadi Shah for Plaintiff.

Ch. Hameed Ahmed for Defendant No. 1.

Mushtaq Ahmed Chaudhary for Defendant No.2.

Khalid Mahmood Dhoon for Defendant No.3.

YLR 2007 KARACHI HIGH COURT SINDH 1045 #

2007 Y L R 1045

[Karachi]

Before Anwar Zaheer Jamali, J

MUHAMMAD YOUSIF alias DODO and 5 others---Applicants

Versus

THE STATE---Opponent

Criminal Bail Application No.S-92 of 2007, decided on 19th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.334, 337-A(i), F(i), 504, 506, 114, 147, 148 & 149---Protective bail, grant of---High Court, without touching to merits of the case, admitted the accused to protective bail for a period of seven days on their furnishing surety amount and surety bond with the observations that the facility of protective pre-arrest bail, would cease to have force on expiry of said period of seven days or on surrendering of accused before the trial Court, whichever be earlier---If however, the accused failed to surrender before the trial Court within the stipulated period of seven days, the surety furnished before the Court would stand forfeited.

Khadim Hussain D. Solangi for Applicants.

Masood A. Noorani A.A.-G. for Opponent.

YLR 2007 KARACHI HIGH COURT SINDH 1063 #

2007 Y L R 1063

[Karachi]

Before Zia Perwaz and Ata-ur-Rehman, JJ

NASEEM AHMED SEHAR---Petitioner

Versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional Petition No.D-680 of 2004, 'decided on 30th January, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Tender for work of construction---Enhancement of estimated cost of tender---Petitioner, who was aggrieved by enhancement of estimated cost of tender for work of construction, had contended that after revised statement, it was required that the works be advertised and re-tendered; so as to afford an opportunity to him to participate in the tender according to fresh advertisement---Petitioner had alleged that in absence of such an exercise, the entire transaction was liable to be set aside---Tender documents had revealed that work was on the basis of estimate prepared at the rate of running contracts, which normally were subject to variations in revision of drawing as well at the time of execution---Final payment was always made on the basis of work executed and recorded in the measurement record---Different amount of estimated cost reflected in the comparative statement prepared after receipt of bid, would not affect the merit in any manner, so as to cause any prejudice to petitioner or any other contractor; it was merely a comparative statement of the rates quoted by the bidders prepared after tender had already been opened---Such questions of fact were not required to be determined in exercise of constitutional petition---Constitutional petition was dismissed.

M. Tariq for Petitioner.

Abdul Karim Khan for Respondents.

YLR 2007 KARACHI HIGH COURT SINDH 1071 #

2007 Y L R 1071

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Sajjad Ali Shah, JJ

MUHAMMAD AIJAZ---Petitioner

Versus

DIRECTOR CUSTOMS and another---Respondents

Constitutional Petition No.D-1286 of 2005, decided on 23rd November, 2005.

Customs Act (IV of 1969)---

----Ss. 2(s), 26, 156(1) (8) (77) (89) (90), 168 & 171---Constitution of Pakistan (1973), Art.199---Constitutional petition---Seizure of vehicle---Petitioner, who claimed to be lawful owner of vehicle in question, was asked to produce import documents of said vehicle, but he was unable to produce same except a Registration Book---Vehicle was detained after serving detention notice and upon preparing necessary mashirnama; thereafter notice was served under S.26 of Customs Act, 1969 upon petitioner for production of legal import documents but no document having been produced by petitioner, vehicle in question was seized under S.168 of Customs Act, 1969---Adjudication Officer found that documents produced by petitioner, did not lead to the conclusion that vehicle was legally imported, such observation was tentative in nature on the basis of material produced, while final finding in that behalf was yet to be given by the Adjudication Officer who had already issued a show-cause notice to petitioner---Held, petitioner should pursue the remedy with the Adjudication Officer of the Department---Adjudication Officer was directed by the High Court to give proper hearing to the petitioner and decide the case by speaking order strictly in accordance with law.

Muhammad Raees Khan for Petitioner.

Arif Motan for Respondents.

S. Tariq Ali Federal Counsel for Respondent.

YLR 2007 KARACHI HIGH COURT SINDH 1080 #

2007 Y L R 1080

[Karachi]

Before Ghulam Rabbani and Gulzar Ahmed, JJ

MUHAMMAD RAFIQ---Appellant

Versus

GOVERNMENT OF SINDH, HOUSING AND TOWN PLANNING, SINDH

SECRETARIAT, KARACHI and 2 others---Respondents

High Court Appeal No.230 of 2002, decided on 9th May, 2006.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Law Reforms Ordinance (XII of 1972), S. 3---Intra-court appeal---Disposal of plots---Status quo, grant of---Appellant who filed suit for specific performance of contract, along with plaint had filed application under O.XXIX, Rr.1 & 2, C.P.C. for grant of status quo and restraint order---Said application was disposed of by High Court with observation that appellant had failed to make out prima facie case, to show balance of convenience for grant of injunction in his favour---Counsel for respondents however, had stated that Government had abandoned the idea of disposing he plots in question---High Court ordered that official respondents would maintain status of plots in question in terms of statements made by counsel of respondents till disposal of suit, which was to be decided within specified period accordingly.

City Schools (Pvt.) Limited Lahore Cantt. v. Privatization Commission, Government of Pakistan and others 2002 SCMR 1150 and Secretary, Government of the Punjab, Housing and Physical Planning Department Lahore and 4 others v. Muhammad Tauheed 2003 YLR 1411 rel.

Mansoorul Arifm for Appellant.

Zafar Ahmed Khan for Sindh Privatization Committee.

Muhammad Sarwar Khan A.A.-G., Sindh for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1082 #

2007 Y L R 1082

[Karachi]

Before Rahmat Hussain Jafferi, J

ZAFAR ALI and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.245 and Revision Application No.2 of 2005, decided on 6th February, 2007.

(a) Lincence and Licensee---

----'Licence'---Connotation---'Licence' and "easement'---Distinction---Under the law "licence." was a personal privilege to do some particular act or series of acts on the land without possessing any estate or interest therein and was ordinarily revocable at the will of licensor and was not assignable---Lincence was not a contract between the licensor and licensee, but a mere personal permit---Licence, in circumstances was distinguishable from an "easement", which implied an interest in the land and a "Lease" or right to take the profits of land whereas a legal right in its strict sense was one which was an ascertainable claim, enforceable before courts and administrative agencies---Legal right, in its widest sense, had to be understood as an advantage or benefit conferred upon the person by a rule of law---Legal right was a right of a party recognized and protected by a rule of law, violation of which would be a legal wrong done to his interest and respect for which was a legal duty, even though no action might actually lie.

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

----Ss. 430, 425 & 23---"Mischief", ingredients and proof of---For attracting provisions of S.430, PPC offence of "mischief", as defined in S.425, P.P.C. was required to be proved; namely that accused caused the destruction of some property, or some change in such property or in the situation thereof; that act of accused destroyed or diminished the value or utility of such property or affected it injuriously; that accused did so intending or knowing that he was likely to cause loss or damage to the public or to any person; and that causing of such damage or injury was wrongful---Prosecution, after proving said facts, was further required to prove that the mischief in question caused or was likely to cause, diminution of the supply of water; that supply of water was for the purpose of agriculture; or for food or drink for human beings; or for animals, which were property; or for cleanliness; or for carrying on any manufacture; that the mischief was done with knowledge that it would, or was likely to cause, such diminution of the supply of water---Prosecution, in circumstances was also required to prove wrongful loss or damage, as defined under S.23, P.P.C.---Complainant should also have some legal right in the property in question.

Banwari Karmarkar v. Gasto Behary Karmarkar AIR 1920 (C) 835 and (1881) 1 Wier 503 rel.

----S. 430---Scope and application of S.430, P.P.C.---Complainant having no legal right in the watercourse, damage caused to the complainant, if any, could not attract 5.430, P.1C.---Original owner of watercourse, in the present case, had not complained of any damage to him, as he himself had permitted the use of his share of water from the watercourse to the uncle of complainant, apparently for the reason that the water was not required for irrigating his land---Conviction and sentence awarded to accused, were set aside and they were acquitted and set at liberty.

M.M. Aqil Awan for Appellant.

Shahadat Awan for the Complainant.

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

Date of hearing: 4th December, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 1085 #

2007 Y L R 1085

[Karachi]

Before Saiyed Saeed Ashhad, C.J.

IMRAN RAZA and another---Applicants

Versus

THE STATE---Respondent

Protective Bail Application No.1781 and M.As. No.2927 and 2928 of 2001, decided on 4th February, 2002.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.406 & 420---Protective bail, grant of---Accused had submitted that bailable warrants were never received or served upon them, which subsequently led to the order for issuance of non-bailable warrants as a result of which they had approached High Court for grant of protective bails---In view of fact that both complainant and accused were residents of place 'K' as well as alleged incident which led to filing of the direct complaint had also taken place at 'K' filing of the direct complaint, at place 'S' appeared to be with mala fide intention--Protective bails were granted to accused, in circumstances---Said bails would be valid for a period of ten days or till such time when accused would surrender themselves before the Trial Court, whichever was earlier.

Saathi M. Ishaque for Applicants.

YLR 2007 KARACHI HIGH COURT SINDH 1088 #

2007 Y L R 1088

[Karachi]

Before Muhammad Afzal Soomro, J

Rana KHALID MEHMOOD---Applicant

Versus

THE STATE---Respondent

Bail Application No.1375 of 2003, decided on 11th December, 2003.

(a) Criminal trial---

----Charge under different statutes or laws---Principle---When an accused was charged under two different statutes or laws, then, he could only be tried for offences under the law, which would provide lesser sentence provided that offences were alike or similar in nature.

Muhammad Younus and another v. The State 2001 PCr.LJ 157 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.411 & 109---Emigration Ordinance (XVIII of 1979), S.17(1)---Bail, grant of---Prosecution, had failed to establish that accused prima facie had been found guilty of offence punishable with death, imprisonment for life or ten years--No reasonable grounds were available to believe accused was guilty of offence---Accused being entitled to grant of bail, was admitted to bail, in circumstances.

Saathi M. Ishaque for Applicant.

Syed Tariq Ali D.A.-G. for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1096 #

2007 Y L R 1096

[Karachi]

Before Muhammad Sadiq Leghari, J

NISAR A. MEER---Appellant

Versus

ASHRAF SHAHZAD and 7 others---Respondents

Criminal Acquittal Appeal No 523 of 2005, decided on 30th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 417---Penal Code (XLV of 1860), Ss.337-A(i), 452 & 147---Appeal against acquittal---Appreciation of evidence---Appellant/complainant and four respondents were members of Traders Association and other four respondents were its employees---Appellant who was Chairman of the Association, did not participate in elections for the new body---Election litigation started after three months---Respondents claimed that office of Chairman had been taken over by the newly elected Chairman---Allegation against respondents/accused was that they had taken over office of Chairman, forcibly and had trespassed into office of appellant/ former Chairman illegally and caused injury to one person---Trial Court however acquitted respondents of all charges---Validity---Tenure of appellant/former Chairman of the Association had expired and he did not take part in the election---New Chairman who was elected in the election had taken over the office immediately after his election---Presumption would be that new Chairman had taken over the office and no presumption could be in favour of former Chairman that he was continuing and acting as such---Said fact had been considered in the impugned judgment that appellant/former Chairman/complainant failed to establish that he was still the Chairman---If the witnesses named in F.I.R. were not examined, presumption was in favour of newly elected Chairman---Allegations of trespass levelled by appellant against respondents, had rightly been disbelieved---Acquittal order not warranting interference with, appeal against same was dismissed.

Zafar Ahmed Khan for Appellant.

Badar Munir for Respondents.

Haider, A.A.-G.

YLR 2007 KARACHI HIGH COURT SINDH 1107 #

2007 Y L R 1107

[Karachi]

Before Muhammad Sadiq Leghari, J

MUHAMMAD YOUSUF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.227 of 2004, heard on 12th October, 2005.

Penal Code (XLV of 1860)---

----Ss. 320 & 337-G---Appreciation of evidence---Sentence, reduction in---Co-accused though had stopped the vehicle in middle of the road and accused was caught in the situation unexpectedly deserved consideration, but that too did not take accused out of the scope of rashness and negligence---Had accused been careful and vigilant, he could have successfully averted the accident---Question of quantum of sentence awarded to accused deserved to be considered---Since accused was penalized and directed to pay diyat to the legal heirs of deceased, quantum of imprisonment deserved to be revised in the facts and circumstances of the case---Sentence awarded to accused was reduced from 5 years to 4 years for the offence under S.320, P.P.C., while sentence awarded to him for S.337-G, P.P.C. was maintained---Both of the sentences were to run concurrently.

Zafar Ahmed Khan for Appellant.

Sardaruddin Qureshi, State Counsel.

Date of hearing: 12th October, 2005.

YLR 2007 KARACHI HIGH COURT SINDH 1114 #

2007 Y L R 1114

[Karachi]

Before Anwar Zaheer Jamali, J

NAVEED AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.846 of 2006, heard on 9th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Emigration Ordinance (XVIII of 1979), S.22(b)---Bail, grant of---Further inquiry---Case of accused, based on mere statements of co-accused, without any tangible evidence against him, needed further inquiry into his guilt, which had made accused entitled to admission on bail---Accused was admitted to bail, in circumstances.

Muneer Ahmed Banbhan for Applicant.

S. Tariq Ali Federal Counsel for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1126 #

2007 Y L R 1126

[Karachi]

Before Mrs. Qaisar, Iqbal, J

JAMIL and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.18 of 2006, decided on 31st October, 2006.

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

----S. 497---Customs Act (IV of 1969), Ss.156(1) (8) & 178---Bail, grant of---Contraband foreign origin liquor was seized from the launch and owner of the launch was arrested---Considering the question of bail, general policy of law was to allow bail rather than to refuse it---Status of applicant/accused was conceded to be that of loader---Accused/applicant though was arrested from the launch, but his case was not at par with the offence committed by the co-accused, who was `Tandal' (Nakhuda)---Accused was behind the bars for about eight months without progress in the case---Accused was admitted to bail, in circumstances.

Noorul and others v. The State 1976 SCMR 190 and Manzoor v. The State PLD 1972 SC 81 rel.

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

----S. 497---Customs Act (IV of 1969), Ss.156(1)(8) & 178---Bail, refusal of---Case of co-accused was distinguishable from the case of accused who was admitted to bail---Plea of co-accused was rejected in circumstances, with direction to the Trial Court to commence trial of the case in accordance with law, expeditiously.

Habibur Rashid for Applicants.

Mahmood A. Rizvi D.A.-G. for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1136 #

2007 Y L R 1136

[Karachi]

Before Muhammad Sadiq Leghari, J

NAEEM BAIG---Applicant

Versus

Haji ABDUL GHANI---Respondent

Criminal Miscellaneous No.196 of 2005, decided on ?

Penal Code (XLV of 1860)---

----S. 193---Criminal Procedure Code (V of 1898), Ss.195, 476 & 561-A---Giving fake evidence---Jurisdiction of civil court to take cognizance of offence---Exercise of inherent jurisdiction of High Court under S.561-A, Cr. P. C. ---Offence of giving false evidence was alleged to have been committed in relation to the proceedings of a suit before civil court---Civil court before which offence under S.193, P.P.C. was committed, could take cognizance thereof---Court either could try the case itself adopting summary procedure or forward same to the court of competent jurisdiction to try the same---Contention that S.476, Cr. P. C. was the only provision providing for the procedure, was repelled---Order impugned through miscellaneous application having not been passed illegally or in misuse of the powers, same could not call for interference under S.561-A, Cr. P. C.

Farayad Ali's case and others 2004 SCMR 1728; Abdul Wahab Khan v. Muhammad Nawaz 2000 SCMR 1904; Muhammad Suleman and others (sic) PLD Lah. 386 and Abdul Haleem's case 1994 SCMR 1103 rel.

Chaudhry Abdul Rasheed for Applicant.

Rana Khan for the State.

Date of hearing: ?.

YLR 2007 KARACHI HIGH COURT SINDH 1144 #

2007 Y L R 1144

[Karachi]

Before Muhammad Athar Saeed, J

ALI AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.563 of 2006, decided on 9th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.392 & 397---Bail, grant of---Trial Court while rejecting bail application of accused did not record any reason for the rejection except that accused had been arrested at the spot and recovery of cash of Rs.300 was made from him---Challan showed that offences fell under Ss.392 & 397, P.P.C., which offences did not fall under prohibitory clause of S.497, Cr.P.C.---Bail was granted to accused, in circumstances.

Muhammad Yaseen for Applicant.

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

YLR 2007 KARACHI HIGH COURT SINDH 1148 #

2007 Y L R 1148(2)

[Karachi]

Before Khilji Arif Hussain, J

ABDUL MATEEN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.780 of 2006, decided on 3rd October, 2006.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), S.353---Bail, grant of---Further inquiry---Counter F.I.R. having been registered against the police party questioning the encounter, accused's case had become a case of further inquiry---Accused was admitted to bail, in circumstances.

Lal Chand Mamtani for Applicant.

Shahida Jatoi for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1156 #

2007 Y L R 1156

[Karachi]

Before Rahmat Hussain Jafferi and Mrs. Yasmin Abbasey, JJ

GHULAM ALI MOGHIMI---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.40 of 2006, decided on 5th December, 2006.

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

----Ss. 9(c) & 29---Qanun-e-Shahadat (10 of 1984), Art.117---Appreciation of evidence---Benefit of doubt---Delay of three months in sending case property to Chemical Examiner despite putting specific question in that regard, delay had not been explained by the Investigating Officer---Case of prosecution appeared to be doubtful---Case property which was obtained at the time of recovery and was produced in the court, did not bear signature of witness it seemed to have been foisted on accused, in circumstances---Lacunas and discrepancies appearing on record, remained unexplained---By virtue of S.29 of Control of Narcotic Substances Act, 1997, though until and unless the contrary was proved, it would be presumed that accused was in possession of illicit article, but even then prosecution had to come with clean hands---Initial burden to prove was on prosecution, but same shifted upon accused after prosecution discharged same---After denial of accused, at the time of framing of charge of guilt alleged against him and apart from it, even under presumed fact of possession, it was for the prosecution to produce and prove relevant and satisfactory evidence 'beyond reasonable doubt, which had not been done in the case---Giving benefit of doubt, conviction order passed by the Trial Court was set aside.

Abdul Razzak for Appellant.

Mahmood Alam Rizvi for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1197 #

2007 Y L R 1197

[Karachi]

Before Rahmat Hussain Jafferi and Ali Sain Dino Metlo, JJ

THE STATE/ANF SINDH---Applicant

Versus

Messrs NAUSHAD ALI AND SALEEM ASSOCIATES BUILDERS---Respondents

Criminal Appeal No.303 of 2005, decided on 5th April, 2006.

(a) Anti-Narcotics Force Act (III of 1997)---

----S. 6(4)(5)(6)--Freezing (5) (6)---Freezing the property allegedly acquired through illicit involvement in narcotics---Procedure---Inspector Anti-Narcotics Force froze property in exercise of powers under S.6(5) of Anti-Narcotics Force Act, 1997, which allegedly was acquired through illicit involvement in narcotics---Trial Court set aside order freezing said property and ordered that property should be reverted to the owner-Validity-Before passing order under S.6(5) of Anti-Narcotics Force Act 1997, officer concerned was first required to form an opinion that there was reasonable suspicion that said property was acquired through involvement in the narcotics---While forming the opinion, as required under subsection (4) of S.6 of Anti-Narcotics Force Act, 1997, the opinion must be based on some reasons which would serve as link between the material on which suspicion was based and the opinion---If said conditions were fulfilled then under subsection (5) of S.6 of Anti-Narcotics Force Act, 1997, the officer was further required to form opinion that said property was being removed, transferred or otherwise disposed of, before said property could be frozen---If it was found that no reasons were assigned by Authority of required suspicion or for transferring, then freezing order would become nullity--Impugned order of Inspector had shown that the Inspector did not assign any reason for forming his opinion on the points mentioned in subsection (4) (5) of S. 6 of Anti-Narcotics Force Act, 1997---Order passed by Inspector, in circumstance not being maintainable was rightly set aside by the Trial Court---Frozen property was required to be reverted to its original position as stood on the date on which it was frozen.

Zain Yar Khan v. Chief Engineer, C.R.B.C., WAPDA 1999 SC 1105 ref.

(b) Words and phrases-

---"Reason", "reasonable" and "reason-able suspicion'', defined and explained.

Gurdial Singh v. State of Punjab (1979) 2 SCC 368 at p.377; Raghbir Singh v. CIT AIR 1958 Punjab 250; Rena Drago v. Lalchand Soni (1998) 3 SCC 341 and R K Garg v. Union of India 1982 SCC (Tax) 30 at p.64 ref.

Sibtain Mehmood for Applicant ANF.

Miss Wajida Maryam Mehdi for Respondents.

YLR 2007 KARACHI HIGH COURT SINDH 1224 #

2007 Y L R 1224

[Karachi]

Before Azizullah M. Memon, J

TERRA MARINE AGENCIES---Petitioner

Versus

VTH ADDITIONAL DISTRICT JUDGE and another---Respondents

C.P. No.S-261 of 2006, decided on. 15th December, 2006.

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

----S. 15(2) (iii) (c) & (iv)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on grounds of impairing the material value or utility of premises and infringement of conditions of tenancy---Not necessary that the acts of the tenant must have conclusively diminished the value or utility of the premises, but it would be within the mischief of S.15 (2) (iii) (c) & (iv) of Sindh Rented Premises Ordinance, 1979, if such acts were likely to do so; which had a tendency to the same effect of materially diminishing the value or utility of the premises and material structural alterations, which tended to damage the nature and character of the premises, would come within the mischief of the provisions of Sindh Rented Premises Ordinance, 1979---Words value' orutility' of premises had to be read disjunctively---Not necessary that the impugned act must impair both the value and utility of the building, but it would suffice, if material impairment was either of financial value of the premises, or similarly of the utility for the purpose of the landlord, if he was able to establish either of the two requirements---Any material structural alterations which tended to change the nature and character of the premises, would come within the mischief of the statute---Use of the word `material' in the provision, only effectuate the hollowed rule of law; that it did not take account of triffles and consequently both the impairing of that value or its utility must be of a substantial and not inconsequential nature---Facts mentioned in present ejectment application, did not constitute minor changes, but drastic changes had been made by tenants in the structure of premises---Alteration should be of a structural nature and not merely of decorative nature---Fixing a door to a room of two garage by a tenant, could not amount to material alteration, within the meaning of S.15(2) (iv) of Sindh Rented Premises Ordinance, 1979, but same would not be the case when an open verandah was converted into a closed room by erecting wall and by fixing door in the open portion---Tenants did not. make any application to Rent Controller to seek permission to carry out repairs/ additions/alterations, which admittedly had been carried out by them and thereby they had proved infringement of terms and conditions of the tenancy agreement---In absence of any reason to interfere in the concurrent findings of two courts below whereby tenants/petitioners were directed to be evicted from premises in question, petition against concurrent judgment, was dismissed.

Al-Noor Education Society v. K. Mushtaq Illahi 1993 CLC 1798 rel.

Agha Faqir Muhammad for Petitioner.

Ms. Rukhsana Ahmed for Respondent No.2.

YLR 2007 KARACHI HIGH COURT SINDH 1259 #

2007 Y L R 1259

[Karachi]

Before Maqbool Baqar, J

ALLAHDAD and another---Applicants

Versus

THE STATE---Respondent

Bail Application No.S-127 of 2006, decided on 17th January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 201 & 109---Offences Against Property (Enforcement of Hudood) Ordinance, (VI of 1979), S.17(4)---Bail, grant of---Further inquiry---Neither in F.I.R. nor in alleged confessional statements, it was alleged that it was at the behest of the accused that deceased was taken to the land of the accused---No mention was also of the presence of the accused at the time of arrival of deceased and up to his burial---No overt act had been attributed to the accused---Confessing accused persons, without assigning any role' to the accused, had merely "stated that deceased had been murdered at the behest of the accused, neither had they said that the accused asked co-accused persons to murder deceased nor had they attributed any other act to the accused to show his participation in the offence---Alleged confessional statements were recorded with a delay of 3 to 16 days---Inference of conspiracy, could be drawn from facts established, but mere allegations that the accused persuaded complainant not to report disappearance/kidnapping of deceased to the Police and the fact that the accused after being informed of disappearance of deceased from his land, went away to his village and returned back after four days and only then got the F.I.R. registered, did not, in facts and circumstances of the case, justify refusing bail to the accused as allegation of his involvement in the crime, required further inquiry, whereas last seen allegation against one co-accused, might not be sufficient to exclude the hypothesis of innocence of said co-accused---Case against co-accused also required further inquiry---Accused persons were admitted to bail, in circumstances.

Arif Nawaz Khan's case PLD 1991 FSC 53; Pir Mazharul Hhq v. The State 1992 PCr.LJ 1910; Muhammad Iqbal v. Abid Hussain Shah 2000 PCr.LJ 1171; Malik Ejaz Ali v. The State 2005 MLD 997; Amanullah Shah v. State PLD 1996 SC 241; Aijaz Ahmed v. The State 1997 SCMR 1297; Abdul Saleem v. The State 1998 SCMR 1578; Muhammad Jamil v. Shaukat Ali 1996 SCMR 1.685 and Muhammad Arshad v. The State 1992 SCMR 1187 rel.

Syed Madad Ali Shah for Applicants.

Hidayatullah Abbasi for the Complainant.

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

YLR 2007 KARACHI HIGH COURT SINDH 1311 #

2007 Y L R 1311

[Karachi]

Before Nadeem Azhar Siddiqi, J

HIDAYATULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.676 of 2006, decided on 9th January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 337-H(ii), 148, 149, 114 & 34---Bail, grant of-Accused was behind the bars for the last about four years but case had not proceeded despite direction of High Court to the Trial Court that trial be concluded within ninety days---Delay in prosecution of the case though no more was available as statutory right of accused but grant of bail on the ground of inordinate delay in conclusion of trial had always been considered---Expeditious and fair trial was the right of every accused---Purpose of trial was not to punish accused without trial--Inordinate delay, if not explained, would amount to abuse of process of law even in cases of capital punishment---Where directions of the Superior Courts were not complied with without any justifiable reason, same could furnish a valid ground for grant of bail---Order of the High Court , having not been complied with and the accused in counter case having got bail, accused was also entitled for concession of bail on the ground of hardship---Accused was admitted to bail, in circumstances.

Altaf Hussain Surhio for Applicant.

Muhammad Ismail Bhutto for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1321 #

2007 Y L R 1321

[Karachi]

Before Anwar Zaheer Jamali, Syed Zawar Hussain Jaffery and

Muhammad Athar Saeed, JJ

ABDUL GHANI---Appellant

Versus

ALAMGIR---Respondent

H.C. Appeal No.6 of 2004, decided on 19th September, 2006.

Specific Relief Act (I of 1877)---

----S.12---Law Reforms Ordinance (XII of 1972), S. 3---Suit for specific performance of agreement of sale---High Court appeal---Respondent got property in dispute from his father/original owner through registered sale-deed---Stepmother of respondent who was widow of original owner filed suit for cancellation of registered sale-deed against respondent alleging that suit property was gifted to her by her husband/original owner and that respondent got sale-deed registered in his favour forcibly---Trial Court, however, returned plaint to stepmother of respondent and thereafter she did not institute any suit---Appellant was tenant of two shops in property in question and respondent filed rent case against appellant, which was dismissed in default and restoration application filed by respondent was also dismissed---Appellant claimed that respondent, who offered to sell suit property to him, had executed agreement of sale in his favour accepting amount from him as part payment and balance was to be paid at the time of registration of sale-deed---Respondent having denied execution of alleged agreement of sale, appellant filed suit for specific performance of agreement of sale, which suit was dismissed by Single Judge of High Court, observing that alleged agreement of sale was not genuine as it was not signed by respondent and as such did not constitute an agreement enforceable in law---Appellant had filed High Court appeal---Respondent being landlord was receiving rent from tenant---Nothing was on record to show that appellant in any proceedings had pleaded about alleged agreement of sale---Appellant used to pay rent to respondent even after death of his father/original owner, particularly after alleged agreement to sell---High Court, in circumstances had rightly held that alleged agreement to sell was forged one---No illegality or infirmity having been found in the order of High Court which was based on cogent reasons and same was unexceptionable, High Court appeal against said order was dismissed.

Jameel Ahmed v. Saifuddin PLD 1994 SC 501; Wazeeruddin v. Khalid Masood 1989 CLC 106; Faiz Ahmed and others v. Mst. Qudsia Khatoon 1991 MLD 1051; Khawaja Ammar Hussain v. Muhammad Shabbiruddin PLD 1986 Kar.74; Mst. Khairul Nisa and others v. Malik Muhammad Ishaque and others PLD 1972 SC 25 and Hassan Aadas v. Mir Muhammad and others 1990 CLC 1362 rel.

Muhammad Sharif for Appellant.

Muhammad Ismail Memon for Respondent.

Dates of hearing: 23rd, 25th ' August and 19th September, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 1338 #

2007 Y L R 1338

[Karachi]

Before Faisal Arab, J

BIJAR---Petitioner

Versus

THE STATE-Respondent

Criminal Bail Application No.644 of 2006, decided on 27th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392---Bail, grant of---Further inquiry---Accused was neither named in F.I.R. nor in statements under S.161, Cr.P.C. which were recorded on the next day---Accused was subsequently arrested by the police as one of the unnamed suspects in the crime---Accused was put to identification parade and was identified as one of accused persons, but complainant and prosecution witnesses had sworn affidavits before the Trial Court to the effect that they had not seen the present accused at the scene of the crime---Such fact had been confirmed by State counsel who stated that he conceded to the grant of bail as the case for further inquiry was made out---Accused was enlarged on bail.

Muhammad Iqbal Mahar for Applicant.

Mushtaque Ahmed Kourejo, State Counsel for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1345 #

2007 Y L R 1345

[Karachi]

Before Mushir Alam and Amir Hani Muslim, JJ

MUHAMMAD BASHIR---Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI-Respondent

Constitutional Petition No.D-3444 of 1993, decided on 6th December, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Cancellation of allotment of plot--Petitioner claimed to be the transferee of plot in question, which he had purchased from its original allottee---Original allottee deposited amount of plot and Development Authority issued allotment order, site plan and possession order, whereafter petitioner through attorney purchased the said plot---Petitioner applied for pre-lease transfer, which permission . was granted and petitioner paid requisite amount/fee for transfer---After said transfer, petitioner received letter from Development Authority in which it was stated that plot in question was cancelled on account of non-deposit of occupancy value observing that paid challan of the Bank was forged document and that amount was never deposited by the original allottee with the relevant Bank---Constitutional petition by petitioner was admitted and consent status quo was ordered to be maintained by Development Authority---Petitioner in compliance of order, deposited amount in dispute with Nazir of the High Court---Matter was remanded to Director General, Development Authority for decision on merits after hearing petitioner---Forgery, if any, committed by original allottee was condoned by public notice and in identical matters a number of other plots which were cancelled on same ground were restored to the allottees on payment of their occupancy value---Petitioner was singled out although he was willing to make payment, but it was not accepted by Development Authority for extraneous considerations---Petitioner, a transferee in circumstances, was also entitled to restoration of allotment--- Allowing constitutional petition, Development Authority was directed by the High Court to restore allotment of plot in question and that the amount deposited by petitioner with Nazir, be disbursed to Development Authority/City District Government---Petitioner, however would pay any further lawful dues if-any to the City District Government, if demanded.

Muhammad Sharif for Petitioner.

Manzoor Ahmed for Respondent.

Date of hearing: 6th December, 2005.

YLR 2007 KARACHI HIGH COURT SINDH 1364 #

2007 Y L R 1364

[Karachi]

Before Muhammad Moosa K. Leghari and Sajjad Ali Shah, JJ

SAEED AHMAD---Petitioner

Versus

REGIONAL POLICE OFFICER and 25 others-Respondents

C.P. No.404 of 2006, decided on 8th March, 2007.

Criminal Procedure Code (V of 1898)---

----S.491---Constitution of Pakistan (1973), Art.199---Habeas corpus petition---Petitioner, who was father of alleged detainee, had alleged that his son was taken away by police official and was kept under illegal detention---Petitioner moved an application under S.491, Cr. P. C. before Sessions Judge, whereupon a raid was conducted at police station concerned, but detainee was not found available---Petitioner, through constitutional petition had prayed for direction to S.H.O. of all the police stations of the District to produce detainee and also inform about cases, if any, pending against the detainee---District and Sessions Judge, after holding enquiry, had submitted his report in which he observed that detainee was arrested on the date when S.H.O. of specified police station had taken him from his house and that he had been falsely implicated by the police in the cases---Son of petitioner having illegally been arrested and falsely implicated by police official and a false mashirnama was prepared, police officials were liable to disciplinary action---District Police Officer (Operation) was directed to take appropriate disciplinary action against delinquent officials and submit compliance report within specified period.

Tahir Nisar Rajput for Petitioner.

Masood A. Noorani, Additional Advocate General Sindh along with Inspector Intizar Hussain on behalf of District Police Officer, Hyderabad, Sub Inspector Hassan Ali Abdi and A.S.-I. Ameer Alam of Police Station, G.O.R., Hyderabad.

YLR 2007 KARACHI HIGH COURT SINDH 1438 #

2007 Y L R 1438

[Karachi]

Before Ghulam Rabbani and Azizullah M. Memon, JJ

BASHIR AHMED SHAIKH---Appellant

Versus

THE STATE (NAB)---Respondent

Criminal Accountability Appeal No.14 of 2005.

Criminal Procedure Code (V of 1898)---

----S.497---National Accountability Ordinance (XVIII of 1999), Ss.9 & 10---Bail pending appeal against judgment of Accountability Court, refusal of---Prima facie, accused though had claimed to be private employee of co-accused, a consultant of the project, but being his associate and having omitted to verify the entries in the measurement books, to the detriment of government exchequer, appeared to be prima facie responsible for the offence alleged against him---Difficulty that delay might be caused in disposal of appeal, could be overcome by fixing the appeal on some short date---No case for grant of bail having been made out for release of accused during pendency of appeal bail application was dismissed.

Azizullah Shaikh and Miss Shaista Shamim for Appellant.

Shafaat Nabi K. Sherwani, DPG NAB for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1457 #

2007 Y L R 1457

[Karachi]

Before Zia Perwaz and Rehmat Hussain Jafferi, JJ

MUHAMMAD IQBAL SIDDIQUI---Petitioner

Versus

PROVINCE OF SINDH, MINISTERY OF FOOD AND COOPERATION

through Secretary and others---Respondents

Constitutional Petition No.D-340 of 2006, decided on 23rd May, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Petitioner had already invoked jurisdiction of civil Court which was competent to decide all the questions involved in the matter---Petitioner in circumstances had already availed remedy available under the law---Counsel for petitioner had contended that it was necessary in all the cases that first remedy available under the law should be exhausted and then constitutional petition should be filed, but if the remedy was not adequate and efficacious then the High Court could be approached---Validity---If an adequate remedy was available to an aggrieved person then as a general rule, he could not invoke the jurisdiction of High Court under Art.199 of the Constitution---Nevertheless, existence of an alternate remedy was not per se a bar to the issuance of an order under Article 199 of the Constitution---Such available remedy, however should be sufficient to warrant refusal to exercise constitutional jurisdiction by the High Court and it was also necessary that other remedy must be both specific and adequate in the sense that it must be competent to afford relief upon the very subject-matter of the petition and be equally convenient, beneficial and effective---In the present case situation was completely different as petitioner had already availed the remedy by filing a civil suit in a competent Court of jurisdiction and constitutional petition had been filed after four years, which was dismissed.

Muhammad Ashraf Ali v. Muhammad Nazir 1986 SCMR 1096; Abdul Hamid v. Deputy Commissioner 1985 SCMR 359 and Presiding Officer v. Sadruddin Ansari PLD 1967 SC 569 rel.

Badar Alam for Petitioner.

Arif Bilal Sherwani for Respondent No.2.

Syed Nasir Jafferi for Respondent No.5.

Ainuddin Khan, ADPGA for Respondent No.6.

Date of hearing: 23rd May, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 1477 #

2007 Y L R 1477

[Karachi]

Before Syed Zawar Hussain Jaffery and Nadeem Azher Siddiqi, JJ

NAJAMUDDIN and others---Applicants

Versus

THE STATE-Respondent

Criminal Bail Application No.20 of 2007, decided on 19th January, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 33 7-H(ii), 452, 148 & 149---Bail, grant of---Accused had sought bail on the ground of hardship as accused were in custody for a period of more than five years, but the Trial Court had not concluded the case despite best efforts made on behalf of accused---Trial Court issued process against prosecution witnesses, but during the last two years Trial Court could not examine any witness despite direction in this behalf---Conduct of the prosecution for conclusion of trial was not within sight---Early trial, was right of accused and they could not be kept in custody without trial for indefinite period---Two co-accused had already been released on bail and case of accused was identical with the case of said co-accused---One of accused persons while remaining in custody for more than four years had expired---Accused, in circumstances were entitled to concession of bail even on the ground of consistency---Accused were admitted to bail, in circumstances.

Muhammad Ayaz Soomro for the Applicants.

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

YLR 2007 KARACHI HIGH COURT SINDH 1483 #

2007 Y L R 1483

[Karachi]

Before Azizullah M. Memon, J

Dr. ABDUL RAUF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1055 of 2006, decided on 22nd November, 2006.

Criminal Procedure Code (V of 1898)---

----S.498---Emigration Ordinance (XVIII of 1979), Ss.17 & 22---Bail before arrest, refusal of---Accused without first approaching the Trial Court with a bail application, had directly presented bail application before High Court---Bail application under S.498, Cr.P.C. having been improperly presented before High Court, bypassing forum of the Trial Court, same was not maintainable---No ulterior motive was shown a the hands of Investigation Agency, so that it could validly be argued that accused was likely to be harassed and disgraced and falsely involved in the case---Ad interim order of bail before arrest, was recalled with liberty to accused to approach competent Court at the lower forum with a bail application.

Salahuddin Khan Gandapur for Applicant.

Mahmood Alam Rizvi Standing Counsel for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1487 #

2007 Y L R 1487

[Karachi]

Before Azizullah M. Memon, J

MAHERA FATIMA---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

Criminal Miscellaneous No.201 of 2006.

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

-------Art.199---Criminal Procedure Code (V of 1898), S.491---Constitutional jurisdiction---Scope---Custody and recovery of minor---Wherever a specific provision of law stood enacted for the purpose of relief sought by a party, then constitutional jurisdiction of High Court could not be invoked under the provision of Art.199 of the Constitution---Constitutional petition for recovery and custody of minor, was converted into application under S.491, Cr.P.C. to be disposed of accordingly.

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

----S.491---Guardians and Wards Act (VIII of 1890), S.7---Habeas corpus petition---Custody of minor---Question as to whether the custody of the minor was snatched from the petitioner by father, or whether petitioner voluntarily deserted the minor to be left in the custody of his father, essentially needed recording of evidence--Such an exercise could not be gone into under the provisions of S.491, Cr. P. C . as same had to be carried out by the competent Court under the provision of Guardians and Wards Act, 1890 as and when such a case before such Court was filed.

----S.491---Guardians and Wards Act (VIII of 1890), S.7---Habeas Corpus petition---Scope---Right of Hizanat of minor---Applicant was mother of minor boy aged about three years and prima facie had a right of Hizanat of the minor---Question as to whether or not applicant had lost her right to continue custody of minor, was to be resolved by the competent Court under the Guardians and Wards Act, 1890 and such a question could not be decided by means of an application under S.491, Cr.P.C.

Abdul - Rehman Khakwani and another v. Abdul Majid Khakwani and others 1997 SCMR 1480; Khushi Muhammad's case 1988 SCMR 1234; Ahmed Sami's case 1996 SCMR 268; Miss Hina Jilani's case PLD 1995 Lah. 151; Shafqatullah's case 1995 PCr.LJ 1868 and Mst. Shahnaz Khawaja's case 1996 MLD 24 ref.

Umer Nisar for Petitioner.

Ms. Cookie Rawat for Respondent-1/State.

YLR 2007 KARACHI HIGH COURT SINDH 1495 #

2007 Y L R 1495

[Karachi]

Before Mrs. Qaiser Iqbal, J

GHULAM KADIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.446 of 2006, decided on 17th October, 2006.

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

---S.498---Penal Code (XLV of 1860), S.489-F---Interim pre-arrest bail, confirmation of-Fact that accused had issued cheque in question, had been established from the report of the case--Investigation had been completed and challan had been submitted before the Trial Court and case had been set up for trial---Offence committed by accused, was punishable up to three years, as such it did not fall within the prohibitory clause contained in S.497, Cr.P.C.---Grant of bail in such cases was a rule and refusal an exception---Pre-arrest bail already granted to accused stood confirmed on the same terms and conditions in circumstances.

Ali Murtaza v. The State 2005 PCr.LJ 1773 rel.

Amir Ali Mahessar for Applicant.

Amir Ali Thari for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1500 #

2007 Y L R 1500

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

AMIR GHULAM alias MASTER---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.D-86 of 2005 and 407 of 2006, decided on 28h February, 2007.

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

----S.9(c)---Accused tried by Court having no territorial jurisdiction---Case remanded---Excise Inspector 'H' recovered 200 grams of "Charas" from co-accused at place 'H' and lodged the F.I.R.---During investigation accused was found involved in the case as a conspirator and the said Excise Inspector conducted raid at the house of accused at place 'K' and recovered 260 Kg., "Charas" from his possession---No fresh F.I.R. in respect of this recovery was lodged at 'K' or 'H'---Excise Inspector brought the accused and the property to 'H' and challaned him along with the aforesaid co-accused in the Court of 'H'---Taking out the accused and the case property from the jurisdiction of Court at place 'K' where the offence was committed was illegal on the part of the Excise Inspector---Court at 'H' also was not competent to try the accused for the possession of "Charas" which was secured at place 'K'---Trial of accused at place 'H' thus, was coram non judice---Impugned order was consequently set aside and the case was remanded and transferred to Special Court at 'K', for de novo trial in accordance with law from the stage of framing the charge---Appeal was disposed of accordingly.

Ilamdin Khattak for Appellant.

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

Date of hearing: 28th February, 2007.

YLR 2007 KARACHI HIGH COURT SINDH 1506 #

2007 Y L R 1506

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

GHULAM AKBAR and others---Appellants

Versus

THE STATE---Respondent

Spl. Anti-Terrorism Appeal No.57 of 2001 and Confirmation Case No.8 of 2001, decided on 17th March, 2006.

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

---Ss. 302, 392, 394 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---All the three witnesses were thoroughly cross-examined by the defence counsel, but nothing came on record to discredit their evidence---Evidence of the witnesses was unanimous on all the material particulars of the case and was corroborated by the complainant---One of the prosecution witnesses had been proved to be present at the place of incident and seen the incident---Statement of such witness was fully supported and corroborated by other two, prosecution witnesses who were natural witnesses and their presence at the place of incident could not be doubted---Prosecution, in circumstances, had proved the incident--Identification tests, which according to the Magistrate were held in presence of two Mashirs but which, did not fulfil the requirements of law, could not be held proper and legal tests and had lost their evidentiary value---Prosecution, in circumstances had failed to prove that piece of evidence against accused persons---All three prosecution witnesses had fully proved that motorcycle was robbed by accused persons from the possession of deceased at the time of commission of his murder---Robbed motorcycle of deceased was established to have been recovered from the joint pointation and possession of two accused persons---Said joint recovery of motorcycle, in circumstances of the case, was an admissible piece of evidence which could be safely relied upon---Evidence of S.H.O. with regard to recovery of pistol from accused had fully been supported and corroborated by prosecution witness---Pistol secured from accused and crime empty secured from the place of incident matched as per Chemical Analyzer's report---Pistol recovered from the accused was proved to have been used for committing murder of deceased---Jeep allegedly used in occurrence was secured in presence of mashirs---Prosecution, in circumstances had proved that piece of evidence---Evidence on record was sufficient to convict two accused for offence of murder and robbery, but involvement of third one of the three accused persons, had not been established as case against him was highly doubtful---Said third accused was entitled to benefit of doubt, which accordingly was given to him---Conviction and sentences awarded to said third accused by the Trial Court, were set aside and he was acquitted and set at liberty---Other two accused, who had committed murder of deceased, were liable to be convicted and sentenced---Said two accused were further convicted for offence punishable under S.394, P.P.C., but sentence awarded to them under S.392, P.P.C., was maintained with benefit of S. 382-B, Cr. P. C. ---Confirmation case in respect of said two accused was allowed, whereas it was dismissed in respect of the third accused who had been acquitted and ordered to be released.

Amir Khan v. State PLD 1985 Lah. 18; Qaimuddin v. State 1971 PCr.LJ 229; Bagh Ali v. Muhammad Anwar 1983 SCMR 1292; Mujahid Hussain v. State 1985 SCMR 1573; Muhammad Yaqoob v. The State PLD 2001 SC 378; Rasool Bux v. State 1980 SCMR 225; Munawar Niamat v. Federation of Pakistan NLR 1991 SCJ 291; Abdul Khaliq v. State 1996 SCMR 1553; Abdul Ghaffar v. State 2006 SCMR 56; Ajab v. State 2004 MLD 180; Abdul Kaleem v. State 1992 PCr.LJ 1314; Naeem Akhtar v. State 1993 PCr.LJ 769; Criminal Appeal No.193 of 1994 (Naeem Akhtar v. State), decided on 4-5-1998; Naseem Akhtar v. State 1999 SCMR 1744; Emperor v. Nanua AIR 1941 All. 145; Ganu Chandra Kashid v. Emperor 33 Cr.LJ 396; Sadaf v. State 2002 SCMR 611; Singha v. E. (1938) 40 PLR 58; Reuti v. E. 1933A 461; Mangal v. E., 96 IC 650; Chhotey Lal v. E., 1925 A 220; Imam-ud-Din Khan v.' E., 1937 P 112; Naqli v. E., 1926 L 528; Narain Singh v. E., 1928 L 687; Jaimullabdin, In re, 53 IC 819; Q. v Poromeshur Aheer, 23 Wr 16 (Cr.); Crown v., Doodnathsingh, 224 IC 372; Suchit Ahir v. E., 1931 P 85; Mangaya Shah v. E., 32 IC 660; Taylor, S. 127(a); E. v. Sughar Singh, 29 A 138; Giyan Chandra v. E., 1936 ALJ 1158; Alia v. E., 1926 L 272; Joyenullah Bepari v. Moniruddin Sheikh, 46 IC 158; Ramhit v. E., 1922 A 24; and Mavji Manji v. E., 1941 B 325; Asadullah v. Muhammad Ali PLD 1971 SC 541; Barendra v. Emperor AIR 1925 PCL 1; Abdul Jabbar v. State PLD 1964 SC 81 and Wasim Khan v. State of UP AIR 1956 SC 400 ref.

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

----Art. 22---Identification parade---Object of---Duty of Court---Identification parade was held in order to see whether the witnesses were able to recognize the culprit who was seen at the time and place of incident---For that the dummies who were unknown to the witnesses were required to be mixed up with the said accused with a view that from all the unknown persons; whether the witnesses were able to identify the culprits or otherwise---If the dummies were same in all the identification parades of different accused, then witness would be in a position to pick out a new face from the same dummies, who were already seen by him in the earlier identification parade---For each identification parade of accused, the court was required to arrange new dummies who were unknown to the witnesses so that witnesses could pick out the culprits from the persons whose faces were not already seen by them---If same dummies were mixed up with the other accused persons, who were already seen by the witness in respect of one accused, then it would be against the principle of natural justice and also affect the transparency of the test and would not fulfil the requirements of law and also would be against the spirit of identification test---Most important point in the case of identification test was that the witnesses had no opportunity to see the faces of the culprits before identification test---If the culprits were shown or seen by the witnesses before the identification test, then such identification test would carry no weight.

--Two views and theories---If two views and theories or possibilities were available in the evidence of the prosecution witnesses, then the view, possibility and theory favourable to accused, had to be adopted and accepted.

Muhammad Ashraf v. Ghulam Safdar 1989 SCMR 1944; Sher Hussain v. State PLD 1959 SC 480 and Wali Muhammad v. Nawab 1984 SCMR 914 rel.

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

----S. 411---Rule of limitation barring responsibility of stolen property---No definite rule of limitation existed barring responsibility for stolen property after certain time---No fixed time limit in case of possession of stolen good's, could be laid down to determine, whether the possession was recent or otherwise---Every case must be judged on its own facts as the presumption of guilt would vary according to circumstances whether stolen article was not calculated to pass readily from hand to hand---Importance, to be attached to possession, must vary with the circumstances of each individual case--Important factors were the number of articles recovered and the way in which information led to discovery---Not only the nature of the property, but also the seriousness of the charge should be taken into consideration in considering , whether presumption of the guilt or ordinary presumption of innocence must prevail.

Shaikh v. Q.E. 11C 160; Baliram Tikaram v. E., 1945 N 1; Amar Singh v. Crown, 1945 E. P 315; Necha v. E., 1928 N 213 and Amdumiyar v. E., and ILR 1937 N 315 ref.

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

----Art. 129, Illus. (a)---Presumption of existence of certain facts---Scope--Illustration (a) of Art.129 of Qanun-e-Shahadat, 1984, under which ,it had been explained that in such and such circumstances, such type of presumption could be raised, could not be confined to the cases of theft only but its implication could be extended to other offences and charges, including even murder, robbery or dacoity---General presumption of Illustration (a) of Art.129 of Qanun-e-Shahadat, 1984, in circumstances, was that the person found to be in recent possession of the fruits of the crime was a criminal unless he could account for his possession.

Wasim Khan v. Sate of UP AIR 1956 SC 400; Sada Shiva Daulat v. State AIR 1950 MB 104; Pritam Singh Sohan Singh v. State AIR 1954 Puj. 201; AIR 1954 M 1088; Ram Sarup Singh v. E., 9 P 606; E. v. Chinlamori Sahu AIR 1930 P 879; Taylor, S. 127(c); Sharif Jio v. E., ILR 1943 Kar 371; Emperor v. Neaniatulla, 17 Cal WN 1077(a); Queen-Empress v. Samiu, 13 Mad 426; Emperor v. Chintomoni Shahu' 1930 Cal. 379(2); (AIR V 17)(C); In re: Venkataswamy 1950 Mad 309; (AIR V 37)(D) and Ramprashad Makundram v. The Crown 1949 Nag 277 (AIR V 36)(E) ref.

A.Q. Halepota for Appellants.

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

Anwar Jamal for the Complainant.

Date of hearing: 23rd February, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 1536 #

2007 Y L R 1536

[Karachi]

Before Munib Ahmed Khan, J

ARSALLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.663 of 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---State counsel who had no objection to the grant of bail to accused, had stated that simple reliance on the identification parade could not be given much weight at the stage of bail as neither any participation was alleged against accused nor his identity was known at the time of incident---Though three persons had been murdered and one had seriously been injured, but apparently six persons, who had muffled their faces, were not known to the complainant party and their identification at the later stage could not be taken conclusively in absence of corroboratory evidence---Identifying witnesses had failed to explain as to from what sign or symptom they had identified the accused when according to them, he had covered his face at he time of incident---Such deeper aspect of the evidence, was to be scrutinized after recording evidence---Record showed that accused had not participated in the firing and no allegation had been attributed to him at the time of firing at complainant party---Case of accused, in circumstances, was of further inquiry to prove his guilt---Accused was admitted to bail, in circumstances.

Zahid and others v. State 1998 PCr.LJ 45 and Abdul Karim alias Baboo and another v. The State 2006 SCMR 813 rel.

Muhammad Ayaz Soomro for Applicant.

Muhammad Saleem Jessar for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1593 #

2007 Y L R 1593

[Karachi]

Before Sajjad Ali Shah, J

FARUKH FARAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1183 of 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324, 353, 392 & 397---Bail, grant of---Further inquiry---F.I.R. under Ss.392 & 397, P.P.C. for the theft of car was lodged against accused by complainant---Trial Court, after regular trial of the case, acquitted accused and State had not filed any appeal against said acquittal---No police personnel was injured in the alleged encounter and allegations against accused were general in nature---Application of S.324, P.P.C. was misconceived, in circumstances---First portion of the crime, which was car snatching having not been proved while second portion of the crime, had become a case of further inquiry and accused had become entitled to concession of bail---Accused was admitted to bail, in circumstances.

Lal Chand for Applicant.

Agha Zafir for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1598 #

2007 Y L R 1598

[Karachi]

Before Azizullah M. Memon, J

MUHAMMAD AZAD alias EJAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.572 of 2005, decided on 14th June, 2005.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 109 & 34---Bail, grant of---Counsel for the State had stated at bar that excepting statement of co-accused, thereby implicating accused, no evidence was available against accused to connect him with alleged incident---Statement of co-accused alone implicating accused in the case, would be of no consequence for the purpose of conviction of accused for the offence so alleged---Accused was admitted to bail, in circumstances.

Lal Chand Mamtani for Applicant.

Sabir Haider for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1601 #

2007 Y L R 1601

[Karachi]

Before Rahmat Hussain Jafferi and Nadeem Azhar Siddiqi, JJ

NAZAR HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-27 of 2001, decided on 12th October, 2006.

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

----Ss.9(c), 6 & 29---Appreciation of evidence---Prosecution witnesses were unanimous on salient features and material aspects of the case, who had categorically stated that the accused was the Driver of the Truck from secret cavity of which 560 Kg of "Charas" was secured---Said evidence was corroborated by Chemical Examiner's report---Accused being the Driver was incharge of the truck and all articles lying therein were under his control and possession---Possession in the context of S.6 of the Control of Narcotic Substances Act, 1997, denoted possession with knowledge i.e., conscious possession---Accused had admitted his presence in the truck at the time of incident and had failed to disprove his possession of "Charas" as required under S.29 of the said Act---Accused thus, would be presumed to be guilty of the offence--Conviction and sentence of accused were upheld accordingly.

(1969)2 A.C. 256 (H.L.); Inder Sain v. State of Punjab AIR 1973 SC 2309; Sherzada v. The State 1993 SCMR 149; State v. Banda Gul 1993 SCMR 311; Adil Ahmed's case 1991 SCMR 1951; Rab Nawaz v. The State PLD 1994 SC 858 and Nadir Khan v. State 1988 SCMR 1899 ref.

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

----S.6---Prohibition of possession of narcotic drugs etc.---Possession can be joint---No condition or qualification has been made in S.6 of the Control of Narcotic Substances Act, 1997 that possession should be an exclusive one---Possession, therefore, can be joint with two or more persons.

----Mens rea---Presumption is that mens rea, an evil intention or a knowledge of wrongfulness of the act, is an essential ingredient in every offence---Such presumption, however, is liable to be displaced either by the words of Constitution creating the offence or, by the subject-matter with which it deals.

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

----S.6---Prohibition of possession of narcotic drugs etc.---"Possess"---Connotation-Word "possess" appearing in S.6 of the Control of Narcotic Substances Act, 1997, connotes some sort of knowledge' about the things possessed---Accused must be knowingly in control of something in the circumstances which showed that he was assenting to being in control of the same---Not necessary to show in fact that accused had actual knowledge of that which he had.

(1969)2 A.C. 256 (H.L.) ref.

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

----S.29---Presumption from possession of illicit articles---Onus on prosecution as well as on accused---Prosecution by virtue of S.29 of the Control of Narcotic Substances Act, 1997, has only to show by evidence that accused has dealt with the narcotic substance or has physical custody of the same or is directly concerned with it, unless the accused proves by preponderance of probability that he did not knowingly or consciously possess the said article---Without such proof accused will be held guilty by virtue of S.29 of the Act.

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

----S. 9(c)---Appreciation of evidence---Accused was allegedly sitting by the side of driver co-accused when the Truck was intercepted and he was not shown to be in joint possession or control of the same, nor he had any concern with the recovered "Charas" in any manner which was concealed in secret cavity made in the truck---No evidence was available to show that the accused knew that "Charas" was concealed in the secret cavity or he had exclusive knowledge of the said place---Accused, thus, was not required to explain anything---Prosecution had simply proved presence of accused in the Truck which would not involve him in the case in the absence of proof of any conspiracy or abetment by him of the offence---Accused was acquitted in circumstances.

Inder Sain v. State of Punjab AIR 1973 SC 2309 rel.

Abdul Haleem Qureshi for Appellants.

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

Date of hearing: 7th September, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 1611 #

2007 Y L R 1611

[Karachi]

Before M. Bilal Khan, J

Mst. NUSRAT JABEEN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION, SAMANABAD, LAHORE and 3 others-Respondents

Writ Petition No.7413-Q of 2006, heard on 18th December, 2006.

Constitution of Pakistan (1973)---

----Art.199---Penal Code (XLV of 1860), Ss.324/452/148/149/34-- Constitutional petition---Quashing of F.I.R.---Impugned F.I.R. had been lodged by the complainant exactly ten days after the conviction of the accused persons in a murder case filed as a private complaint by the petitioner--Complainant after having lodged the F.I.R. neither appeared before the Investigating Officer nor before the Medical Board constituted to re-examine the fire short injury allegedly suffered by him, despite repeated notices issued to him by the Medical Board---Report under S.173, Cr. P. C. had revealed that the S.H.O. despite his best efforts could not procure the attendance of the complainant for his medical examination by the Medical Board---Investigating Officer in view of total lack of any inculpatory material against the petitioner and the aforesaid conduct of the complainant ought to have presented a report for cancellation of the case, but instead he had challaned the accused petitioner placing her in Column No.2 and leaving her at the mercy of the Court---No likelihood of the petitioner being convicted of any offence existed and her trial would be a blatant abuse of the process of the Court---F.I.R. and the proceedings emanating therefrom were quashed in circumstances---Constitutional petition was allowed accordingly.

Sher Afgan Asadi for Petitioner.

Tahir Mehmood Gondal, Asstt. A.-G. for the State.

Muhammad Shafi, S.-I., Police Station, Samanabad, Lahore with Police file.

Date of hearing: 18th December, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 1618 #

2007 Y L R 1618

[Karachi]

Before Zia Perwaz and Nadeem Azhar Siddiqi, JJ

Mst. AFSANA---Petitioner

Versus

DISTRICT POLICE OFFICER, (OPERATION), KHAIRPUR and 5 others---Respondents

C.P. No.D-94 of 2007, decided on 7th March, 2007.

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

----S. 18---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---F.I.R. had been registered under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which had been repealed by Act VI of 2006 and was no more available in the Statute Book---No prosecution could be lodged under a repealed provision of law---Not only the F.I.R. was lodged but. three innocent persons were also arrested in pursuance thereof and were in custody due to carelessness and negligence of the police officers---No police officer below the rank of, Superintendent of Police was competent to investigate an offence under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as provided under S.15 (b), Cr. P. C. and the accused could not be arrested without permission of the Court, but no such warrant or permission was produced by the police officer present in Court qua the three accused persons---No doubt the false F.I.R. was registered by an Assistant Sub-Inspector of Police but S.H.O. being incharge of the police station could not escape from his liability who was to see that the action of his subordinate staff was in conformity with the law---Both the police officers had failed to perform their official functions with care and .diligence as a result of which three innocent persons had been deprived of their valuable right of liberty---F.I.R. having been registered under a repealed provision of law, was itself illegal and the arrest in consequence thereof was also illegal, which was clearly an abuse of process of law--Conviction of accused in the case was not possible---F..I.R. was quashed accordingly.

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

----S. 18---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction---Scope---Grant of monetary compensation to the victims of violation of fundamental rights---High Court under Art.199 of the Constitution having wide powers was competent to award monetary compensation to the victims whose fundamental rights had been violated---F.I.R. registered by police under the repealed S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was itself illegal and the arrest made by the police of three innocent persons in consequence of registration of illegal F.I.R. was also illegal---Ignorance of law was no excuse and the two police officers were responsible for their illegal action---Admittedly, three persons were deprived of their valuable right of liberty and their dignity had been violated---Even no necessary permission had been obtained from the Court for the arrest of accused in the. case registered under the provisions of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Action taken by police without due care and caution and in disregard of law was mala fide and not in good faith---Amount of compensation was to be determined by the Court in its discretion keeping in view the principle applicable in awarding general damages in case of false imprisonment---Action of both the police officers had caused humiliation and mental torture to the detenus and their illegal arrest had resulted. in undue expenses, they were thus liable to compensate the detenus---Persons who had remained in illegal police custody were held entitled to Rs.5,000 each for every day they remained in custody from both the police officers, who were directed to deposit the calculated amount in the Court within fifteen days---Detenus were free to claim damages by filing civil suit and lodge F.I.R. for their illegal detention against delinquent police officers-Constitutional petition was disposed of accordingly.

Ali Ahmed v. M. Yakoob Almain PLD 1999 Kar. 134; Syed Hasan Ali Shah v. Station House Officer P.S. Dadu PLD 2006 Kar. 425 and Mazharuddin v. State 1998 PCr.LJ 1035 ref.

----Art. 199---Constitutional jurisdiction---Scope---Compensation, grant of---High Court under the wide powers of Art.199 of the Constitution can award monetary compensation to the victims of violation of fundamental rights---Amount of compensation would be determined by the Court in its discretion keeping in view the principle applied in awarding general .damages in case of false imprisonment.

Mazharuddin v. State 1998 PCr.LJ 1035 ref.

Syed Sardar Ali Shah along with Mst. Afsana Petitioner.

Miandad husband of petitioner present.

Accused Naeem, Azizullah and Masti Khan produced in custody.

Amanullah present in person.

G. D. Shahani, Addl. A.-G. along with Abdullah Lakhair TPO, S.I.P. Abdul Sami, S.I.O. Investigation Pir Jo Goth and S.H.O. Muhammad Abbass P.S. Pir Jo Goth for Respondents.

YLR 2007 KARACHI HIGH COURT SINDH 1625 #

2007 Y L R 1625

[Karachi]

Before Mrs. Qaisar Iqbal, J

FAISAL and others---Applicants

Versus

THE STATE---Respondent

Special Criminal Bail Application No.34 of 2006, decided on 21st May, 2006.

Criminal Procedure Code (V of I898)---

----S. 497---Customs Act (IV of 1969), Ss.2(s), 156(1) (8) & 157(2)---Bail, refusal of---Accused were arrested along with huge quantity of liquor from the launch for which licence was obtained for the purpose of fishing, but it was used for smuggling---No other passenger was available in the launch, except the crew---Sufficient material was available against accused to connect them in alleged offence of smuggling liquor---Presence of accused at launch had not been denied and liquor was seized after complying all legal formalities---Accused in circumstances, were not entitled to concession of bail.

Khawaja P. Mustafa for Applicants.

Mahmood A. Rizvi, D.A.-G. for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1667 #

2007 Y L R 1667

[Karachi]

Before Nadeem Azhar Siddiqi, J

SADRUDDIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.63 of 2006, decided on 28th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 504, 114 & 34---Bail, grant of---Further inquiry---Parties had dispute over distribution of land---Accused, according to F.I.R. was armed with hatchet and allegations against him was of instigating others to fire upon deceased---No specific allegation of causing fire-arm injuries was attributed to accused---Presence of accused at the place of incident was yet to be established---Dispute over the property having been admitted, false implication of accused, could not be ruled out---Mere presence of accused and instigating others, could not be equated with the acts of other co-accused who caused fire-arm injuries to deceased---Accused, though was allegedly armed with hatchet, but neither any allegation was made against him that he caused any injury to deceased nor any injury other than fire-arm injury was found on the body of deceased---Question whether accused shared common intention to kill with those who caused death of deceased, needed further inquiry for the reason that Investigating Officer had initially absolved accused and placed him in Column No.2 of the challan---Deeper appreciation of evidence at bail stage was neither desirable nor permissible and the material collected by Investigating Agency, had to be considered at its face value---In view of statements under S.161, Cr.P.C., which were in favour of accused, possibility of acquittal of accused or conviction of a lesser punishment could not be ruled out---No reasonable grounds being available for believing that accused had committed a non-bailable offence falling under prohibitory clause of S.497(1), Cr.P.C., case was fit for further inquiry into his guilt---Accused was admitted to bail, in circumstances.

Sher Khan v. The State 1980 SCMR 193; Ghulam Rasool v. The State 1982 SCMR 440; Muhammad Sadiq v. The State 1996 SCMR 1654; Tariq Zia v. The State 2003 SCMR 958; Shafi Muhammad v. The State 1999 PCr.LJ 890; Ali Shah v. The State 2002 PCr.LJ 707; Shahzaman and 2 others v. The State PLD 1994 SC 65 and Haji Gul Khan v. Gul Daraz Khan 1995 SCMR 1765 ref.

Pir Mazhar-ul-Haq for Applicant.

Mushtaq Ahmed Abbasi, Asst. Advocate-General for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1677 #

2007 Y L R 1677

[Karachi]

Before Sabihuddin Ahmed, C.J. and Mrs. Yasmeen Abbasey, J

UNIVERSAL LEASING CORPORATION LTD. through Authorized Sub-Attorney---Appellant

Versus

MUHAMMAD ASIF DAR---Respondent

High Court Appeal No.287 of 2006, decided on 4th October, 2006.

Civil Procedure Code (V of 1908)---

----O. X---Striking off defence on the ground of inability of counsel to answer questions by Court---Validity---Held, in the event of inability of a counsel for a party to answer questions the matter was required to be adjourned and an opportunity was to be granted to the party to appear in person---Law required that as far as may be, cases should be decided on merits---No justification existed for striking off the defence of the party in circumstances.

Shahab Sarki for Appellant.

Nadeem Akhtar Khan for Respondents.

YLR 2007 KARACHI HIGH COURT SINDH 1727 #

2007 Y L R 1727

[Karachi]

Before Sajjad Ali Shah, J

SHABBIR HUSSAIN---Applicant

Versus

THE STATE---Respondent-

Criminal Bail Application No.1203 of 2006, decided on ?.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 353 & 34---Bail, grant of---Order of Trial Court had reflected that main consideration which prevailed upon it for not allowing concession of bail to accused, appeared to be that accused was habitual offender---Same was the contention of counsel for the State before the High Court---Investigating Officer was directed to appear and disclose as to whether any case was pending against accused, but despite providing opportunity, Investigating Officer had not appeared and counsel for State was also not in a position to disclose the pendency of any other case against accused---Since accused was involved in a case of ineffective firing and that allegation was against co-accused and not accused, accused was entitled to concession of bail.

Liaquat Ali Qasim for Applicant.

Agha Zafir for the State.

YLR 2007 KARACHI HIGH COURT SINDH 1729 #

2007 Y L R 1729

[Karachi]

Before Mushir Alam and Maqbool Baqar, JJ

IMRAN ANSARI---Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI and others---Respondents

C.P. No.1700 of 2006, decided on 14th September, 2006.

Constitution of Pakistan (1973)---

----At. 199---Constitutional petition---Enhancement of annual land rent by the City District Government---Contention of the petitioner/lessee was that enhancement in question was exorbitant and beyond proportion---Matter of enhancement of rent in other cases was pending with the Provincial Governor---High Court, by consent, ordered that the impugned demand raised through notice was struck down, department should issue fresh challan to the petitioner at the old rate within 15 days, on receipt of such demand, petitioner shall furnish security for the differential amount with the Nazir of High Court within two weeks from the date of receipt of the challan---Fate of security was to be decided subject to the decision of the Governor on the subject.

Inayat Ansari for Petitioner.

Manzoor Ahmed for Respondent No.1.

YLR 2007 KARACHI HIGH COURT SINDH 1735 #

2007 Y L R 1735

[Karachi]

Before Sajjad Ali Shah, J

AHMED ALI KHAN and another---Applicants

Versus

THE STATE and 8 others---Respondents

Criminal Transfer Application No.S-47 of 2006, decided on 18th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), S.295-C---Transfer of case---Applicants had prayed that proceedings pending in the court at place 'S' be transferred to the court at place 'K'---Contention of applicants was that they reasonably apprehended a serious threat to their lives at the hands of the followers of complainant/respondent, if they were tried in the court at place 'S' as followers of complainant had threatened to lynch applicants and that since the "case had arisen from extreme feelings, the atmosphere surrounding at place 'S' would be highly charged and it would render a fair and impartial trial at place 'S' impossible---Applicants had stated that there were nine accused and as many defence witnesses, most of accused persons were old, infirm and were not able to undertake arduous travel from place 'K' to place 'S'---Plea of applicant was that, in circumstances, they were entitled to seek transfer on the rule of convenience, specially when the alleged crime did not involve any ocular evidence or investigation at the place where F.I.R. was lodged---Alleged offence of defiling, the name of the Holy Prophet (peace be upon him) being highly sensitive in nature and complainant was Khateeb of Jamia Masjid at place 'S', apprehensions of .applicants that atmosphere at place 'S' from where complainant/respondent hailed, would be highly charged, could not be ignored altogether---Nature of alleged offence was such that no amount of time could even reduce the apprehended sentiments---State counsel had failed to demonstrate what inconvenience would be caused to the prosecution- in case proceedings were transferred to place 'K'---Convenience of accused and his witnesses, would outweigh the convenience of complainant and his witnesses---Allowing application, proceedings under F.I.R. in the court at place 'S' were directed to be transferred to the court at place 'K', in accordance with law.

Ahmad Omar Saeed Shaikh and 3 others v. The State 2002 SCMR 1562; Raza Muhammad and others v. The State 1990 MLD 1530; Ashiq v. State 1992 MLD 341; Nasir Zafar v. The State and another 2001 PCr.LJ 937; Muhammad Nawaz v. Ghulam Kadir and 3 others PLD 1973 SC 327; Muhammad Jamsheed v. State 1985 MLD 66; Haji Bashir v. Jumo and another 1968 PCr.LJ .1100 and P.H. Metcalfe v. J. Waston AIR 1924 Patna 708 rel.

Adnan I. Chaudhry for Applicants.

Amir Ali Thari for the State:

Hameedullah Dahri for Respondent No.2.

Muhammad Ali Mazhar for Respondents Nos.3, 4 and 9.

None of Respondents Nos.5, 6 and 7.

Raja Haq Nawaz Khan for the Complainant/Respondent No.8.

YLR 2007 KARACHI HIGH COURT SINDH 1745 #

2007 Y L R 1745

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ

TRADING CORPORATION OF PAKISTAN LTD.---Appellant

Versus

Haji KHUDA BUX AMIR UMAR LTD.---Respondent

High Court Appeal No.261 of 2005, decided on 20th April, 2006.

Contract Act (IX of 1872)---

----Ss. 196 & 200---Filing of suit by a person not duly authorised on behalf of the company, either through Board Resolution of the Company or by its Memorandum of Association---Ratification of authority to institute suit by a resolution of the Board---Scope and validity---Such resolution of ratification being not in the field at the time of passing the judgment and decree, could not be looked into or taken into consideration at the belated stage of appeal---Contention with reference to the valuable legal rights of the other party, having been accrued during the intervening period and the suit having become time barred on that account, with specific reference to S.200, Contract Act, 1872 was also had force---Principles.

M/s Mastersons through its Partner v. M/s Ebrahim Enterprises and another 1988 CLC 1381; Thinnappa Chettiar v. Putti Krishna Rao and others AIR 1941 Madras 6; Notified Area Committee, Okara v. Kidar Nath and others AIR 1935 Lah. 345; Muhammad Hussain v. Bashir Ahmed and others PLD 1987 Lah. 392 and Abdul Rahim and 2 others v. M/s. United Bank Ltd. of Pakistan PLD 1997 Kar. 62 ref.

Nasrullah Awan for Appellant.

2007 Y L R 1806

[Karachi]

Before Muhammad Sadiq Leghari, J

RICE EXPORT CORPORATION OF PAKISTAN (P) LTD.---Plaintiff

Versus

FAZILAT ENTERPRISES---Defendant

Suit No.788 of 1993, decided on 29th March, 2005.

Damages---

----Suit for---Allegation of negligence of defendants---Proof---Stocks, allegedly in the care of defendants had caught fire---Documents on record though established the execution of the contract between plaintiffs and defendants, terms therein and the delivery of the stocks to the contractor/defendants, yet the same did not, in any manner, render ample proof of negligence on the part of defendants---No other documents supporting the contentions of the plaintiffs had been produced---Witness had not stated about any loss in his deposition and did not say a word regarding the losses allegedly suffered by the plaintiff rather lie was silent about the fire caught by the godown of stocks---Validity---Held, in absence of any evidence, it was difficult to pass a decree against the defendants because any such decree would be based on no evidence.

Mrs. Zahra Zaidi v. M. Anwar Khan Ghauri 2004 CLC 223 and The Lahore Central Cooperative Bank Ltd. v. M/s Haji Allah Dad Fida Hussain Merchants and Commissions Agents Grain Market, Pattoki 1987 CLC 1435 distinguished.

Raja Aftab Ahmed for Plaintiff.

Date of hearing: 14th February, 2005.

YLR 2007 KARACHI HIGH COURT SINDH 1817 #

2007 Y L R 1817

[Karachi]

Before Mrs. Qaisar Iqbal, J

AJAMAEEN KHAN and 8 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.35 of 2006, decided on 3rd February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.324---Interim pre-arrest bail, confirmation of---Counter version and suppression of facts by complainant---Explanation set forth by complainant for six hours delay in registration of F.I.R. was devoid of force as distance between the Hospital and Police Station was hardly 3 Kilometers, which had suggested that complainant had sufficient time to consult and nominate, each one of accused in the commission of the crime---Intention to cause death or the knowledge that death was likely to be caused, had to be established for commission of offence under S.324, P.P.C. ---Dandas were used in the alleged commission of the crime and it could not be presumed that accused intended to cause death---Medical evidence relating to injured, suggested that he had received wounds on nose---F.I.R. did not reveal as to which one of the accused had caused injury to victim---Sweeping general allegation against accused, could not ipso facto be taken as a ground to reach the conclusion at the bail stage as to which one of the accused had caused such injury---Case against accused required further inquiry as there were suppression of facts and F.I.R. was registered after consultation and deliberation by the complainant party on account of counter incident, with an intent to harass and humiliate accused--Interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

Ranjho v. State 2000 PCr.LJ 674; Jamaldin and 2 others v. The State 1978 SCMR 433; Fazal Ahmad v. The State 1995 SCMR 860; Nosherwan alias Nosha v. The State 1994 PCr.LJ .1476; Attiqure Rahman v. The State 1993 PCr.LJ 619; Muhammad Usman v. The State 1995 PCr.LJ 1569; Mehboob and others v. The State 1982 PCr.LJ 869; Abdul Hameed Khan v. The State 1978 PCr.LJ 150; Allah Bachayo v. The State 1985 PCr.LJ 1758; Raham Ali v. The State 1976 PCr.LJ 17 and Ghulam Hussain v. The State 2005 PCr.LJ 577 ref.

Syed Javed Haider Kazmi for Applicants.

Asghar Khan Bangash for the Complainant.

YLR 2007 KARACHI HIGH COURT SINDH 1823 #

2007 Y L R 1823

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Syed Zawwar Hussain Jaffery, JJ

Malik MUHAMMAD SAJJAD and others---Petitioners

Versus

NAZIM, UC 4 METROVILLE, SITE, KARACHI and others---Respondents

Constitution Petitions Nos.D-937, D-1171 of 2004, decided on 20th April, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Using amenity plot for the purpose other than for which it was purchased---Petitioner which was a registered welfare trust, purchased the amenity plot in open auction from Nazim of the Council---Plot was reserved for education purpose---Petitioner paid 50% of price of land to authorities and remaining 50% was deposited with the Nazir of the Court---Instead of giving possession of the plot to petitioner, authorities started constructing hospital on said plot---Petitioner being aggrieved, preferred constitutional petition challenging construction on the plot by authorities and with further prayer for removal of the encroachment---Petitioner and City District Government, during pendency of petition, entered into alternative dispute resolution and an offer was made by authorities to the petitioner, either to get another plot in the same locality, or to pay construction charges which had been incurred by City District Government---Petitioner accepted offer of paying the cost of the construction incurred by City District Government---Petitioner had further submitted that although plot was purchased for constructing a school thereon, but in the changed circumstances, when City District Government had already started construction of Hospital, it would not be feasible to demolish existing construction and start fresh construction of school--Petitioner Trust had submitted that education and health both fell in the realm of welfare activities and hospital constructed would be for the welfare of public and health service would be provided at the concessional rates to the poor and needy persons---Other petitioner apprehended that after taking over plot, petitioner Trust would utilize it for commercial purpose i.e. construction of market, shop, plaza or any other business---Other petitioner had stated that he had no objection, if plot in question was utilized for the welfare of public-at-large---With the consent of parties, both petitions were disposed of, whereby petitioner Trust would pay amount of construction to respondent/City District Government, and would submit building plan for the proposed hospital---Petitioner Trust would construct hospital and would run hospital on welfare basis according to commitment---Petitions were disposed of accordingly.

Imtiaz Hussain Gondal (in C.P. No.937 of 2004) for Petitioners.

Bashir Ahmed Khan (in C.P. No.937 of 2004) for Respondent No.1.

Muhammad Idrees (in C.P. No.937 of 2004) for Respondent No.2.

Manzoor Ahmad (in C.P. No. 937 of 2004) for Respondents Nos.3 and 4.

Arshad Mubeen (in C.P. No.937 of 2004) for Respondent No.5.

Ghulam Nabi Shaikh (in C.P. No.D-937 of 2004) for Respondent (interveror).

Ahmed Pirzada, Addl. A.-G. (in C.P. No. D-937 of 2004) for Respondents.

M. A. Khan with Haji Muhammad Sultan (in C.P. No.D-1171 of 2004) for Petitioners.

Manzoor Ahmed (in C.P. No.D-1171 of 2004) for Respondents.

Ahmed Pirzada A.A.-G. (in C.P. No.D-1171 of 2004) for Respondents.

YLR 2007 KARACHI HIGH COURT SINDH 1830 #

2007 Y L R 1830

[Election Tribunal Sindh]

Before Justice Mushir Alam, Election Tribunal

ZULFIQAR ALI BEHAN---Petitioner

Versus

Dr. ABDUL GHAFFAR JATOI and others---Respondents

Election Petition No.120 of 2002, decided on 15th January, 2007.

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

----Ss. 78 & 83---Election petition---Corrupt and illegal practice---Burden of proof---Burden lay heavily on the petitioner to establish allegations of irregularities, illegalities and corrupt practices beyond shadow of doubt giving their full particulars---Petitioner, in the present case, had made general and sweeping allegations of corrupt and illegal practices and same facts were stated in the affidavit-in-evidence---Material contained in summary of allegations attached to the petition could not be examined to fish out the allegations .of corrupt and illegal practices---Allegations remain allegations, unless proved through corroborative evidence that withstands the test of cross-examination---Petitioner having failed to substantiate through any material or evidence any case of corrupt and illegal practice and or act of commission of illegal act, election petitions were dismissed.

Muhammad Saeed v. Election Petitions Tribunal PLD 1957 SC (Pak) 91; Muhammad Ahmed Siddiqui v. Zamir Ahmed Tunio and others 2003 CLC 1224 and Syed Abdul Latif Shah v. Ali Muhammad Khan and others 2004 MLD 36 ref.

Muhammad Younas H. Behan and A.K. Memon for Petitioner.

Raza Hashmi for Respondents.

Bashir Ahmed Qureshi for Respondents.

Date of hearing: 15th January, 2007.

YLR 2007 KARACHI HIGH COURT SINDH 1854 #

2007 Y L R 1854

[Karachi]

Before Mrs. Qaiser Iqbal, J

QUALITY STEEL WORKS LTD.---Plaintiff

Versus

KARACHI ELECTRIC SUPPLY CORPORATION-Defendant

Civil Suit No.760 of 2002, decided on 2nd June, 2006.

Electricity Act (IX of 1910)---

----Ss. 26 & 39---Specific Relief Act (I of 1877), Ss.42 & 54---Excessive bill---Testing of electric meters---Suit for declaration and permanent injunction---Plaintiff/consumer in his suit had declared that there was no arrears or dues on plaintiff in respect of meters and that alleged arrears, are illegal, unlawful and liable to be cancelled/set aside---Plaintiff also sought permanent injunction restraining defendant from disconnecting electricity of plaintiff through meter and further to restrain it from claiming any alleged arrears except current bill as per consumption---Defendant/electric supply company .set up case that Meter Reader was not allowed by the plaintiff to record energy supplied to meters installed in the plots of plaintiffs, which resulted in less billing than energy consumed---Validity---Plaintiff's premises, never remained closed, smooth passage was provided to the Meter Readers, but company, in violation of settled norms, had illegally and unlawfully claimed an excessive bill resulting in the cause of action to file suit against company--Documentary evidence had specifically revealed that Meter Readers were allowed to have access on number of occasions for the purpose of recording the meter reading of both the meters---Disputed meter in the premises was burnt and plaintiff himself had reported burnt meter to the Authorities and new meter was installed---Reporting of the burnt meter by company's staff, was not supported by cogent evidence---Meter in question was burnt, but bill was sent to plaintiff without getting the meter tested from Electric Inspector or without basing the bill on the past average---Metering equipment being involved provisions of S.26(6) of Electricity Act, 1910 were attracted and licensee could neither evaluate consumption nor assess the bill---No action of testing work could be carried out by licensee, as only Electric Inspector was authorized to test the meters---Supplementary bills on the basis of the claim of company, were arbitrary, fanciful and without legal justification---In case of removal of faulty meter, it ought not to have been tested in the Laboratory of the company---Supplementary bill prepared on its basis could not be acted upon to come to the conclusion that amount claimed by company under disputed meter, was in conformity with the law---Plaintiff's suit was decreed to the extent of the prayer accordingly---Plaintiff had claimed damages to the tune of Rs. 25,000 against defendant for the inconvenience caused on account of exorbitant bill against meters installed in the premises---Onus was upon plaintiff to prove claim beyond reasonable doubt to the effect that he had suffered mental torture as well as loss in business on account of acts and omission of defendants---On account of non-availability of cogent evidence, relief to that extent, could not be granted.

Basantibai's case (Supreme Court of India) 1989 MLD 1107; Imran Nazeer v. Saifullah Jan and others PLD 2001 Lah. 31; Colony Textile Mills Ltd. Ismailabad Multan v. Chief Executive, Multan Electricity Power Company Ltd. Multan 2003 MLD 1008; Water and Power Development Authority v. Mian Shaukat Hayat 2003 CLC 1574; Messrs Shams Textile Mills Ltd. Chiniot v. WAPDA 1989 CLC 2345; Messrs Erum Heights Residents Welfare Association v. Karachi Electric Supply Corporation Ltd. 2001 CLC 321; Water and Power Development Authority v. Khalid Pervaiz 2002 MLD 1118; Water and Power Development Authority v. Advisory Board 2001 YLR 782; WAPDA v. Nazir Cotton Mills Ltd. 2002 YLR 3395; Water and Development Authority and others v. Mian Muhammad Riaz and other PLD 1995 Lah. 56; Messrs Noor Iron and Steel Industries Ltd. v. Karachi Electric Supply Corporation 1988 MLD 2112; Khalid Perviz v. Water and Power Development Authority 1992 CLC 1591; Shafiq Ahmad v. Mepco. WAPDA 2003 CLC 598; Mian Muhammad Munir v. WAPDA and others 1983 CLC 211; Dr. Muhammad Rafiq Chaudhry v. WAPDA 1983 CLC 2397; Muhammad Nazir v. Abdul Latif and 4 others PLD 1985 SC (AJ&K) 97; Aurangzeb Kamran v. Water and Power Development Authority 1996 MLD 69 and Firdaus Oil Mills v. WAPDA 1983 CLC 3315 ref.

Muhammad Shafi Siddiqui for Plaintiff.

Saeed Ahmed for Defendant.

Ikram Ahmed Ansari and Talmeez Burney as Amicus Curiae.

YLR 2007 KARACHI HIGH COURT SINDH 1880 #

2007 Y L R 1880

[Karachi]

Before Sarmad Jalal Osmany, J

PIR BUX---Applicant

Versus

MUHAMMAD MOOSA and others---Respondents

Civil Revision No.7 of 2005, decided on 25th November, 2006.

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

----S. 36---Jurisdiction of Civil Court barred as regards matter arising under the Colonization of Government Lands (Punjab) Act, 1912---Scope---Such exclusive jurisdictional provisions in any raw were subject to judicial proceedings, provided that the order complained against was either unlawful, without jurisdiction, coram non judice or passed in the absence of the aggrieved party.

Muhammad Azam v. Bashir-ud-Din 1988 MLD 1341; Muhammad Naeem v. Province of Punjab 2003 YLR 52; Alam Sher v. Muhammad Sharif 1998 SCMR 468; Muhammad Ishaque v. Abdul Ghani 2000 CLC 159; Abdul Ghaffar v. Government West Pakistan PLD 1963 Kar. 215; Secretary, B&R Government of Pakistan v. Fazal Ali Khan PLD 1971 Kar. 625; Tahir A. Khan v. C.B.R. 2003 YLR 196; Zia ur Rehman Alvi v. Allahabad Cooperative Housing Society PLD 1995 Kar. 399; Pakistan Railways v. KDA PLD 1992 Kar. 71; Muhammad Saleem v. Nuzhat Jehan Begum 2005 SCMR 1070; Hawaldar Sawar Khan v. Province of Sindh 1998 CLC Kar. 383; Civil Aviation Authority v. M/s Data 'International PLD 1993 Kar. 700; Rauf. B. Kadri v. State Bank of Pakistan PLD 2002 SC 1111; Ministry of Works, Islamabad v. Mrs. Khalid Nazir 1991 CLC 563; Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382; Muhammad Usman Qayyum v. BISE PLD 2004 Lah. 448; Sharaf Faridi v. The Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404; Mst. Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345; Muhammad Zafar v. Yousaf Ali 2003 CLC 1922 and Shahab-ud-Din v. Mst. Mariam Bibi 1995 MLD 45 rel.

Hamid Hussain v. Government of West Pakistan 1934 SCMR 356; Mian Muhammad Latif v. Province of West Pakistan PLD 1970 SC 180; Abbasia Cooperative Bank and another v. Hafiz Muhammad Ghaus and 5 others PLI) 1997 SC 3; M. Jamil Asghar v. Improvement Trust PLD 1965 SC 698; Abdul Ala Maudoodi v. Government of West Pakistan PLD 1964 SC 673; University of Dacca v. Zakir Ahmed PLD 1965 SC 90 and Basharat Ali v. Director Excise and Taxation 1997 SCMR 1543 ref.

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

----S. 36---Sindh Revenue Jurisdiction Act (X of 1876), S.11---Civil Procedure Code (V of 1908), O. VII, R.11---Civil suit---Rejection of plaint---Jurisdiction of Civil Court barred---Revenue authorities, in the present case, without determination of plaintiff's pending claim, had included the suit land in the schedule for the purpose of auction and in fact finally granted the same to the defendants---Plaintiffs, in circumstances, should have asserted their rights before the open assembly since under the statement of conditions, haris, including the ones holding Khasmokal rights were to be considered while granting of government lands---Plaintiffs, in fact,. had themselves asserted in the plaint of the suit that they had previous Khasmokal rights to the suit land---Bar contained in S.36, Colonization of Government Lands (Punjab) Act, 1912 as well as S.11 of the Sindh Revenue Jurisdiction Act, 1876 was fully applicable as action of Revenue Authorities of including the suit land in the Schedule for purpose of grant/auction was not unlawful, nor coram non judice nor without jurisdiction or for the matter undertaken without hearing the plaintiffs since public notice was issued regarding disposal Of the suit land which they ignored---Such action, was of course, subject to revision/appeal before the Revenue Authorities---Suit filed by the plaintiffs, in circumstances was barred by law and plaint of plaintiffs thus was correctly rejected by the Civil Court.

Hamid Hussain v. Government of West Pakistan 1974 SCMR 356; Muhammad Zafar v. Yousaf Ali 2003 CLC 1922; Muhammad Latif v. Province of West Pakistan PLD 1970 SC 180 and Shahab-ud-Din v. Mst. Mariam Bibi 1995 MLD 45 ref.

Soomar Das Parani for Applicant.

Mukesh Kumar G. Karara -for Respondents.

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

Dates of hearing: 17th March, and 14th April, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 1897 #

2007 Y L R 1897

[Karachi]

Before Muhammad Sadiq Leghari, J

ALAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.77 of 2004, decided on 11th September, 2006.

Foreigners Order, 1951---

----S. 3(2)(a)---Pakistan Citizenship Act (II of 1951), S.16-A---Appreciation of evidence---Allegation of entering into Pakistan illegally---Father of accused was residing in Pakistan with his family and accused who was married, his wife and children were also residing in Pakistan---Father of accused had been issued valid _National Identity Card but the Trial Court had failed to appreciate that document---Trial Court, also did not appreciate properly the fact that father of accused had declared accused as one of his minor children in his B.Form---Said documents were of importance and could not be ignored or excluded from consideration by any sweeping remarks---Other documents produced were also not appreciated properly by the Trial Court and ignored those simply for the reason that they related to period after 1983---Such documents had been issued by concerned authorities on basis of certain material or enquiry---Law attached presumption of validity to the official acts or documents unless proved otherwise---Such documents, in circumstances, could not be treated valueless only because those were issued after 1983---Accused, though had Bengali origin, but for that fact alone, he could not be termed as foreigner---Bengalees were given statutory recognition as citizen of Pakistan under S.16(A), Pakistan Citizenship Act, 1951, if they were in Pakistan before 1975---Father of accused being not accused of entering into Pakistan illegally, plea of accused was not weightless specially when he produced documents in support thereof---Evidence produced by accused was more weighty than evidence produced by prosecution side---Accused did not deserve to be convicted in circumstances---Conviction of accused was set aside and order of the court for deportation, also stood set aside and accused was released.

Sardar Shabbir Sultan for Appellant.

Khawaja Muneer Ahmed for Respondent.

YLR 2007 KARACHI HIGH COURT SINDH 1902 #

2007 Y L R 1902

[Karachi]

Before Mushir Alam and Mrs. Yasmeen Abbasey, JJ

AMNA SARWAR---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

Civil Petition No.D-2348 of 2006, decided on 6th March, 2006.

(a) Educational Institution---

----Admission of a polio affected girl in Medical College was refused on the ground, inter alia, that her present disability was of such a nature that she could not acquire medical education, though seats for disabled persons were available for admission---Validity---Personal appearance of the candidate in the High Court showed no infirmity, which would render her unable to study further, particularly in medical field---High Court observed that a young ambitious girl should be given an opportunity to prove her ability in the field, when seats on the particular category were still vacant and if at any stage, she would feel difficulty to go parallel to other students, it was hoped that she would be fair enough with herself to withdraw from it---Medical profession, like other branches had number of branches, not necessarily she might go on surgical side, she could be a general physician or consultant as was usually found---Candidate who had proved to be determined intelligent student, had made out a case to be admitted to Medical College in circumstances---Principles.

Orthopaedic Techniques in the Management of the Residua of Paralytic Poliomyelitis ref.

(b) Medical jurisprudence---

----Polio deformity--- Orthopaedic techniques in the management stated.

Orthopaedic Techniques in the Management of the Residua of Paralytic Poliomyelitis ref.

Ghulam Qadir Jatoi for Petitioner.

Afaq Ahmed and Asim Mansoor for Respondent No.2.

YLR 2007 KARACHI HIGH COURT SINDH 1927 #

2007 Y L R 1927

[Karachi]

Before Sajjad Ali Shah, J

ALI RAZA---Plaintiff

Versus

KESC---Defendant

Suit No.638 of 1998, decided in January, 2007, (a) Maxim---

----Res Ipsa Loquitor means that the things speak for themselves---Applicability--Scope.

Mrs. Gul Bano and 4 others v. Muhammad Ramzan and another 1982 CLC 112C; Mst. Zaib-un-Nisa and others v. SRTC and another 1982 CLC 1228; Mrs. Nimmy Frances and 5 others v. Muhammad Saeed Qureshi and others 1982 CLC 1703; Abdul Haq and another v. Pakistan Railway Telecommunication Department and others 1987 MLD 898; Spin Gul and 2 others v. Ikramul Haq and another 1987 MLD 2402; Hayat Services Pakistan Limited v. Kondan 1989 CLC 2153; Qazi Arifuddin and another v. Government of Sindh through Secretary Ministry of Health PLD 1991 Kar. 2910; Pakistan Steel Mills Corporation Limited v. Malik Abdul Habib and others 1993 SCMR 848; Mst. Sakina and 3 others v. M/s. National Logistic Cell 1995 MLD 633; Anis-ur-Rehman v. Government of Sindh 1997 CLC 615; Bibi Khalida v. Government of Sindh 2000 CLC 381; Roshan Bi v. Pakistan Steel Mills Corporation Ltd. 2000 CLC 111; Ashiq Masih and others v. Abbott Laboratories Pakistan Ltd. 2001 CLC 913; Mst. Ishrat Irfana v. Federal Government of Pakistan 2001 CLC 928; Shaukat Ali v. KESC 2001 MLD 1845; Shamim Akhtar v. Muhammad Arif Balouch 2001 YLR 821; Mst. Sabira Khatoon and 2 others v. Muhammad Akram Siddiqui 2003 MLD 39; Aijaz and 6 others v. Karachi Transport Corporation 2004 MLD 491; Ehtishamuddin Qureshi v. Pakistan Steel Mills Corporation Ltd. 2004 MLD 361 and Pakistan Steel Mills Corporation Ltd. v. Abdul Hameed 1993 SCMR 848 quoted.

(b) Damages---

----Suit for---Negligence---Burden of proof---Principles---Held, in an action for damages on account of negligence the burden of proof primarily lay on the plaintiff to establish that he had suffered injuries on account of negligence or omission on the part of the defendant, and for which act or omission the defendant at law was responsible---If however, the plaintiff proved that the injury suffered by him could not have resulted except by attributing breach of duty to the defendant then the burden would shift upon the defendant to show that all reasonable precautions to avoid injuries complained of were adopted---Defendant corporation, in the present case, was duty bound under R.49, Electricity Rules, 1937 to construct, install, protect and maintain all its apparatus as far as practicable to prevent danger, and the defendant in its evidence had accepted such obligation/duty---Defendant, in circumstances, was under a statutory obligation to properly maintain its electric apparatus and by leaving its live parts exposed and capable of being touched by persons not intended to have access to them as the plaintiff had suffered injuries, same could have been avoided in case the defendant corporation was not negligent to maintain their electrical apparatus in accordance with its obligation---Plaintiff thus was entitled to the damages, but of course subject to determination of its quantum.

----Suit for---Injury to plaintiff on account of negligence of defendant---Claim of pecuniary, non pecuniary, general and special damages by plaintiff---Entitlement---Considerations for calculation of such losses---Principles.

In case of injury on account of negligence of defendant the plaintiff is not only entitled to the pecuniary losses i.e., what he has actually spent or lost but also to non-pecuniary losses which can not be calculated exactly in terms of money but are granted to mitigate the sufferings and agonies. In the present case, the plaintiff has claimed a sum of Rs.8.5 million on account of non-pecuniary losses and a sum of Rs.4.215 millions as past and prospective pecuniary losses. Though the claim of the plaintiff in respect of losses as claimed has not been denied by the defendants but it is for the Court to determine the quantum of compensation on the basis of evidence placed before it and to see that the claim is neither exaggerated nor fanciful and/or unreasonable. Since there exists no yard-stick or formula by which such losses can be measured or translated in terms of money therefore such losses by their very nature are discretionary, however, while exercising such discretion the Court has to see the effect which such injury may have caused on the quality of life of the person so affected, his sufferings, duration of such pain and its over all impact on his life. In fact the amount of compensation so determined should as nearly as possible put to the party who has suffered in the same position as he would have been if he had not sustained such injury.

Azizullah v. Jawed A Bajwa 2005 SCMR 1950; Abdul Qadir v. S.K. Abbas Hussain and others PLD 1997 Kar. 566; Mrs. Rahat Ali v. Dr. Saeed Rehman 2002 CLC 1996 and Nazar Ali Siddiqui v. Pakistan through Secretary, Government of Pakistan, Ministry of Finance and 2 others 1986 CLC 1370 ref.

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

----Art. 78---Documentary evidence---Documents which were not copies of judicial record, not to be, received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them. Khan Muhammad Yousuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160 and M/s Bengal Friends and Co. v. Gour Benade Saha and Co. PLD 1969 SC 477 ref.

Nasir Maqsood for Plaintiff.

Raghib Baqi for Defendant.

Date of hearing: 18th December, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 1944 #

2007 Y L R 1944

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

ABDUL HAQUE QURESHI---Appellant

Versus

PROVINCE OF SINDH and another---Respondents

M. A. No.49 of 2005 and C.M.A. No.2876 of 2003.

Press, Newspapers, News Agencies and Books Registration Ordinance (XCVIII of 2002)---

----S. 10(2) (3)---Application for authentication of declaration---Sufficient reports in favour of applicant though were available but a mechanical order was passed by the Authority without affording any opportunity to the applicant---Impugned order being perverse and without jurisdiction, the same was set aside by the High Court---Applicant had inalienable right guaranteed by the Constitution and was entitled to publish the Magazine as applied for---Authority was directed to grant authentication of the declaration immediately in favour of the applicant.

Nasir Rizwan Khan for Appellant.

Sardaruddin Qureshi holding brief for Agha Zafir, A.A.-G.

YLR 2007 KARACHI HIGH COURT SINDH 1967 #

2007 Y L R 1967

[Karachi]

Before Amir Hani Muslim, J

SHAHNAWAZ AHMED MALIK---Petitioner

Versus

ADDITIONAL CONTROLLER OF RENTS and another---Respondents

Constitution Petition No.S-345 of 2005.

Cantonments Rent Restrictions Act (XI of 1963)---

----Ss. 17 & 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Order passed by Rent Controller under S.17, Cantonments Rent Restitutions Act, 1963 being tentative in nature could not be interfered with by the High Court under Art.199 of the Constitution---Constitutional petition was dismissed in limine.

Iftikhar Jawed Qazi for Petitioner.

Nasir Rizwan Khan for Respondent No.2.

YLR 2007 KARACHI HIGH COURT SINDH 1973 #

2007 Y L R 1973

[Karachi]

Before Syed Zawwar Hussain Jaffery and Nadeem Azhar Siddiqi, JJ

NOOR MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-633 of 2006, decided on 15th January, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Accused was arrested having a shopper in his hand containing eleven small shoppers---Entire material was taken out and was weighed which was eleven kilograms of Charas---Sample was not taken out from each of the eleven small shoppers at the time of seizing and half kilogram Charas was taken out from the entire property---No conclusive finding could be recorded from the facts of the case that all the recovered material was contraband narcotics-Final finding was yet to be recorded by the Trial Court regarding recovery of eleven kilograms of Charas from possession of accused---Accused having made out a case for grant of bail, he was admitted to bail.

Imtiaz Ali v. The State 2006 MLD 1961; Shahmore v. The State PLD 2003 Kar.604; Waris Khan and 2 others v. The State 2006 SCMR 1051 and Muhammad Hashim v. The State PLD 2004 SC 856 rel.

Muhammad Ayaz Soomro for Applicant.

Mushtaque Ahmed Abbasi, Asstt. A.-C.

YLR 2007 KARACHI HIGH COURT SINDH 1981 #

2007 Y L R 1981

[Karachi]

Before Mrs. Yasmin Abbasey, J

Messrs PIONEER CABLES---Applicant

Versus

Messrs S.G. FIBRES LTD.---Respondent

Civil Revision 202 of 2002, decided on 4th September, 2006.

(a) Administration of justice---

Technicalities should not be allowed to come in the way of dispensation of justice.

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

----O.XXIX, R.1---Verification of pleadings---Requirements---Only condition is that verifying person appears to be conversant with the facts and is able to depose---Whether such person was duly authorized is not the requirement of O.XXIX, R.1, C.P.C.

PLD 1973 Lah.878; AIR 1952 Travancore Cochin 316; Sabah Shipyard (Pakistan) Limited v. Riaz Ahmed Saqib, Gohar & Company' 2005 CLC 731 and Habib Bank Limited v. Zalins Limited 2000 SCMR 472 distinguished.

Modern Cotton Ginning and Pressing Factory (Private) Limited of Sarhari District Sanghar (Sindh) v. Eastern Federal Union Insurance Company Ltd. 1996 CLC 1064; Shafiq Metal Works and 5 others v. The Bank of Bahawalpur Ltd., (Gujranwala) PLD 1973 Note 33 and Australasia Bank Ltd. v. Abdul Aziz Jan and others PLD 1983 Pesh.64 fol.

Rao M. Shakir Naqshbandi for Applicant.

Raja M. Jalil Ashraf Janjau for Respondent.

Date of hearing: 21st February, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 2001 #

2007 Y L R 2001

[Karachi]

Before Mushir Alam and Munib Ahmad Khan, JJ

S.M. SALEEM---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

Constitutional Petition No.D-123 of 2006, decided on 9th August, 2006.

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

----Art. 199---constitutional petition---Enforceable contracts---Development Authority, through public notice in newspapers had invited offers from reputable, established and financially sound builders and developers for allotment of land---Petitioner, applied for the allotment and along with the application enclosed pay. order of rupees one million as prescribed---Contention of the petitioner was that he made an offer for the advertised land to the Authority concerned and amount demanded was deposited therefore, he was entitled for allotment of land---Validity---Record revealed that as per terms and conditions, invitation to offer per advertisement was subject to the conditions that the earnest amount was adjustable to the cost of land and other development charges fixed by the Authority in respect of those whose offer was approved---Petitioner, in the present case, had made an offer which was not accepted nor approval was granted---Binding contract comes into being only when offer made' is accepted---Petitioner having not been able to convince that any contract enforceable at law came into being, relief as claimed could not be conceded.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---If the relief prayed for any reason cannot be granted and from the facts and circumstances of case it appears that the petitioner is entitled to some other relief, High Court could, to advance cause of justice and to avoid multiplicity of proceeding, grant such relief as justice may demand.

----Art. 199---Constitutional petition---Withholding of petitioner's amount by government department without any cause---Effect---Held, it was duty of public functionaries to act fairly and reasonably---Conduct of withholding amount without any just cause could not be approved of---High Court, in circumstances, directed the department to refund the amount along with mark-up at the rate of 6% from the date of deposit till payment, subject to confirmation of realization of the amount by the department.

Muhammad Saleem Mangrio for Petitioner.

Manzoor Ahmed for Respondents Nos.2 to .4.

Muhammad Akhtar for Malir Development Authority.

YLR 2007 KARACHI HIGH COURT SINDH 2007 #

2007 Y L R 2007

[Karachi]

Before Muhammad Afzal Soomro, J

SHAHEEN AHMED SIDDIQUI---Petitioner

Versus

MUHAMMAD YASIN KHAN and others---Respondents

C.P. Nos.S-545 of 2004 and C.M.As. Nos.245 and 1619 of 2005, decided on 12th February, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Dismissal of petition for non-prosecution--Application for restoration---None having appeared on behalf of petitioner on the date fixed, petition was dismissed for non prosecution---Restoration of petition was prayed for on the ground that due to over-sight, while checking the cause list, counsel for petitioner could not appear on said date nor counsel could inform petitioner about fixation of the case---Counsel for petitioner had submitted that such mistake was neither intentional nor deliberate---Counsel for petitioner filed application for restoration of petition---None appeared on the date fixed for hearing application for restoration of petition, despite notice to respondent---Neither respondent nor his counsel appeared on the next dates, whereas counsel for petitioner remained present---Conduct of counsel appearing for respondent had shown that though he questioned the vigilance of counsel for petitioner, but he himself had failed to appear on many dates even on last date despite service of notices---High Court, keeping in view the principle that cases should be disposed of on merits and technicalities be avoided, accepted application of petitioner, petition was restored to its original position and operation of impugned order was suspended.

Mehboob Elahi Saham for Applicant.

Nemo for Respondents.

YLR 2007 KARACHI HIGH COURT SINDH 2012 #

2007 Y L R 2012

[Karachi]

Before Mrs. Qaisar Iqbal, J

ABDUL AZIZ KHAN---Plaintiff

Versus

IMRAN ZAHID and another---Defendants

Civil Suit No.710 of 2006, decided on 9th May, 2007.

Specific Relief Act (I of 1877)---

----Ss. 8, 12, 42 & 54---Suit for possession, specific performance of contract, declaration and permanent injunction etc. ---Defendants were restrained from creating third party interest. in respect of suit property subject to deposit of the balance sale consideration amount and as a consequence of said order balance sale consideration was deposited with the Nazir of the court---Defendant was in possession of suit property and with the consent of counsel appearing for defendant interim order as granted earlier, stood confirmed---To safeguard the interest of parties, Nazir of the court was directed to invest the sum deposited by the plaintiff in the profitable Government Scheme.

Salim Slam Ansari for Plaintiff.

Usman Shaikh for Defendant No.1.

YLR 2007 KARACHI HIGH COURT SINDH 2026 #

2007 Y L R 2026

[Karachi]

Before Ali Sain Dino Metlo, J

MUHAMMAD ARIF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.227 of 2007, decided on 17th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497 & 498-A---Penal Code (XLV of 1860), Ss.392 & 397---Bail, grant of---Most important evidence in the case would have been the evidence of victim himself but Investigating Agency had chosen to keep him out for which there could be no justification---Prosecution relied upon only two things, first; joint pointation of the place of incident, which was not a secret and had already been visited by the Investigating Officer; secondly evidence of recovery of number plate lying open near a tree on the bank of river, a place accessible to everybody and not in applicant's possession---Reasonable grounds could not be said to be existing to believe the accused guilty of offence---Accused was entitled to bail, in circumstances.

Aamir Mansoob Qureshi for Applicant.

Sardaruddin Qureshi for State Counsel.

YLR 2007 KARACHI HIGH COURT SINDH 2031 #

2007 Y L R 2031

[Karachi]

Before Ali Sain Dino Metlo, J

SARDAR NAZEER---Applicant

Versus

THE STATE---Respondent

Special Criminal Bail Application No.3 of 2007, decided on 9th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Customs Act (IV of 1969), Ss.2(s), 16 & 156(i) (8), (89)---Bail, grant of---Standing counsel contended that after several years, accused was arrested along with others in some other offence showing that they had been committing crimes together; and might have committed present crime also together---View canvassed by the standing counsel was farfetched and against the basic principles of criminal administration of justice---No person could be arraigned without evidence against him---Suspicion could not be a substitute of evidence---In absence of any evidence or presumption of law against accused, his alleged abscondence would be of no relevance---Accused was admitted to bail, in circumstances.

Aamir Mansoob Qureshi for Applicant.

Mehmood Alam Rizvi, Standing Counsel.

Tariq Rafiq, S.I.O.

YLR 2007 KARACHI HIGH COURT SINDH 2038 #

2007 Y L R 2038

[Karachi]

Before Mrs. Yasmin Abbasey, J

MUHAMMAD DAIEM SHATTARI---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.22 of 2007, decided on 21st May, 2007.

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

----Ss.173 & 561-A---Cancellation of F.I.R.---Inherent jurisdiction of High Court---Judicial Officer (Magistrate) had not independently acted and had failed to exercise his discretion in a lawful manner---Observation of Judicial Officer while disposing of a case, must be self-explanatory, it must contain reasons justifying his conclusion---Disposal of case in slipshod manner, simply stating that he had gone through the entire record and found' that no such incident had happened, was not sufficient; he must give cogent reason after discussing material brought before him and the circumstance which came to his knowledge during course of trial to reach such conclusion---No doubt order of cancellation of F.I.R. under S.173, Cr.P.C., was administrative order, but. even then while exercising his jurisdiction under said section, concerned Judicial Officer was required to express himself giving impression that while doing so he was performing function as a court and should have explained his own opinion, instead of agreeing with the Investigating Officer on his ambiguous report within a short period of one month---Judicial officer, while passing impugned order had acted arbitrarily---Previous litigation between the parties on any dispute, would not authorize a police officer to go beyond his jurisdiction; and Judicial Officer even acting on administrative side to act at the whims of a particular party---High Court, in exercise of its inherent powers under S.561-A, Cr.P.C. set aside order and remanded case for its re-examination by some other Judge of the District with notice to the parties.

Bahadur and another v. The State and another PLD 1985 SC 62; AIR 1968 SC 117; 1972 Cr.LJ 1446, 1971 Cr.LJ 194 and AIR 1969 AP 281 and Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187 ref.

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

----S.24-A.--Administration of justice---When any Authority or Officer was empowered to make an order or give directions, such power was required to be exercised reasonably, fairly, justly and for advancement of the purpose of enactment and assigning reason for making such order.

----R. 24.7---Cancellation of F.I.R. ---Procedure for---Rule 24.7 of Police Rules, 1934 also had prescribed a procedure for submitting a report for cancellation of F.I.R.; it was specified that if after collecting information and evidence, Investigating Officer was of the view that report was maliciously false or false owing to mistake of law or fact or to be non-cognizable or was a matter for a civil suit, Superintendent would send the First Information Report and any other papers on record to Magistrate having jurisdiction and after consideration of those documents Magistrate would pass final order.

Amir Mansoob Qureshi for Applicant.

Malik Khushhal Khan for Intervenor.

Ms. Afsheen Aman for the State.

YLR 2007 KARACHI HIGH COURT SINDH 2052 #

2007 Y LR 2052

[Karachi]

Before Ali Sain Dino Metlo and Nadeem Azhar Siddiqi, JJ

MUHAMMAD AALAM SAMTIO---Appellant

Versus

SHAFQAT and another---Respondents

Criminal Acquittal Appeal No.D-27 of 2005, decided on 26th March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 417(2-A)---Penal Code (XLV of 1860), S.302---Appeal against acquittal---Order of acquittal was not to be interfered with, unless shown to be perverse---If the order had the support of evidence and v7as reasonably possible, it could not be disturbed merely because a different view was also possible---Order of acquittal could be set aside only when the court, on reappraisal of evidence, would come to the conclusion that no finding other than of guilty could he given in the case---Acquittal of accused, in the present case, was based upon proper appreciation of evidence and was not unreasonable---Both witnesses in the case did not appear to be real eye-witnesses as they did not say as to who fired at deceased---Trial Court had rightly discarded confession, firstly, because the Magistrate, due to his death, could not be examined and secondly, in presence of so many Magistrates, including Judicial Magistrate in the city, there seemed no justification for taking accused to another city situated at distance of 20-22 miles from the place of occurrence for the purpose of recording his confession by Mukhtiarkar, an Executive Magistrate--- Alleged confession was at total variance with ocular evidence and was not corroborated by any other evidence---Evidence of recovery was not supported by any witness, except Investigating Officer---Counsel for the appellant had failed to point out any misreading or non-reading of evidence on part of the Trial Court---Appeal against acquittal was dismissed, in circumstances.

Muhammad Ismail Bhutto for Appellant.

Ali Nawaz Ghanghro for Respondent No.1.

Mushtaq Ahmed Abbasi, A.A.-G.

Date of hearing: 7th December, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 2057 #

2007 Y L R 2057

[Karachi]

Before Muhammad Afzal Soomro, J

Haji TAHIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.789 of 2006 Tiged Applications Nos.1197 of 2005, 1568, 1576 and 1641 of 2001, decided on 16th March, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 109 & 34---Bail, grant of---Accused who was arrested, was remanded to jail without any investigation---Accused was behind the bars for more than three years, but not a single witness had been examined---Delay could not be attributed to accused because his trial was conducted inside the jail---Accused having been able to make out a case for bail, was admitted to bail.

Ajab Khan Khattak for Applicant.

Sohail Jaffar for the State.

YLR 2007 KARACHI HIGH COURT SINDH 2064 #

2007 Y L R 2064

[Karachi]

Before Faisal Arab, J

Dr. SHAKEEL QURESHI---Petitioner

Versus

IMRAN and 3 others---Respondents

C.P. No.S-73 and M.A. No.514 of 2006, decided on 11th May, 2007.

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

--S.15---Constitution of Pakistan (1973), Art.199---Constitutional petition--Ejectment sought on ground of personal bona fide need---Landlords had shown their inclination to re-induct the tenant after construction of the building---Such inclination by itself had damaged the plea of personal use of landlords---Landlords had contended that there being huge space and after construction one shop could be given to the tenant---Re-induction having been promised, the plea of personal need was not established.

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

----S.15---Constitution of Pakistan (1973), Art.199---Constitutional petition--Ejectment sought on ground of damage to property and breach of tenancy agreement by tenant---Alleged damage to floor had been constructed and there was no evidence on record to show that in doing so any damage had been caused, therefore, it was a case of only of a new floor in place of old one and no case of breach of any term of tenancy agreement was made out.

----S.15(ii), proviso---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment was sought on ground of default in payment of rent---Application of S.15(ii), Proviso, Sindh Rented Premises Ordinance, 1979---Scope---Rent for January, 1999 was deposited on 14-9-1999 whereas the rent for January, 1999 became due on 10-2-1999; six months period expired on 10-8-1999 and admittedly the January rent was sent through money order on 14-9-1999---Default for a period of 33 days was thus committed beyond six months period---Constitutional petition of tenant on point of default in payment of rent, thus had failed and he was directed to vacate the premises and hand over its vacant possession to landlord within six months.

Jhamat Jethanand for Petitioner.

Muzzafar Ali Leghari for Respondent No.1.

YLR 2007 KARACHI HIGH COURT SINDH 2067 #

2007 Y L R 2067

[Karachi]

Before Mushir Alam, J

Haji MUHAMMAD KHAN---Applicant

Versus

MUHAMMAD NASIR KHAN and others---Respondents

Civil Revision Application No.242 of 2006, decided on 16th April, 2007.

Civil Procedure Code (V of 1908)---

----O.XX, R.12 & S.2(12)---Decree for possession and mesne profit---Mesne profit--- Meaning--- Decree--- Concept---Determination of mesne profit by Court---Principles and procedure to be followed by the Court.

Mesne profit is defined in section 2(12), C.P.C. to mean "those profits which the person in wrongful possession of such property actually received or might, with ordinary deligence, have received there from together with interest on such profit, but shall not include profit due to improvement made by the person in wrongful possession".

Decree is formal expression of an adjudication, which conclusively determines the rights of the parties with regard to all or any matters in controversy in the suit and may be either preliminary or final. A decree is preliminary when further action, enquiry of supplementary or consequential nature' are to be carried out to cement the foundation of issues or rights determined in preliminary decree. Like, for instance, cases of mesne profit, before Court could embark on mesne profit, it will have to record a finding that the plaintiff is lawful owner of the property and the defendant was in unauthorized possession or kept the plaintiff out of possession upon determination of such fundamental right, between the parties, the issue of mesne profit would then become relevant and would call for determination.

Once the Court records finding that the Defendant was in an unauthorized possession or that it was defendant who was instrumental in 'depriving the plaintiff of lawful enjoyment of his property, he would be liable for mesne profit. A decree for possession and mesne profit is within the contemplation of Order XX, rule 12, C.P.C. The court may determine the rent or mesne profit on the basis of evidence led before it, and where evidence as to quantum of such rent is lacking, Court may direct an enquiry as to such rent or mesne profit. In cases where an enquiry is directed, a preliminary decree precedes final decree.

The Court in the present case had noted that mesne profits were claimed at the rate of Rs.1000 per acre from 21-11-1990 till delivery of the possession. Evidence of both the parties on the issue was evaluated. The court worked out a figure of Rs.750 in lump sum per acre from 21-11-1990 till the possession of the suit land, the amount determined by the Court was not upset up to the apex Court. Final Decree, in cases of mesne profit is only passed where an enquiry is directed under clauses (b) or (c) to rule 12 of Order XX, C.P.C. Since the Court had evaluated the mesne profit after examining the rival claim of the parties, there was no necessity to embark upon any further inquiry within the contemplation of Rule 12(1)(b) & .(c), C.P.C. that may warrant passing of preliminary decree followed by final decree. In the present case the amount of mesne profit was determined by the Trial Court and maintained up to Supreme Court. Final decree calculating the amount was passed as there was no need to pass preliminary decree. Area of the land was not disputed. The amount worked out by the Executing Court at the rate of Rs.750 for land measuring 164-12 acres from 21-11-1990 to 12-7-1998 was not disputed. The only grievances called for consideration was that trial Court had given adjustment of Rs.88,900 and Rs.10,000 to the Applicant, which was not taken into consideration by the Executing Court, while arriving at the figure of Rs.8,82,149. Deducting Rs.99,900 mesne profit recoverable works out to be Rs.7,82,240. Impugned order was modified by the High Court to such extent only.

However, adjustment of the aforesaid amount was to be given, in case the Applicant failed to furnish security for the amount mentioned above within two weeks from the date of announcement of present judgment, failing which the petition will be deemed to have been dismissed and execution granted.

Partap Ahir and another v. Gopi Ram and another AIR 1935 Allahabad 943; Harry Kemipson Gray and another v. Bhagn Mian and others AIR 1930 Privy Council 82; Rai Kiran Chandra Roy Bahadur and other v. Erfan Karikar and others AIR 1934 Calcutta 503; Mrs. Zia Farhat and others v. Presiding Officer, Special Court (Banking) 1996 MLD 680; 1989 SCMR 6402; 2000 CLC 904; PLD 1979 Kar. 263 and 2003 SCMR 1161 ref.

Jhamat Jethanand for Applicant.

Muhammad Hashim Memon for Respondent No.1.

Muhammad Raees Khan for Respondent No.3.

YLR 2007 KARACHI HIGH COURT SINDH 2073 #

2007 Y L R 2073

[Karachi]

Before Ali Sain Dino Metlo and Nadeem Azhar Siddiqi, JJ

SAJJAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.D-61 of 2006, decided on 21st March, 2007.

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

----S. 9(b)---Police Order (22 of 2002), Art.18(4)---Appreciation of evidence---Case was replete with contradictions including glaring and major ones, but those either were over-looked by the Trial Court or could not attract its attention---In view of said contradictions, baffling statements of witnesses and over all facts and circumstances of . the case, whole prosecution story had become doubtful---Witnesses appeared to have narrated a fictitious story fabricated at the police station---Both witnesses had not given description of Charas allegedly recovered from accused; they had not disclosed whether it was in powder form or in the form .of solid piece and if in the form of solid pieces, what was their number---Sample, that was sent to Chemical Examiner after 16 days of registration of case, was in the form of multiple black brown pieces---In absence of description of Charas in the memo. of recovery and the F.I.R., it could not be said that sample sent to Chemical Examiner after such a long time was the representative sample---No reason had been given for inordinate delay in sending sample to Chemical Examiner---Omission to mention description of Charas in the memo of recovery and F.I.R., coupled with unexplained inordinate delay in sending sample to Chemical Examiner, had shown that case was registered in hurry without first getting the Charas---Assistant Sub-Inspector by conducting the investigation himself, had flagrantly violated provisions of Police Order, 2002 and thereby not only made his credibility doubtful, but also had exposed himself to disciplinary action and penalty under Police Order, 2002---Investigation made by A.S.I., which was patently illegal, though it could not have the effect of vitiating the trial, but it had certainly damaged credibility of Investigator---Prosecution had failed to prove charge against accused---Trial Court had not appreciated evidence properly and erred in convicting the accused---Accused was acquitted of charge and was directed to be released.

Nisar Ahmed Abro for Appellant.

Muhammad Ismail Bhutto for the State:

Date of hearing: 7th December, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 2079 #

2007 Y L R 2079

[Karachi]

Before Ali Sain Dino Metlo, J

ALI KHAN KHOSO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.528 of 2005, decided on 2nd November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Juvenile Justice System Ordinance (XXII of 2000), Ss. 2(b) & 10(7)---Bail, grant of---Age of accused---Accused had pressed his bail application only on the ground of delay in the conclusion of Trial under S.10(7) of Juvenile Justice System Ordinance, 2000, as according to him he was a 'child' as defined in S.2(b) of Juvenile Justice System Ordinance, 2000 and that despite passage of more than a year, the trial had not concluded and that accused was not responsible for said delay---School Leaving Certificate produced by accused showed that he was of II years at the time of commission of offence and according to Medical Board, accused was between 17 to 18 years---Accused, in circumstances was a 'child' as defined in S.2(b) of Juvenile Justice ,System Ordinance, 2000 and under S.10(7) of said Ordinance, he being 'child' was entitled to bail, if he had remained in custody for a continuous period exceeding one year and trial had not concluded---Nothing was on record to show that accused was a previous convict or that delay was occasioned by him---Nothing was also on record to show that offence of accused was serious, heinous, gruesome, brutal, sensational in character or shocking to public morality---Accused was admitted to bail in circumstances.

Muhammad Ayaz Soomro for Applicant.

Ali Nawaz Ghanghro for the Complainant.

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

YLR 2007 KARACHI HIGH COURT SINDH 2083 #

2007 Y L R 2083

[Karachi]

Before Azizullah M. Memon, J

OKHAI MEMON JAMA MASJID TRUST and another---Petitioners

Versus

IIIRD A.D.J., KARACHI (CENTRAL) and others---Respondents

Constitution Petition No.S-565 of 2003, decided on 1st November, 2006.

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

----Ss. 13 & 2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment application---Landlord a Trust managed mosque and its Board of Trustees had passed a resolution thereby fully authorising its Chairman/Chief Trustee to take all necessary legal steps/actions to get the disputed premises vacated for the purpose of extension of the ablution place/Wazukhana for the worshippers in the mosque and further that whatever actions earlier taken by the Trust towards filing of ejectment application and those followed thereafter were also ratified by the Board of Trustees---Validity---Trust, held, would be within its competence to file the document of power of attorney or resolution of the Trust in the ejectment proceedings at a later stage---Litigation between the parties should not be allowed to be determined merely on the basis of technicalities, which needed to be avoided as far as possible wherever the merits of the case otherwise gave a clear picture as to the rights of the parties therein---Proceedings on the basis of memorandum of appearance/resolution instead of regular power of attorney were not bad---Appellate Court, in circumstances, was not justified to remand the case to the Rent Controller on basis of technicalities---Order of the Appellate Court suffering from illegality was set aside by the High Court and case was remanded to the Appellate Court with direction to hear the parties afresh and to decide the appeal on its merits in accordance with settled law.

Yousuf and another v. Muhammad Zubair and another PLD 1986 SC 154; M/s A.M. Industrial Corporation Limited v. Aijaz Mehmood and others 2006 SCMR 438; Habib Bank Limited v. Zelins Limited 2000 SCMR 472 and Abdul Majid v. Syed Azhar Ali Shah and others PLD .1985 SC 191 ref.

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

----S. 2(f)--- 'Landlord'- Meaning--- Landlord has been given an extended meaning, to include not only the owner but also persons, who, for the time being, are either authorised or entitled to receive rent in respect of the premises in question and they need not be owner of the same---Mutwallis or trustees or managers of wakf properties, are inter alia, entitled to receive the rent of the wakf properties which have been given on lease.

Yousuf and another v. Muhammad Zubair and another PLD 1986 SC 154 fol.

----Litigation between the parties should not be allowed to be determined merely on the basis of technicalities, which needed to be avoided as far as possible wherever the merits of the case otherwise gave a clear picture as to the rights of the parties therein.

Messrs A.M. Industrial Corporation Limited v. Aijaz Mehmood and others 2006 SCMR 438 and Habib Bank Limited v. Zelins Limited 2000 SCMR 472 fol.

YLR 2007 KARACHI HIGH COURT SINDH 2101 #

2007 Y L R 2101

[Karachi]

Before Ali Sain Dino Metlo, J

AHMED NAWAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.692 of 2006, decided on 4th May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Further inquiry---Two persons stated before the police after 4 days of the incident that they had also identified accused at the time of incident---Accused was arrested on the basis of their said statement, but neither any weapon nor any stolen property was recovered from accused---Trial Court had refused bail to accused mainly on the ground that there was nothing to show that witnesses had enmity with accused and that such type of street crimes required to be dealt, with iron hands---Absence of enmity was not the only surety about truth of a witness and the courts were. required to go by evidence and do justice according to law and not to be much influenced by the rate of crime which should primarily be the concern of police---Fact that said two persons who were with the complainant at the time of incident, did not claim at that time to have identified accused and made such claim for the first time after 4 days, militated against reasonableness of the ground put forward for believing accused guilty---Matter required only further inquiry as contemplated by subsection (2) of S.497, Cr. P. C. --Accused being entitled, was admitted to bail.

Habibullah G. Ghori for Applicant.

Muhammad Ismail Bhutto for the State.

YLR 2007 KARACHI HIGH COURT SINDH 2110 #

2007 Y L R 2110

[Karachi]

Before Mrs. Qaisar Iqbal, J

GHULAM ALI FADOO and 4 others---Plaintiffs

Versus

PUBLIC AT LARGE---Defendants

Suit No.783 of 2006, decided on 7th February, 2007.

Civil Procedure Code (V of 1908)---

----S. 92---Suit to settle the schemes of trust for charitable purposes for better administration of the trust---Necessary permission had been sought by the plaintiff from the office of Advocate-General before filing the suit, notices' were issued to public at large, but no objection had been received from any corner---Suit filed by plaintiff who was trustee of the trust in question, was decreed to settle scheme of the trust for charitable purposes for better administration of the trust in terms of prayer as there was no impediment shown against the same.

Naveedul Haq for Plaintiff.

Nemo for Defendant.

YLR 2007 KARACHI HIGH COURT SINDH 2116 #

2007 Y L R 2116

[Karachi]

Before Azizullah M. Memon, J

Syed IFTIKHAR HUSSAIN---Applicant

Versus

Shaikh ABDUL AZIZ and another---Respondents

Civil Revision Application No.10 of 2003, decided on 17th March, 2007.

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

----Ss. 54 & 58---Sale of mortgaged property---Not illegal---Principles.

When a property is mortgaged with some Bank or other person/authority, then the sale of such property would not be illegal, and at the most its sale would not be finalized until and unless such property was got redeemed.

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

----O. VIII, R. 1---Qanun-e-Shahadat (10 of 1984), Art. 133---Written statement---Defendant not examining himself as witness---Contents of written statement were not proved.

Abdul Karim Kureshi v. Abdul Khaliq 1984 CLC 259 and Mst. Khairunnisa and others v. Malik Muhammad Ishaque and others PLD 1972 SC 25 rel.

----Ss. 12 & 53-A---Suit for specific performance of agreement to sell property---Limitation---Delivery of possession to plaintiff in part performance of agreement--- Effect--- Plaintiff's possession would stand protected---Law of limitation would not run against plaintiff, unless and until evidence so produced by him, could satisfactorily be rebutted by defendant on the plea that suit was hit by law of limitation.

Abdul Karim v. Safia Mirza and 5 others 1986 MLD 1333 Kar. and Muhammad Ishaq v. Erose Theatre and others PLD 1977 SC 109 rel.

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

----S. 54---Qanun-e-Shahadat (10 of 1984), Arts. 17(2) (a) & 79---Agreement to sell property---Non-attestation of agreement by witnesses---Execution of such agreement, proof of-Scope-Plaintiff would be entitled ,to prove execution of such agreement for purpose of sale of property in his favour by defendant by producing other strong evidence.

Mst. Rasheed Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089 rel.

Abdul Muqtadir Khan for Applicant.

S. Ehsan Raza for Respondent No.1.

S. Saeeduddin Nasir for Respondent No.2.

Date of hearing: 15th March, 2007.

YLR 2007 KARACHI HIGH COURT SINDH 2129 #

2007 Y L R 2129

[Karachi]

Before Muhammad Afzal Soomro, J

Syed SIRAJ HASSAN---Appellant

Versus

MUHAMMAD TAHIR and 2 others---Respondents

Criminal Acquittal Appeal No.4 of 2004, decided on 24th April, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 245 & 417---Penal Code (XLV of 1860), Ss.409, 420, 468 & 471---Appeal against acquittal---Crucial point involved in the case appeared to be that-the cheque in question being crossed one, was said to have been obtained by respondent, which otherwise was in the name of the firm of appellant; and then he was said to have deposited/credited same in his personal account, with active connivance of Bank Officer---Duty of the Trial Court was to have elaborately discussed such aspect of the case, which did not appear to have been done by it---Case was remanded to the Trial Court for reframing the point involved therein.

Chaudhry Abdul Rasheed for Appellant.

Habibullah Akhtar for Respondents Nos.1 to 3.

Date of hearing: 16th April, 2007.

YLR 2007 KARACHI HIGH COURT SINDH 2134 #

2007 Y L R 2134

[Karachi]

Before Sarmad Jalal Osmany, J

DHANI BUX---Applicant

Versus

ALI SHER and others---Respondents

Civil Revision No.15 of 2005, decided on 30th August, 2006.

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

----S. 8---Limitation Act (IX of 1908), Art.142---Suit for possession---Limitation---Period of 12 years has been prescribed for possession of immovable property---Time to be counted from the date of dispossession.

Kazim Imam Jan v. Muhammad Jawaid 2003 CLC 200; Noor Bibi v. Fazal Hussain 1988 SCMR 230; Mrs. Shaman Akhtar v. Mrs. Sultana Mazhar Baqai 2003 CLC 1521; Muhammad Hanif v. Abdul Hamid 2002 CLC 718; Muhammad Chuttal v. Atta Muhammad 2001 SCMR 1685; Basit Sibtain v. Muhammad Sharif 2004 SCMR 578; Naila Gauhar Shahzad Kharal v. Rai Gohar Shahzad Kharal 1989 MLD 461; Muhammad Munir v. Hafiz Muhammad Rafiq 2004 SCMR 1551; Nazir Ahmed v. Umra 2002 SCMR 1114; Mst. Zaitoon Bibi v. Dilawar Muhammad 2004 SCMR 877 and Aqeel Hussain v. Mst. Alia Bibi 2006 CLC 297 rel.

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

----S. 42---Limitation Act (IX of 1908), Art.120---Suit for declaration of title of disputed land---Limitation---Such suit cannot be barred by limitation so long as plaintiff's right is a subsisting right and has not been extinguished as this gives a right to a continuing cause of action since every invasion thereof is a fresh cause of action.

Amir Jan v. Gul Nawaz 1992 MLD 2531; Province of Punjab v. Rulia 2000 CLC 150 and Wald v. Akbar 1995 SCMR 284 ref.

----Ss. 42 & 55---Suit for declaration and injunction---Limitation---Right to sue accrues when the right in respect of which the declaration is sought is denied or challenged by the defendants and time would only start running when such rights are actually interfered with---In such cases any fresh cause of action would arise from the date of last attack on the plaintiff's right or denial thereof---Matter, in the present case, being under negotiation between the parties till a few days before the filing of the suit, suit in circumstances, would be within time as to the relief's of injunction and declaration.

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

----O. IX, Rr.9 & 8---Where the plaintiff remains absent and the defendant only appears when the suit is called on for hearing, the same is to be dismissed unless the defendant admits the claim or part thereof in which event a decree shall be passed on such admission---Under O.IX, R. 9, C.P.C. where a suit is wholly or partly dismissed under O.IX, R.8, C.P.C., the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action, but he may apply for an order to set aside the dismissal in which case the court may do so upon being presented with sufficient cause for the plaintiff's absence when the suit was called on for hearing---Previous suit, in the present case, admittedly was filed on the same cause of action as the present suit, but the fact remained that both suits were based on a continuing cause of action---Present suit in circumstances, was not barred under O.IX, R. 9, C.P. C.

Muhammad Habibullah Siddiqui v. Haji Habib Jaferali 1993 MLD 1050 ref.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.79---Suit for declaration---Sale deed 'which was registered, having been proved by the plaintiff, there was no need to produce either the attesting witnesses or the scribe as required under Art. 79 of Qanun-e-Shahadat, 1984.

Ahmad Ali Shahani for Applicant.

Muhammad Nawaz Soomro for Respondents.

Date of hearing: 13th March, 2006.

YLR 2007 KARACHI HIGH COURT SINDH 2142 #

2007 Y L R 2142

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

SABIR ALI WASEEM and 3 others---Appellants

Versus

THE STATE---Respondent

Special Anti-Terrorism Appeals Nos.6 and 7 of 2006 and Confirmation Case No.1. of 2006, decided on 23rd April, 2007.

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

----Ss. 302(b), 353, 324, 225 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Delay of 3-1/2 hours in lodging the F.I.R. was caused by the police officials in collecting the information and preparation of the prosecution story after due deliberation and consultations---Prosecution had suppressed the actual facts and manner in which the incident had occurred---Motive for the occurrence was not proved---Evidence of complainant was full of exaggerations, improvements and discrepancies and did not inspire confidence---Prosecution witnesses had only seen the glimpses of the accused and identification test with respect to all of them was essential, but only one accused was put to such test through a prosecution witness and three prosecution witnesses were not produced before the Magistrate to identify the other accused---Medical evidence had not supported the prosecution version---Basic aspect. of the case regarding conveying the information of the incident to the police station had been falsified by the prosecution witness himself---When the witnesses had no , occasion to see the faces of the culprits, then the identification test carried no weight---Even otherwise, identification test being a corroborative piece of evidence could not form basis for conviction when substantive evidence stood discarded---Accused were acquitted on benefit of doubt in circumstances.

State v. Farman Ali PLD 1995 SC 1; Tayyab v. State 1995 SCMR 412 and Sanded v. Emperor 46 Cr.LJ 317 (Federal Court) ref.

(b) Identification parade---

----If a witness has a glimpse of a culprit then identification test before a Magistrate is essential and if such identification test is not held then identification by the witness in Court carries no weight.

State v. Farman Ali PLD 1995 SC 1; Tayyab v. State 1995 SCMR 412 and Sanded v. Emperor 46 Cr.LJ 317 (Federal Court) rel.

----Ss. 302(b), 353, 324, 225 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Identification parade---Conviction cannot be recorded on mere identification test as the same being a corroborative piece of evidence carries no weight if substantive evidence is discarded.

Amir Mansoob Qureshi (in Spl. A.T.A. No.6 of 2006) for Appellants.

Muhammad Ashraf Khan Mughal (in Spi. A.T.A. No.7 of 2006) for Appellants.

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

Date of hearing: 26th April, 2007.

YLR 2007 KARACHI HIGH COURT SINDH 2174 #

2007 Y L R 2174

[Karachi]

Before Khilji Arif Hussain, J

Messrs BROOKE BOND PAKISTAN LIMITED---Plaintiff

Versus

MUHAMMAD SHAFIQ and another---Defendants

Suit No.419 of 1994, decided on 10th January. 2007.

Civil Procedure Code (V of 1908)---

----O. VII, R. 2---Suit for recovery of amount---Plaintiff company had alleged that defendant who was appointed by the plaintiff as the distributor for the sale of product of plaintiff company, was supplied the goods worth Rs.48,89,133.48, but he had failed to make payment of entire value of supplies---Plaintiff along with affidavit in evidence had produced invoices and delivery orders---Defendant, in his affidavit had admitted that a sum of Rs.45, 72,104.40 was outstanding against him---Defendant made part payment of outstanding dues and a sum of Rs.39,40,306.70 was still outstanding-against him---Suit was decreed against defendant in the sum of Rs. 39, 40, 806.70 with interest, accordingly.

Naveedul Haq for Plaintiff.

Riazuddin for the Defendant No.2.

YLR 2007 KARACHI HIGH COURT SINDH 2182 #

2007 Y L R 2182

[Karachi]

Before Anwar Zaheer Jamali, J

DHARMSEE---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-238 of 2007 in S. Case No.74 of 2003, decided on 5th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Bail, grant of---Further inquiry---Name of accused was disclosed by other accused and on that account he was apprehended by the police after more than four years and accordingly supplementary challan was submitted---State counsel had candidly conceded for grant of bail to accused---No incriminating material was available with the prosecution to connect accused with alleged crime---Case of accused needed further inquiry, which had entitled him for grant of hail---Accused was admitted to bail, in circumstances.

Irfan Ahmed Qureshi for Applicant.

Anwar H Ansari for the State.

YLR 2007 KARACHI HIGH COURT SINDH 2204 #

2007 Y L R 2204

[Karachi]

Before Mrs. Qaiser Iqbal, J

EHSANULLAH KHAN AFRIDI---Plaintiff

Versus

PROVINCE OF SINDH through Secretary, Land Utilization Department

and 5 others---Defendants

Suit No.768, C.M.A.No.4674 of 2005 and C.M.A. No.7637 of 2006, decided on 29th March, 2007.

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

----O. XL, R.1---Receiver, appointment of---Receiver could be appointed suo motu by a court or on the application---Where the plaintiff had made out a prima facie case for preservation. of the disputed properties from being wasted, with the consent of counsel appearing for defendant, Nazir of the Court was appointed as Commissioner to take over possession and management of the disputed properties with all powers to protect and preserve the same likely to be mismanaged---Commissioner's fee fixed by the Court was directed to be borne by the plaintiff and such arrangement was ordered to be continued till determination of the issues involved in the case.

Motherwell Bridge Contracting and Trading Co. Ltd v. Riaz Ali Khan .and others PLD 1978 Karachi 1093 ref.

Abid S. Zuberi for Plaintiff.

Sathi M. Ishaq for Defendant No.2.

Counsel for Defendant No.3 called absent.

Ahmed Pirzada A.A.-G. for the State.

YLR 2007 KARACHI HIGH COURT SINDH 2209 #

2007 Y L R 2209

[Karachi]

Before Muhammad Afzal Soomro, J

ABDUL SATTAR NAREJO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.112 of 2007, decided on 26th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302, 324, 452, 148, 149 & 114---Pre-arrest bail, grant of---Record had revealed that not only case had got history of previous enmity relating to purchase of land, price of which was yet to be paid by the complainant party to accused party, but there was political background of rivalry as well---Re-investigation of matter revealed that even there was contradiction between oral and medical evidence as opined by Medical Officer-Said circumstances had led to hold that case of prosecution against accused was that of further enquiry and accused was entitled to grant of bail--Interim pre-arrest bail granted to accused was confirmed.

Muhammad Jawed v. The State NLR 1996 Cr.LJ 198; Muhammad Anwar v. The State NLR 1999 Criminal 704 and Rais Wazir Ahmed v. The State 2004 SCMR 1167 rel.

Sohail Jabbar for Applicant.

Raza Hashmi and Hassan Sabir for the State.

YLR 2007 KARACHI HIGH COURT SINDH 2215 #

2007 Y L R 2215

[Karachi]

Before Mrs. Qaiser Iqbal, J

Mrs. GULSHAN AFROZE through Legal Heirs and 10 others---Plaintiffs

Versus

MUHAMMAD JAMAL and 2 others---Respondents

Civil Suit No.280 of 2003, C.M.As. Nos.2511 of 2003 and 9094 of 2005, decided on 12th April, 2007.

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

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Limitation Act (IX of 1908), S.3 & Art.91---Suit for declaration, cancellation of registered gift deed and injunction---Limitation---Plaintiff (mother) alleged that she without delivering possession of suit house executed gift deed with understanding to facilitate defendant (son) to defend cases pending against her, thus, gift was void and liable to be; cancelled---Defendant sought rejection of plaint on the ground that suit filed nine years after registration of gift deed was time-barred---Validity---Gift under Islamic Law, if unaccompanied by possession, would be void ab initio---Plaintiff denying validity to gift shall have to set aside same as she was in possession of suit house--Right to sue had accrued to plaintiff when deed was executed and facts entitling her to have deed cancelled became known to her---Article 91 of Limitation Act, 1908 would attract to such case as cause of action for cancellation of gift deed would start from date of its registration---Plaint was rejected under O. VII, R.11, C.P.C.

Abdul Hakim v. Saadullah Khan PLD 1970 SC 63; Muhammad Buta v. Habib Ahmad PLD 1985 SC 153 and Mst. Iqbal Begum v. Farooq Inayat PLD 1993 Lah. 183 ref.

(b) Islamic Law---

--Gift unaccompanied with possession would be void ab initio.

----Question of limitation would become a question of law, when facts necessary for resolution thereof were available on record.

(d) Limitation---

----Period of limitation once started running would not stop except in extraordinary circumstances attached to plaintiff.

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

----Ss. 39 & 42---Civil Procedure Code (V of 1908), S.11, O.11, R. 2 & O. VII, R.11---Subsequent suit for declaration and cancellation of gift deed---Omission/failure of plaintiff to seek relief of cancellation of gift deed in previous suit filed on same cause of action, which ,was dismissed on point of limitation and was not challenged in appeal---Effect---Subsequent suit would be hit by S.11, C.P.C. and barred by O. 11, R.2 thereof---Plaint in subsequent suit was rejected under O. VII, R. 11, C.R.C.

Mrs. Irene Wahab v. Lahore Diocesan Trust Association 2002 SCMR 300 rel.

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

----O.II, R. 2---Bar of O.II. R.2, C.P.C.---Object and applicability---Parry not claiming or omitting to claim any relief flowing out of main grievance would be precluded from agitating such relief subsequently---Main object of such provision would be to avoid splitting of claim and restrict multiplicity of rejection---Principles.

Abdul Hakim v. Saadullah Khan PLD 1970 SC 63 rel.

Abdul Ghafoor Qureshi for Plaintiffs.

Habib-ur-Rehman and Abdul Qadir for Defendant No.1.

Sardaruddin Qureshi Defendant No.2.

YLR 2007 KARACHI HIGH COURT SINDH 2223 #

2007 Y L R 2223

[Karachi]

Before Ali Sain Dino Metlo, J

MUHAMMAD IMRAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.843 of 2006, decided on 15th May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---Accused were arrested after about six years, of alleged incident and a person who was introduced as eye-witness appeared for the first time and claimed to have witnessed the incident---Said person was shown to have identified accused in identification parade, but the fact was that accused were not put to identification of complainant---Accused had remained in custody for over three and half years without any substantial progress in their trial---Facts that accused were not put to the identification of the complainant and eye-witness appeared before the police first time after six years of the incident, coupled with complainant's specific statement in the F.I.R. that no other person was present there at the time of incident, militated against reasonableness of the grounds put forward by the prosecution for believing accused guilty of offence---Matter required further inquiry as contemplated under S.497(2), Cr. P. C. and accused were entitled to bail---Accused were admitted to bail, in circumstances.

Aamir Mansoob Qureshi for Applicants.

Sohail Jabbar for the State.

YLR 2007 KARACHI HIGH COURT SINDH 2224 #

2007 Y L R 2224

[Karachi]

Before Azizullah M. Memon, J

HOTEL METROPOLE (PVT.) LIMITED-Petitioner

Versus

IIIRD ADDITIONAL DISTRICT AND SESSIONS JUDGE, SOUTH

KARACHI and another---Respondents

Constitutional Petition No.S-1005 of 2002. decided on 11th April, 2007.

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

----S. 16(2)---Tentative rent order---Deposit of rent amount by tenant by issuing cheque to landlord---Validity---Such deposit would not be a valid tender and would not wash out effect of default at tenant's hand---Defence of tenant was struck off for non-compliance of tentative rent order.

State Life Insurance Corporation of Pakistan v. Kotri Textile Mills (Pvt.) Ltd., 2001 SCMR 1401; Reckitt and Colman v. Saifudding G. Lotia and others 2000 SCMR 1924; Municipal Committee, Gujranwala v. Barkat Bibi and others 1979 SCMR 264; Muhammad Jan v. Khadim Hussain 1973 SCMR 243 and M/s Crescent Publicity Service v. S.M. Younus and others 1980 SCMR 779 rel.

Syed Faiq Hussain for Petitioner.

S. S. Jahangir for Respondent No.2.

2007 Y L R 2243

[Karachi]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

MAQSOOD ALI and others--Petitioners

Versus

GOVERNMENT OF SINDH through Secretary, Local Government and 5 others---Respondents

Constitutional Petition No.D-2504 of 1994, decided on 30th September, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Allegation of misuse of plot by authorities which was reserved for a park---Authorities had admitted that plot in question was reserved for a park and that authorities would be willing to help any Agency to develop the park-Allegations that plot in question was being used by the police for parking its vehicles, despite service of notice 10 years ago, neither any authority nor any other functionary of the Provincial Government had cared to file affidavit or even comments explaining their version of facts---Contention of petitioners were accepted/affirmed on oath and Authorities were directed by High Court to cause removal of vehicles (if any) from the plot in question and should take proper steps for development of park.

Muhammad Muzaffarul Haq for Petitioners.

Rafiq Rajori, A.A.-G. for Respondents Nos.1, 2, 3, 6 and 7.

Manzoor Ahmad for Respondent No.4.

YLR 2007 KARACHI HIGH COURT SINDH 2244 #

2007 Y L R 2244

[Karachi]

Before Mrs. Yaseem Abbasey, J

MUHAMMAD HASAN SAHITO---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.12 and M.As. Nos.249 to 251 of 2007, decided on 25th January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Death of under trial prisoner in judicial custody---Enquiry against---Registration of F.I.R.---Application to invoke inherent jurisdiction of High Court---Under trial prisoner having died in judicial custody, order for holding enquiry about cause of his death was ordered and for that purpose a Magistrate was appointed and enquiry was about to conclude---Mother of deceased, during pendency of said enquiry, filed application to S.H.O. concerned to register F.I.R. which application was placed before Additional District and Sessions Judge, who ordered for registration of F.I.R. and that arrest of accused persons would not be effected, unless some material against them was brought during investigation---Contention of counsel for applicant was that during pendency of enquiry proceedings wherein responsibility of death of deceased was yet to be fixed in association with medical report, which was still in progress, step taken by Additional District and Sessions Judge for lodging F.I.R. was a step to open a parallel proceedings which was not warranted---Ground urged by counsel appeared to be reasonable, without prejudice to the case of mother of deceased---Impugned order was suspended till completion of enquiry and report of Chemical Examiner.

Amir Mansoob Qureshi for Applicant.

YLR 2007 KARACHI HIGH COURT SINDH 2247 #

2007 Y L R 2247

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

MUHAMMAD USMAN---Petitioner

Versus

FIDA HUSSAIN and.2 others---Respondents

Constitutional Petition No.S-528 of 2005, decided on 8th November, 2006.

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

----Ss.15(2)(ii)(vii) & 21--Constitution of Pakistan (1973)---Art. 199---Constitutional jurisdiction---Scope---Default in payment of rent and personal bona fide need of landlord---Ejectment petition---First Rent Appeal---Constitutional petition had been directed against concurrent findings of facts by Rent Controller and First Appellate Authority against petitioner/tenant on issue of default in payment of rent and personal bona fide need of respondent/landlord---Nature of constitutional petition, revision application and second appeal was entirely different from the first appeal---Court, in those proceedings was not supposed to reappraise the facts found by courts below, until and unless it was shown that the findings suffered from gross misappreciation of admitted facts or against evidence on record---Nothing of the sort having been pointed out, High Court could not . reappraise the evidence in the proceedings under Art.199 of the Constitution---No excess of jurisdiction, lack of jurisdiction, illegality or material irregularity causing miscarriage of justice having been brought to the notice of the Court, orders passed by two courts below were not open to any exception, except that there was a plea by the petitioner/tenant that he acquired property on pugree---Two courts below while allowing ejectment application, ought to have directed for payment of pugree amount by the landlord to the tenant---Order of the two courts below on the point of ejectment, were maintained with further direction that respondent would pay hack the pugree amount to the petitioner.

Yousuf Iqbal for Petitioner.

Abdullah Chandio for Respondent No.l.

YLR 2007 KARACHI HIGH COURT SINDH 2252 #

2007 Y L R 2252

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ

MAXIM ADVERTISING CO. (PVT.) LIMITED---Appellant

Versus

Messrs Z&J HYGENIC PRODUCTS and 2 others---Respondents

High Court Appeal No.53 of 2005, decided on 4th May, 2007.

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

----O. VII, R.11---Rejection of plaint---Contents of plaint would be read as a whole and presumption of correctness would be attached to averments made therein.

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

----O. VII, R.11 (d)-Limitation Act (IX of 1908), S. 19 & Art. 56---Suit for recovery of money---Payments made by plaintiff on behalf of three defendants to agency of electronic media on different dates---Letter addressed to plaintiff by third defendant acknowledging liability of suit money---Rejection of plaint by trial Court .for suit being time-barred against two defendants---Validity---Question of limitation involved in such case was a mixed question of law and fact, which could only he decided after recording of evidence---Plaintiff's claim against third defendant had totally skipped sight of Trial Court---Plaint in suit could not he rejected in part---Question, whether suit in circumstances would be governed by Art.59 of Limitation Act, 1908 or under any other Article, was a debatable issue and proper adjudication thereof was only possible after recording of evidence---High Court set aside impugned order in circumstances.

----O. VII,-R.11---Plaint in suit could not be rejected in part.

Ms. Naheed A. Shahid for Appellant.

Khalid Javed for Respondents Nos.1 and 2.

YLR 2007 KARACHI HIGH COURT SINDH 2264 #

2007 Y L R 2264

[Karachi]

Before Rahmat Hussain Jafferi and Muhammad Afzal Soomro, JJ

BAWA MIAN QAZI---Applicant

Versus

THE STATE and 4 others---Respondents

Criminal Revision No.36 of 1999 converted into Criminal Miscellaneous Application No.225 of 2004, decided on 8th May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 173---General Clauses Act (X of 1897), S.24-A---Closing of case---Trial Court, after giving details of the case and opinion of Investigating Officer, had observed that the court was satisfied that report of police for closure of the case under S.173, Cr.P.C., being justified, needed to be accepted---No reason whatsoever had been assigned by the court to agree with the report of the police---Court was obliged to have examined report of police and evidence on record and give some reasons concurring with the view taken by Investigating Officer---Under provisions of S.24-A of General Clauses Act, 1897, every Authority or officer was required to assign reasons for passing an order when a statute authorized him to pass any order or issue any direction---Order thus suffered from material illegality by not complying with provisions of S.24-A, of General Clauses Act, 1897, the same was set aside and matter was remanded to the Trial Court for examining the statements of witnesses and record and pass appropriate order as deemed ,fit---Petition was allowed to that extent.

Naveedul Haq for Applicant.

M. A. Kazi for Respondent No.2.

Ikram Ahmed Ansari for Respondent No.4.

YLR 2007 KARACHI HIGH COURT SINDH 2265 #

2007 Y L R 2265

[Karachi]

Before Maqbool Baqar, J

IMRAN AWAN---Plaintiff

Versus

ALI ZAFAR and another---Defendants

Suit No.29 of 2007, decided on 27th February, 2007.

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

---Ss. 21(a), 42 & 56---Qanun-e-Shahadat (10 of 1984), Art.95---Suit for declaration and injunction---Plaint in the suit bore the name of one person as the plaintiff however, it had not been signed by the said person but by someone else, purportedly as a duly authorized officer of the plaintiff---No such authorization was annexed to the plaint, even the photocopy of a power-of-attorney, purportedly executed by the plaintiff in favour of the said person and annexed to the affidavit in rejoinder, was neither attested nor notarized or otherwise authenticated---Effect---Presumption of authenticity as envisaged by Art.95 of Qanun-e-Shahadat, 1984 could not be attached to it, more so, for the reason that it had been filed belatedly and the signatory to plaint had been described in the plaint as authorized officer of theplaintiff company, whereas the documents did not describe him as such.

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

----Ss.21(a) & 56(b)---Specific performance of agreement and injunction---Contract, for non-performance of which compensation in money was an adequate relief, could not he specifically enforced, where plaintiff had himself estimated damages/losses suffered by him on account of alleged breach of the agreement in a specified amount---Section 56(f), Specific Relief Act, 1877 clearly barred grant of an injunction to prevent a breach of a contract, performance whereof could not be specifically enforced.

Bilal A. Khawaja for Plaintiff.

Ali Sibtain Fazli for Defendant No.1.

Ijaz Ahmed for Defendant No.2.

YLR 2007 KARACHI HIGH COURT SINDH 2287 #

2007 Y L R 2287

[Karachi]

Before Mushir Alani, J

Messrs SIGN SOURCE through Partner---Plaintiff

Versus

HUMAYUN H. BAIG MUHA MMED---Defendant

Suit No.29 of 2005, decided on 16th February, 2005.

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

----Ss. 11, 107, 186 & 187---Agreement, execution of-Scope-Authority to enter into or sign agreement need not always be express, but may be implied from circumstances of a particular case---Not always necessary that agreement must be signed by all parties personally---Illustration.

Mrs. Rehana Asghar v. Military Estate Officers, Lahore 2005 MLD 28 rel.

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

----S. 2(a)---Rooftop of a building---Concept---Expression "any part of building" used in S.2(a) of Sindh Rented Premises Ordinance, 1979 would include 'rooftop' being an integral part of building, which could besuhject matter of tenancy--Principles.

----S. 105---Easements Act (V of 1882), S.52---'Lease' and 'licence agreements'---Distinction---Determining factors stated.

In order to determine whether an agreement is lease or licence, caption or title of a document or manner in which document is described is not always the deciding factor. It is tenor of the agreement and intention of parties that determine real nature of the transaction.

Government of West Pakistan v. Meezan Corporation and another PLD 1971 Kara 35 and Ismail and 20 others v. Municipal Committee PLD 1973 Note 40 ref.

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

---Ss. 12, 42 & 54---Civil Procedure Code (V of 1908), S.9---Easements Act (V of 1882),. S.52---Sindh Rented Premises Ordinance (XVII of 1979), Ss.' 8, 13, 14 & I5---Suit for declaration, specific performance of tenancy agreement and permanent injunction---Relief sought inter alia was to restrain defendant from interfering in plaintiff's right to free access to rooftop of building---Question whether possession of plaintiff over suit property was as tenant or licensee---Validity---Such relief could be granted by civil court under its plenary jurisdiction and not by Rent Controller---Principles.

Muhammad Shaft v. Sardar Begum and others 1994 CLC 2204; Akber Ali and others v. Vazir Ashique Ali and others 1992 CLC 1551; The Election Officer Gujrat v. Abdul Ghani AIR 1923 Lahore 47; Rochiram A. Amesure v. Municipal Corporation, Karachi and another AIR 1934 Sindh 136; Federation of Pakistan and others v. Messrs Saman Diplomatic Bonded Warehouse 2004 PTD 1189 and A.T.A. Ghumro v. II Additional District and Sessions Judge, Karachi PLD 2003 Kar.188 ref.

Mrs. Navin Merchant and Junaid Ghaifar for Plaintiff.

Anwer Mansoor and Asim Mansoor for the Defendant.

YLR 2007 KARACHI HIGH COURT SINDH 2340 #

2007 Y L R 2340

[Karachi]

Before Munib Ahmad Khan, J

NOOR NABI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.575 of 2006, decided on 1st June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail grant of---Further . inquiry---Accused and complainant were known to each other and not only names of accused, but their fathers names and their residential addresses were also mentioned--Neither any independent witness was named nor the wagon number, was given---Recovery of mobile phone, could not be given such a weight as to deny accused bail to contest the matter---Case against accused appearing to be of _further inquiry, he was admitted to bail, in circumstances.

Jai Jai Veshno Mange Ram for Applicants.

M. Ismail Bhutto for the State.

YLR 2007 KARACHI HIGH COURT SINDH 2346 #

2007 Y L R 2346

[Karachi]

Before Khilji Arif Hussain, J

LIGHT INDUSTRIES (PVT.) LTD through Director---Plaintiff

Versus

M/s ZSK STICKMASCHTNEN GmbH and another---Defendants

Suit No.146 of 2006, decided on 23rd January; 2007.

(a) Contract---

----Exclusive jurisdiction, clause in an agreement---Such clause in a contract is part of consideration of the agreement between the parties on the basis of which parties enter into a contract and such consideration should not he ignored lightly particularly merely at the whims of one of the parties to the contract.

(b) Contract---

----Intention of parties---Determination of---Held, to discover the intention of parties to a contract documents/agreement as a whole has to he read.

----O. VII, Rr.10 & 11---Specific Relief Act (1 of 1877), S.42---Agency contract between a ,foreign principal and agent in Pakistan---Termination of such contract---Suit for declaration and recovery---Application by defendant (foreign company) under Q. VII, Rr.10 & 11, C.P.C. for stay of the suit and to direct the plaintiff to file his claim for adjudication before a foreign court on the basis of foreign jurisdiction clause in their Agency contract---Contentions of the defendant were that clause of the Agency contract, conferring exclusive jurisdiction to a foreign Court (Germany) by treating like a foreign arbitration clause, the suit was liable to he stayed; that claim of the plaintiff as per laws of Pakistan was barred by lime, however, in terms of the German laws was not hit by the provisions of the Limitation Act, 1908 and that the plaintiff, if had any claim could get the relief claimed from the court at Germany; that there was no reciprocal agreement between Government of Pakistan and Germany and accordingly if any decree was passed by the Pakistan Court, same could not be executed in Court of Germany and for the recovery of the amount in decree, if any, the plaintiff would have to approach the court of Germany---Plaintiff, on the other hand, contended that clause of exclusive jurisdiction was uncertain and vague and accordingly the jurisdiction of the court on such vague clause could not he ousted; that said clause of the Agency Contract was a void clause and .proceedings could not he stayed on the basis of such void clause under S.28, Contract Act; 1872; that High Court (Pakistan) not only had jurisdiction, hilt in ,fact the appropriate court to adjudicate the matter as the termination letter of the Agency and other correspondence were in English and Courts in Pakistan were better experienced in dealing English language and its interpretation than the German Courts where German language was court language; that Courts in Pakistan were more economical and cost effective than the Courts in Germany and all evidence was available in Pakistan; that sales of defendant's goods were procured in Pakistan and all expenses were incurred by plaintiff in Pakistan and that Courts rarely disturb the plaintiff's choice of forum and would not do so unless the balance of factors was strongly in favour of the defendant---Validity---Held, with the advancement of science and technology the question of convenience and inconvenience of parties was not so material to wriggle out from the validly constituted agreement between them---No reciprocal agreement between Germany and Pakistan being in existence, as such even if any decree was passed by High Court - of Pakistan same could not be executed in the Court of Germany as .foreign judgment---Application tinder O. VII, Rr.10 & 11, C.P.C. by the defendant in .circumstances, was granted and the proceedings in the suit were stayed by the High Court with the observations that plaintiff, if so advised, could approach for adjudication of his claim before the Court at Germany.

M.A. Chowdhury v. Messrs Mitsui O.S,K. Lines Ltd and 3 others, PLD 1970 SC 373; CGM (Companies General Maritime) v. Hussain Akbar, 2002 CLD 1528; M/s Travel Automation (Pvt.) Ltd v. Abacus International. (Pvt.) Ltd and 2 others, 2006 CLD 497; Spiliada Maritime Corporation v. Cansules Ltd (The "Spiliada"), 1987 1 Lloyd's Report page 1; Evans Marshall and Co. Ltd v. Bertola S.A. and another, 1973 1 WLR page 349; Standard Insurance Co. v. Pak Garments Ltd, 1998 SCMR 1239; State Life Insurance Corporation v. Rana Muhammad Saleem 1987 SCMR 393 and New India Assurance Co. Ltd. and others v. T. K. Nanjunda Setty and Sons and others AIR 1964 Mysore 147 ref.

Agha Zafar Ahmed for Plaintiff.

Jawwad Sarwana for Defendant No.1.

Farhatullah for Defendant No.2.

YLR 2007 KARACHI HIGH COURT SINDH 2367 #

2007 Y L R 2367

[Karachi]

Before Azizullah M. Menton, J

DIL REHMAN alias BABA JAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.385 of 2004, decided on 12th March, 2007.

(a) Evidence---

----Circumstantial evidence---Significance, admissibility and import of circumstantial evidence, examined---Circumstances from which an inference adverse to accused was sought to be drawn, must be proved beyond all reasonable doubt and those must be concerned with the fact sought to be inferred therefrom; in order to justify an inference of guilt, the circumstances from which such an inference was sought to be drawn, must be incompatible with the innocence of accused. and incapable of explanation on any other reasonable hypothesis than that of Iris guilt; no conviction could have been awarded, unless such principles were clearly established--Fundamental principle of universal application in cases dependant on circumstantial evidence, was that in order to justify the inference of guilt, the incriminating .fact must be incompatible with the innocence of accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt---Circumstantial evidence could he relied upon "where either the direct evidence was not forthcoming or had not been found satisfactory ".

Wazeer Muhammad and another v. The State 2005 SCMR 277; Tahura v. Emperor AIR 1931 Cal. 11; Bir Bahaclur v. State AIR 1956 Assam 15; 6 Assam 428 1956 Cr.LJ 41; Emperor v. Naibullah AIR 1942 Cal. 524; 43 Cr.LJ 860; Kanakasabai, AIR 1940 Mad. 1; 41 Cr.LJ 369; Shewarm v. Emperor AIR 1939 Sind 209; 1LR (1940) Kar. 249; 41 Cr.LJ 28; Gahar Sheikh v. Emperor AiR 1947 Cal. 345; Zahid Hussain v. Crown (SC) 1969 SCMR 388; Muhammad Nazir v. Mst. Sairan PLD 1970 SC 56; Fazal Elahi v. Crown PLD 1953 (PC) 214; Azim v. The State PLD 1965 SC 44; Muhammad Arshad v. The State 1992 SCMR 1187; State v. Habib-ur-Rehman PLD 1983 SC 286 and Muhammad Assam v. Muhammad Zafar PLD 1992 SC 1 ref.

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

----Ss. 324, 337-L & 384---Appreciation of evidence---Case of prosecution was only to the extent that box ,containing acid material was thrown inside the house of prosecutions witness wherein complainant and his nephew were sleeping, which box hit on the head and other parts of the body of complainant and on the person of his nephew---No evidence being available on the point of actual throwing of the .box containing the acid material from inside the courtyard of the house of accused, circumstantial evidence so collected against accused would not conclusively prove, beyond reasonable and probable doubt, that accused actually threw the box containing acid material ,for the reason that on split of acid material, burns would occur instantaneously---Accused could not, in the ordinary course of the things be expected to keep standing till arrival of the witnesses---Alleged criminating fact was not proved to he compatible with the guilt of accused---Prosecution had .failed to properly explain as to why accused could still choose to keep standing at the place of incident till arrival of witnesses, when he allegedly chose time of 4-00 and during the night ,for himself to throw acid material on the persons of two injured---Conviction could not be safely awarded against accused on the basis of such type of circumstantial evidence---Accused appeared to he entitled to benefit of doubt---No convincing, forthright or reliable circumstantial evidence having come on record on basis whereof accused could have been convicted and sentenced, allowing appeal, judgment of the Trial Court whereby lie was convicted and sentenced, was set aside and accused was acquitted of the charge.

Khawaja Naveed Ahmed for Appellant.

Haider Shaikh for the State.

Date of hearing: 29th November, 2006 and 15th February, 2007.

YLR 2007 KARACHI HIGH COURT SINDH 2374 #

2007 Y L R 2374

[Karachi]

Before Khilji Arif Hussain, J

SUHRAB---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.204 and M.A. No.497 of 2007, decided on 4th June, 2007.

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

S. 497(2)---Penal Code (XLV of 1860), Ss.302, 459, 148 & 149---Bail, grant of---Further inquiry---Only the presence of accused had been alleged at the time of occurrence and no overt act had been attributed to him---F.I.R. though had alleged that accused was present along with K.K. on the spot, but it had not been mentioned that he took part or fired at any one of the complainant party---No allegation having been made that accused had taken part in the offence or any overt act had been alleged against him, case against accused required further inquiry--Accused was granted bail, in circumstances.

Jai Jai Veshno Mange Ram for Applicant.

M. Ismail Bhutto for the State.

YLR 2007 KARACHI HIGH COURT SINDH 2377 #

2007 Y L R 2377

[Karachi]

Before Sajjad Ali Shah, J

FEROZ AHMED KHAN---Applicant

Versus

FASIULLAH SHEIKH---Respondent

C.M.A. No.371 of 2007 in Execution Application No.69 of 2006, decided on 26th April, 2007.

Civil Procedure. Code (V of 1908)-.

XX, R.11---Limitation Act (IX of 1908), Art.195-=-Application for payment of decretal amount in instalment---Limitation---Provision of Art. 175 Limitation Act, 1908 provided limitation of six months for filing of such an application---Such application if moved after period of six months without any application for condonation of delay, would be barred by time.

Muhammad Amin Lakhani for Applicant.

Munir-ur-Rahman for Respondent.

YLR 2007 KARACHI HIGH COURT SINDH 2378 #

2007 Y L R 2378

[Karachi]

Before Mrs. Yasmin Abbasey, J

GHULAM HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.227 of 2005, decided on 9th April, 2007.

Penal Code (XLV of 1860)---

----S. 393---Appreciation of evidence---Benefit of doubt---Defence taken up by accused was that just to save the security guard of the company who had unnecessarily opened fire on accused, false case had been registered against him, while in fact he was just a passerby and had no connection with the incident, if any, happened as per prosecution story---Prosecution had not been able to produce satisfactory evidence against accused---Contradictions were noticed in the statements of the prosecution witnesses---Benefit of doubt would go to the accused---Conviction order passed against accused by the Trial Court, was set aside.

Khawaja Naveed Ahmed for Appellant.

Asmatullah Niazi for the State.

Date of hearing: 26th March, 2007.

YLR 2007 KARACHI HIGH COURT SINDH 2385 #

2007 Y L R 2385

[Karachi]

Before Ghulam Rabbani, J

AFAQ-UR-REHMAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.221 of 2006; decided on 10th March, 2006.

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

---S. 498---Penal Code (XLV of 1860), Ss.406 & 420---Interim bail, grant of---Grounds taken by counsel for accused were that; complainant had, with malicious intention and ulterior motive, had lodged F.I.R. with an inordinate delay of more than six months; that father of accused had already filed civil suit against prosecution witness which was pending ,adjudication; and that at the instance of said prosecution witness, complainant had lodged F.I.R. with false story involving accused to pressurize . his father to withdraw said civil suit---Main accused had already been released on .bail-Offences as alleged in F.I.R did not attract the prohibitory clause of S.497, Cr. P. C. and that accused was no more required for the purpose of investigation since challan had already been submitted---Other ground pressed into service by counsel for accused was that unwarranted ill-mc. iner and bad attitude adopted by police in the circumstances of the case, were reflective of lies and their ill-motive leading to reasonable apprehension that life of accused was in danger---Considering said facts and circumstances, accused was admitted to interim bail, in circumstances.

Nasir Rizwan Khan for Applicant along with his associate Raheel-ud-Din.

YLR 2007 KARACHI HIGH COURT SINDH 2387 #

2007 Y L R 2387

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ

AHSANUDDIN and another---Applicants

Versus

UNITED BANK LIMITED through Corporate and Industries and others---Respondents

C.M.A.No.1579 of 2005, C.M.As. Nos.1895, 158, 1799 and 1974 of 2006 ire High Court Appeal No.145 of 2005 decided on 13th December, 2006.

Civil Procedure Code (V of 1908)---

----Ss. 151 & 152---Review---Application under Ss.151 & 152, C.P.C. seeking revieil of order---Mistake pointed out by the applicants, was apparent on the face of the record which had occurred primarily due to lack of proper assistance by the counsel of the applicants, who had not disclosed the relevant facts---Applicants, in circumstances, could not be made to suffer for such reason---Impugned order was reviewed to the extent that the relevant appeal of the applicant was restored only to the extent of the claim of applicant.

Muhammad Rafi for Applicant No.2.

Naveedul Haq for Respondent No.1.

Shahid Hussain Malik, Auction Purchaser in person.

YLR 2007 KARACHI HIGH COURT SINDH 2389 #

2007 Y L R 2389

[Karachi]

Before Mrs. Qaisar Iqbal, J

GHULAM ALI FADOO and 4 others---Plaintiffs

Versus

PUBLIC AT LARGE---Defendant

Suit No.783 of 2006, decided on 7th ireb.ruary, 2007.

Civil Procedure Code (V of 1908)---

---S. 92---Suit seeking to settle the Scheme of Trust for Charitable Purposes for Better Administration of the Trust---Necessary permission had been sought by the plaintiff _ from the office of the Advocate General, before filing the suit, notices were issued to public at large and no objection had been received from any quarter---No impediment being there, suit of the plaintiff was decreed to settle Scheme of the Trust for Charitable Purposes for Better Administration of the Trust in terms of prayer in the suit---No one having appeared to contest the case of the plaintiff, cost was not awarded.

Naveedul Haq for Plaintiffs.

Nemo for Defendant.

2007 Y L R 2445

[Karachi]

Before Amir Hani Muslim, J

ABDUL RAZAK alias PAPO SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.107, M.As. Nos. 381 and 382 of 2005, decided on 22nd March, 2005, Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of I860), Ss.399, 353, 324, 402, 412, 148 & 149---West. Pakistan Arms Ordinance (XX of 1965), S.I3-D---Bail, grant of---Further inquiry---Prima facie complainant at the instance of the police had improved the case by implicating accused---Accused had no criminal back ground---Vehicle had not been recovered from accused-No empties were recovered by the police---Recovery of knife and Rs. 70 were effected from the person of accused---Said facts ltad made the case of accused for further inquiry---Accused was granted bail, in circumstances.

Zulfiqar Ali Sangi for Applicant.

Zubair Ahmed Rajput for the State.

2007 Y L R 2484

[Karachi]

Before Rahmat Hussain Jafferi and Munib Ahmad Khan, JJ

MUREED' ABBAS---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.258 of 2003 and Criminal Revisions Nos.87 and 95 of 2003, decided on 8th February, 2007.

Penal Code (XLV of 1860)---

----S. 302(h)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Prosecution had failed to establish specific motive alleged in the incident---Ocular testimony of prosecution witnesses was corroborated by the medical evidence---Accused who had admitted all the main aspects of incident, had pleaded that due to attack from the side of deceased persons, the weapon was fired, but said plea was not supported and corroborated by medical evidence and not proved from other evidence available on record---Ocular testimony and admission of accused, had established beyond any shadow of doubt that deceased had received injuries from the hands of the accused---Weapon and crime empties secured from the place of incident, were sent to Ballistic Expert whose report was in positive---Prosecution, in circumstances, had proved the recoveries---Prosecution had specifically alleged that incident had taken place due to an earlier incident, but it had failed . to prove the motive---Incident took place suddenly without pre-planning or premeditation---Such were the mitigating circumstances where lesser sentence could be awarded to accused---Case was not such where extreme punishment of death should be awarded to accused--Trial Court was also not justified to award fine of Rs. 200, 000 to accused as provisions of S.302(b), P.P.C. did not provide such sentence---Appeal of accused was dismissed with said modifications.

Jehanzeb v. State 2003 SCMR 98 ref.

Mahmood A. Qureshi for Appellant (in Criminal Jail Appeal No.258 of 2003).

Habib Ahmed, A.A.-G. for the State (in Criminal Jail Appeal No.258 of 2003).

Ejaz Khattak for the Complainant (in Criminal Jail Appeal No.258 of 2003).

Ejaz Khattak for Applicant (in Criminal Revision Application No.87 of ,2003). \1

Habib Ahmed, A.A.-G. for the State (in Criminal Revision plication No.87 of 2003).

Mehmood A, Qureshi for the Complainant (in Criminal Revision Application No.87 of 2003).

Habib Ahmed, A.A.-G. for the State (in Criminal Revision Application No.95 of 2003).

Mehmood A, Qureshi for Respondent (in Criminal Revision

Application No.95 of 2003).

Date of hearing: 2nd February, 2007.

YLR 2007 KARACHI HIGH COURT SINDH 2540 #

2007 Y L R 2540

[Karachi]

Before Muhammad Afzal Soomro, J

ABDUL LATEEF---Petitioner

Versus

Mst. FAHMEEDA WAHEED and 2 others---Respondents

Constitution Petition No.S-530 and C.M.A. No.3283 of 2006, decided on 19th April, 2007.

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

----Ss. 15(2) (ii) & 21---Constitution of Pakistan, (1973), Art.199---Constitutional petition---Ejectment application---Relationship of landlord and tenant---Tenant filed written statement in which he denied ownership of landlady in respect of premises in question---Rent Controller found that relationship of landlord and tenant existed between the parties and that tenant had committed default in payment of rent and directed him to hand over peaceful vacant possession of premises in question to the landlady---Appeal filed by tenant against judgment of the Rent Controller was also dismissed by Appellate Court---Constitutional petition was filed against concurrent judgment of forums below---Validity---Appellate court had rightly rejected appeal of tenant filed against order of Rent Controller---Order of Appellate Court did not suffer from any infirmity, illegality or material irregularity, which was the basic requirement for deciding the matter by the High Court under its constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

Attaullah for Petitioner.

Zafarudin Khan for Respondent No.l.

YLR 2007 KARACHI HIGH COURT SINDH 2613 #

2007 Y L R 2613

[Karachi]

Before Anwar Zaheer Jamali, J

FAISAL KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1127 of 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392---Bail, grant of---Further inquiry---Accused was not nominated in the crime nor any alleged robbed articles had been recovered from his possession---Even the pistol recovered from his possession was stated to be dummy---Holding of identification parade by the police after 4 days of his arrest was also not understandable as accused, according to prosecution story was arrested at the pointation of complainant himself and no plausible explanation was available for the delay of four days---Case of accused needed further enquiry as to his guilt, which had entitled him for grant of bail---Accused was admitted to bail, in

circumstances.

Muhammad Asif Malik for Applicant.

Ismatullah Niazi for the State.

YLR 2007 KARACHI HIGH COURT SINDH 2620 #

2007 Y L R 2620

[Karachi]

Before Azizullah M. Memon and Syed Sajjad Ali Shah, JJ

ZULFIQAR ALI---Applicant

Versus

THE STATE---Respondent

Crl. B.A. No.150 of 2006, decided on 27th September, 2006.

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

----S. 497---Bail grant of---Principles---While hearing a bail application, only tentative assessment of the evidence collected by the prosecution wets to be made and detailed scrutiny thereof could not be entered into.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of---Chemical Examiner's report had mentioned that examination of samples of the recovered material, had proved them to be containing only "traces of charas "---Special Prosecutor appearing for Anti-Narcotic Force had stated at the bar that they were making up their mind to challenge said report of the Chemical Examiner---Accused had remained in jail since long ---Accused having made out a case for grant of bail was admitted to bail, in circumstances.

Asif Ali Abdul Razaque Soomro and I.A. Hashimi for Applicant.

Muhammad Aslam Roshan, Special Prosecutor, A.N.F.

Muhammad Ismail Bhutto, State Counsel.

YLR 2007 KARACHI HIGH COURT SINDH 2626 #

2007 Y L R 2626

[Karachi]

Before Muhammad Sadiq Leghari and Nadeem Azhar Siddiqi, JJ

GULZAR CHANDIO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-552 of 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act. (XXV of 1997), S.9(c)---Bail, grant of----One of the parcels containing the sample had in it the stuff containing the traces of charas only and the other one was not clearly indicating as to from which it had been drawn and it was yet to be established during trial as to whether stuff allegedly recovered from the accused was charas or it contained the traces of charas---Accused having a case for bail, he was admitted to same, in circumstances.

Asif Ali Abdul Razak Soomro for Applicant.

Mushtaq Ahmed Korejo for the State.

YLR 2007 KARACHI HIGH COURT SINDH 2651 #

2007 Y L R 2651

[Karachi]

Before Mushir Alam and Mrs. Yasmeen Abbasey, JJ

MUHAMMAD HASHIM---Petitioner

Versus

PRESIDING OFFICER, SPECIAL BANKING COURT, KARACHI

(OFFENCES IN BANKS) and 7 others---Respondents

C.M.As. Nos.1018 and 1019 of 2007 in Constitution Petition No.D-229 of 2006, decided on 1st March, 2007.

Practice and procedure---

----Conversion of proceedings---One kind of proceeding could always he converted into another form provided the court had jurisdiction.

S. Muhammad Kazim for Petitioner.

Mehmood Alam Rizvi for Standing Council.

YLR 2007 KARACHI HIGH COURT SINDH 2672 #

2007 Y L R 2672

[Karachi]

Before Amir Hani Muslim, J

Messrs DEWAN SUGAR MILLS (PVT.) LTD.---Plaintiff

Versus

M. B. ABBASI and others---Defendants

Suit No.640 of 2006., decided on 9th August, 2006.

Trade Marks Ordinance (XIX of 2001)---

----Ss.40(4) & 17---Application seeking restraining order against the defendants from infringing and/or passing off their right in respect of the trade mark, house mark, service mark, trade name `Dewan' by using the. trade mark 'Daily Dewdn' for their newspaper, service and or any other product---Validity---Once a trademark/trade name is registered under the provisions of the Trade Marks Ordinance, 2001, then it restricts the other party from using such trade mark, moreso when it is distinct and its use would lead to confusion or deception---Grant of declaration to a newspaper under Press Council of Pakistan Ordinance, 2002 does not .give right to a party under the garb of distinct nature of business---Plaintiff, in circumstances, having made out a case for grant of injunction, application was allowed---Principles.

If trademark is registered the same cannot be used. by any other person in the face of the provision of section 40(4) read with section 17 of .the Trade Marks Ordinance, 2001. Mere granting of declaration under the Press Council of Pakistan Ordinance, 2002 does not authorize the defendants to infringe .the right of the plaintiff guaranteed under the provision of the registered Trade Marks Ordinance, 2001. The scope of granting of declaration is independent of the provision of Trade Marks Ordinance, 2001. Grant of declaration does not give rise to a party a right to use the registered trade mark of another party under the garb of distinct nature of business. Publication of the newspaper under the provision of Press Council of Pakistan Ordinance, 2002 on the basis of a declaration does not exclude the right of infringement of the plaintiff under the Trade Marks Ordinance, 2001.

Once a trade mark/trade name is registered under the provision of Trade Marks Ordinance, 2001 then it restricts the other- party from using such trade mark, moreso when it is distinct and its use would lead to confusion or deception.

The plaintiff prima facie had made out a case for grant of injunction and allowing to use the trade mark "DEWAN'' by the defendants would cause inconvenience and would lead to deception and confusion in terms of .the provision of .section 17 of the Trade Marks Ordinance, 2001. The balance of convenience also rested with the plaintiff for the purpose of granting of injunction. Injunction application, restraining the defendants from using the trade name/trade mark word in question in their publication was allowed.

Alpha Sewing Machine v. Registrar of Trade Makrs PLD 1990 SC 1074 fol.

Miss Shazia Tasleem for Plaintiff.

Rizwan H. Nadeem for Defendants.

YLR 2007 KARACHI HIGH COURT SINDH 2742 #

2007 Y L R 2742

[Karachi]

Before Munib Ahmed Khan, J

SADIA MUHAMMAD ZAHOOR and others---Plaintiffs

Versus

AUN SAJEED HASHMI and others---Defendants

Suit No.1095 and C.M.A. No.9953 of 2003 and C.M.As. Nos.5282, 5281 of 2004, decided on 3rd March, 2006.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), O.XXXIX, R.2(3)---Contempt of Court Act (LXIV of 1976), Ss.3, 4 & 5---Suit for possession---Plaintiff had sought restoration of two plots---Said request of plaintiff hid vehemently been opposed by counsel for defendants --A.A.-G. had also stated That ownership of plot was very much under clouds, as record of Settlement Department was manipulated and that inquiry was initiated by Anti-Corruption Department, but it was closed due to fact that plaintiffs' predecessor obtained an ex parte decree---Present suit was filed in respect of different plot---Application of plaintiff in respect of the plot in question therefore, was not maintainable---Plaintiff, in another application under O.XXXIX, R. 2(3), C. P. C. read with Ss. 3, 4 & 5 of Contempt of Court Act, 1976, had requested for contempt action against contemner on the basis of Nazir of Court's report that intervening wall between the two plots herd been demolished---No action could be taken on that application its uncertainty existed regarding interpretation of Court's order as well as involvement of the plot in the suit and the entitlement of the parties in respect thereof as well---Considering that the title of plaintiff in respect of plot in question was yet to be cleared and keeping in view filing of suit in respect of plot of another plot application by plaintiff was dismissed.

Khawaja Shamsul Islam for Plaintiffs.

Abid S. Zuberi for Defendant No.5.

Ahmed Pirzada, Addl.A.-G.

Abdul Aziz Khan and Anwar Ali Tariq for Contemners.

YLR 2007 KARACHI HIGH COURT SINDH 2760 #

2007 Y L R 2760

[Karachi]

Before Sarmad Jalal Osmany, J

SAHIB DINO---Applicant

Versus

MUHAMMAD SUBHANI and others---Respondents

Civil Revision Application No.27 of 2003, decided on 5th September, 2006.

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

----O. VII, R. 11---Specific Relief Act (I of 1877), 5.42---Suit for declaration---Rejection of ,plaint---Plaintiff was in occupation of agricultural land, 50% of which was owned by plaintiff and- balance belonged to Government being evacuee, property--- .Deputy Commissioner, thereafter, issued -clearance certificate in respect .of said property in favour of defendant against his claim and defendant sold said property to another person---Plaintiff filed suit praying for declaration that order of Deputy Commissioner was illegal and, same be set aside and that order of Member, Board of Revenue which had confirmed, order of Deputy Commissioner be also set aside---Defendant had filed application under O. VII, R. 11, C.P.C. for rejection of Taint on the ground that no cause of action had accrued to plaintiff for filing of suit---Claim of plaintiff in the shit was based upon unlawful allotment of land to defendant by Deputy Commissioner and his own right to acquire same in accordance with law as he was Hari of the same it could not, in circumstances be said that no cause of action had accrued to plaintiff for filing suit---Suit could be said to have not been properly framed or plaint was defective---Vagueness of plaint or relief claimed or deficiency in the court fee or the defective form of the suit etc. were all questions which could arise only when a cause of action existed in which an opportunity .should be given to the plaintiff to correct said defect and remove the deficiency etc. instead of rejecting the plaint under Order VII, R.11, C.P.C.---Even inhere declaratory relief could not be granted under the law, the prayer for an injunction could be treated as an independent one or relief could always be granted---Even if plaintiff was not entitled to declaration as to the- relief claimed, it was always possible for the court to grant injunction preventing defendants from violating their obligations ordered by law---Technicalities were to be avoided so as not to create hurdles in the way bf substantial justice---Allowing revision, lodgments and decrees of both lower forums were set aside, with direction That suit filed by plaintiff be decide on merits after giving opportunity to plaintiff to amend the plaint.

Arif Majeed Malik v. Beard of Governors Karachi Grammar School 2004 CLC 1029; Mst. Arshan Bi v. Moula Bux 2003 SCMR 318; Shaikh Abdul Rahim v. Noor Muhammad 1993 .CLC 1059; Mitha Khan v. Muhammad Younus 1991 SCMP. 2030; Sharaf Fareedi v. The Federation, of Pakistan PLD 1989 Kar. 404; Jahangir Akhtar v. Inayat Ahmed and others 1990 CLC 1053-AJK; Zafar Ahmed v. Mst. Hajra Bibi. PLD. 1986, Lah. 399; Gulbano and others v. Aurangzeb 2000 CLC 1796; Metro Cooperative Housing .Society Ltd. v. Bonanza Garments (Fvt.) Industries and others 1996 MLD 593; Asghar Ali v. P.K Shahani and others 1992 CLC 2282 and Muhammad Ilyas Hussain v. Cantonment Board Rawalpindi PLD 1976 SC 785 rel.

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

----O.XXXIX, Rr.l & 2---Specific Relief Act (I of 1877), 5.42---Suit for declaration---Injunction, grant of---Even where declarately relief could not be granted under the -law, the .prayer for an injunction could. be treated as an independent one or relief could always be granted---Even if plaintiff was not entitled to declaration as to the relief claimed, it was always possible for the court to grant injunction preventing defendants ~ from violating their obligations ordered by law---Technicalities were to be avoided so as not to create hurdles in the way of subsiantial justice.

Imdad Ali Away for Applicant

Abdul?? Fatteh?? Malik?? for Respondents.

YLR 2007 KARACHI HIGH COURT SINDH 2772 #

2007 Y L R 2772

[Karachi

Before Mrs. Qaisar lqbal, J

NATIONAL BANK OF PAKISTAN---Applicant

Versus

ZARAK TEXTILE MILLS LTD.--- Respondent

Execution Application No. 92 of 2001, decided on 25th May, 2007.

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

----Ss. 55(1)(g), 57 & 69(4)---Sindh Urban State Land (Cancellation of Allotments,. Conversions and Exchanges) Ordinance (HI of 2000), S.3--Rights and liabilities of buyer and seller---Seller would be bound to pay all public charges and rent accrued due in respect of the property up to the date of its sale, the interest on all encumbrances on such property due on such date, except where the property was sold subject to encumbrances, to discharge all encumbrances on the property then existing---Property in question was sold out to auction purchaser in cash "as was where was basis"---Claims notified were paid off---Liabilities specified in the sale proclamation did not contain dues and charges of claimants--Auction purchaser's title, in circumstances, could not be clouded by other claims---Auction purchaser was not liable to pay the sum demanded towards "differential malkano" in terms of S.3 of Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance,' 2000, as said Ordinance did not refer to all lands---Official Assignee had suggested that the property was free from all encumbrances when put to auction and Government claims were not notified---Claim of the Land Utilization Department thus could not be entertained after the sale---Official Assignee was directed to get name of nominee of auction purchaser recorded in the record of rights.

Messrs Industrial Development Bank of Pakistan v. Messrs Maida Ltd. and others 1994 SCMR 2248 and United Bank Ltd. v. Messrs Al-Noor Enterprises and another's 2006 CLC 822 rel.

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

----Ss. 57 & 69(4)---Civil procedure Code (V of 1908), O.XXXI, Rr. 61 & 66---Mortgage---Auction of property---Money received by mortgagee, arising from sale, after discharge of prior encumbrances, after payment into court under S.57 of Transfer of Property Act, 1882 of a sum to meet prior encumbrances, would, in the absence of a contract to the contrary, be held by him in trust to be applied by him; firstly, in payment of all costs, charges and expenses, properly incurred by him as incidental to the sale or any attempted sale; and secondly in discharge of the mortgage-money and costs and other money, if any due under the mortgage---Residue Of the money so received would be paid to person entitled to the mortgaged property or authorized to give receipts for the proceeds of the sale thereof---If mortgaged property was offered and sold under the orders of the court, auction purchaser would acquire clean and unencumbered right and title in the property, unless such charge, lien or encumbrance was notified in the sale proclamation as required under Rr.61 and 66 of O.XXI, C. P. P.C. ---Held, auction purchaser had acquired right in the property free from all encumbrances, specifically notified in sale proclamation.

Mushtaq A. Memon along with Mr. Shahid Ali Ansar for Applicant.

Kadir Bukhsh Umraui, Official Assignee.

YLR 2007 KARACHI HIGH COURT SINDH 2783 #

2007 Y L R 2783

[Karachi]

Before Azizullah M. Memon, J

MOHSIN JABEEN---Petitioner

Versus

ABDUL SATTAR SHEKHA and others---Respondents

Constitutional Petition No. 59 of 2006, decided on 22nd December, 2006.

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

----S. 15(2) (ii) (vii)---Specific Relief Act (I of 1877), S.8---Constitution of Pakistan (1973), Art.199---Constitutional petition--Ejectment of tenant on ground of default in payment of water and sewerage charges etc. and personal bona fide need of landlord---Competency of co-owner to file ejectment application---Scope---Ejectment application filed by landlords, against tenant on ground of default in payment of water and sewerage charges and personal bond fide need, had concurrently been accepted by the Rent Controller and Appellate Authority- --Validity---Ejectment application was resisted on the ground that co-owner/co-sharer was not entitled to file ejectment application against tenant regarding property which was owned by other co-owners/co-sharers also---Suit for possession filed before competent court of civil jurisdiction, would be competent against a person in possession of suit property only if all the co-owners/cosharers would jointly file such a suit---1f one co-owner filed such suit for possession, same would not be maintainable but for the ejectment application filed by one co-owner without joining co-owners in the ejectment application same would be competent--Orders/judgments of two courts below being not suffering from misreading or non-reading of evidence or from any illegality, constitutional petition against concurrent order/judgment was dismissed.

Abdul Ghani v. Abrar Hussain 1999 SCMR 348; PLD 1988 SC 365; 1990 MLD 337; 1996 CLC 275; Muhammad Hanif and another v. Muhammad Jamil Turk and others 2002 SCMR 429; Madan Gopal v. Maran Bepari PLD 1969 SC 617; Mulakh Bano v. , Gohar Bano 1976 SCMR 314; Muhammad Amir v. Khan Bahadur PLD 1996 SC 267; Haji Abdullah Jan v. Anwar Khan PLD 2000 SC 787 and Khalique Ahmed v. Abdul Ghani and another PLD 1973 SC 214 ref.

Syed Muhammad Haider for Petitioner.

Abdul Aziz A. Munshi for Respondent.

YLR 2007 KARACHI HIGH COURT SINDH 2795 #

2007 Y L R 2795

[Karachi]

Before Amir Hani Muslim, J

SAEED QURESHI---Applicant

Versus

THE STATE and others---Respondents

Cr.R. No.131 of 2006, decided on 23rd January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 227---Penal Code (XLV of 7860), Ss.420, 467, 468 & 471---Altering of charges--Applicant/accused had impugned order whereby Judicial Magistrate had altered the charge by introducing S.467, P.P.C. and referred the matter to the Sessions Judge for trial as offence under S.467 was triable by the Court of Session---Grievance of applicant was that Judicial Magistrate did not have powers to alter charge without notice to the accused---Validity---Under Criminal Procedure Code the Trial Court could always alter the charge at any point of time either on an application or on its own---Grievance of applicant that the Trial Court could not alter the charge by introducing S.467, P.P. C. was without substance---If the Trial Court was of the opinion that material placed before it was sufficient to alter the charge, it could pass such an, order and no, notice of any nature was required.

Ali Lahooti for Applicant.

Agha Zafar for the State.

Muhammad Zafar for Respondent No.2.

Rao Liaqat Ali for Respondent No.3.

2007 Y L R 2944

[Karachi]

Before Saiyed Saeed Ashhad and S. Zawar Hussain Jafri, JJ

SHAHID UMER---Appellant

Versus

CITY DISTRICT GOVERNMENT, KARACHI and 6 others---Respondents

H.C.A. No.1 of 2004, decided on 28th August, 2004.

Law Reforms Ordinance (XII of 1972)---

----S.3---Civil Procedure Code (V of 1908), Ss.12(2) & 96(3)---High Court appeal--- Appellant, earlier had filed two suits in respect of subject matter of present appeal and subsequent suit---Both said suits were disposed of by way of compromise---Appellant, thereafter filed two separate appeals challenging the compromise decrees which he witJ2drew with permission to file a fresh suit---Appellant, in the appeal had alleged that compromise was entered into by fraud and/or misrepresentation---Validity---Held, if it was so, then the compromise decree in the two suits ought to have been assailed by way of application under S.12(2), C. P. C. as a compromise decree was non-appealable in view of the provisions of S.96(3), C.P.C.---Order of the court which was not in accordance with law, could not clothe a party with the right to file or institute proceedings which he was not legally entitled to do.

M.A. Khan for Appellant:

Manzoor Atoned for Respondents Nos.1 to 6.

K.A. Wahab for Respondent No.7.

YLR 2007 KARACHI HIGH COURT SINDH 2948 #

2007 Y L R 2948

[Karachi]

Before Munib Ahmad Khan, J

RAMZAN---Applicant

Versus

THE STATE---Respondent

Bail Application No.22 of 2007, decided on 8th January, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of --Further inquiry---Difference among witnesses was in respect of the timings of the occurrence---No strong motive existed to commit two murders---Complainant himself along with the wife of deceased, had filed their affidavits towards their non-involvement---Accused was in jail from September 2006, which had shown that initial investigation had been completed and accused was in jail---No apprehension existed, in circumstances, of tampering with evidence or non-cooperation in investigation---Case appeared to be of further inquiry as link of accused to phone calls was to be established through supporting evidence and it was to be seen that those calls could link accused with the murder---Accused was admitted to bail, in circumstances.

Azizur Rehman Akhund for Applicant.

Sardar-ud-Din for the State.

2007 Y L R 3063

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

M. TAHIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal Nos. 328 and C.M.A. No.3395 of 2006, decided on 16th October, 2006:

Penal Code (XLV of 1860)---

----S.392---Appreciation of evidence---Prosecution recorded evidence in examination-in-chief of the complainant and other prosecution witnesses, but their cross-- examination was reserved and they did not appear before the Trial Court for the purpose of cross-examination---Evidence of said prosecution witnesses had no relevancy with the evidence of police officer as the complainant made a cordial statement that they did not want to pursue their case---Evidence of said witnesses could not be taken into consideration by the Trial Court while awarding the conviction of accused as prosecution had failed to corroborate the direct evidence---Accused could not be convicted in the crime, in circumstances---Conviction and sentence awarded to accused by the Trial Court, were set aside as prosecution had failed to 'bring any tangible evidence against accused---. Accused was acquitted in circumstances.

Faiz H. Shah for Appellant.

Suhail Jabbar; State counsel.

YLR 2007 KARACHI HIGH COURT SINDH 3070 #

2007 Y L R 3070

[Karachi]

Before Sabihuddin Ahmed and Zia Perwez, JJ

FEROZE NOOR ALI VEERANI---Petitioner

Versus

CITY DISTRICT GOVERNMENT and another---Respondents

Constitutional Petition No. 447-D of 2003, decided on 21st January, 2004.

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

----S.14 & First Sched. ---West Pakistan Land Revenue Act (XVII of 1967), S.42---Constitution of Pakistan (1973), Art.199---Constitutional petition---Non-entering of mutation in record of rights---Grievance of petitioner was that he had acquired interest in certain immovable properties through registered instruments, but authorities were not effecting mutation of said properties in the record of rights---Authorities had conceded that the powers and functions which were originally exercised by Revenue Officers stood devolved upon the City District Government in terms of S.14 read with Item XXVI of the First Schedule to the Sindh Local Government Ordinance, 2001---Held, that duty to maintain record of rights and to cause .mutation therein, vested in City District Government which was directed to effect appropriate mutation under the provisions of West Pakistan Lund Revenue Act, 1967, if the provisions of said Act so required, within specified period.

G.M. Qureshi and Jhamat Jethanand for Petitioner.

Manzoor Ahmed and Umer Qureshi for Respondents.

YLR 2007 KARACHI HIGH COURT SINDH 3073 #

2007 Y L R 3073

[Karachi]

Before Muhammad Afzal Soomro, J

RUSTAM ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 748 of 2007, Bail Applications Nos. 769 of 2004 and 159 of 2007, decided on 17th September, 2007.

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

----S.497---Penal Code (XLV of 1860), S.302---Bail, grant of---Delay in proceedings, a valid ground for grant of bail---Accused, who was arrested immediately after registration of F.I.R., was behind the bars for the last three years. and three months---Many of the material witnesses had been examined and besides contradiction in their statements, there was delay in proceedings of the case---Delay in proceedings was n valid ground for grant of bail--Bail was granted to accused in view of such delay in proceedings.

Manzoor Khan v. Kamir and others 1972 SCMR- 207; Muhammad Sadiq v. Muhammad Shafi and another 1973 SCMR 212; Gul Zaman v. The State 1999 SCMR 1271; Ghulam Abbas alias Abbasi and others v. State PLD 2005 Kar. 255; Anwar Ali and another v. The State 2002 PCr.LJ 186; Gul Beg alias Nangi v. State 2005 PCr.LJ 147 -and Arbab Ali v. Ghulam Muhammad PLD 1968 SC 353 ref.

Khawaja Naveed Ahmed for Applicant.

Haji Abdul Majeed for the State.

YLR 2007 KARACHI HIGH COURT SINDH 3077 #

2007 Y L R 3077

[Karachi]

Before Gulzar Ahmed and Sajjad Ali Shah, JJ

FAQIR NAZEER AHMED and 19 others-Petitioners

Versus

PROVINCE OF SINDH through Secretary, Local Government, Karachi and 7others---Respondents

Civil Petition No.D-553 and C.M. No.1478 of 2007, decided on 13th September, 2007.

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

----S.39---Constitution of Pakistan (1973), Art.199---Constitutional petition---Out of 76 Union Councils, petitioners were representing 20 Union Councils and their grievance was that no allocation was made to them for undertaking new schemes in the allocated sum of Rs.224 millions for the budget period 2007-08---With the consent of parties after hearing them, order was passed by the High Court to the effect that union councils represented by the petitioners, would submit their respective new schemes to Zila Council within a period of 15 days which schemes would be considered by Zila Council in accordance with law; that no discrimination among the Union Councils would be made for allocation of funds for undertaking new schemes by Zila Council and that until the schemes of the Union Councils represented by the petitioners were considered, Zila Council would not exhaust the funds and would retain the proportionate sum out of the allocated funds for the 20 Union Councils represented by the petitioners; and on approval of their schemes disburse the same in accordance with law.

Abdul Fattah Malik for Petitioners Nos. 2, 3, 11, 12 and 17.

Syed Zaheer Hussan for Respondents Nos. 2 and 5.

Ghulam Shabir Dayo for Respondents Nos. 3 and 4.

Ghulam Dastagir Shahani, Addl. A.G. with Ahmed Ali Qureshi, D.O. (Finance), Khairpur and Janib Ali, D.O. (Education Works), Khairpur.

YLR 2007 KARACHI HIGH COURT SINDH 3080 #

2007 Y L R 3080

[Karachi]

Before M. Afzal Soomro and Rahmat Hussain Jafferi, JJ

MUHAMMAD PANAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 360 of 2006, decided on 23rd August, 2007.

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

----Ss.9(e) & 9(b)---Appreciation of evidence---Sentences, reduction in---Prosecution evidence was unanimous on all material aspects of the case having no material contradictions or discrepancies and the same was credible---Tests conducted by Chemical Analyzer of the sample of recovered material were faintly positive and the contents were slightly identical with heroin having low concentration of heroin---Entire powder, thus, was not heroin, but some percentage of heroin was mixed up with the powder---Said percentage was not revealed in the Expert report and no definite opinion, therefore, could be given about the exact quantity of .heroin mixed up with the powder, but certainly heroin would be more than 100 grams, as the total weight of the powder was seven kilograms, but the same could not be more than 1000 grams---Benefit of doubt in this respect had to be given to accused---Accused's conviction under S.9(e) of the Control of Narcotic Substances Act, 1997, was consequently altered to S.9(b) thereof and his sentence was reduced to the imprisonment already undergone by him in circumstances.

Farooq Rashid for Appellant.

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

Date of hearing: 20th August, 2007.

YLR 2007 KARACHI HIGH COURT SINDH 3087 #

2007 Y L R 3087

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

SHAFIULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 313 of 2006, decided on 27th August, 2007.

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

----S.9(c)---Appreciation of evidence---Entire prosecution case hinged upon the Chemical Analyzer's report---Delay of four days occurred in between the periods, of sending the sample and receipt of the name by the Chemical .Analyzer, which had hat been explained by theprosecution---Prosecution, alter consumption of the entire material was duty bound to have received the wrapper in which the sample was sent to Chemical Analyzer for producing the same before the Trial Court, so as to prove that the wrapper was the same in which the sample examined by the Expert was consumed and prepared at the place of incident---Neither the complainant nor the Mashir had deposed that the packet of sample had been signed by the Mashir---Authenticity of the .sample, thus, was not proved by any evidence on record and the report of the Chemical Analyzer had become doubtful, benefit of which was to be given to accused---Accused was acquitted in circumstances.

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

----S.9(c)---Appreciation of evidence---Benefit of doubt---Principles---Every doubt is required to be resolved in favour of the accused.

A.Q. Halepota for Appellant.

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

Date of hearing: 27th August, 2007.

YLR 2007 KARACHI HIGH COURT SINDH 3091 #

2007 Y L R 3091

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Syed Zawwar Hussain Jaffery, JJ

HASSAMUDDIN---Appellant

Versus

AL-ZAMIN LEASING MODARBA and 5 others---Respondents

H.C.A. No.333 of 2005 and C.M.A. No.382 of 2006, decided on 27th April, 2006.

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

----S.12(2) & O.I, R.10---Application for joining as party in suit after its decision---Scope---Once court decided suit, then Court would become functus officio and such application could not be made---Remedy under S.12 (2), C.P. C. would be available to a person feeling aggrieved of final judgment to be obtained against him by misrepresentation, fraud or without showing him as a party---Where suit was pending, then any person feeling himself to be a necessary party, could make application for being joined as a party thereto.

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

----Ss.12(2), 96, O.I, R.10 & O.XXXIX, Rr.1, 2, 4---Interlocutory order, recalling of---Application by stranger to suit/ proceedings--- Maintainability--- Stranger without being joined as parry to suit/ proceedings could not make such application---Principles.

If a suit is still pending and any .person feels that he is a necessary party to the suit, he may submit an application for being joined as party to the suit. If it is not done, a person feeling aggrieved would be stranger to the proceedings and a stranger cannot be allowed to make a request for recalling of the order, which has been passed with reference to the parties to the proceedings.

The interlocutory orders are normally in respect of the parties to the suit and are not applicable to the entire world.

Once the legal character of a person is declared, then it has the effect of being applicable to the entire world, and any body feeling aggrieved by such declaration can file appeal or if it is a fraudulent order obtained by misdeclaration or misstatement or concealment of fact; an application under section 12(2), C.P.C., can be submitted.

----Nature and Scope---Such order would normally be in respect of parties to suit---Such order not being in nature of judgment in rem would not apply to entire world---Legal character of a person, once declared by Court, would have effect of being applicable to entire world.

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

----Ss.12 (2) & 96, O.I, R.10 & O. XXXIX, Rr.1, 2, 4---Suit for recovery of amount---Interim order of Court directing Bank concerned not to disburse defendant's amount to any one---Application under O. XXXIX, R. 4; C. P. C. by non-party to suit for recalling of such order---Maintainability---Applicant without being joined as party to suit could not make such application---Applicant had an opportunity to submit application under O.I, R.10, C. P. C. and satisfy Court that he was a proper" or necessary party as his interest was involved in issues before Court--Applicant, after acceptance of application under O.I, R.10, C.P.C., could file application for recalling of interim order--Applicant in case of rejection of application under O.I, R.10 C.P.C., could file appeal there against---Suit was still pending, thus, applicant could avail opportunity of being joined as party to suit and then could seek relief of recalling of interim order---Application for recalling of interim order for being made by a stranger was dismissed as non-maintainable in law.

H.M. Saya & Co. v. Wazir Ali Industries Ltd. PLD 1969 S.C. 65 distinguished.

(e) Administration of justice---

----Things not done in the manner as required by law would lead to legal anarchy---Principles.

Things should be done, as they are required to be done or not at all. The system of administration of justice envisages discipline and if every body is allowed to file any application he likes, then it will lead to legal anarchy. Every body seeking relief from the Court should bring himself within the system of law and cannot be allowed to destroy the system for seeking the relief.

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

---S.151---Applicability of S.151, C.P.C.---Scope---Resort to S.151, C.P.C. could be made in a case not covered by any provision in C.P. C.---Principles.

The Legislature while enacting C.P.C. has taken care to cover all the situations and has thereafter enacted section 151, C.P.C., with the purpose that in case a situation arises which is not covered by the provisions in C.P.C. then Courts may exercise inherent jurisdiction. However, if there are specific provisions in C.P.C., then no resort has to be made to section 151, C.P.C.

Fiaz H. Shah for Appellant.

Kazin Hasan for Respondent No. 1.

G.M. Bhutto for Respondent No.5.

YLR 2007 KARACHI HIGH COURT SINDH 3096 #

2007 Y L R 3096

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

BILAL-Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 554 of 2005 and Criminal Jail Appeal No.36 of 2006, heard on 25th August, 2007.

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

----Ss. 9(c) & 29---Appreciation of evidence---Prosecution witnesses had withstood the test of cross-examination and nothing had come on record to discard their evidence---Report of Chemical Examiner regarding samples of "Charas" was positive---"Charas" weighing 372 Kilograms had been recovered from the secret cavities of the Bus, which was being driven by the accused who would be deemed to be in possession of the same being its driver---Accused had not produced any evidence to disprove his possession as required under S.29 of the Control of Narcotic Substances Act, 1997---Prosecution, thus, had proved its case against accused beyond any shadow of doubt---Conviction ,and sentence of accused were upheld in circumstances.

Nazar Hussain and another v. The State Criminal Jail Appeal No. D-27 of 2001 fol.

(1969) 2 AC 2S6 (H:L.); AIR 1973 SC 2309; Sherzada v. The State 1993 SCMR 149; State v. Gul 1993. SCMR 311; Adil Ahmed's case 1991 SCMR 1951; Rab Nawaz v. State PLD 1994 SC 858 and Nadir Khan v. State 1988 SCMR 1899 ref.

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

----S.9(c)---Appreciation of evidence---Accused was the clearner of the Bus, from the secret cavities of which 372 Kilograms of "Charas" had been recovered and which was being driven by the convicted co-accused---Mere presence of the accused in the bus would not involve him in the case, because prosecution had failed to establish his connection with the property or his abetment or conspiracy with the driver co-accused---Accused was acquitted in circumstances.

Nazar Hussain and another v. The State Criminal Jail Appeal No. D-27 of 2001 fol.

(1969) 2 AC 256 (H.L.); Inder 5aiu v. State of Punjab AIR 1973 SC 2309; Sherzada v. The State (1993 SCMR 149); State v. Banda Gul 1993 SCMR 311; Adil Ahmed's case 1991 SCMR 1951; Rab Nawaz v. State PLD 1994 SC 858 and Nadir Khan v. State 1988 SCMR 1899 ref.

----S.6---Prohibition of possession of narcotic drugs etc.---Possession can be joint with two or more persons---No condition or qualification having been made in S.6 of the Control of Narcotic Substances Act, 1997, that the possession should be an exclusive possession, therefore, the possession can be joint with two or more persons.

Nazar Hussain and another v. State Criminal Jail Appeal No. D-27 of 2001 ref.

(d) Criminal trial---

----Mens rea---Presumption---General rule is that there is presumption that mens rea, an evil intention or a knowledge of wrongfulness of the act is an essential ingredient in every offence---Such presumption is liable to be displaced either by the words of the enactment creating the offence or by the subject matter with which its deals.

Nazar Hussain and another v. State Criminal Jail Appeal No. D-27 of 2001 ref.

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

----S.6---Prohibition of possession of narcotic drugs etc.---Possession must be conscious possession---Word "possess" appearing in S.6 of the Control of Narcotic Substances Act, 1997, connotes conscious possession---Knowledge is an essential ingredient of the offence as the word `possess" connotes in the context of 5.6, possession with knowledge---Legislature could 'not have intended to make mere physical custody without, knowledge an offence---Possession, therefore, must be conscious possession.

Nazar Hussain and mother v. State Criminal Jail Appeal No. D-28 of 2001 ref.

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

----S.29---Presumption from possession of illicit articles---Burden of proof --Prosecution by virtue of 5.29 of the Control of Narcotic Substances Act, 1997, has only to show by evidence that the accused has dealt with the narcotic substance or has physical custody of the same or is directly concerned with it---Unless the accused proves by preponderance of probability that he did not knowingly or consciously possess the said substance, he will be held guilty by virtue of section 29.

Inder Sain v. State of Punjab AIR 1973 SC 2309 ref.

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

----S.6---Prohibition of possession of narcotic drugs etc.---Incharge of the vehicle would be attributed the necessary knowledge and awareness with regard to the vehicle and its contents.

Nadir Khan v. State 1988 SCMR 1899 ref.

Saifullah for Appellants in both appeals.

Mahmood Alam Rizvi Standing counsel for the State.

Date of hearing: 8th August, 2007.

YLR 2007 KARACHI HIGH COURT SINDH 3113 #

2007 Y L R 3113

[Karachi]

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

MUHAMMAD HANIF---Petitioner

Versus

SAMEENA SIBTAIN and 8 others---Respondents

Constitutional Petition No. 1153-D of 2003, decided on 9th December, 2003.

(a) Karachi Development Authority Order (5 of 1957)---

----Art.40---Allowing conversion of residential plot into one for commercial use without inviting objections from public or residents of the area---Validity---Neither Minute Book of Karachi Development Authority showed passing 'of resolution by its Governing Body after inviting such objections nor its officers present in Court knew about such fact---Such objections would be assumed not to have been invited.

(b) Karachi Development Authority Order (5 of 1957)---

----Art. 40---Residential plot on main Road---Allowing conversion of such plot into one for commercial use without inviting objections from public or residents of the area--- Validity--- Notification dated 20-7--1998 issued by Chief Secretary, Government of Sindh allowed commercialization of plots on six roads including the said main Road by amending Zonal Plan Scheme---Government had declared the Road as commercial area---Question of granting of permission in deviation of Zonal Plan Scheme in terms of Art.40(4) of Karachi Development Authority Order, 1957 would not arise in such case---Principles.

----Art.40---Sindh Buildings Control Ordinance (XVII of 1979), S.6---Power to allow residential plot for commercial use vested in Karachi Development Authority and not in Karachi Metropolitan Corporation or Karachi Building Control Authority.

Excell Builders v. Ardeshir Cowasjee and others 1999 SCMR 2089 ref.

(d) Karachi Development Authority Order (5 of 1957)---

----Preamble---Sindh Buildings Control Ordinance (XVII of 1979), Preamble---Provisions of Sindh Buildings Control-Ordinance, 1979 would prevail upon those of Karachi Development Authority Order, 1957, but not when they appeared to be repugnant to each other.

Khawaja Shamsul Islam for Petitioner.

Khalid Javed Khan for Respondent No. 1.

Shahid Jamiluddin for Respondent No.3.

Manzoor Ahmed and Mozzaffar Imam for Respondent No.4.

Date of hearing: 9th December, 2003.

YLR 2007 KARACHI HIGH COURT SINDH 3125 #

2007 Y L R 3125

[Karachi]

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

SHAHNAZ ANWAR---Petitioner

Versus

BABAR and others---Respondents

Civil Petition No.D-1401 of 2006, decided on 15th February, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.420---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9---West Pakistan Arms Ordinance (XX of 1965), S.13(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bail, grant of---Arrest of accused had been shown ort 12-6-2006, whereas per investigation report and the letter sent by the accused to the concerned authorities, she along with her family was kidnapped on 22-5-2006---Such fact alone, would entitle accused to bail---Bail was granted to accused, in circumstances.

Nadeemul Haque for Petitioner.

S. Saeeduddin Nasir for Respondent No. 1.

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

YLR 2007 KARACHI HIGH COURT SINDH 3131 #

2007 Y L R 3131

[Karachi]

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

MUHAMMAD RAFIQUE---Petitioner

Versus

ANWAR SHAH PHOOL BADSHAH MEHARBAN and 5 others---Respondents

Constitutional Petition No. 102 of 1998, decided on 17th December, 2003.

Civil Procedure Code (V of 1908)---

----O.XXXIX, R.2(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Disobedience of injunction order---Action against--- Contempt application---Respondent had sought action against four persons who allegedly disobeyed the final order of the court---Respondent had alleged that four persons were responsible for raiding his house who after demolishing his house, had taken away his valuables--Petitioner had alleged that respondents had failed to perform their duties by not removing the encroachment caused by respondent in front of petitioner's plot---Operative order of the court had shown that respondents were directed to remove encroachment from the area forming part of the road alignment and as regarded the rest of the area, petitioner was allowed to seek appropriate remedy under the law---Respondents had contended that contemners had transgressed the direction of the court by demolishing his house as well---Such action might be in excess of the direction given by the court and even otherwise unlawful; however, it was doubtful whether, it would amount to defiance or disobedience of the order of the court---Intricate factual controversy appeared to be involved and High Court in its constitutional jurisdiction was not an appropriate forum for resolving the same---Matter had not been pursued by respondent with due diligence, contempt application was dismissed.

Petitioner in person.

Abdul Wajid Wyne and Manzoor Ahmed for Respondent No.1.

Manzoor Ahmed for Respondents Nos.2, 4 and 5.

Date of hearing: 15th October, 2003.

YLR 2007 KARACHI HIGH COURT SINDH 3148 #

2007 Y L R 3148

[Karachi]

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

NAZIR COTTON MILLS LTD.---Petitioner

Versus

STATE BANK OF PAKISTAN and others-Respondents

Constitutional Petition No. D-641/2005, decided on 25th May, 2007.

(a) State Bank of Pakistan BPD Circular No.29 of 2002---

----Forced sale [value (FSV) of borrowers' assets over which the Bank had a charge and manner in which the same was to be decided by the Committee---Guidelines as per State Bank of Pakistan BPD Circular No.29 of 2002 detailed.

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

----Art 199---Constitutional jurisdiction of High Court--- Scope Duties and functions of official functionaries---All official functionaries were to perform their duties within the ambit of law, efficaciously and judiciously---Where functionaries acted without jurisdiction, with mala fides or in violation of any law, their actions would certainly be amenable to the constitutional jurisdiction of High Court---Executive Authorities, before passing any orders, should give a right of hearing to the parties which right was to be read in all statutory provisions as well as rules/notifications issued thereunder regardless of the fact that it may not be mentioned therein.

----Banking Companies Ordinance (LVII of 1962), S. 33-B---Deliberations of the Committee---Nature.

Messrs Cons. (Pvt.) Limited v. Industrial Development Bank of Pakistan 2007 CLD 295; Messrs Ghazi Papers Limited v. IDBP and others W.P. No, 17804/2003; United Bank Limited v. Messrs Azmat Textile Mills Ltd. 2002 CLD 542 and Tanya Knitwear (Pvt.) Limited v. United Bank Limited. 2005 CLD 114 rel.

(d) Interpretation of statutes---

----Retrospective operation of statute---Vested rights could not be taken away save by express words or necessary intendment in the statute---Where that was not clone, statute must not be presumed to operate retrospectively.

Al-Saimrez v. Federation of Pakistan 1986 SCMR 1917; Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan 1993 SCMR 1905; Crescent Pak Industries (Pvt.) Limited v. Government of Pakistan 1990 PTD' 29 and Ahmed Investment (Pvt.) Limited v. Federation of Pakistan 1994 PTD 575 ref.

Ahmed Malik for the Petitioner.

Ainuddin Khan for the Respondent No.1.

Iqbal Haider for Respondent No.3.

Date of hearing: 7th March, 2007.

YLR 2007 KARACHI HIGH COURT SINDH 3160 #

2007 Y L R 3160

[Karachi]

Before Azizullah M. Memon, J

SHER ZAMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 481 of 2004, decided on 7th April, 2007.

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

----Art.164---Evidence through modern devices---Video recording of the alleged pointation of place of incident by accused, further leading towards recoveries of the bones of deceased and other related material, was not screened/displayed before the Trial Court and same was not considered as evidence, circumstantial or otherwise for the purpose of assessment of the entire evidence produced by the prosecution in support of its case---Defence had a. right to pray for the cross-examination of Investigating Officer and the Mashirs of all events as recorded through the video camera and search an exercise was necessarily to be undergone by the Trial Court---Case needed to be remanded to the Trial Court, where prosecution. would be at liberty to make an application for producing further evidence as recorded through video camera and cassettes and accused would be entitled to pray for further cross-examination of Investigating Officer and Mashirs---Case stood remanded to the Trial Court for all the purposes relevant to production of circumstantial evidence on record.

Shahid Orakazi v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969; Collector of Customs v. Saeed-ur-Rehman PLD 1989 SC 249; R. v. Turmbull (1976) 3 All ER 549; R. v. Cook (1987) 1 All ER 1049; Khurshid v. The State PLD 1996 SC 305; Talib Hussain v. The State 1995 SCMR 1539; Syed Khalid Mahmood v. The State 1994: PCr.LJ 757 at p.763; Muhammad Arshad v. State 1992 SCMR 1187 at 1191-E; Lejzor Teper v. The Queen PLD 1952 PC 119, and M. Ata Muhammad Khan v. The Crown AIR (37) 1950 Lah. 199 ref.

Abdul Razzak for Appellant.

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

YLR 2007 KARACHI HIGH COURT SINDH 3171 #

2007 Y L R 3171

[Karachi]

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

Syed MAZHAR ALI GILLANI---Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI and 2 others---Respondents

Constitutional Petition No. 1472-D of 2003, decided on 24th December, 2003.

Karachi Development Authority Order (5 of 1957)---

----Art.52-A---Constitution of Pakistan (1973, Art.199---Constitutional petition---Commercialization of amenity plot---Authorities were directed to show, whether commercialization of an amenity plot for a hospital was effected through amendment under Zonal Plan. Scheme or by way of exceptional measure---Notification dated 4-9-1994 containing substitution of clauses (2) to (4) and explanation to Art.52-A of Karachi Development Authority Order, 1957, showed no amenity plot reserved` for the purposes mentioned in clause (1) of said Order, would be converted to or utilized for any other purposes---Once law had expressly forbidden conversion or utilization of amenity .plot for any other purpose, such conversion could neither be effected by way of amendment of Zonal Plan nor through special permission.

Islam Hussain for Petitioner.

Manzoor Hussain for Respondent No.1.

Shahid Jameel-ul-Din for Respondents No.2 and 3.

YLR 2007 KARACHI HIGH COURT SINDH 3172 #

2007 Y L R 3172

[Karachi]

Before S.A. Sarwana and Khilji Arif Hussain, JJ

MUHAMMAD SALEH LAKHO---Appellant

Versus

HAJI and another---Respondents

Criminal Acquittal Appeals Nos. 20 Co 32 of 2003, decided on 9th May, 2003.

Agricultural Produce Market Act (V of 1939)---

----Ss.19, 20(2), 25-A & 29(2)---Agricultural Produce Market Rules, 1940, Rr.29, 30 & 52---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Market Committee duly-established and constituted, having ceased to function under Notification issued under S.25-A of Agricultural Produce Market Act, 1939, its functions were devolved on Deputy Director/Authorized Officer---

Respondents/accused having failed/refused to pay prescribed market fee, despite issuance of notices to them in that behalf Authorized Officer, exercising his powers available under S.20(2) of Agricultural Produce Market Act, 1939, authorized the Field Officer to prosecute them. in a competent court of law---Field Officer accordingly filed direct complaints against accused---Competent court dismissed all said complaints by a common judgment and acquitted all respondents/accused on the ground that complaint had not been instituted by a person duly authorized by a resolution of Market Committee in that behalf---Notification did not specify the extent to which functions of the Market Committee were to be exercised by Designated, Officer---Subsections (2) of S.29, clearly stated that prosecution of a person for the offence punishable by Agricultural Produce Market Act, 1939 could be instituted by person duly authorized by resolution of the Market Committee, but no said resolution existed---Authority given by Designated Officer to appellant, did not come within the ambit of S.20(2) of Agricultural Produce Market Act, 1939---Direct complaints filed by Field Officer without resolution of Market Committee was without .lawful authority and of no legal effect---In the absence of such resolution which was a mandatory requirement, any prosecution would be without lawful authority and void ab initio---Impugned judgment of acquittal passed by the competent court, being in accordance with law, was upheld and appeals against acquittal of respondents were dismissed.

PLD 1989 SC 449; PLD 1978 Lah. 1124; 2003 SCMR 162; Fauji Sugar Mills v. Market Committee, Tondo Muhammad Khan .1988 SCMR 155; Secretary Market Committee, Mehar District Dadu v. Narumal and others 1992 MLD 2449; PLD 1962 SC 277; 1991 SCMR 1261; .Haji Manzoor Ahmed and another v. Syed Mahboob Shah and others PLD 1963 Kar. 115; Kadir Bux and others v. The Crown, PLD 1955 FC 79 and Fakir Shan and others v. Mehtab Shah Pir Bukhari Masjid Committee and others PLD 1989 SC 283 rel.

Muhammad Idrees Naqshbandi for Appellant.

Mansoorul Haq Ansari for .Respondents Nos. 1 (in Acquittal Appeal Nos. 21 to 28, 30, 31 to 32 of 2003).

Abdul Ghani Khan for Respondent No.1 (in Criminal Acquittal Appeal No.29 of 2003).

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

YLR 2007 KARACHI HIGH COURT SINDH 3191 #

2007 Y L R 3191

[Karachi]

Before Saiyed Saeed Ashhad, C.J. and Syed Zawwar Hussain Jaffery, J

UMER GUL---Petitioner

Versus

GOVERNMENT OF SINDH through Secretary, Transport, Karachi

and 4others---Respondents

Constitutional Petition No. 1503-D of 2003, decided on 17th August, 2004.

Constitution of Pakistan (1973)---

----Arts. 199 & 187---Constitutional jurisdiction of High Court---Scope---Implementation/execution of order---Jurisdiction of High Court---Petitioner had approached High Court for implementation of order of Chairman, Provincial Transport Authority and Ombudsman---Validity---High Court would not act as an executing court of any Authority/Court or Tribunal except the Supreme Court in view of provisions of Art.187 of Constitution of Pakistan (1973)---Constitutional petition though was not .maintainable, but after issuance of notices to 'the concerned authorities, it had -been .brought on record that order in question had been implemented and nothing remained to be done further---' Petition stood dismissed, in circumstances.

Ail Nawaz Memoir and M.M. Vassu for the Petitioner.

M. Sarwar Khan, Addl. A.-G. Sindh for Respondent.

Lahore High Court Lahore

YLR 2007 LAHORE HIGH COURT LAHORE 1 #

2007 Y L R 1

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD JAVED---Appellant

Versus

THE STATE -Respondent

Criminal Appeal No.311-J and Murder Reference 593 of 2000, decided on 27th April, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Accused was not directly and personally concerned with the motive set up by the prosecution---No evidence regarding hatching of any conspiracy between accused and co-accused had been brought on the record---Co-accused had been acquitted and their acquittal had not been challenged by complainant party or the State before High Court---On account of acquittal of co-accused and in absence of any personal motive of accused against deceased, it could confidently be held that accused had no ostensible reason to murder deceased---No weapon' of offence had been specified in the F.I.R.---Serious doubts were available about truthfulness of the reason stated by prosecution for deceased's presence at the spot at the relevant time--Story of prosecution explaining deceased's presence at the place of occurrence at the relevant time, was quite unbelievable, in circumstances---All the three eye-witnesses produced in the case by the prosecution, were closely related to deceased and besides being chance witnesses they were also inimical witnesses---Place of occurrence was situated many acres away from the normal places of residences of all said witnesses and the reason for presence of deceased and of said witnesses at the place of occurrence at the relevant time had not been established by prosecution with any degree of certainty---In view of enmity between the parties, no reliance could be placed upon the statements of prosecution witnesses without looking for independent corroboration or support---Prosecution had failed to prove motive set up by it---Recovery of pistol of .30 bore from accused, legally was inconsequential as no crime empty had been recovered from the place of occurrence so as to connect recovered pistol with alleged murder---Medical evidence had contradicted and discredited eye-witnesses---Post-mortem examination of the dead-body was conducted with significant and noticeable delay which was generally suggestive of an un-witnessed occurrence wherein time was utilized by the police and complainant party for procuring and planting eye-witnesses and for cooking up a story of the prosecution---Chance and inimical eye-witnesses had failed to receive any independent corroboration or support---Prosecution having failed to prove its case against accused beyond reasonable doubt, conviction and sentence awarded by the Trial Court to accused were set aside and he was acquitted extending him benefit of doubt.

Mrs. Tasneem Amin for Appellant (Defence Counsel) at the State Expense.

Ms. Sarwat Nawaz for the State (in Criminal Appeal No.311-J of 2000).

Muhammad Aslam Malik for the State (in Murder Reference No.593 of 2000).

Date of hearing: 27th April, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 7 #

2007 Y L R 7

[Lahore]

Before Jawwad S. Khawaja, J

IFTIKHAR AHMAD---Petitioner

Versus

Malik ALLAH DIWAYA-Respondent

Civil Revision No.1024 of 2003, decided on 20th October, 2003.

Civil Procedure Code (V of 1908)---

--- O.XXXVII, Rr.2, 4 & S.151---Suit for recovery on the basis of pro note---Leave application showing no ground to defend the suit was dismissed---Subsequent application filed by the defendant under S.151, C.P.C. seeking amendment in leave application contained certain grounds to establish a defence to the suit but same was also dismissed---Validity---No justification was given in subsequent application as to why grounds were not included in original application or as to the reasons for not filing the said application within 10 days period prescribed by O.XXXVII, C.P. C. for making such application---Application under section 151, C.P.C. was, therefore, held as an afterthought and was rightly dismissed by Additional District Judge---Facts of the case reflected that counsel for defendant either did not care to examine the provisions of Order XXXVII, C. P. C. while drafting the application seeking leave to defend or he failed to inform the defendant of implication of law---When defendant's counsel was questioned by Court about said serious negligence he admitted his fault hence the matter of breach of professional duties resulting in grave prejudice to defendant was referred to Punjab Bar Council for an appropriate action.

Ch. Babar Akram Ghumman for Petitioner.

2007 Y L R 19

[Lahore]

Before Mian Saqib Nisar, J

GHULAM MUSTAFA through L. Rs . -Petitioners

Versus

TAJ DIN through L.Rs.---Respondents

Civil Revision No.2438 of 1995, heard on 21st July, 2006.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Suit for possession, declaration and permanent injunction---Claim of plaintiff was that he was transferee of evacuee shop and that open place in front of said shop formed part of his shop---Plea of defendants was that disputed open place was not the part of shop of plaintiff, but was a part of street---Trial Court dismissed suit, but Appellate Court set aside judgment and decree of the Trial Court and came to the conclusion that disputed open space was part of the shop transferred to plaintiff---Validity---Record had shown that disputed open place, neither ever formed part of the shop allotted to plaintiff nor it was specified in transfer order---No map was attached to the transfer order establishing, if shop transferred to plaintiff contained open place in front of it as well---Plaintiff's own case was that open place was not in the constructed form, connected to the shop, but it was only abutting thereto---Open place, which was not part of constructed shop transferred to plaintiff could never be given to him as it was not plinth area appurtenant to the house, which if so, could be transferred to a transferee of a house under the Settlement Law, but not in the case of a shop---Appellate Court, in circumstances had grossly misread evidence and decided the matter on extraneous considerations---Judgment and decree of Appellate Court were set aside, in circumstances.

Umar Farooq for Petitioners.

Nemo (ex parte) for Respondent.

Date of hearing: 21st July, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 22 #

2007 Y L R 22

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

JAMEEL AHMAD---Appellant

Versus

THE STATE -Respondent

Criminal Appeal No.1428 and Murder Reference No.597 of 2001, heard on 7th September, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Ocular account was furnished by two sons of deceased and no independent witness was produced during trial---Post-mortem report showed that deceased received twelve injuries caused by sharp-edged weapon, while a minute reading of post-mortem report had revealed that in fact the number of injuries were about thirty six---Conduct of prosecution witnesses who were sons of deceased of not rescuing their father from assailant who was having only a Chhurri in his hand which could not be enough to deter sons of deceased, and not apprehending the assailant, was too unnatural to be true---Circumstances of the case showed that both said eye-witnesses reached the spot after death of their father-Accused was nephew of deceased and there was no background of any serious enmity or ill-will between deceased and accused so as to justify infliction of 36 injuries on deceased---Dead body was removed for post-mortem examination after about 3 hours from its dispatch to mortuary, which would mean that a considerable time was spent by Investigating Officer at the spot and statement of complainant was recorded after due deliberation---Suspicions surrounded the F.I.Rs. which were not recorded at the police station, that those were result of deliberations---No reliance could be placed on recovery of blood-stained Chhurri as no one from public was associated with recovery proceedings and recovery was effected from a place which had the access of everyone---Contentions that accused could not prove his plea of alibi; and that no one, but accused caused the murder, were without any force, as prosecution had to stand on its own legs and accused could not be convicted for infirmity in his defence---No one could be convicted on the basis of presumption or suspicions, howsoever strong they could be---Prosecution having failed to prove its case beyond doubt against accused, judgment of the Trial Court was set aside and accused was acquitted of the charge and was released.

Muhammad Siddique v. The State PLD 1958 (W.P) Lah. 601; Allah Baksh v. The State 1969 PCr.LJ 1204 and Abdul Majid v. The State PLD 1982 Lah.551 ref.

Ashfaq Ahmad Chaudhry for Appellant (at State expense).

Maqbool Ahmad Qureshi (in Appeal) and M. Saleem Shad (in Murder Reference) for the State.

Burhan Moazzam Malik for the Complainant.

Date of hearing: 7th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 30 #

2007 Y L R 30

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

BODI---Appellant

Versus

THE STATE -Respondent

Criminal Appeal No.1416 and Murder Reference No.567 of 2000, heard on 4th September, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Matter was reported to the police after about four hours of the occurrence, while distance between the spot and the police station was only two miles---Said delay in reporting the matter to the police, had cast doubt on presence of prosecution witnesses---F.I.R. as well as examination-in-chief of prosecution witnesses, though alleged that accused had committed murder of deceased due to suspicion of illicit relations of deceased with sister of accused but during cross-examination, one of prosecution witnesses had disowned motive as narrated in the F.I.R.---Medical evidence supported prosecution case to the extent that deceased lost life due to fire-arm injury, which was caused from a close range, but it did not lead to assailant---Empty and the gun recovered, were sent to Forensic Science Laboratory and according to report of said Laboratory, no opinion could be given as to whether empty was fired from the allegedly recovered gun or not---Even otherwise, it was not believable that accused would keep the empty intact in his gun and would not get rid of it---Recovery of gun, in circumstances, could not be used as incriminating evidence against accused---Prosecution case being not free from doubt, judgment passed by the Trial Court was set aside, accused was acquitted of the charge and was released.?

Nazeer Ahmad Ghazi for Appellant.

Masood Sadiq Mirza for the State.

Date of hearing: 4th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 35 #

2007 Y L R 35

[Lahore]

Before Ch. Ijaz Ahmad, J

FAROOQ AHMED---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Law, Justice and Human Rights Division, Islamabad and 3 others -Respondents

Writ Petition No.685 of 2004, decided on 19th January, 2004.

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

----Art. 199---Constitutional petition---Order impugned in petition had itself revealed that same was passed by the Authority without providing proper hearing to the petitioner and without issuance of notices to the petitioner---Impugned order being not maintainable in the eyes of law was set aside and appeal/representation filed by petitioner before the Authority would be deemed to be pending, which would be decided after providing proper hearing to the parties.

Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189; Federation of v. Muhammad Tariq Pirzada 1999 SCMR 2744; Pakistan and others v. Public at Large and others PLD 1987 SC 304 and Pakistan Chrone Mines Ltd. v. Inquiry Officer 1983 SCMR 1208 ref.

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

----Arts. 189 & 190---Judgment of Supreme Court was binding on each and every organ of the State.

----Principles of natural justice must be read in each and every statute, until and unless same was prohibited by wording of the statute itself.

Commissioner of Income Tax v. Fazalur Rehman PLD 1964 SC 410 and Muhammad Muzaffar Khan v. Muhammad Yousauf Khan PLD 1959 SC 9 ref.

Muhammad Ajmal Khan for Petitioner.

Sher Zaman Khan, Deputy Attorney General for Pakistan on Court's Call.

YLR 2007 LAHORE HIGH COURT LAHORE 38 #

2007 Y L R 38

[Lahore]

Before Umar Ata Bandial, J

PROVINCE OF THE PUNJAB through Secretary Education, Government of the Punjab, Lahore and 3 others---Petitioners

Versus

MUHAMMAD ASHRAF-Respondent

Criminal Revision No.76 of 2002, heard on 7th November, 2005.

Limitation Act (IX of 1908)---

----Arts. 142, 144 - & S.28---Adverse possession, plea of---Such plea was rejected by courts below on wrong assumption that law laid down by Supreme Court reported as 1991 SCMR 2063 whereby extinguishment of right to property on ground of limitation had been struck down, had retrospective effect---Said ruling having been expressly made operational with effect from 31-8-1991 same could not affect the case of defendant the facts whereof went back to 1962---No sufficient documentary evidence was available on record to prove the plea of adverse possession which needed a closer scrutiny, since an elementary school for children was admittedly being carried on the suit-land it was in public interest to remand the case for decision in accordance with law.

Maqbool Ahmed v. Government of Pakistan 1991 SCMR 2063 ref.

Kh. Muhammad Saeed for Petitioner.

Abdul Hameed Cheema for Respondent.

Date of hearing: 7th November, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 41 #

2007 Y L R 41

[Lahore]

Before Jawwad S. Khawaja, J

Mst. NUSRAT BIBI---Petitioner

Versus

MUHAMMAD ASHRAF MEHR and others---Respondents

Civil Revision No.1440 of 2004, heard on 26th June, 2006.

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

----S.42---Qanun-e-Shahadat (10 of 1984) Arts.84, 117 & 118---Registered sale-deed---Plaintiff claimed that disputed sale-deed had been executed by defendants through bogus power of attorney which they had not executed therefore, sale was fraudulent and collusive---Suit was decreed but decree was reversed in appeal holding that plaintiff did not seek to have her thumb-mark on the power of attorney compared with her admitted thumb-impression---Validity---Once the plaintiff had denied having executed the power of attorney it was for the defendants to get the thumb-impression of the plaintiff compared with the thumb-impression appearing on the power of attorney.

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

---Arts.84, 117 & 118---Thumb-impression/signature, comparison of-Onus to prove---Once a party denies the execution of a document it is for the other party to get signature or thumb-mark of the former compared with that of appearing on the document.

Abdul Wahid Ch. for Petitioner.

Nemo for Respondents.

Date of hearing: 26th June, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 43 #

2007 Y L R 43

[Lahore]

Before Muhammad Sayeed Akhtar, J

JAVAID---Petitioner

Versus

Sheikh MUHAMMAD SHAKIL---Respondent

Civil Revision No.1986-D of 1999, heard on 19th February, 2004.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession---Plaintiff filed suit for possession of shop on land measuring one marla purchased by him for consideration vide sale-deed---Plaintiff averred in his plaint that the vendor and the occupant of the suit-land had promised to hand over the possession of the land to him, but despite requests same had been declined---Suit was decreed by the Courts below which was confirmed in appeal---Validity---Plaintiff, who was not delivered possession of land purchased by him, should have sued vendor who was father of the defendant and defendant (son) who was in occupation of land in dispute under his father/vendor, was not impleaded as party in the suit---Sale-deed had shown that plaintiff became co-owner in the Khata along with the father of defendant---Only remedy available to, plaintiff was to file a suit for partition of the suit-land---Even otherwise plaintiff could not have a shop in lieu of one Marla land purchased by him---Present suit for possession against defendant was not maintainable---Both Courts below having misdirected themselves in applying the law to the facts of the case, their judgments, were set aside and suit filed by plaintiff was dismissed.

Hafiz Khalil Ahmad for Petitioner.

Mukhtar Abbas for Respondent.

Date of hearing: 19th February, 2004.

YLR 2007 LAHORE HIGH COURT LAHORE 45 #

2007 Y L R 45

[Lahore]

Before Sh. Javaid Sarfraz and Mian Muhammad Najum-uz-Zaman, JJ

MUHAMMAD ABBAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.6 and Murder Reference No.3-T of 1998, decided on 25th April, 2006.

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

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), S.6---Appreciation of evidence---Benefit of doubt---Occurrence had taken place at time of morning prayer when it was still dark and witnesses claimed that they had seen the occurrence in the light of torch---At the relevant time only one of accused persons was known to the witnesses, whereas remaining accused were not known to them---Prosecution case was that witnesses had seen occurrence from distance more than eighty feet and in the light of torch identification of accused, who were not known to witnesses, from such a distance was highly doubtful---One of .the prosecution witnesses who claimed to have identified accused during identification parade, while deposing before the Trial Court had specifically stated that he had not identified any accused---Said statement of witness was sufficient to doubt the credibility of the witness qua the identification parade---No evidence was available against second co-accused, except evidence of abscondence and that piece of evidence in isolation, was not sufficient to uphold his conviction and sentence---Case of accused and one of his co-accused being full of doubt, they were entitled to get benefit of the same---Conviction and sentence awarded to said two accused persons by the Trial. Court, were set aside and they stood acquitted from the charge, and were released.

Dil Muhammad Mondal v. The Crown PLD 1956 FC 402; Ali Nawaz and another v. The State 1988 PCr.LJ 1736; Ayyub v.. The State 1994 PCr.LJ 1057 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1156 ref.

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

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), S.6---Appreciation of evidence---Name of second co-accused was mentioned in promptly lodged F.I.R. with a specific role of causing injuries to deceased with pistol---Both prosecution witnesses, while supporting prosecution case had specifically narrated the participation of said co-accused---During investigation two empties were also recovered from the spot which along with pistol recovered on the pointation of said co-accused were sent to Forensic Science Laboratory for comparison and report of said Laboratory was positive---Recovery evidence, in circumstances, had rendered a very strong corroboration to the ocular account narrated by independent and disinterested witnesses---No doubt said co-accused was tried in absentia, but the Trial Court, after complying with all legal formalities, declared said co-accused as proclaimed offender and proceeded with the matter---Death sentence awarded to accused was confirmed and reference to his extent was answered in affirmative in view of ample evidence on record to connect the co-accused with the commission of offence.

Haji Muhammad v. The State PLD 2003 SC 262 ref.

M. Asghar Khan Rokhri for Appellant.

Salman Safdar, Special Prosecutor A.T.A. for the State.

Date of hearing: 25th April, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 52 #

2007 Y L R 52

[Lahore]

Before Jawwad S. Khawaja, J

Messrs YASRIB TRADERS FLOUR MILLS through Managing Partner-Petitioner

Versus

MARKET COMMITTEE, SIALKOT through Administrator---Respondent

Civil Revision No.3061-D of 1996, heard on 25th April, 2003.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Defendant Market Committee demanded market fee from plaintiff Mills alleging that plaintiff Mills which had purchased wheat from the Food Department, were liable to pay market fee on said purchases---Case of plaintiff was that the Food Department never sold wheat to it, but wheat was supplied to plaintiff merely for the purpose of grinding the same---Plaintiff asserted that it received the grinding charges from Food Department, but never paid any amount to said Department---Trial Court found that plaintiff was not a purchaser of the wheat, but was merely a miller of the same and held that no market fee was payable by plaintiff to defendant Market Committee---Appellate Court below however reversed said finding of the Trial Court---Validity---Four witnesses produced by plaintiff, including an employee of Food Department had deposed that Food Department used to supply wheat to plaintiff for milling and not by way of sale---Other witnesses had also testified to the same effect---Defendant could not produce any record to show that plaintiff had made any payment to Food Department for wheat purchased by it---Plaintiff was able to establish its case that it was not a purchaser of wheat and in circumstances was not liable to pay any amount by way of market fee---Impugned judgment and decree of Appellate Court below, was set aside, whereas decree of the Trial Court was restored.

Taqi Ahmad Khan for Petitioner.

Nemo for Respondent.

Date of hearing: 25th April, 2003.

YLR 2007 LAHORE HIGH COURT LAHORE 53 #

2007 Y L R 53

[Lahore]

Before Syed Hamid Ali Shah, J

HAQ NAWAZ through Legal Heirs and others---Appellants

Versus

MAKHANA and others---Respondents

Regular Second Appeal No.12 of 1987, decided on 24th July, 2006.

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

----S.5---Dower---Transfer of a valuable property in lieu of dower debt, without showing amount of dower, cannot be made in normal circumstances.

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

---S.41---Bona fide purchaser, plea of---Essentials- Person who claims benefit under section 41 of the Transfer of Property Act 1882 has to show that he has undertaken proper inquiry regarding the genuineness of title of the vendor.

----Ss.100 & 101---Second appeal---Scope---New plea in second appeal---Effect---By virtue of S.101, C.P.C. a second appeal does not lie except on the grounds mentioned in S.100, C.P.C. i.e., where a decision is contrary to law or usage or failure to determine some material issue of law or usage having the force of law or where there is a substantial error or deject in procedure---Fallacy in appraisal of evidence does not justify interference in second appeal nor Court has to entertain a plea raised for the first time in second appeal.

Allah Wasaya Malik for Appellants.

Muhammad Akhtar Ali for Respondents Nos.1 to 5, 7 to 9 and 11 to 14.

Nemo for Respondents Nos.6 and 10.

Date of hearing: 14th June, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 57 #

2007 Y L R 57

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MAZHAR HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.193-J of 2000 and Murder Reference No.501 of 2000, decided on 2nd May, 2006.

Penal Code (XLV of 1860)---

----Ss. 302 & 324/34---Appreciation of evidence---F.I.R. was lodged with reasonable promptitude and accused was specifically nominated therein as the principal perpetrator of alleged offences---Motive set up in the F.I.R. had been admitted by accused in his statement recorded under S.342, Cr. P. C. which was family enmity between the parties due to landed' property---All eye-witnesses produced by prosecution against accused were quite natural witnesses inasmuch as they were resident of the same house wherein occurrence had taken place; and the time of occurrence was such that all the said eye-witnesses were ordinarily expected to be present in the house at such a time---Two prosecution witnesses had stamps of injuries on their persons so as to vouchsafe their presence during occurrence in question---All said eye-witnesses had made consistent statements before the Trial Court regarding main occurrence and there was no ostensible reason for them to falsely implicate accused in a case of the nature---Parties otherwise being related to each other question of false implication of accused in the case was quite remote---Medical evidence had confirmed the date and time of occurrence, the weapon used by accused, the locale of injuries caused by accused and the direction of fire shot by him as stated by eye-witnesses---Slight variations in locales of some of the injuries stated by those witnesses were quite explainable---Medical evidence in overall assessment, was found to be quite supportive of ocular account furnished in the case---During investigation a gun .12 bore had been recovered from the possession of accused and twelve crime empties recovered from the place of occurrence had subsequently matched with said gun recovered from the possession of accused---Ocular account furnished by three eye-witnesses, including two injured witnesses, who were all quite natural witnesses had found sufficient corroboration from the motive and recovery and had also received ample support from the medical evidence and prompt lodging of F.I.R.--Prosecution, in circumstances had succeeded in establishing the guilt of accused to the hilt---Normal wages of a crime of murder was death and in peculiar circumstances of the case, accused deserved no less---Appeal against conviction was dismissed with a slight modification that instead of two counts of an offence under S.302(a), P.P.C., accused's conviction on both said counts, would be treated as that for an offence under 5.302 (b), P.P.C.--Sentence of death passed by the Trial Court against accused on both the said counts was upheld and maintained, accordingly.?

Mrs. Siddiqa Altaf Khan (defence counsel) at the State expense for Appellant.

Kazim Iqbal Bhangoo (in Criminal Appeal No.193-J of 2000) for the State.

Mian Abdul Qayyum Anjum (Murder Reference No.501 of 2000) for the State.

Date of hearing: 2nd May, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 63 #

2007 Y L R 63

[Lahore]

Before Maulvi Anwarul Haq, J

Syed MEHMOOD ALI SHAH---Petitioner

Versus

AMIR DIN---Respondent

Civil Revision No.481-D of 2004; heard on 24th May, 2004.

Tort---

----Malice---Damages---Petitioner filed an application against respondent stating that respondent had stated before Civil Judge that he (respondent) had nothing to do with land in question and that he was not raising any construction thereon, but later on respondent started 'construction and thus he had committed contempt of Court---Said application of petitioner having been dismissed by the Trial Court,. respondent filed suit for damages, alleging in plaint that he had suffered loss of reputation and . mental agony, expenses on' litigation and business loss---Trial Court and Appellate Court below having decreed suit; petitioner had filed revision against judgments of the Courts below---Respondent did not appear and instead his attorney appeared---Effect---No element of malice and falsity was found in the application filed by petitioner against respondent---Respondent had made a statement assuring the Court . that he had not and would not raise construction on land in question of petitioner, whereas he was found to be so in possession---Judgments and decrees of Courts below were set aside and suit filed by respondent was dismissed with costs throughout.

Ch. Muhammad Iqbal Javed for Petitioner.

Mirza Mehmood Baig for Respondent.

Date of hearing: 24th May, 2004.

YLR 2007 LAHORE HIGH COURT LAHORE 65 #

2007 Y L R 65

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD SARWAR---Appellant

Versus

ABDUL GHAFOOR---Respondent

R.F.A. No.84 of 2004, heard on 25th June, 2004.

Civil Procedure Code (V of 1908)---

----O.XVII, R.3 & O.XXXVII, Rr.2, 3---Suit for recovery of amount---Closing of evidence and dismissal of suit---Trial Court invoking provisions of O.XVII, R.3, C.P. C., foreclosed the right of plaintiff to lead evidence and as a consequence suit filed by plaintiff was dismissed for want of evidence---Plaintiff was not at fault, because either the Presiding Officer was absent on the dates fixed or lawyers were on strike---On two occasions request for adjournment was made by counsel for defendant---On date prior to dismissal of the suit, the Bar had declared a strike---Trial Court, in circumstances was not justified in invoking provisions of O.XVII, R.3, C.P.C. and as a consequence, dismissing the suit field by the plaintiff--Judgment and decree passed by the Trial Court, were set aside, in circumstances.

Syed Mushtaq Ahmad Zaidi for Appellant.

Muhammad Mudassar Bodla for Respondent.

Date of hearing: 25th June, 2004.

YLR 2007 LAHORE HIGH COURT LAHORE 66 #

2007 Y L R 66

[Lahore]

Before Syed Zahid Hussain, J

SUI NOTHERN GAS PIPELINES LIMITED through Deputy Chief Law Officer---Appellant

Versus

HABIB-UR-REHMAN HASHMI---Respondent

Regular Second Appeal No.108 of 2004 and C.M. No.1605/C of 2006, decided on 24th July, 2006.

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

----O.XLI R.27---Production of additional evidence, not a matter of right---Application for production of evidence filed at belated stage before appellate Court was refused holding that provisions of R.27 of O.XLI C.P.C. do not entitle parties to produce additional evidence whether oral or documentary as of right.

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

----S.100---Second appeal---Scope---Reappraisal of evidence ordinarily not undertaken by High Court in second appeal---Concurrent findings of Courts below based on evidence hardly warrant interference in second appeal.

Muhammad Sharif for Appellant.

Rao Tajammul Abbas for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 68 #

2007 Y L R 68

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

Malik MUHAMMAD ASHRAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.67-J of 2005 and Murder Reference No.454 of 2001, decided on 25th May, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Accused was the husband of one of deceased and a grandfather of other---Third deceased was a maidservant in the house where accused resided---Both eye-witnesses, were not very closely related to accused---Complainant was a natural witness of the occurrence because said occurrence had taken place inside his own house---No reason was available on record to suggest as to why complainant would be interested in falsely implicating his own father in case of triple murder---One of prosecution witnesses was a female child and her parents resided in a house situated 2/3 houses away from the house of complainant where occurrence had taken place and it was neither unusual nor unnatural fora grandchild to spend a night at the' house of her grandparents---Said witness had absolutely no reason to falsely incriminate her grandfather for committing triple murder---Complainant had made a consistent statement before the Trial Court regarding main occurrence---Some discrepancies to be found in the statement of minor female/prosecution witness were easily explainable with reference to her tender age---Both prosecution witnesses had categorically pointed out their accusing fingers towards accused as the sole perpetrator of all three murders committed in the case---Statements made by complainant and prosecution witness regarding main incident had inspired confidence---Prosecution had succeeded in establishing motive set up by it and same had provided corroboration to ocular account---Gun .12 bore recovered at the instance of accused had matched with twelve crime empties recovered from place of occurrence and report of Forensic Science Laboratory in that regard was positive---Medical evidence produced by prosecution, had provided ample support to the ocular account---Stand taken by accused before the Trial Court through his statement recorded under S.342, Cr. P. C., was vague, ambiguous and quite evasive---Prosecution, in circumstances had succeeded in establishing guilt of accused to the hilt---Accused had not only murdered his old wife, but had also murdered his innocent grandson and a minor maidservant by firing at them---Savagery and brutality perpetrated by accused called for no mercy or sympathy in the matter of sentence---Convictions and sentences of accused recorded by the Trial Court, were upheld and maintained in circumstances.

Nemo for Petitioner.

Maqbool Ahmad Qureshi for the State.

Date of hearing: 25th May, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 74 #

2007 Y L R 74

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

THE STATE---Appellant

Versus

MUHAMMAD SARWAR---Respondent

Murder Reference No.284 and Criminal Appeal No.75-J of 2001, decided on 17th May, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---F.I.R. was got lodged with promptitude, in which name of accused as a single accused was recorded, who made firing on both deceased---Names of prosecution witnesses were also recorded therein---Both prosecution witnesses though were closely related to deceased, but mere close relationship was not a ground to declare them as interested witnesses, because accused was also closely related to prosecution witnesses---Said witnesses had no serious enmity or ill-will to falsely implicate accused in the case while letting off real culprits, if accused had not participated in said occurrence---Prosecution witnesses were natural witnesses being residents of the same Haveli where occurrence had taken place and they had explained their presence at the spot---Witnesses were subjected to lengthy cross-examination---Ocular account furnished by both said eye-witnesses was trustworthy and confidence inspiring, which alone was sufficient to connect accused with the commission of the crime---Question of misidentification of accused in the light of lantern did not arise as he was previously known to prosecution witnesses being a close relative---Accused firstly made repeated fire at complainant who died later on due to that firing and then he chased other deceased and killed her---Ocular account was supported by medical evidence---Alleged recovery of .30 bore pistol from accused though was inconsequential as no empty was recovered from the spot, but same alone was not sufficient to exonerate accused, who even otherwise had admitted commission of occurrence with his licensed pistol in a different manner---Accused could not prove his pleas of 'ghairat', 'self-defence' and 'sudden provocation' as said pleas appeared to be an afterthought story which had rightly been discarded by the Trial Court---Prosecution, in circumstances having been able to bring home guilt to accused beyond any shadow of doubt, conviction recorded by the Trial Court under S.302(b), P.P.C. was maintained---Accused had murdered two innocent persons while firing upon them repeatedly, which had shown accused a desperate person---In absence of any mitigating circumstance for withholding normal penalty of death provided for Qatl-e-Amd, death sentence awarded by the Trial Court to accused, was maintained and confirmed---Murder Reference was replied in affirmative.

Ch. Muhammad Ayub for Appellant.

A.H. Masood and Ashfaq Ahmad Chaudhry for the State.

Date of hearing: 17th May, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 82 #

2007 Y L R 82

[Lahore]

Before Maulvi Anwarul Haq, J

TOWN COMMITTEE, JALALPUR PIRWALA through Chairman---Petitioner

Versus

Malik MEHR BAKHSH and another-Respondents

Civil Revision No.794 of 1986, heard on 15th November, 2005.

(a) Co-sharer---

----Sale of land by co-sharer---Validity---Where a co-sharer is in possession of a specific piece of joint land, within the limits of his share in the joint holding, he can sell such specific land.

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

----S.53---Entry in Revenue Record proved to be illegal---Effect---Where an entry in Revenue Record was not changed in accordance with law, earlier entry would be deemed to continue to hold the field.

----S.115---Civil revision---Non-reading of evidence---Trial Court had read the entire evidence and had correctly concluded that the plaintiff had failed to make out a case for grant of relief---Lower Appellate Court for non-reading of entire evidence on record, reversed the findings of the Trial Court---Order of Appellate Court was set aside and that of the Trial Court was restored in revision.

Misri through Legal Heirs and others v. Muhammad Sharif and others 1997 SCMR 338 ref.

Syed Nizam-ud-Din Shah for Petitioner.

Fakhar Baluch for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 15th November, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 85 #

2007 Y L R 85

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD YASEEN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.92-J and Murder Reference No.135 of 2001, decided on 16th May, 2006.

Penal Code (XLV of 1860)---

----S. 302 (b)---Appreciation of evidence--F.I.R. was lodged with promptitude, in which name of accused as a single accused was duly mentioned---Medical evidence had fully supported ocular account---No contradiction was available in medical evidence and the story of prosecution regarding the time and nature of fire-arm used in the incident---Presence of complainant, who was father of deceased, at the spot at the time of occurrence, could not be doubted---Complainant being father of deceased was a natural witness and his close relationship with deceased was not sufficient to declare him as an interested witness as no previous ill-will, enmity or grudge existed between the parties---Prosecution witness, though was a chance witness, but he was resident of the same locality and his house was situated in the same chowk at a distance of 20/25 karams from the place of occurrence---Complainant had faced the test of cross-examination successfully and defence had failed to gain anything out of it for false implication of accused by letting off real culprit----Prosecution witness remained consistent regarding the time, place and manner in which occurrence had taken place with the previous statement made before the police---Quality and not the quantity of evidence was to be seen in criminal cases---Conviction could he based on solitary statement of witness, if same was .found to be trustworthy---No reason existed for discarding the statement of complainant which being trustworthy and confidence-inspiring was found sufficient to connect accused with the commission of crime even without any corroboration through any independent piece of evidence---Abscondence of accused for about one year had given sufficient corroboration to the ocular account regarding his involvement in the occurrence---Alleged recovery of weapon from accused after about one year of the occurrence, though was legally inconsequential as no empty was recovered from the spot and only report of Forensic Science Laboratory that weapon was in working condition was not sufficient to declare that said weapon was used by accused, but mere non-recovery of weapon from accused or .failure of prosecution to prove its recovery at the trial was not sufficient to discard ocular account, which otherwise had been found confidence? inspiring---Even if motive was not proved, same would not afford a ground for exonerating accused from commission of crime as motive was purely a matter between assailant and the victim---Prosecution having been able to bring home guilt to accused beyond any shadow of doubt, conviction of accused was maintained---In absence of any mitigating circumstance warranting lesser sentence, sentence awarded to accused, by the Trial Court, was also maintained and confirmed, in circumstances.?

Aalia Neelam for Appellant.

Ch. Imtiaz Ahmad Kamboh and Ashfaq Ahmad Chaudhry for Respondent.

Date of hearing: 16th May, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 92 #

2007 Y L R 92

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD RIAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1420 and Murder Reference No.720 of 2000, heard on 5th September, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Both prosecution witnesses were not only related to deceased, but were also chance witnesses---Matter was reported to the police after about two hours of occurrence, but no explanation was on record for said delay---Such was very material discrepancy which had cast doubt on the presence of both prosecution witnesses at the spot at the relevant time---Both prosecution witnesses had also contradicted each other on material points, which could not be ignored as those reflected on the quality of evidence brought forward by prosecution--Motive of occurrence remained unproved---Ocular account was not supported by medical evidence---Alleged recovery of gun was of no consequence as' neither any empty was recovered from the spot nor the gun was sent to any Forensic Science Laboratory to establish whether it was in working order or not---Incident was an un-witnessed occurrence and prosecution case was replete with doubts---Allowing appeal, judgment of the Trial Court was set 'aside by High Court and accused was acquitted of the charges and was released.

Sardar Muhammad Latif Khan Khosa for Appellant.

Syed Ali Raza Gilani for the Complainant.

Maqbool Ahmad Qureshi (in Criminal Appeal) and Ch. Muhammad Ahmad (in Murder Reference) for the State.

Date of hearing: 5th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 97 #

2007 Y L R 97

[Lahore]

Before Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

MODERN SOAP INDUSTRIES (PVT.) LTD. through duly authorized attorney

and 3 others ---Appellants

Versus

MUSLIM COMMERCIAL BANK LIMITED---Respondent

F.A.O. No.246 of 2006, decided on 12th September, 2006.

Civil Procedure Code (V of 1908)---

----O.XXI, R.54---General Clauses Act (X of 1897), S.3(25)---`Attachment of immovable property---Connotation---Word "property" would mean land and things permanently attached thereto--Superstructure, thus, would include in terns "property ".

Zahoor Ali Nasir Tagha for Appellants.

Shazib Masood for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 99 #

2007 Y L R 99

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Abroad Chaudhry, JJ

ABDUL REHMAN alias ABDUL-Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.106-J and Murder Reference No.214 of 2001, decided on 22nd May, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Noticeable delay in lodging F.I.R. and in conducting post-mortem examination of dead body of deceased, was suggestive of a real possibility that time had been consumed by the complainant party and the police for the purpose of procuring and planting eye-witnesses and cooking up a story of the

prosecution--Complainant who was real brother of deceased was surely a chance witness and statement of prosecution witness had excluded presence of complainant at the scene of crime at the relevant time---Said other prosecution witness also belonged to brotherhood of complainant---Occurrence though had taken place in the immediate vicinity of the house of prosecution witness and he could be branded as a natural witness, but the contradictions between his statement and the statement of complainant, had gone a long way in indicating that he had not witnessed occurrence himself---Ocular account furnished by prosecution had failed to inspire confidence---Medical evidence also had gone a long way in contradicting and discrediting eye-witness produced by the prosecution---Discrepancy between the medical evidence and ocular account had thrown the entire case of the prosecution wide open and had rendered the veracity of ocular account furnished by it open to serious doubts---Motive set up by the prosecution had remained far from being established and no corroboration to the ocular account was forthcoming on that score---Reports submitted by the Chemical Examiner and Serologist though had confirmed that recovered hatchet was stained with human blood, but alleged recovery of blood-stained hatchet, was not free from serious doubts as according to prosecution witness hatchet in question was recovered from a room of a house of uncle of accused and not from the house of accused---Apart from the provisions of S.103, Cr.P.C. had flagrantly been disregarded in recovery proceedings---Alleged recovery having been effected after twenty six days of alleged occurrence, during such a long period blood available on said hatchet, if any, would have disintegrated---In absence of any independent corroboration to ocular account, which had been disbelieved to the extent of co-accused same could not be believed to the extent of accused---Prosecution having failed to prove its case against accused beyond reasonable doubt, conviction and sentence awarded to accused by the Trial Court were set aside, and accused was acquitted of the charge extending him benefit of doubt and was released.?

Malik Muhammad Suleman Awan for Appellant.

Ashfaq Ahmad Chaudhry for Respondents.

Date of hearing: 22nd May, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 107 #

2007 Y L R 107

[Lahore]

Before Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

AFTAB SALEEM CHOUDHARY and another-Appellants

Versus

SONERI BANK LIMITED through Attorneys---Respondent

E.F.A.O. No.142 of 2005, decided on 5th September, 2006.

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

----S.51, Proviso---Execution of decree---Warrant of arrest of judgment-debtor, issuance of---Powers of Executing Court---Scope---Executing Court not competent to issue such warrants without satisfaction of pre-conditions and pre-requisites of Proviso to S. 51, C.P.C.-Principles.

Aftab Saleem Choudhary and another v. Soneri Bank Limited through Attorneys 2005 CLD 401; Messrs 3-A Trade Impex through Partner and 2 others v. Askari Commercial Bank Ltd. through Branch Manager 2005 CLD 1379 and Bashir Ahmad v. Judge Banking Court-I.

Gujranwala Division Gujranwala and another 2005 CLD 1728 rel.

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

----Art.201---Decision of High Court---Binding nature---Scope---Such decision, if decides a question of law or based upon or enunciated a principle of law would be binding on all Courts subordinate thereto.

Muzammil Akhtar Shabbir for Appellants.

Khawaja Umar Masood for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 109 #

2007 Y L R 109

[Lahore]

Before Muhammad Sayeed Akhtar and Mian Hamid Farooq, JJ

HARAPPA TEXTILE MILLS LIMITED---Appellant

Versus

Messrs B.A.S.F. PAKISTAN (PVT.) LIMITED---Respondent

Regular First Appeal No.211 of 2002, heard on 28th October, 2003.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2 & 3---Contract Act (IX of 1872), Ss. 73 & 74---Suit for recovery of amount on basis of cheque---Non-filing of application for leave to appear and defend suit by defendant---Claim for mark-up/ compensation and legal and other expenses---Suit filed by plaintiff for recovery of amount plus 20% mark-up/ compensation on amount of cheque and 5% legal and other expenses, was decreed ex parte against defendant; however, on filing application of defendant, ex parte decree was set aside, but defendant did not file application for leave to appear and defend suit after setting aside of ex parte decree---Decree as prayed for by plaintiff was passed . by the Trial Court---Defendant claimed that a composite application was filed for setting aside ex parte decree and for grant of leave to appear and defend the suit, but said application was not available on record---Copy of alleged application produced by counsel of defendant did not mention the grounds for grant of leave to appear and defend suit---All the grounds taken by defendant in said application were regarding setting aside the ex parte decree---In the absence of any application for grant of leave to appear and defend the suit contents of the plaint were deemed to be admitted and plaintiff was entitled to a decree---Nothing was available on record that plaintiff suffered any loss due to the breach of contract and no agreement between the parties had been placed on record, for recovery of reasonable compensation under S.74 of Contract Act, 1872---Alleged compensation claimed by plaintiff, appearing to be in the nature of liquidated damages, same could not be awarded without any proof of loss---Judgment and decree to the extent of compensation/mark-up 20% and legal expenses 5% was set aside and decree for recovery of original amount of cheque was upheld.

Allied Bank of Pakistan, Faisalabad v. Messrs Aisha Garments and others 2001 MLD 1955 ref.

Muhammad Yaqub Khan for Appellant.

Muhammad Ikram Zahid for Respondent.

Date of hearing: 28th October, 2003.

YLR 2007 LAHORE HIGH COURT LAHORE 111 #

2007 Y L R 111

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD AFZAL and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.1800, 2023 and Murder Reference No.655 of 2000, heard on 14th September, 2006.

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

----Ss. 302(b), 324 & 440---Appreciation of evidence---Sentence, reduction in---All prosecution witnesses were closely related inter se and with deceased--No previous enmity existed between the parties--Two prosecution witnesses were injured during the occurrence, while other two were also residents of the same locality---Presence of prosecution' witnesses at the spot, in circumstances was free from doubt---Mere presence of said witnesses in fact and circumstances of the case, and witnessing the occurrence, however was not sufficient to prove that they had also made true account of the occurrence as two accused, besides their sister had also received injuries, which were not sufficiently explained by prosecution---Contradiction existed in the stand of prosecution regarding the most important fact namely the place where the incident had taken place---F.I.R. showed the occurrence to have taken place inside the house of complainant, but at the trial complainant had changed the venue of the incident---Medical evidence was not found. to conform with ocular account regarding the number of injuries attributed to each of the accused---Medical evidence had contradicted the stand of the eye-witnesses; was also found in conflict with ocular account regarding the injuries on the person of deceased---Medical evidence, in circumstances, did not fully support the ocular account-Site-plan did not disclose that accused had encircled deceased and eye-witnesses as they were not in such position---Injuries on the sister of accused and other accused persons, were not explained by prosecution witnesses---Eyewitnesses, were thus not found truthful witnesses as they had suppressed injuries on the persons of accused---Occurrence had not taken place in the manner narrated by the prosecution---Prosecution witnesses had nominated 11 accused in the incident, who allegedly had fired at the four deceased and two injured ladies and injuries were specifically attributed to some accused, and it was not humanly possible for the witnesses to witness all accused making firing and receiving of each and every injury by the victims---Recoveries were inconsequential as none of the empties recovered from the spot was sent to Forensic Science Laboratory--Motive was not proved---Defence plea was also not believable---Both parties had suppressed the true facts---Participation of first two accused persons, during occurrence, however, had been established as they had themselves admitted their presence at the spot and to their extent, sufficient material was on record for declaring them guilty---Conviction of accused recorded by the Trial Court under S. 302(b), P.P.C. was maintained, but capital punishment awarded to them being harsh same was converted to life imprisonment.

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 and Iftikhar Hussain and another v. the State PLJ 2004 SC 552 ref.

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

----Ss. 302(b), 324 & 440---Appreciation of evidence---Benefit of doubt---Possibility of widening the net by involving maximum members from the family of accused party in the case, could not be ruled out---To the extent of remaining two co-accused, ocular account was neither fully supported by the medical evidence nor it found corroboration from any other independent piece of evidence; to their extent prosecution had failed to prove its case beyond any shadow of doubt and to the extent of said two accused, all the four eye-witnesses had contradicted each other---Conviction and sentences recorded against said two co-accused, were set aside and they were acquitted of the charges by extending them benefit of doubt.

Kh. Sultan Ahmad for Appellants (in Criminal Appeal No.1800 of 2000).

Aftab Farrukh for the Complainant and Appellant (in Criminal Appeal No.2023 of 2000).

Mian Abdul Qayyum Anjum for the State (in Murder Reference No.655 of 2000).

Badar Munir Malik for the State (in Criminal Appeal No.1800 of 2000).

Raja Sher Zaman for the State (in Criminal A..No.2023 of 2000).

Date of hearing: 14th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 126 #

2007 Y L R 126

[Lahore]

Before Syed Zahid Hussain and Jawwad S. Khawaja, JJ

Mirza MUNAWAR BAIG and 5 others---Appellants

Versus

BANK ALFALAH LIMITED and 2 others---Respondents

Execution First Appeal No.496 of 2003, heard on 6th September, 2006.

Civil Procedure Code (V of 1908)---

----O.XXI, R.66---Proclamation of sale by public auction---Absence of mandatory notice to judgment-debtor before drawing up terms of sale---Judgment-debtor not having intimation of order directing auction of property---Such order of auction was set aside in appeal.

Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd. through Branch Manager and 3 others 2003 CLD1693 rel.

Muhammad Saeed Ansari and Muhammad Yousaf Chaudhry for Appellants.

Ch. Abdul Rauf for Respondent-Bank.

Ghulam Sabir Khan Kaifi for Auction-Purchaser.

Date of hearing: 6th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 130 #

2007 Y L R 130

[Lahore]

Before Syed Asghar Haider, J

UNIVERSITY OF PUNJAB, LAHORE through Vice-Chancellor and 4 others---Petitioners

Versus

Prof. Dr. MAJID NAEEM---Respondent

Civil Revision No.1617 of 2006, heard 6th October, 2006.

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

----S. 42---Civil Procedure Code (V of 1908), O.VII, R.11(d)---University of the Punjab Act (IX of 1973), S.48-A---Suit for declaration and damages---Rejection of plaint---Defendants moved an application under O. VII, R.11(d), C.P.C. for rejection of the plaint pleading embargo of S.48-A of University of the Punjab Act, 1973 submitting that there was complete ouster of jurisdiction of the courts of plenary jurisdiction---Plaintiff in the plaint had levelled serious allegations alleging mala fides and controversial facts which had to be appraised by evidence---Suit by plaintiff was not simpliciter declaration challenging dismissal from service, but also sought compensation in the form of damages, which too required evidence---Validity---In order to invoke provisions of O. VII, R.11(d), C.P.C. for rejection of plaint, suit should appear from the contents of the plaint to be barred by any law---Bar alleged by defendants was not absolute and in cases of deliberate avoidance to exercise power, University would lose aura of immunity from attack under 5.18-A of University of the Punjab Act, 1973---Whether plaintiff's case fell into that exception or not, could only be determined after appraisal of evidence---Trial Court, in circumstances, was right in rejecting application under O.VII, R.11, C.P.C. holding that matter needed appraisal of evidence and inquiry.

Javed Shuja v. Auqaf Department and others 1995 CLC 1263; The Registrar, University of the Punjab, Lahore and another v. Rana Asghar Ali alias Muhammad Asghar 1993 SCMR 1681; The University of the Punjab, Lahore through Registrar v. Muhammad Aslam Bora, Advocate and another PLD 1988 Lah.658 and Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 180 rel.

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

----S.42---University of the Punjab Act (IX of 1973), S. 48-A---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration---Bar contained in S.48-A of University of the Punjab Act, 1973---Scope---In order to invoke the provisions of S.48-A of the University of the Punjab Act, 1973, defendants were required to prove without any ambiguity that the bar was absolute---Plaintiff, in his plaint had alleged certain facts which led to the action---Whether said facts were correct or not had to be looked into and appraised by evidence---Words "good faith" referred in S.48-A of University of the Punjab Act, 1973, were very significant---University (defendants) had to prove that it acted in good faith.

Muhammad Arif Raja for Petitioners.

Ahmed Awais for Respondent.

Date of hearing: 6th October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 135 #

2007 Y L R 135

[Lahore]

Before Muhammad Muzammal Khan, J

DEFENCE HOUSING AUTHORITY LAHORE---Petitioner

Versus

Lt.-Col. (R) MUHAMMAD ASLAM---Respondent

Civil Revisions Nos.1743 of 2005 and 520, 521 of 2006, decided on 31st October, 2006.

Limitation Act (IX of 1908)---

----S. 5---Civil Procedure Code (V of 1908), O. VII, R.11---Co-operative Societies Act (VII of 1925), Preamble---Defence Housing Authority Lahore Ordinance (LI of 1999), S.18---Civil suit---Appeals filed after delay of one day---Affidavits of counsel and clerk failed to explain the delay---No counter affidavits were filed---Discretion of Court to condone delay---Scope---Lahore Cantonment Co-operative Housing Society registered under Co-operative Societies Act, 1925 was dissolved by Defence Housing Authority Lahore Ordinance, 1999, whereupon litigation pending before Secretary Co-operative was dismissed on account of lack of jurisdiction---Plaintiff/ petitioner filed three suits before Civil Court/Trial Court and defendant/respondent filed their respective applications under O. VII, R.11 C.P.C. whereupon suits of the plaintiff were dismissed by Trial Court---Plaintiff filed three appeals against judgments of Trial Court after delay of one day but in view of limitation, plaintiff moved three applications under S.5 of Limitation Act, 1908 praying condonation of delay on ground that clerk of counsel for plaintiff had misplaced bundle of files which resulted in unintentional delay of one day in filing appeals---Applications were supported by affidavits of both counsel and the clerk---Appellate Court dismissed appeals on ground that affidavit of clerk was not filed and affidavit of counsel was not relevant as files were misplaced by the clerk---Validity---Applications under S.5 of Limitation Act, 1908 were also supported by affidavit of clerk as well which fact was overlooked by the Appellate Court---Plaintiff's appeal had been admitted to regular hearing and defendant had appeared to contest the same but they did not opt to file any reply to contest application under S.5 of Limitation Act, 1908---None of the defendants filed any counter-affidavit to dispel impact of two affidavits filed by clerk and counsel of plaintiff---Affidavit of counsel which remained unrebutted by counter-affidavit was enough to resolve factual controversy of misplacement of files resulting in delay in filing of appeals---Counsel had no personal interest in lis thus his affidavit was to be believed which had been sworn even at cost of exposing himself to penal consequences---In condoning delay, if discretion vested in a Court had been exercised within parameters fixed by law, the same could not be interfered by High Court in revisional jurisdiction but in the present case, discretion had not only been exercised arbitrarily but the same was exercised fancifully---Applications under S.5 of Limitation Act, 1908 were accepted by High Court condoning delay of one day---Petitions were allowed.

Muhammad Nasir Mehmud and others v. Mst. Rashidan Bibi 2000 SCMR 1013 distinguished.

Faisal Hanif for Petitioner.

Iqbal Mahmood Awan for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 143 #

2007 Y L R 143

[Lahore]

Before Muhammad Muzammal Khan, J

A.S. NADEEM ADVERTISERS, LAHORE and another-Petitioners

Versus

PUNJAB ROAD TRANSPORT CORPORATION through Managing Director ---Respondent

Civil Revision No.1766 of 2006, decided on 27th October, 2006.

Civil Procedure Code (V of 1908)---

----O.XIV, R.5, O.VII, R.2 & S.141---Money suit---Framing of correct issues---Duty of Court---Dismissal of first application not a bar to file second application for framing of issues---Scope---Defendant/petitioner being not satisfied with framing of issues, filed application for re framing of issues which remained pending for about ten years---Defendant withdrew the application and filed second application which was dismissed by Trial Court---Validity---It was primary duty of Court to frame correct/proper issues arising out of pleading of parties---Dismissal/ withdrawal of defendant's first application under O.XIV, R.5, C.P.C. could not be treated as bar to second application, by invocation of provisions of S.141, C.P. C.---Jurisdiction to frame, amend or frame additional issues was exclusively that of Trial Court and parties to lis could only point out error therein---Dismissal of defendant's first application for correction of issues could not be treated as bar to invocation of jurisdiction by Trial Court and their application was thus incorrectly dismissed---Petition was accepted.

Muhammad Rashid Ahmad for Petitioners.

Tariq Latif for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 153 #

2007 Y L R 153

[Lahore]

Before Hasnat Ahmad Khan, J

SAJJAD HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3136/B of 2006, decided on 1st November, 2006.

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---Victim made statement on more than two occasions wherein she disowned the contents of F.I.R.---Statement of the two witnesses, were only to the effect that they had seen victim in the company of accused and had not claimed to be the eye-witnesses of the offence of Zina---Worth of statements of said witnesses would be seen at the time of the trial---Delay of twenty one days in lodging F.I.R. had made the case that of further inquiry---No other direct evidence was available in the case---Medical Examination of the victim was conducted after twenty two days of the occurrence and for that reason no swabs were taken---Accused was behind the bars since his arrest and challan had not been submitted---Early conclusion of the trial was the right of accused and bail could not be held as a matter of punishment---Accused having succeeded in making out case as that of further inquiry, he was admitted to bail.

Malik Muhammad Jamshaid Awan for Petitioner.

Ch. Falak Sher Chaddar for the Complainant.

Zafar Anjum for the State with Latif Ahmad, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 155 #

2007 Y L R 155

[Lahore]

Before Muhammad Jehangir Arshad and Muhammad Khalid Alvi, JJ

MUHAMMAD IMRAN alias SAWAN---Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT, MULTAN and another---Respondents

Writ Petition No.6051 of 2005, heard on 9th October, 2006.

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

----S.23---Penal Code (XLV of 1860), 5.302--Offence of Zina (Enforcement of Hudood) Ordinance' (VII of 1979), S.10(7)---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope---Transfer of case to ordinary Court---Question as to whether the trial of petitioner/accused be conducted or not by the Anti-Terrorism Court, initially fell within the domain of Anti-Terrorism Court and High Court while sitting in constitutional jurisdiction, could not interfere with discretion of Anti-Terrorism Court in the absence of any material requiring as to hold otherwise---High Court, under constitutional jurisdiction could neither act as an appellate authority nor could substitute its findings for the findings arrived at by a competent Court/Tribunal constituted under special law but had only to see as to whether judgment/order impugned in the constitutional petition was with or without jurisdiction---Findings recorded by Judge, Anti-Terrorism Court holding that case of petitioner was triable by Anti-Terrorism Court and said findings having been recorded by the Judge within purview of jurisdiction conferred on Anti-Terrorism Court under special Act, there existed no jurisdiction in High Court to interfere and sit over the findings of Judge Anti-Terrorism.

Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530; General Manager, Pearl Continental Hotel, The Mall, Lahore/ Rawalpindi v. Farhat Iqbal PLD 2003 SC. 952 and Sardar Hussain and others v. Mst. Parveen Umer and others PLD 2004 SC 357 rel.

Ch. Pervaiz Aftab for Petitioner.

Sardar Muhammad Iqbal and Malik Muhammad Qasim Khan, A.A.-G. for Respondents.

Date of hearing: 9th October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 158 #

2007 Y L R 158

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. SIRAJ BIBI---Petitioner

Versus

MUHAMMAD SHAFI and others---Respondents

Civil Revision No. 613-D of 1989, heard on 2nd October, 2006.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration of title---Gift---Prerequisites---Motive of gift---Plaintiff assailed mutation of gift being result of fraud and being a married woman having male issues, did not have defendants, who were her brothers---Both the Courts concurrently dismissed the suit and appeal---Validity---Apart from discrepancies apparent on the face of record, entire written statement and entire evidence led by defendants was silent as to why plaintiff gifted suit-land to them---Nothing was suggested to her as well in witness box as to why she made the gift---Such circumstances were of much importance and were duly taken note of by Supreme Court---No evidence was available as to declaration of gift, its acceptance and delivery of possession thereunder---Case being of no evidence, judgments and decrees passed by the Courts below were result of gross misreading of evidence on record---High Court in exercise of revisional jurisdiction set aside judgments and decrees passed by both the Courts below and decreed the suit filed by plaintiff.

Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 fol.

Syed Muhammad Ali Gillani for Petitioner.

Abdul Rasheed Sheikh for Respondents Nos.1-A to 1-B, 3, 5 and 6.

Respondents. Nos.13, 14 and 15 ex parte.

Nemo for others.

Date of hearing: 2nd October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 175 #

2007 Y L R 175

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD ZAHID---Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, MULTAN through Chairman and 5 others---Respondents

Writ Petition No.3517 of 2006, heard on 10th October, 2006.

Calendar of Board of Intermediate and Secondary Education Multan---

----Chapter VI, R.5 (ii)---Secondary School Certificate Part-wise System Examination Rules, 2003, R.20--- Constitution of Pakistan (1973), Art.199---Constitutional petition---Educational institution---Part-wise examination---Unfair means---Cancellation of result of first part---Non issuance of show-cause notice---Candidate passed his 9th class examination but was found using unfair means in 10th class examination---Authorities disqualified the candidate for two years under Chapter VI, R.5(ii) of Calendar of Board of Intermediate and Secondary Education Multan---After two years, when candidate appeared in 10th class examination, the authorities withheld his result on the ground that under R.20 of Secondary School Certificate Part-wise System Examination, 2003, his result of class 9 was cancelled and he had to appear in both the examination for Class 9 and 10---Plea raised by candidate was that such decision of authorities was not notified to him, hence was illegal---Validity---

Nothing had been produced by the authorities to satisfy the Court, that candidate was ever notified to show cause against cancellation of his 9`" class examination nor original decision of Disciplinary Committee cancelling result of 9th class was placed on record---In absence of any such material, the only decision taken by authorities was the one disqualifying hire from two examinations---After expiry of period of disqualification, not only the Examination Form of candidate was accepted by authorities but he was also issued roll number and was allowed to appear in the examination---At no stage the candidate was apprised of cancellation of his result of 9th class examination, which he had already passed---Authorities could not withhold the result of the candidate on such ground---High Court in exercise of Constitutional jurisdiction declared result of 9th class examination of candidate as intact and its cancellation was without lawful authority---High Court directed the authorities to issue result card to the candidate---Petition was allowed accordingly.

Hafiz Ahmad Sufyan Arshad v. Board of Intermediate and Secondary Education Faisalabad 2001 CLC 759; Haq Nawaz v. The Province of Punjab through Secretary, Home Department Lahore and 3 others PLD 1976 Lah.1013 and Board of Intermediate and Secondary Education, Lahore v. Ala-ud-Din and another 1972 SCMR 13 fol.

Ch. Muhammad Afzal Jatt for Petitioner.

Haji Muhammad Aslam Malik for Respondent-Board.

Muhammad Ameer Bhatti, Advocate/amicus curiae.

Date of hearing: 10th October, 2006.

2007 Y L R 215

[Lahore]

Before Abdul Shakoor Paracha, J

HUSSAIN GLOBAL ASSOCIATES (PVT.) LTD.---Petitioner

Versus

T.M.A., MURREE through Tehsil Municipal Officer---Respondent

Writ Petition No.3147 of 2002, decided on 7th October, 2003.

Punjab Local Council (Tax on Transfer of Immovable Property) Rules, 1981---

----Rr. 4(3) & 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Petitioner had contended that highest bid offered by him for the purchase of Lodges, was accepted by competent Authority and sale-deed was executed; that he had submitted application for payment of tax, but neither tax had been determined nor application so submitted by petitioner had yet been decided and sale-deed had not been entered in the relevant record of Municipal Committee---Respondent had contended that bargain having been completed during the year 1998, petitioner was liable to pay tax under R.4(3) of Punjab Local Council (Tax on Transfer of Immovable Property) Rules, 1981 and since tax determined and demand under R.4(3) of Punjab Local Council (Tax on Transfer of Immovable Property) Rules, 1981, was applicable under R.8 thereof, constitutional petition was not maintainable as petitioner had alternative and adequate remedy available under the law---Application submitted by petitioner for determination of tax under said Rules if any, would be decided at the first instance---While dilating upon controversy of petitioner's tax, Taxation Officer would also attend the question of applicability of said Rules and prevailing rate of tax at the relevant time of sale---Petitioner, would be at liberty to avail remedy of appeal under R.8 of Punjab Local Council (Tax on Transfer of Immovable Property) Rules, 1981 or any further remedy available to him under law.

Muhammad Ilyas Sh. for Petitioner.

Abdur Rashid Awan for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 217 #

2007 Y L R 217

[Lahore]

Before Sh. Azmat Saeed, J

NASIR GLASS FACTORY---Petitioner

Versus

SNGPL---Respondent

Civil Revision No.1647 of 2006, decided on 18th October, 2006.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Trial Court granted temporary injunction to petitioner (consumer of Gas) subject to furnishing of Bank guarantee of disputed amount for the payment of current Gas bill---Allegation of suppliers was that consumer had tampered with the supply. meter and had shown incorrect reduced reading and had utilized Gas by not making payment thereof---Consumer had denied said allegation---Contentions of the parties could only be settled through recording of evidence---Consumer was running an industrial concern and absence of energy had caused grave inconvenience to him; it would be just and equitable and in accordance with law to order restoration of Gas connection of petitioner subject to deposit of amount in question before the Court.

Zafar Iqbal Chohan for Petitioner.

Omer Sharif for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 222 #

2007 Y L R 222

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD MUMTAZ---Petitioner

Versus

THE STATE and 3 others---Respondents

Criminal Revision No.888 of 2006, decided on 2nd November, 2006.

Penal Code (XLV of 1860)---

----Ss. 177 & 193---Criminal Procedure Code (V of 1898), Ss.197, 435 & 476---Furnishing false information---Respondent had admitted that information given by him was due to misunderstanding and that he had also tendered unconditional apology---Provisions of S.193, P.P.C. which dealt with giving a false evidence, was not applicable in the case as that had not been done, but S.177, P.P.C. which dealt with furnishing false information was applicable in the case---Respondent, while submitting his reply, had stated that as due to misunderstanding, the message was not properly understood by him, he submitted a wrong certificate before Addl. Sessions Judge regarding order passed by High Court in constitutional petition---Respondent had tendered unconditional apology, moreover he was newly entered in the legal profession---Taking into consideration all said facts, petition was disposed of with observation that respondent was warned strictly to be careful in future---No further action was called for in the petition.

PLD 1986 Pesh. 32; 2003 YLR 249; PLJ 1998 Criminal cases 950; PLD 1987 Lah. 214 and 1984 PCr.LJ 2797 rel.

Saif ul Malook for Petitioner.

M. R. Awan for Respondents.

Ch. Muhammad Hanif Khatana Addl. A.-G. for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 227 #

2007 Y L R 227

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD JAHANGIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7374/B and 7642/B of 2005, decided on 2nd February, 2006.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-A(i) & (ii), 148 & 149---Bail, refusal of-Accused had been nominated in F.I.R. with a specific role of causing fire-arm injury on the person of deceased which proved fatal---Contention of accused that some other person had killed the deceased and not he, did not carry any weight in presence of statements of injured prosecution witnesses recorded under S.161, Cr.P.C. wherein they resolutely struck to their stance as contained in F.I.R.---Prima facie ample incriminating material was available on record connecting accused with the crime imputed to him---No merit having been found in bail petition of accused, same was dismissed.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-A(i)---Bail, grant of---Coaccused had been assigned the role of .firstly catching hold of complainant by his collar and then causing a blow with the butt of his .32-bore revolver on the back of his head---Other allegation against said co-accused was that he had been raising Lalkaras---Injury attributed to co-accused recorded in medico-legal report had been declared to be falling within the purview of S.337-A(i), P.P.C., which did not attract prohibitory clause of S.497(1), Cr.P.C.---Said co-accused was in custody for the last more than ten months and trial had not concluded---Vicarious liability of the co-accused needed to be thrashed out during the course of trial---Co-accused was admitted to bail, in circumstances.

Rana Javed Anwar Khan for Petitioner (in Criminal Miscellaneous No.7374/B of 2005).

Muhammad Ramzan Watto for Petitioner (in Criminal Miscellaneous No.7642/B of 2005).

M. A. Ghaffar ul Haq for the Complainant.

M. Saleem Shad for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 228 #

2007 Y L R 228

[Lahore]

Before Hasnat Ahmad Khan and M.A. Shahid Siddiqui, JJ

SULTAN and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2922-B of 2006, decided on 31st October, 2006.

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

----Ss. 324, 427, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Bail, refusal of---Accused had been nominated in F.I.R. with specific role of firing with their Kalashnikovs as a result of which complainant received injury---F.I.R. was promptly lodged obviating the chance of any false implication of accused---Accused were identified in the headlights of the car---Medico-legal Certificate, prima facie, supported the version of complainant---Twenty four empties of bullets were recovered from the spot, meaning thereby that accused had resorted to reckless firing and due to said act of accused, traffic remained blocked causing sense of insecurity in the mind of the public---Parties were inimical towards each other---Element of common intention also existed--Nature of injuries, would not help case of accused as those had targeted complainant with Kalashnikov---Prima facie possibility of intention of murderous assault, could not be ruled out---Case being not fit for grant of bail petition to that extent was dismissed.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 427, 148 & 149--Anti-Terrorism Act (XXVII of 1997), S.7---Bail, grant of---Further inquiry---Co-accused was not nominated in F.LR.---Even in the supplementary statement, no overt act had been attributed to him---Co-accused was stated to be close relative of main accused and in view of enmity between the parties, chance of false implication of co-accused could not be ruled out---To the extent of said co-accused, it was a case of further inquiry---Regarding abscondence of co-accused, it was fact that no' proceedings under Ss.87/88, Cr.P.C. had been initiated against him---Co-accused was behind the bars since his arrest---Even otherwise, refusal of bail on the basis of abscondance of accused, was a matter of propriety and practice---Accused would become entitled to bail as a matter of right if case of further enquiry was made out and in such an eventuality bail was not granted by way of grace or concession---Commencement of the trial would not debar the Court from granting bail to accused, if case of further inquiry was made out---Co-accused was admitted to bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 and Munir v. The State 2002 MLD 712 ref.

Ch. Pervaiz Aftab and Pir Masood ul Hasan Chishti for Petitioners.

Tanvir Hussain Buzdar for the State (in Criminal Miscellaneous No.2922-B of 2006) and Mahmood Hussain Qureshi (in Criminal Miscellaneous No.3436-B of 2006) with Ifran Anwar, S.-I. with record.

Sh. Muhammad Faheem for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 236 #

2007 Y L R 236

[Lahore]

Before Tariq Shamim, J

AFTAB DIN---Petitioner

Versus

S.H.O., ANTI-CORRUPTION, (ESTABLISHMENT), MIANWALI

and another---Respondents

Writ Petition No.16740 of 2005, heard on 17th October, 2006.

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

----Ss.420, 468 & 471---Prevention of Corruption Act (II of 1997), S.S(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Case against petitioner and his co-accused was based on facts prima facie established on the record---Civil litigation pending between the parties had no relevance to the allegations of fraud and forgery against petitioner and his coaccused---Alleged interpolation i.e. illegal changes in the Misal-e-Haqiat was established on the record through the report submitted by Forensic Science Laboratory---Petitioner was the beneficiary of unauthorized cuttings in the revenue record---Since investigation was continuing in the matter and challan could not be submitted due to the pendency of present petition, High Court could not control or interfere in the same as investigation was the sole prerogative of Investigating Agency---Prima facie facts of the case did not disclose that allegations levelled in the F.I.R. were baseless or motivated solely out of malice---Petition being without any merit was dismissed .and quashing of F.I.R., was declined.

(b) Practice and procedure---

----Civil and criminal proceedings---During a transaction, if a criminal liability was spelt out, there was no bar under the law of the two proceedings i.e. civil as well as criminal continuing side by side as both related to different laws.

Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 rel.

Malik Munsif Awan for Petitioner.

Muhammad Arif Bhinder Addl. A.-G. for Respondents.

Date of hearing: 17th October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 242 #

2007 Y L R 242

[Lahore]

Before Abdul Shakoor Paracha and Syed Sajjad Hussain Shah, JJ

MIR HASSAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.224 of 2005, heard on 12th September, 2006.

Control of Narcotic Substances Act (XXV of 1997)-

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Huge quantity of heroin weighing 25-Kilograms was recovered from the bonnet of the motorcar driven by accused---Recovery of narcotic substance had been made from accused in accordance with the provisions of S.25 of the Control of Narcotic Substances Act, 1997 and said provisions of special statute had specifically excluded application of 5.103, Cr.P.C.---Police officials were competent witnesses and their testimony could not be discarded merely for the reason that they were police officials-Keeping in view the analogy, testimony of excise officials, was as good as the testimony of private witnesses---Report of Chemical Analyst in respect of substance transmitted to him by prosecution witness was in positive---Prosecution, in circumstances had brought sufficient material on the record to connect accused with the commission of crime and his consequential guilt---Appeal was dismissed.

Razzaq A. Mirza for Appellant.

Muhammad Amin Feroze for the State.

Date of hearing: 12th September, 2006.

2007 Y L R 252

[Lahore]

Before Asif Saeed Khan Khosa, J

MANZOOR AHMED---Petitioner

Versus

TAHIR MAHMOOD and another---Respondents

Criminal Miscellaneous No.1408-BC of 2006, decided on 14th July, 2006.

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

-----S. 497(5)-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Bail, refusal to cancel---Delay of two months and ten days in lodging F.I.R., was not plausibly explained---Petitioner/complainant, after lodging F.I.R. had never joined investigation---Alleged victim had never made any statement before Investigating Agency in connection with present case---Petitioner/complainant had been advancing contradictory versions before different Police Authorities at different stages---Criminal case had already been registered against petitioner/complainant at the instance of accused party prior to lodging of F.I.R. by complainant against accused---Assertion of counsel for respondent/accused regarding his mala fide implication in the present case, appeared to be true in such back ground---Nothing was to be recovered from the possession of accused and it was not disputed that he had joined investigation of the case when same was in progress---Challan had already been submitted before the Court after completion of investigation---Accused had been admitted to pre-arrest bail about nine months ago and there was no allegation regarding any misuse or abuse of concession of bail by him---Consideration for grant of bail and those for its cancellation were entirely different---Jurisdiction exercised by the Trial Court in granting bail to respondent/accused could not be interfered with.

Ch. Muhammad Abdus Saleem for Petitioner.

Ch. Ahmed Khan Gondal for Respondent No.1.

Muhammad Shafique Ghauri with Mubashi Maqsood, A.S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 254 #

2007 Y L R 254

[Lahore]

Before M. A. Shahid Siddiqui, J

IRFAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4505/B of 2006, decided on 5th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 18---Bail, refusal of---Matter was reported to the police with a delay of about eighteen days, but as complainant happened to be a poor labourer, it was most difficult for a man having no means to get a criminal case registered---Had complainant fabricated a false story he could have easily given a date of his own choice in order to cover up the legal defects pointed out by counsel for accused---Facts of the case disclosed that accused had committed house breaking after making preparation for causing hurt and making criminal assault---Prima facie a case under S. 455, P.P.C. was also made out against accused which entailed punishment up to 10 years---Bail petition of accused was dismissed, in circumstances.

M. A. Hayat for Petitioner.

Naseem Ullah Khan Niazi for the Complainant.

Saleem Shad for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 255 #

2007 Y L R 255

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM ABBAS and 4 others ---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2446/B of 2006, decided on 5th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 427, 447, 452, 380, 148 & 149---Bail, grant of---Further inquiry---Weapons, though were recovered from accused persons, but nothing ran on the same as no one was injured---Only assumption would be that firing was resorted to without taking any aim---Question of intent, in circumstances, had become a matter of further inquiry---Both the parties were claiming title in property in question, which would be determined in the course of trial---Accused were behind the bars for the last more than four months---Accused was admitted to bail, in circumstances.

Shafaqat alias Gunga and 2 others v. The State 1994 PSC (Crl.) 789; Rab Nawaz v. The State 1990 SCMR 1085 and Abdul Aziz and another v. The State NLR 1996 Cr.LJ 115 ref.

Ch. Pervaiz Aftab for Petitioners.

Javed Ahmad Chauhan for the State.

Sardar Manzoor Ahmad for the Complainant.

M. Akram, S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 256 #

2007 Y L R 256

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD ISMAIL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6033/B of 2005, decided on 28th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.365 & 368---Bail, grant of---Further inquiry---Only allegation against accused was that alleged abductee was recovered from the house which was not in exclusive possession of accused---No incriminating evidence was available against accused on record---Case against accused called for further inquiry into his guilt---Accused was behind the bars for the last more than 7/8 months and was no more required by the police for further investigation---Accused was admitted to bail, in circumstances.

Muhammad Anwar Khan Niazi for Petitioner.

Muhammad Ikram Chaudhary for the State along with Yousaf Ali, S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 257 #

2007 Y L R 257

[Lahore]

Before Syed Shabbar Raza Rizvi, J

ALLAH BAKHSH and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7153/B of 2005, decided on 26th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Bail, grant of---Accused were declared innocent by Investigating Officer---Opinion of Investigating Officer, though was not binding on the Court, but when it was supported by cogent material, it had its persuasive value and could not be brushed aside totally---Accused were not nominated in F.I.R. and their names were added in the list of accused in a supplementary statement which was recorded after II months of the occurrence, which factor itself was sufficient to create doubt in the veracity of contents of F.I.R.---Accused were admitted to bail, in circumstances.

Muhammad Ameer Khan Niazi for Petitioners.

Ch. Abdul Ghani for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 258 #

2007 Y L R 258

[Lahore]

Before Ijaz Ahmad Chaudhry, J

UMER HAYAT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2248-B' of 2006, decided on 5th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code' (XLV of 1860), Ss.337-F(v), L(ii), 148 & 149---Bail, grant of---Case of two versions and which version was correct, would be seen by the Trial Court after recording of evidence of the parties---Accused was involved in the case which did not fall within the ambit of prohibitory clause of S.497, Cr.P.C.-Accused was behind the bars for the last 7 months and nothing was to be recovered from his possession and his person was also no more required to the police for further investigation, which was complete and his further detention in jail would serve no useful purpose to the prosecution--Accused, though allegedly was armed with gun, but he did not use same in the occurrence---Grant of bail in such-like cases, was a rule and refusal was an exception and no exceptional circumstances were found to refuse bail to the accused in the case---Accused was admitted to bail, in circumstances.

M.S. Masud for Petitioner.

Muhammad Shakeel Ghauri for the State.

Muhammad Zafarullah, S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 260 #

2007 Y L R 260

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

Rana MUHAMMAD AKRAM KHAN---Petitioner

Versus

SPECIAL JUDGE, ANTI-CORRUPTION PROVINCIAL, FAISALABAD and others---Respondents

Writ Petition No.6702 of 2005, decided on 14th February, 2006.

Criminal Procedure Code (V of 1898)--

---Ss.200 & 537 Penal Code (XLV of 1860), Ss.409, 468 & 471---Constitution of Pakistan (1973), Art.199---Constitutional petition---Private complaint---Petitioner had challenged the legality of the order whereby Trial Court on complaint filed by respondent for the offence under Ss.409, 468 & 471, P.P.C., had directed A.C.E. for registration of case and to proceed further in accordance with law---Non-recording of statement of complainant by the Court on receiving the private complaint, was an irregularity which was curable under S.537, Cr. P. C. ---Trial Court in circumstances was competent to send case for the registration.

Badshah and others v. The State PLD 1958 Dacca 598 rel.

Syed Ghulam Nabi for Petitioner.

S.M. Masood for Respondents.

Muhammad Akbar Tarar, Addl. A.-G.

YLR 2007 LAHORE HIGH COURT LAHORE 268 #

2007 Y L R 268

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD GULZAR and 2 others---Petitioners

Versus

DEPUTY DISTRICT OFFICER (REVENUE)/SPECIAL MAGISTRATE 1ST CLASS, MULTAN and 2 others---Respondents

Writ Petition No.4738 of 2006, heard on 5th October, 2006.

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

----Ss.3, 6, 7 & Schedule item (vii)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Essential commodity---Fruits---Petitioners were retail sellers of fruits and authorities imposed fine upon them under S.7 of Price Control and Prevention of Profiteering and Hoarding Act, 1977---Plea raised by petitioners was that fruit had not been declared as essential commodity-Contention of authorities was that fruit was covered under item No. (vii) of Schedule to Price Control and Prevention of Profiteering and Hoarding Act, 1977---Validity---Fruit had not been declared as essential commodity, anywhere in the entire Schedule to Price Control and Prevention of Profiteering and Hoarding Act, 1977---Term 'fruit juices" mentioned in item No. (vii) of Schedule to Price Control and Prevention of Profiteering and Hoarding Act, 1977, was in between aerated water and squashes, which was a different class of goods---Specific mention existed in Price Control and Prevention of Profiteering and Hoarding Act, 1977, of the articles which were declared as essential commodity---Fruit not being essential commodity, authorities did not have any lawful authority to impose fine and recover the same from petitioners, as they had not contravened any such order for the reason that such order did not exist---Imposing and recovery of fine from petitioners was declared to be void and without lawful authority and was set aside---High Court directed the authorities to refund the amount of fine to petitioners---Petition was allowed accordingly.

Shahid Tasawar for Petitioners.

Zafarullah Khan Khakwani, A.A.-G. with Tanvir Iqbal, DDO(R) and Shahid Mehmood Khan, Inspector Ministry of Industries and Production Sahiwal.

Date of hearing: 5th October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 269 #

2007 Y L R 269

[Lahore]

Before Abdul Shakoor Paracha and Syed Sajjad Hussain Shah, JJ

Mst. SHAH TAREENA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.418 of 2004, heard on 7th September, 2006.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Sentence, reduction in---Police witnesses---Competency---Violation of S.103 of Cr.P.C.-Effect---Allegation against accused/appellant was that 12 Kgs. of Charas was recovered from her possession---Trial Court convicted and sentenced accused to imprisonment for life---Accused contended that recovery had been effected in violation of S.103, Cr.P.C.; that appellant was an old lady having weak and infirm health and that prosecution case was highly doubtful---Validity---Recovery of narcotic substance had been made in view of S.25 of Control of Narcotic Substances Act, 1997, which provision of special statute specifically excluded application of S.103, Cr.P.C.-Police officials were competent witnesses and their testimony could not be 'discarded merely for the reason that they were police employees---Evidence of recovery regarding quantity of narcotic substance recovered and sending it for chemical analysis was established by prosecution witnesses---Chemical Examiner's report in respect of substance was positive---As to quantum of sentence, accused being a woman, previous non-convict and a first offender deserved leniency---Sentence of life imprisonment was reduced to twelve years---Appeal was dismissed.

Ch. Aftab Ahmed Gujjar for Appellant.

Sher Zaman Bhatti for the State.

Date of hearing: 7th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 272 #

2007 Y L R 272

[Lahore]

Before Syed Zahid Hussain, J

Syed UMAIR AKHTAR---Petitioner

Versus

LESCO and others---Respondents

Writ Petition No.5727 of 2006, decided on 8th November, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Allegation of theft of energy---Petitioner, tenant of a shop, had assailed electricity detection bill, alleging that same had been issued illegally for which there was no justification---Department had challenged locus standi of the petitioner to maintain petition on the ground that he was not consumer as according to record another person was the consumer---Said assertion of department found support from the notice issued to the other person---Allegations and counter-allegations qua theft of energy, would entail full-fledged factual probe---Appropriate remedy in circumstances being a suit before the civil court, constitutional petition was dismissed.

Multan Electricity Power Company Ltd. through Chief Executive and another v. Muhammad Ashiq and others PLD 2006 SC 328 ref.

Muhammad Irfan Sheikh for Petitioner.

Umer Sharif with Muhammad Zubair, S.D.O. for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 275 #

2007 Y L R 275

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD ASHRAF and others---Petitioners

Versus

AKBAR ALI---Respondent

Civil Revision No.440 of 2002, decided on 13th April, 2006.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession---Trial Court and Appellate Court had concurrently decreed the suit---Validity---Onus of proving additional issues framed by the Trial Court on remand of matter, was on defendants but they did not produce any evidence on the same---No satisfactory explanation was available as to why defendants did not obtain a sale-deed or got mutation entered to show conveyance of title to them---Explanation given by defendants that property stood mortgaged in favour of Agricultural Development Bank, had also not been proved by defendants--Impugned decrees were unexceptionable---Counsel for defendants, was unable to advert to any such jurisdictional error or other legal infirmity in impugned judgments and decrees, which would justify interference of High Court exercising revisional jurisdiction.

Ch. Muhammad Asif Ranjha for Petitioner.

Zafar Iqbal Chohan for Respondent.

Date of hearing: 13th April, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 277 #

2007 Y L R 277

[Lahore]

Before Maulvi Anwarul Haq, J

MANZOOR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 2361-B and 2883-B of 2006, decided on 19th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of-Further inquiry---No one had witnessed the occurrence and case had been lodged only on the basis of suspicion---No material was available on record to support the contents of F.I.R.---Investigating Officer had repeatedly opined that accused were innocent---Such opinion though was not binding, but in the over all circumstances of the case, it was certainly one of further inquiry---Accused were admitted to bail, in circumstances.

Syed Jaffer Tayyar for Petitioner.

Mumtaz Hussain for the State with Risalat Khan, Inspector.

Sardar Abdul Qayyum for the Complainant.

2007 Y L R 287

[Lahore]

Before Tariq Shamim, J

GHULAM HASNAIN SHAH and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1744 of 2003 decided on 17th October, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 148 & 149---Appreciation of evidence---Business rivalry existed between the parties and motive urged by prosecution which led to the murder of deceased stood fully established---Complainant and other prosecution witnesses, though were inter se related and also related to the deceased, but mere said relationship was no ground to discard evidence furnished by them; as nothing was on record to suggest that said witnesses were not present at the place of occurrence at the relevant time---Both prosecution witnesses had given plausible explanation and reasons for their presence at the place of occurrence, which stood fully established from the evidence---F.I.R. in the case was lodged with extreme promptitude within 35 minutes of occurrence, which had shown that complainant, had no time for consultation---Such prompt action had excluded any chance of false involvement of accused at the instance of prosecution---Not only accused were duly nominated, but their specific roles, weapons with which they were armed and the manner in which said occurrence took place was detailed in F.I.R.---Stand taken by prosecution witnesses was fully established by recovery of 43 empties and trunk from the spot taken into possession vide recovery memo.---Witnesses were subjected to a lengthy cross-examination, but defence could not succeed in creating any significant dent in their testimony and minor discrepancies in their testimony were insignificant---Incident was a broad daylight occurrence and prosecution case was fully supported by credible and unimpeachable evidence of the eye-witnesses of the incident---Recovery of empties from the place of occurrence and weapon of offence recovered from accused stood proved by prosecution witnesses---Post-mortem report was in conformity with eye-witness account vis-a-vis the locale, duration and weapon used---Medical evidence, in circumstances also corroborated ocular account furnished by prosecution witnesses---Accused however, having not caused any injury to deceased and having only inflicted injuries to injured prosecution witnesses, the Trial Court was legally justified in not imposing capital sentence-Appeal filed by accused against their conviction, was dismissed and their conviction and sentences, were maintained.

Syed Zahid Hussain Bukhari, Munib Iqbal and Altaf Hussain Qureshi Hashmi for Appellants.

Ch. Mumtaz Ahmed Bhalwana for the Complainant.

M. Saleem Shad for the State.

Date of hearing: 9th October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 294 #

2007 Y L R 294

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD RAFIQUE and another---Petitioners

Versus

FAQIR MUHAMMAD and 3 others---Respondents

Writ Petition No.13468 of 2005, decided on 18th May, 2006.

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

----Ss.145 & 146---Constitution of Pakistan (1973), Art.199----Constitutional petition---Dispute concerning property---Sealing of property---Proceedings under Ss.145 & 146, Cr.P.C., were initiated by Special Magistrate, who, while keeping in view the law and order situation, directed S.H.O. concerned to seal said property---Revision against order of Special Magistrate having been dismissed, by Additional Sessions Judge, same had been challenged -in constitutional petition---Validity---Land in dispute was also subject matter of two civil suits and both said suits were pending before competent forum for the last two years and the fate of land in dispute rested upon the decision of said civil suits---In such like situation, instead of interfering with the impugned order, it would be appropriate if the Civil Court was directed to proceed with said matters expeditiously and to decide the cases within specified period.

Sheikh Naveed Shehryar for Petitioners.

M.A. Zafar for Respondents.

Muhammad Akbar Tarar, Addl. A.-G.

YLR 2007 LAHORE HIGH COURT LAHORE 295 #

2007 Y L R 295

[Lahore]

Before Muhammad Muzammal Khan, J

AZIZ MUKHTAR AHMAD and others---Petitioners

Versus

MADRISSA FAYYAZ-UL-QURAN through Nazim and others---Respondents

Civil Revision No.537 of 1999, decided on 21st January, 2006.

Specific Relief Act (I of 1877)---

----Ss. 12, 42 & 54---Suit for possession, declaration and permanent injunction---Plaintiffs in their suit for declaration and permanent injunction claimed that land beneath the disputed house was part of the Khata owned by them---One of the defendants also filed a suit for possession claiming that it was owned by a person who had sold same along with some other land to a vendee, and said vendee had sold same to another one and finally it was sold to said defendant on basis of sanctioned mutation---Said defendants had further averred that after purchase of plot, boundary wall was raised by it along with construction of house for residence of its students---Suit of plaintiffs for declaration with permanent injunction was decreed by the Trial Court and suit for possession filed by one of the defendants was dismissed, but on filing appeal against judgment and decree passed by the Trial Court, Appellate Court set aside same and remanded case to the Trial Court and plaintiffs filed revision against said remand order---Land purchased by both the parties falling within the same Khata dispute between the parties was about identification of their respective portions of land, which could not be resolved without resort to demarcation proceedings---Only course open for just/fair decision between parties, in the given circumstances of the case, was demarcation of both the plots by the parties at the site, which was correctly directed to be adopted by the Appellate Court---Appellate Court, in circumstances had committed no illegality/irregularity amenable to revisional jurisdiction of High Court.

Hassan Ahmed Khan Kanwar for Petitioners.

Zafar Iqbal Chohan for Respondents.

Date of hearing: 23rd January, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 298 #

2007 Y L R 298

[Lahore]

Before Tariq Shamim, J

MUHAMMAD NAZIR---Petitioner

Versus

DISTRICT POLICE OFFICER, JHANG and 3 others---Respondents

Writ Petition No. 15605 of 2004, heard on 17th October, 2006.

Penal Code (XLV of 1860)---

----Ss.379 & 411---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Circumstances spelled out commission of cognizable offences by petitioner and his co-accused---Since investigation in the case had not been completed, High Court could not control or interfere in the same as investigation was the sole prerogative of Investigating Agency---Petition being without any merits was dismissed and quashment of F.I.R. for offence under S.380, P.P.C., was declined.

Brg. Imtiaz Ahmad v. Government of Pakistan through Secretary Interior Division, Islamabad 1994 SCMR 2142; Shahnaz Begum v. Hon'ble Judges of the Sindh and Balochistan High Courts 1971 SC 677 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel.

Imtiaz Hussain Baloch for Petitioner.

Rana Muhammad Sarwar and Muhammad Arif Bhindar, Addl. A.-G. for Respondents.

Date of hearing: 17th October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 300 #

2007 Y L R 300

[Lahore]

Before Muhammad Akhtar Shabbir and Muhammad Jehangir Arshad, JJ

Syed BAQIR HUSSAIN SHAH---Appellant

Versus

MUHAMMAD SHAFI and another---Respondents

I.C.A. No. 131 in Crl Org. No.112-C of 2006 in Writ Petition No.4967 of 1994, decided on 5th October, 2006.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Constitution of Pakistan (1973), Art.199---Intra-court appeal---Constitutional petition filed by respondent had been dismissed by the High Court, intra-court appeal against judgment of High Court was also dismissed---Direction issued by Single Judge, having not been implemented, respondent filed criminal original and Single Judge recorded observation to the effect that "as judgment of High Court had attained finality, no justification was for referring matter to Board of Revenue for seeking advice whether to implement the decision of High Court or not "---Appellant challenged said order/judgment before Supreme Court, but later on withdrew same which was disposed of by Supreme Court accordingly---Supreme Court, however, only allowed the appellant to withdraw petition in order to approach Board of Revenue for redressal of his grievance and said direction could not be equated with any verdict striking down all orders passed earlier by High Court---Party had the choice to withdraw any matter before any court at any time with an option to avail alternate remedy and permission to withdraw, if granted, which would not mean that prayer sought before the Court had been allowed; it was ultimate forum which had to decide under the law whether said person had got any right as well as remedy against his grievance---Earlier order of High Court having not been set aside by apex Court, same was still in field---Single Judge had committed no illegality or irregularity and impugned judgment having been passed within jurisdiction, no interference, was called for.

Khadim Nadim Malik for Appellant.

YLR 2007 LAHORE HIGH COURT LAHORE 305 #

2007 Y L R 305

[Lahore]

Before Syed Sajjad Hussain Shah, J

FAWAZ VALLIANI---Petitioner

Versus

SAMINA VALLIANI and 3 others---Respondents

Civil Revision No.451 of 2006, heard on 12th September, 2006.

Civil Procedure Code (V of 1908)---

----O. XIV, R.5---Framing of proper issues---Duty of Court---Violation of mandatory provisions of O.XIV, R.5, C.P.C.---Additional issues to be framed at any stage prior to final disposal of suit---Scope---Plaintiff/petitioner filed suit for declaration/partition and permanent injunction stating therein that he and defendants respondents (mother and brother of plaintiff) were legal heirs of deceased who owned and possessed property in dispute which was then transferred by deceased in the name of defendant-mother as Benamidar---Plaintiff claimed to be entitled to share in said property---Plaintiff filed application under O.XIV, R.5, C.P.C. for framing of additional issues---Trial Court dismissed the said application on ground that parties were aware of their respective version and led evidence in support thereto and application for framing of additional issues had got no merit---Validity---Objection regarding framing of a particular issue necessary for disposal of case if not at all claimed by an affected party during trial or before Appellate Court in appeal against final decree, the same might be deemed to have been waived or abandoned---Question of waiver or abandonment or objection that parties were aware of controversy did not arise if during pendency of trial and before passing a decree, a party made an application to Trial Court for framing of issue necessary for determining matter in controversy between parties---Order of Trial Court refusing to frame additional issues was not only illegal but was violative of provisions of O.XIV, R.5, C.P.C. which made it mandatory upon Court to amend or frame issues necessary for determining controversy arising out of pleadings of parties---Court was duty bound to frame proper issues arising out of pleadings of parties to determine all matters in controversy---Issues framed by Trial Court did not cover real controversy which was imperative upon Court to frame such additional issues as might be necessary and power in this regard could be exercised at any stage prior to final disposal of suit---Petition was allowed.

Muhammad Khalid and another v. Muhammad Iqbal and another 2005 CLC 970 and Mansab Ali v. Hafizan and 5 others PLD 1993 Lah. 1 ref.

Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another 1988 SCMR 4; Muhammad Shafi v. Muhammad Rafique and 7 others 1994 MLD 925; Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018; Ahmed Khan v. Malik Fazal Dad 1983 CLC 74 and Punjab Bricks Company through Abdul Rashid and another v. Messrs Pervaiz Coal Agency and another through its Sole Proprietor 2001 YLR 1373 distinguished.

Syed Zulfiqar Abbas Naqvi for Petitioner.

Afnan Karim Kundi for Respondents.

Date of hearing: 12th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 309 #

2007 Y L R 309

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD JAVED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7148-B of 2006, decided on 2nd November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, refusal of---Scope of pre-arrest bail was limited---Court had to see, if there was prima facie, no ground to implicate accused or accused had been involved mala fide---Accused, in the present case, lodged a report with the police, but failed to inform Manager of the Bank regarding theft of the cheque book---Story of accused, in circumstances seemingly was not palpable---Rapt of theft of cheque book was lodged on 23-8-2004, but occurrence took place after two years thereafter---1f somebody had stolen the cheque book in August, 2004, he would have used same much earlier than in case of present occurrence---Bail application was dismissed, in circumstances.

Muhammad Ahsan Bhoon for Petitioner.

Azam Nazir Tarar for the Complainant.

Malik Arif Ali Bhara for the State along with Allah Ditta, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 311 #

2007 Y L R 311

[Lahore]

Before Sh. Hakim Ali, J

GHULAM NABI---Petitioner

Versus

JAM BASHIR AHMED, NAIB TEHSILDAR/REVENUE OFFICER---Respondent

Criminal Original No. 78 of 2006//BWP, decided on 6h July, 2006.

Contempt of Court Act (LXIV of 1976)---

----Ss. 3, 4 & 5---Petitioner in his constitutional petition, prayed that respondent Revenue Officer be directed to implement judgment earlier passed in revision in which his father was a party---Revenue Officer/respondent was directed to look into the matter and pass an appropriate legal order strictly in accordance with law---Petitioner through that method, in fact had tried to get entries of old mutation incorporated into Revenue Record from the Revenue Officer---Revenue Officer having not accepted prayer of petitioner, he had filed petition for contempt of Court against the respondent---Respondent/Revenue Officer having passed a legal order of refusal to enter the entries of mutation in dispute in compliance of order passed by High Court, criminal original/contempt petition filed by petitioner could not be processed further---No decree having been passed in the earlier litigation in favour of father of petitioner, revenue entries could not be made and corrected in Revenue Record as prayed for by petitioner unless there was a specific order/decree conferring rights upon father of petitioner and others in earlier suit granting and declaring their right or title in suit property, decree which had dismissed suit earlier filed against father of petitioner and other, could not be used and executed in favour of father of petitioner and others as no decree had been passed in their favour in said suit, but disputed decree had only dismissed said suit---Not the judgment, but the decree which was to be executed, whereas in the present case no decree in favour of petitioner was passed---Petitioners could not compel Revenue officials to sanction mutation or to incorporate or correct entries of Revenue Record upon the strength of findings in a judgment in circumstances.

Mst. Rehmat Sahiba v. Said Akbar Shah and others PLD 1961 (W.P.) Pesh. 5 rel.

Khushi Muhammad and others v. Member Board of Revenue and others 1992 CLC 125; Muhammad Sharif v. Bir Wali and others KLR 1985 Civil Cases 607 ref.

Rana Sardar Ahmad for Petitioner.

YLR 2007 LAHORE HIGH COURT LAHORE 314 #

2007 Y L R 314

[Lahore]

Before Tariq Shamim, J

MUHAMMAD ASIF---Petitioner

Versus

THE STATE and 6 others---Respondents

Writ Petition No.10197 of 2006, heard on 18th October, 2006.

Punjab Prevention of Gambling Ordinance (VII of 1978)---

----Ss.5, 6 & 8---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Scope and applicability of Ss. 5, 6 & 8, Punjab Prevention of Gambling Ordinance, 1978---Site plan prepared by the police had clearly established beyond any doubt that the place where petitioner and others were alleged to be indulging in gambling, was inside the house of petitioner; which fact was further supported by F.I.R.---Applicability of S.5 of Punjab Prevention of Gambling Ordinance, 1978, was, excluded as said section was restricted only to cases of gaming in the public place, street or a thoroughfare---Section 6 of Punjab Prevention of Gambling Ordinance, 1978 was also excluded as a raid in case of gambling in house, room, was governed by the procedure provided in S.8 of said Ordinance, which was not adhered to in the present case---Raid conducted by the complainant, was in complete violation and disregard of mandatory provisions of Ss.5, 6 & 8 of Punjab Prevention of Gambling Ordinance, 1979---If proceedings pursuant to said F.I.R. were allowed to continue, it would not only add to the agony of accused, but would also amount to abuse of process of law and misuse of power of the police---Case being fit for interference by the High Court, petition for quashing of F.I.R. was accepted and F.I.R. was quashed.

Zafar Iqbal Chohan for Petitioner.

Muhammad Arif Bhindar, Addl. A.-G. for Respondents.

Date of hearing: 18th October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 317 #

2007 Y L R 317

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Sh. Javaid Sarfarz, JJ

MUHAMMAD IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.349-J of 2004 and Murder Reference No.22-T of 2004, decided on 29th May, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 353---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---F.I.R. in the case having been promptly registered, no chance was left for any false involvement of accused---Both prosecution witnesses who were on official duty and had gone for service of non-bailable warrants of arrest against accused in an other criminal case against accused, were natural witnesses---Said witnesses had no ill-will against accused and there was no reason to involve accused falsely---Both said witnesses were trustworthy, reliable and during lengthy cross-examination which they had faced, their statements had remained unchanged and unshaken---Evidence of witnesses inspired confidence and both had narrated exact occurrence giving minutest details---Two empties of pistol .30 bore which were secured by Investigating Officer, were sent to Forensic Science Laboratory and according to its report said empties had been fired from .30 bore pistol---Blood-stained earth secured from the spot, was found stained with human blood---Medical report corroborated the ocular account---Motive had clearly been established by the prosecution---Minor contradictions in the statements of prosecution witnesses were not of serious nature---Plea of defence raised by accused, was not convincing---Motive, medical evidence, and recovery of empties supported by ocular account had proved that accused was guilty of offence with which he was charged and prosecution had successfully proved case against accused---Accused, in circumstances was rightly convicted by the Trial Court---In absence of any mitigating circumstance to reduce sentence awarded to accused, his conviction and death sentence was confirmed---Murder reference was replied in affirmative.

Mian Abdul Qayyum Anjum for Appellant.

Date of hearing: 29th May, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 323 #

2007 Y L R 323

[Lahore]

Before Sh. Abdul Rashid, J

ZAHID ABDUL GHANI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5213-B of 2005, decided on 26th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 424, 109, 148 & 149---Bail, grant of---Further inquiry---Complainant implicated accused through second supplementary statement by stating that he had learnt from reliable source that accused was also present along with five other co-accused who stood nominated in F.I.R. and that he had also resorted to firing at the deceased---Said source of information had not been revealed to the Investigating Agency---Material on the basis of which complainant had implicated accused, would be hearsay evidence, in circumstances, which was inadmissible---Even if complainant's allegation against accused was accepted on its face value, that accused had joined five other co-accused, said five co-accused had been declared innocent during police investigation from the main occurrence---Even on that score, involvement of accused in the occurrence, had become a matter of further inquiry---Complainant had been making different statements on different occasions, which had also made case of accused a matter of further inquiry---Accused was admitted to bail, in circumstances.

Ch. Imran Raza Chadhar for Petitioner.

Raja Akhtar Nawaz for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 326 #

2007 Y L R 326

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUKHTAR alias SADRI and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.820 and Murder Reference No.533 of 2001, heard on 21st September, 2006.

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

---S.302(b)/34---Appreciation of evidence---Benefit of doubt---Ocular account not corroborated by medical evidence qua two convicts---Insufficiency of motive or motive shrouded in mystery---Effect---Allegation against accused/appellants (three in number) was that they along with seven co-accused committed murder of two persons in a dispute over divorce matter---Trial Court, while acquitting co-accused, convicted and sentenced each of the three accused to death---Accused contended; that medical evidence belied the ocular account as to two convicts/accused; hence, the same was not to be believed against the third convict/accused; that motive set down in F.I.R. did not advance prosecution case and that no independent witness from place of occurrence was produced by prosecution--Validity---F.I.R. was though promptly lodged but as eye-witnesses had given exaggerated account of occurrence, therefore, it was necessary to sift grain from the chaff---Injuries attributed to two accused/appellants did not find support from medical evidence on two grounds; firstly, eye-witnesses had stated that first deceased received injury from a distance of 4/5 feet but there was no blackening or burning on the injuries; secondly, two exit wounds sustained by deceased were assigned to one accused---Other deceased sustained only two injuries and not three as claimed by eye-witnesses---Prosecution had implicated two accused persons for one injury, therefore, it could not be said that which of the two accused caused injury; nor it could be said with certainty that said injury was caused by gunshot or rifle---Neither broken door was taken into possession by Investigating Officer nor any .12-bore empty was recovered from the spot---Circumstantial evidence did not support prosecution case against two accused---Benefit of doubt was to be given to accused and one doubt was genuinely arising out of circumstances of case was enough for acquittal---On ground of benefit of doubt, two accused/appellants were acquitted of the charge and appeal to their extent was allowed.

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

----Ss. 302 (b) and 34---Appreciation of evidence---Insufficiency of motive---Effect---Ocular account was fully supported by Medical evidence qua the convict/appellant as it found corroboration from factum of tallying of empties of .7-mm with rifle recovered at his instance---Crime empties were sent to Forensic Science Laboratory much earlier than the recovery of rifle; hence any chance of fabrication on the part of Investigating Officer was ruled out---Accused took plea of alibi but neither he himself appeared as witness nor he produced any defence witness nor the same was borne out from circumstances of the case---Insufficiency of motive or motive being shrouded in mystery was not to be considered as circumstances justifying non-awarding of normal penalty of death to a murderer or to reduce sentence of death to a lesser punishment---Appeal of accused was dismissed and judgment passed by Trial Court qua the accused was thus maintained.

Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 and Saeed Akhtar and others v. The State 2000 SCMR 383 rel.

Manzoor Ahmad for Appellants.

Maqbool Ahmad Qureshi (in Criminal Appeal No.820 of 2001) and Kazim Iqbal Bhangu (in Murder Reference No.533 of 2001) for the State.

Mazhar Iqbal Sidhu for the Complainant.

Date of hearing: 21st September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 333 #

2007 Y L R 333

[Lahore]

Before Fazal-e-Miran Chauhan, J

SHOAIB AHMAD and 4 others-Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.14-B of 2006, decided on 24th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10, 18, 13 & 14---Bail, grant of---Preparation for Zina---Accused not found in compromising position---Hire and purchase of females not proved---Allegation against accused/ petitioners was that they were preparing to commit Zina when police raided a guest house on spy information and arrested them---Bail petitions filed by accused were dismissed by Trial Court---Accused contended; that Ss.13 & 14 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were not attracted to their case; that as no sexual act was committed in any room, therefore, S.10 of the Ordinance, was also not attracted; that S.18 of the Ordinance also did not apply to case as F.I.R. was silent about the role of accused and had not described preparation which was made by them to commit Zina; that raid was illegal as neither permission of Magistrate was obtained nor Magistrate accompanied the raiding party and that it was not possible that three real brothers were to commit Zina in the same guest house---Validity---From each room of guest house two males and one female were arrested but they were not found in compromising position, thus, S.10 of the Ordinance, was not attracted---Under Ss.13 & 14 of the Ordinance it was necessary that there was to be a transaction of sale and hire with intention to commit Zina or illicit intercourse and the same fact was to be proved by evidence---Mere presence of males and females in a room was not sufficient to believe at bail stage that females were sold by anyone or hired by anyone or brought by someone for purpose of illicit intercourse---Head of raiding party did not disclose in his complaint that any pair was busy in commission of Zina---Guilt of accused in order to attract provisions of Ss.10, 13 & 14 of the Ordinance was yet to be proved which made it a case of further inquiry---None of the accused as per F.I.R. had taken off his/her clothes and they had not done any particular act so as to bring their case within purview of S.18 of the Ordinance---Selling or hiring of females was not proved from record---Petitioners were admitted to bail.

Riaz v. S.H.O., Police Station City Jhang PLD 1998 Lah. 35; Muhammad Abbas alias Ajmi v. The State 2005 YLR 3193; Yasir Arfat v. The State 2002 YLR 324 and Mst. Shakila v. The State 2001 PCr.LJ 43 ref.

Muhammad Bilal and Altaf Ibrahim Qureshi for Petitioners.

Zulfiqar Ali Bhutta for the State with Arshad Gujjar S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 335 #

2007 Y L R 335

[Lahore]

Before Khawaja Muhammad Sharif, J

RAFAQAT ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7169/B of 2006, decided on 19th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---Accused was not nominated in F.I.R., which was got registered after one month and seven days after occurrence---Supplementary statement of the complainant was recorded after two months of occurrence---Son of deceased had stated that he had seen accused while giving poisoned water to deceased, but there was no report of Chemical Examiner in that regard---Nothing was recovered from the accused---Case against accused was of further inquiry falling under subsection (2) of S.497, Cr.P.C.-Accused was admitted to bail, in circumstances.

Imran Asmat Ch. for Petitioner.

Arshad Mahmood for the State along with Javaid S.-I.

2007 YLR 347

[Lahore]

Before Tariq Shamim, J

Ch. JAVED MAHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5128-B of 2006, decided on 20th September, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 87--Penal Code (XLV of 1860), Ss.406 & 489-F---Bail after arrest, grant of-Dishonoured cheque---Pendency of civil suit between the parties---Civil and criminal proceedings to continue side by side---Scope---Allegation against accused/petitioner was that he allegedly issued a cheque of certain sum in favour of complainant which on presentation to bank was dishonoured---Accused contended that he was involved in the case on account of an F.I.R. which he had lodged against complainant; that matter was of civil nature and a suit in this regard had been filed by complainant against accused and that offence mentioned in F.I.R. did not fall in prohibitory clause of S.497, Cr.P.C.-Validity-Accused was named in F.I.R. and specific role of issuing cheque in favour of complainant had been assigned to him which on presentation to bank was dishonoured---During police investigation accused was found fully involved in crime alleged against him---Challan had been submitted before Court and prosecution evidence had been summoned---Proceedings under S.87, Cr.P.C. had been initiated by Trial Court---Accused, moreover, was habitual offender as six cases of similar nature stood registered against him---Civil and criminal proceedings could continue side by side---Contention of accused that cheque from cheque book of accused was procured by third person on behalf of accused in connivance with complainant was baseless as no complaint or F.I.R. was lodged by him in this regard---Petition was dismissed.

Kh. Tariq Sohail and Ms. Bushra Qamar for Petitioner.

Shaukat Rafique Bajwa for the Complainant.

Mirza Abdur Rashid Jaral for the State with Muhammad Hussain S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 349 #

2007 Y L R 349

[Lahore]

Before M. Bilal Khan, J

ISHTIAQ AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5746-B of 2003, decided on 22nd October, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-F(iii), 337-L(2), 379 & 34---Bail, grant of---Offences charged with, did not attract the-prohibitory clause of S.497, Cr. P. C. ---Challan though had been submitted in the Court, but the trial had not commenced---Accused was in custody since his arrest and was no more required for the purpose of investigation---Mere submission of challan or even commencement of the Trial, would not prevent the Court from granting bail to accused who otherwise was entitled to the same on merit---Accused could not be detained as a measure of punishment---Accused was admitted to bail, in circumstances.

Khalid Pervaiz Warraich for Petitioner.

Suhail Tariq for the State.

Muhammad Afzal A.S.-I. with Police File.

YLR 2007 LAHORE HIGH COURT LAHORE 351 #

2007 Y L R 351

[Lahore]

Before Tariq Shamim, J

MAQSOOD ARIF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6392-B of 2006, decided on 19th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324 & 392---Pre-arrest bail, grant of---Promptly lodged F.I.R.---Injury on vital part---Accused named in F.I.R.---Witnesses statements recorded under S.161, Cr.P.C. supported prosecution case---Accused/petitioner along with his brother and two unknown persons, while armed with fire-arms, snatched jewellery worn by sister of complainant and fired a shot from his gun which hit on forehead of brother-in-law of complainant, whereas his co-accused fired from his pistol which hit complainant on left leg---Pre-arrest bail petition of accused was dismissed by Trial Court for non-appearance of accused---Accused contended; that in one out of the two investigations he was declared innocent; that nothing had been recovered from accused and that provisions of S.324, P.P.C. were not attracted to his case as he had no intention to commit murder of the injured---Validity---F.I.R. was promptly lodged and accused was named therein with specific role attributed to him---Accused caused injury on vital part of the injured which fact was fully supported by Medico-legal Report---Accused and his co-accused were previous record holders---Investigation in which accused had been declared innocent, had been conducted in a mala fide manner and necessary legal action had been initiated against concerned Investigating Officer---Accused concealed the fact that his earlier pre-arrest bail petitions had been dismissed by Trial Court due to his non-appearance---Four witnesses recorded their statements under S.161, Cr.P.C. before police which supported prosecution case against accused---Offences mentioned in F.I.R. fell in prohibitory clause of S.497, Cr.P.C.---Pre-arrest bail petition was dismissed.

Shahid Zaheer Syed for Petitioner.

Sardar S.M. Tahir and Mian Mehboob Alam Bhutta for the Complainant.

Kazim Iqbal Bhangoo for the State along with Arif Sandhu, A.S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 353 #

2007 Y L R 353

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

JAVED AKHTAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.91 and Murder Reference No.430 of 2001, heard on 21st September, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Benefit of doubt---Prosecution case revolved around the evidence furnished by two eye-witnesses who were brother and uncle of deceased respectively---Statements of said witnesses needed deeper scrutiny as enmity existed between complainant party and deceased---Contradiction with regard to nature of injuries on person of deceased in statements of prosecution witnesses had shown that prosecution witnesses were not present when injuries were caused---Version of prosecution witnesses was belied by medical evidence---Presence of prosecution witnesses was also not mentioned in the site plan---Contradiction existed with regard to time of death of deceased in post-mortem report and statements of prosecution witnesses---Hostility between parties existed which cut both ways, which could be a reason for causing murder and it could also be a reason for implicating accused in the case, especially when prosecution witnesses had not seen the assailant---Motive of hostility in circumstances, did not enhance prosecution case---Rifle allegedly recovered at the instance of accused was received at the Forensic Science Laboratory after about 8 days of receiving empties of 7 mm at the Laboratory---No independent witness was associated during recovery proceedings--Abscondence of accused, was not substantial evidence and it could be used against accused, if legally proved, only as corroborative evidence---Even otherwise prosecution witnesses being not present at the time of occurrence, abscondence would not help prosecution in any manner---Prosecution case being not free from doubts, judgment passed by the Trial Court was set aside and accused was acquitted of all the charges and was released.

Wasim Mumtaz Malik for Appellant.

Ms. Tehseen Irfan in Criminal Appeal and Kazim Iqbal Bhangu (in Murder Reference) for the State.

Date of hearing: 21st September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 357 #

2007 Y L R 357

[Lahore]

Before Tariq Shamim, J

LIAQAT ALI and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5682-B of 2006, decided on 19th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 16---Pre-arrest bail, grant of---Unexplained delay in lodging F.I.R.---Tentative assessment of evidence---Misuse of concession of ad interim pre-arrest bail---Allegation against accused/ petitioners was that they along with other co-accused allegedly abducted daughter of complainant and committed Zina with her--Pre-arrest bail petitions filed by accused were dismissed by Sessions Court on ground that they failed to appear before the Court on the said date---Accused contended that there was an unexplained delay of 5/6 days in lodging of F.I.R.; that provisions of S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were not attracted to case of accused and that as offence related to Zina, hence the same was to be investigated by Superintendent of Police but in case of accused investigation was conducted by Deputy Superintendent of Police and verified by Superintendent of Police which was against law---Validity---Accused were specifically named in F.I.R. and specific role of abduction of woman on gun point and of committing Zina with her had been ascribed to accused---Accused, in two police investigations, were found fully involved in the case---Independent witnesses had appeared before Investigating Officer and' got their statement recorded under S.161, Cr.P.C. in support of prosecution case---Delay in lodging of F.I.R. in such like case was of no consequence---Pre-arrest bail application of accused had been dismissed by Sessions Court on ground that accused failed to appear before Court on said date, thus, accused had misused concession of ad interim pre-arrest bail granted by the Court---Tentative assessment of evidence revealed that there was ample evidence on record to connect accused with commission of offence---Offence under S.10 of the Ordinance, fell within prohibitory clause of S.497, Cr.P.C.---Petition for grant of pre-arrest bail was dismissed.

Mian Muhammad Hanif Tahir for Petitioners.

Muhammad Ramzan Chaudhry for the Complainant, Sh. Asif Hussain for the State with Hasnat Ahmad S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 359 #

2007 Y L R 359

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

IMRAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4892-B of 2005, decided on 21st July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail, refusal of---Accused was named in F.I.R.---Allegation against accused was that he along with his co-accused attacked son of complainant and caused injury on his person with his pistol---Pistol was recovered from accused during investigation---Incident was day time occurrence---Accused was on interim bail and he caused injuries on the person of nephew of prosecution witness and case was registered against him---Accused was a desperate person---Accused did not join investigation for a considerable period and no explanation was given for the same---Challan had already been submitted in the Court---Case being not fit for grant of bail to accused, his bail application was dismissed.

Mazhar Iqbal Sidhu for Petitioner.

Mazhar Hussain Tahir for the Complainant.

M. Aslam Malik for the State.

Zaman S.-I./S.H.O. and Muhammad Siddique, S.-I. along with record.

YLR 2007 LAHORE HIGH COURT LAHORE 361 #

2007 Y L R 361

[Lahore]

Before Fazal-e-Miran Chauhan, J

ZULFIQAR ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.513-B of 2006, decided on 9th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.334, 337-L(ii) & 34---Bail, grant of--Injury on the person of injured, attributed to accused, had been declared to fall under definition of Itlaf-e-Deant, attracting provisions of S.337-U, P.P.C.---Section 334, P.P.C. was not attracted to the facts and circumstances of the case and nature of injury and punishment under S.337-U, P.P.C. was Arsh instead of rigorous imprisonment---Accused had been declared innocent by the police and was a previously non-convict---Accused being in jail for the last eight months, keeping him behind the bars for an indefinite period would not serve any purpose---Accused was admitted to bail, in circumstances.

Zahoor Ahmad and another v. The State 2005 YLR 1664 ref.

Malik Muntazir Mehdi and Syed Athar Hassan Bukhari for Petitioner.

Rana Khalid Mahmood for the State with Jehangir Ahmad S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 362 #

2007 Y L R 362

[Lahore]

Before Sardar Muhammad Aslam, J

SAEED ULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1155-B of 2006, decided on 21st November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.109---Drugs Act (XXXI of 1976), Ss.23 & 27---West Pakistan Arms Ordinance (XX of 1965), S.13---Bail, grant of---Accused had been charged for violation of S.23 of Drugs Act, 1976, penalty for which was provided under S.27 of Drugs Act, 1976---Under provisions of S.23(1) (a) of Drugs Act, 1976 export, import, manufacture for sale or selling any spurious drugs were restricted---Mere possession of a spurious drug, had not been made punishable under S.27 Drugs Act, 1976---Sentence for offence under S.27 of Drugs Act, 1976, was 3 years R.I., which fell outside the prohibitory clause of S.497, Cr. P. C. ---Accused was behind the bars since his arrest on 27-6-2006-Chet/km had been submitted in the court after investigation---Keeping accused behind the bars, when even commencement of trial was not in sight, would not serve the ends o7 justice---Accused was admitted to bail, in circumstances.

Sardar Muhammad Ishaque Khan for Petitioner.

Raja Iftikhar Ahmad Javaid, Standing Counsel for the F.I.A.

YLR 2007 LAHORE HIGH COURT LAHORE 370 #

2007 Y L R 370

[Lahore]

Before Tariq Shamim, J

NAWAB ---Petitioner

Versus

S.H.O. and others---Respondents

Criminal Miscellaneous No. 1070-H of 2006, decided on 14th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Petitioner in his petition had prayed for recovery of his son from alleged illegal custody of police---Stand taken by the police was that detenu had been taken into custody by police in connection with F.I.R. under S.392, P.P.C. recorded against detenu---Police had produced a copy of warrant of arrest of detenu issued by Magistrate---Alleged detenu, in circumstances, had been taken into custody by the police pursuant to the information provided by complainant through a supplementary statement, whereupon warrants of his arrest were obtained and on secret information he was apprehended by police---Concerned police officer, in order to arrest other two co-accused, had temporarily lodged accused/detenu at police station---Which fact was further affirmed by the statement made by Moharrar of said police station before the Bailiff---Alleged detenu having not been kept in illegal confinement or detained illegally, but having been apprehended pursuant to a criminal case registered against him, his habeas corpus petition, was dismissed.

Syed Aftab Sherazi for Petitioner.

Ijaz Ahmad Bajwa for the State.

Amjad Hussain, S.-I., P.S. Chuchak, Ghulam Jillani Inspector/S.H.O. Saddar Deepalpur, Musthaq Ahmad, A.S.-I., P.S. Saddar Deepalpur, Muhammad Shafiq, P.S. Deepalpur, Khadim Hussain Bailiff with detenu.

YLR 2007 LAHORE HIGH COURT LAHORE 372 #

2007 Y L R 372

[Lahore]

Before M. Bilal Khan, J

Mst. SHUMAILA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.3947-B and 4334-B of 2005, decided on 14th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.13 & 14---Bail, grant of---Further inquiry---F.I.R. had itself revealed that only allegation against accused was that they were standing outside the house of ' woman who allegedly was running a brothel house and nothing beyond that---Record had also revealed that at present no worthwhile material was available to connect accused with the commission of alleged offences---Case of accused, in view of prima facie dubious allegations in the F.I.R. had become one of further inquiry within the meaning of subsection (2) of S.497, Cr. P. C. ---Accused were allowed bail, in circumstances.

Malik Muhammad Imtiaz Mahl for Petitioner.

Khawar Mahmood for Petitioner (in Criminal Miscellaneous No.4334-B of 2005).

Malik Muhammad Arif Bara for the State.

Muhammad Akram, A.S.-I., P.S. Urban Area, Sargodha with Police File.

YLR 2007 LAHORE HIGH COURT LAHORE 376 #

2007 Y L R 376

[Lahore]

Before Maulvi Anwarul Haq, J

ALI MUHAMMAD---Appellant

Versus

WALI MUHAMMAD and others---Respondents

F.A.O. No.30 of 2003, decided on 16th May, 2006.

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

----S. 24---Civil Procedure Code (V of 1908), Ss.21 & 96---Filing of suit---Jurisdiction of Court---Objection to---Plaintiff filed suit against defendants as well as Province of Punjab---Suit was entrusted to Civil Court at District Headquarter which deleted Province of Punjab from the array of defendants---Tehsildar of Tehsil Headquarter and Patwari Halqa being defendants in the suit, District Judge by means of an administrative order transferred case to Civil Court at Tehsil Headquarter who decreed the suit---Additional District Judge at Tehsil Headquarter on appeal found that since public servants were parties to the case, it could not have been heard at Tehsil Headquarter and matter was accordingly referred to District Judge at District Headquarter for entrustment of suit to a competent Civil Judge at District Headquarter--- Validity- Matter was governed by S.24 of West Pakistan Civil Courts Ordinance, 1962---No express bar existed in law against trial of the suit to which public officers were parties at a place other than Headquarter of the District---West Pakistan Civil Courts Ordinance, 1962 being a special law, would govern the case and displace the general provisions of Code of Civil Procedure, 1908 with regard to the territorial jurisdiction---Section 21, C.P.C. would not be available in protecting the proceedings not held at the Headquarter---No exception could be taken to impugned order of Additional District Judge---Act of Court, though should not cause prejudice to any party, but Courts were governed in the matter of jurisdiction vesting in them by law and even consent of the parties and for that matter a wrong order of Court would not confer jurisdiction which otherwise was not vesting in a Court of law.

Khalil-ur-Rehman v. Town Committee, Rabwah through Chairman PLD 1990 SC 792 rel.

Ch. Muhammad Hussain Jehanian for Appellant.

YLR 2007 LAHORE HIGH COURT LAHORE 378 #

2007 Y L R 378

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAH BARAT and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1936-B of 2006, decided on 29th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Post-mortem examination revealed that no mark of violence was seen on any part of the body of deceased, which had belied prosecution case---Report of Bacteriologist was that no histological sections could he taken hence no opinion could he expressed in the case---Case being of further inquiry, accused was admitted to bail.

Muhammad Amir Khan Niazi for Petitioner.

Malik Muhammad Imtiaz Mahi for the Complainant.

Muhammad Tariq Hanif for the State.

Sher Afzal, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 379 #

2007 Y L R 379

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUAHMMAD NAWAZ and another---Petitioners

Versus

DISTRICT POLICE OFFICER, FAISALABAD and 7 others---Respondents

Writ Petition No.2780-Q of 2006, decided on 26th May, 2006.

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

----Ss.10 & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition--Quashing of F.I.R.---Record and statement of petitioner at the time of alleged agreement of Nikah executed by her ,father showed that she was minor of four years; and said Shari Nikah, on the basis of which respondent had claimed her to he his legal wedded wife, was without her consent and was not binding on her being a minor---Validity---Girl could neither make a valid proposal nor make a valid acceptance---Alleged marriage was never consummated---Marriage being a contract, it was to be seen whether consenting parties to the contract, were adult, major and were fully aware of the consequences of the contract--No offence under Ss.10(2) & 15 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, in circumstances was made out against the petitioners---F.I.R. was ordered to be quashed in circumstances.

Abdul Majeed Khan for Petitioners.

Mati Ullah for Respondent No.4/ Complainant.

Malik Muhammad Aslam for the State with Fazal Abbas, S.I. Police Station, Garh, District Faisalabad with record.

YLR 2007 LAHORE HIGH COURT LAHORE 383 #

2007 Y L R 383

[Lahore]

Before Muhammad Akhtar Shabbir, J

RANI BIBI---Petitioner

Versus

NOOR KHAN and 6 others---Respondents

Criminal Miscellaneous No.529-H of 2006, decided on 25th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Petition for recovery of detenues from the alleged illegal and improper custody of respondents---When Bailiff raided at the bricks kiln of respondents, two out of three houses were locked from outside and on the identification of petitioner, he had recovered alleged detenues---If detenues did not want to work at the bricks kiln of respondents, then no one could force to serve against their will as they had the right to move freely and the bonded labour was prohibited---Detenues were set at liberty to go wherever they liked.

Darshan Masih v. The State PLD 1990 SC 513 ref.

Syed Ali Raza Gillani for Petitioner.

Malik Muhammad Imtiaz Mahl for Respondents Nos.1 to 6.

Muhammad Arif Bhindar, Addl. A.-G.

YLR 2007 LAHORE HIGH COURT LAHORE 384 #

2007 Y L R 384

[Lahore]

Before M.A. Shahid Siddiqui, J

ROZDAR KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2371-B of 2006, decided on 18th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.420, 468 & 471-Bail, grant of---Further inquiry---Accused who was a Lambardar of the village had not identified the executants at the time of registration of power of attorney; he had identified the person who executed sale-deed---Prima facie accused was not connected with the registration of the power of attorney executed in favour of principal accused who had not yet been arrested---Apparently forgery was committed at the time of registration of power of attorney---Case being of further inquiry, accused was admitted to bail, in circumstances.

Muhammad Akram Javaid for Petitioner.

Miss Tehseen Irfan for the State.

Muhammad Mukhtar, S.I. Police Station B-Division, Kasur with record.

2007 Y L R 392

[Lahore]

Before Khawaja Muhammad Sharif and M. A. Shahid Siddiqui, JJ

MUHAMMAD AFZAL, PATWARI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4915-B of 2006, decided on 26th July, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.107---Bail, grant of---Abetment---Proof---No time, date and place of the names of the prosecution witnesses, who heard alleged abetment, were given in the F.I.R.---Even the statements of alleged witnesses of abetment, were recorded after four days of occurrence---Accused was allowed bail, in circumstances.

Syed Amanullah Shah v. The State PLD 1996 SC 241 ref.

Ch. Jawad Zafar for Petitioner.

Syed Zaman Haider for the Complainant.

Amjad Iqbal Sindhu for the State Abbas Ali, S.I.

YLR 2007 LAHORE HIGH COURT LAHORE 393 #

2007 Y L R 393

[Lahore]

Before Ali Nawaz Chowhan, J

Mst. SAIMA and 2 others---Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION GHULAM MUHAMMAD ABAD, FAISALABAD and another---Respondents

Writ Petition No.16105-Q of 2005, decided on 19th January, 2006.

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.---Female accused and her spouse were sui juris---Female accused had contended that she was not abducted and that she, out of her own sweet-will, had married with male accused; and that she was in a family way and would like to continue living with her husband/co-accused---Validity---Petitioners being sui juris were living as husband and wife through a legal marriage---F.I.R. could not proceed against accused on the basis of what was averred by complainant side and their statements in the Court---Accused could not be arrested for said marriage--Deputy Superintendent of Police (Legal) concerned would proceed further in the matter in accordance with law and petitioners would not be arrested without permission of the High Court.

Malik Muhammad Imtiaz Mahl for Petitioner.

Ch. Imtiaz Ahmad Loona for Respondent No.2.

Ch. Khurshid Anwar Bhinder, Addl. Advocate-General.

Shahid Hussain, Inspector/S.H.O., Police Station Ghulam Muhammad Abad with Khalid Mehmood, A.S.-I./I.O.

YLR 2007 LAHORE HIGH COURT LAHORE 394 #

2007 Y L R 394

[Lahore]

Before Muhammad Farrukh Mahmud, J

GULFAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.611-B of 2006, decided on 20th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.380, 457 & 411---Bail, grant of-Matter was reported to the police after an unexplained delay of eight days---Thief as alleged would not keep the stolen property in the bushes for more than two years which neither he used nor sold the same---Accused was not named in F.I.R.---Accused was admitted to bail, in circumstances.

Javaid Shaukat for Petitioner.

Sh. Imtiaz Ahmad for the State with Afzal, S.I.

YLR 2007 LAHORE HIGH COURT LAHORE 395 #

2007 Y L R 395

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ARSHAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 295-B of 2006, decided on 7th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 109, 148 & 149---Bail, grant of---Further inquiry---No specific or particular role had been attributed to accused and allegations levelled against him had been couched in generalized and collective terms---Complainant had got his supplementary statement recorded on the very day of lodging F.I.R. and according to that supplementary statement, accused had not caused any injury to deceased---During investigation, two witnesses had maintained that accused had made an extra judicial confession before them and according to which accused was not present at the scene of crime at the relevant time and had only supplied some weapons to his co-accused for commission of alleged murder---Nothing had been recovered from the possession of accused during investigation---As a result of investigation, accused was found to be innocent by Investigating Agency and his name was placed in Column No.2 of the challan---For all said reasons case against accused called for further inquiry into his guilt within the purview of subsection (2) of S.497, Cr. P. C. ---In a case calling for further inquiry into the guilt of accused, bail was to be allowed to accused as of right and not by way of grace or concession---Regarding alleged absconsion of accused, record of investigation had shown that no proceedings were ever taken against accused under Ss.87 & 88, Cr. P. C. ---Accused in circumstances could not be branded or dubbed as an absconder in the absence of said proceedings---Accused was admitted to bail, in circumstances.

Muhammad Sadik and others v. The State 1980 SCMR 203; Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Rao Abdul Jabbar Khan for Petitioner.

Najam-us-Saqib for the State with Shabbir Ahmad, S.I. with record.

Ch. Liaquat Ali Sandhu for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 397 #

2007 Y L R 397

[Lahore]

Before Syed Sajjad Hussain Shah, J

NOOR MUHAMMAD alias NOORI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 8383-B of 2006, decided on 14th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---Litigation existed between the parties---Accused was not nominated in the F.I.R., but was implicated through supplementary statement allegedly made by the complainant on the same day---Statements of other eye-witnesses under S.161, Cr.P.C. were recorded after supplementary statement of complainant and both eye-witnesses had not nominated accused in their statements---Other prosecution witnesses nominated accused through supplementary statements which they got recorded after 74 days of occurrence and no explanation was on record regarding said delay---Accused on having the knowledge of his implication, immediately approached the Trial Court for his pre-arrest bail, which subsequently was withdrawn on the statement of Investigating Officer---Accused was found innocent during investigation and nothing incriminating had been recovered from his possession---Reasons were available to believe that accused had not committed offence for which he was being charged---Case of accused called for further inquiry into his guilt---Accused was behind the bars and was no more required for further investigation---To keep accused behind the bars for an indefinite period would not serve any useful purpose---Accused was admitted to bail, in circumstances.

Sardar Shahbaz Ali Khan Khosa for Petitioner.

Muhammad Islam Sheikh for the Complainant.

Maqbool Ahmad Qureshi for the State with Manzoor, A.S.-I. With record.

YLR 2007 LAHORE HIGH COURT LAHORE 399 #

2007 Y L R 399

[Lahore]

Before Khawaja Muhammad Sharif, J

JAMIA MASJID BAGHDADI HANFI RIZVI BARALVI through President of Anjuman Jamia Masjid---Petitioner

Versus

DISTRICT OFFICER (REVENUE), NAROWAL and 21 others---Respondents

Writ Petition No.1954 of 2006, decided on 13th September, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Quashing of criminal proceedings---Petitioners were found guilty during course of investigation and investigation in the case was complete---Questions of facts had been raised before High Court which exercise could not be undertaken in constitutional jurisdiction of High Court, because High Court 'could not assume the role of an investigator---Factual controversy could not be gone into in constitutional jurisdiction of High Court and it was the prerogative and privilege of the Trial Court to examine the witnesses of both the parties.

2000 SCMR 1904; 1997 MLD 2097; PLD 1978 Lah.307; 1990 PCr.LJ 97; 1986 PCr.LJ 1218; PLD 1967 Dhaka 1; PLD 1957 SC 111; 1993 SCMR 21; 1990 SCMR 25; PLD 2001 SC 149; PLD 2004 SC 271; 2000 SCMR 695; 1991 SCMR 2206; PLD 1954 (Revenue) Punjab 10; PLD 1986 Lah.275; PLD 1991 SC 586; PLD 1958 (W.P.) Lah.824; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Muhammad Asghar v. The State PLD 2006 SC 326; Faiz Bakhsh and

others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others 2006 SCMR 219; Haji Muhammad Sadiq v. Illaqa Magistrate Police Station Factory Area, Faisalabad and others 2001 PCr.LJ 1571; Khairuddin v. Settlement Commissioner 1988 SCMR 988 and Muhammad Ali v. Government of Sindh 1986 CLC 1123 ref.

Muhammad Idrees Khan for Petitioner.

Ch. Muhammad Hanif Khatana, Additional Advocate-General, Punjab with Muhammad Riaz, S.I. with record for Respondents Nos.1 to 8.

Pervaiz Inayat Malik for Respondents Nos.9 to 21.

YLR 2007 LAHORE HIGH COURT LAHORE 401 #

2007 Y L R 401

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD IMRAN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 8508-B of 2005, decided on 7th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 148 & 149---Bail, grant of---Two co-accused had already been admitted to post-arrest bail and it was not disputed that as far as allegations levelled against different accused in the F.I.R. were concerned the case against accused, was not dissimilar to or distinguishable from the case against said co-accused---No reason existed as to why accused could not be treated in the matter of bail in the same manner as said co-accused who had been granted bail---Accused were admitted to bail, in circumstances.

Malik Muhammad Imtiaz Mahl for Petitioners.

Ahmad Khan Chathha for the State with Adalat Khan, A.S.-I. with record.

Syed Imdad Hussain Hamdani for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 402 #

2007 Y L R 402

[Lahore]

Before Muhammad Muzammal Khan and Syed Sajjad Hussain Shah, JJ

Mst. NASIM AKTHAR and 2 others---Appellants

Versus

IQBAL AHMED CHAUDHARI and another---Respondents

I.C.A. No.56 of 2006 in Writ Petition No.18289 of 2005, decided on 1st November, 2006.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintenance to minors---Custody of minors had been given to father by Guardian Judge---Mother's constitutional petition was dismissed---Minors, on their own, came back to live with mother and she filed suit for recovery of maintenance allowance for said minors---Held, mother's right of hazanat was put to rest by dismissal of her constitutional petition and she was not entitled to claim maintenance allowance for minors who had reverted to her on their own---Father, in circumstances, could not be legally bound down to provide maintenance allowance for minors whose custody was handed over to him.

Muhammad Siddique Awan for Appellants.

Respondent No.1 in person.

YLR 2007 LAHORE HIGH COURT LAHORE 403 #

2007 Y L R 403

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ABDUL REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 227-B of 2006, decided on 1st February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 16---Bail, grant of---Principle of consistency---Accused was real brother of co-accused who had been enlarged on bail and case of accused being at par with said co-accused, he was also entitled to the same treatment on principle of consistency---Accused was admitted to bail, in circumstances.

Nemo for Petitioner.

Muhammad Naveed Shabbir Goraya for the State along with Muhammad Younas, A.S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 404 #

2007 Y L R 404

[Lahore]

Before Tariq Shamim, J

MUNAWAR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6665-B of 2006, decided on 21st September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 201 & 34---Bail, grant of---Further inquiry---Delay of eight days in lodging of F.I.R. had not been explained, which had created doubts about the veracity of prosecution case---No eye-witness of the occurrence was available and F.I.R. revealed that same was lodged on suspicion of the complainant---In the proceedings conducted under S.174, Cr.P.C., father, brother of the deceased and other persons got their statements recorded to the effect that they had no suspicion against anyone regarding death of deceased and that deceased had committed suicide---Such fact had itself made case of accused one of further inquiry---Accused, according to police record, had raised plea of alibi at the very outset which was confirmed during the course of investigation---Accused was declared innocent and his name was placed in Column-2 of the challan---Record had further revealed that deceased committed suicide by burning himself with Kerosene oil on account of dispute with his brother regarding his illegal relations with his wife---Tentative assessment of material available on record had revealed that enough incriminating material was not available on record to connect accused with commission of offence of murder of deceased---Accused was admitted to bail, in circumstances.

Zia-ur-Rehman Chaudhary for Petitioner.

Sardar Farooq Khan for the State along with Qalab Hussain, S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 406 #

2007 Y L R 406

[Lahore]

Before M. Bilal Khan, J

LIAQAT ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1314-B of 2005, decided on 9th March, 2005.

Criminal Procedure Code (V of 1898)--

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324 & 34---Bail; grant of---Further inquiry---Role ascribed to accused according to F.I.R. was that of making a proverbial Lalkara and nothing beyond that---Accused, who was an elderly man of sixty years, was not. connected with the motive part of the story---Prosecution story itself was that an altercation had taken place between accused's son and deceased a day prior to the occurrence-Both co-accused who were sons of accused, were young boys of 22 to 24 years of age and prima facie there was no occasion for accused to have exhorted his young sons to avenge the insult, which had neither been caused to him nor in his presence---Co-accused allegedly armed with a lethal weapon came and effectively used the same---Fact that accused had been assigned the role of Lalkara, its true import was to be ascertained by the Trial Court after recording some material evidence in the case and determining his liability under S. 34, P. P. C. ---Case against accused needing further probe within the meaning of subsection (2) of S.497, Cr.P.C., he was admitted to bail.

Chiragh Din and others v. The Sate PLD 1967 SC 340; Karamat Ali v. Haji Muhammad Hussain and others 1993 Law Notes (Lahore) 975; All-ud-Din and 2 others v. The State 1997 PCr.LJ 101 and Akhtar Ijaz Khan Yazdani v. The State 1998 Shariat Decisions 130 ref.

Ch. Mubashir Nisar Khan for Petitioner.

Muhammad Zubair Khalid Chaudhry for the Complainant.

Sohail Tariq for the State with Muhammad Younas, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 408 #

2007 Y L R 408

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ANWAR ALI and others ---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3912-B of 2006, decided on 5th June, 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---Accused who allegedly reached at the spot along with their co-accused while armed with Sotas, did not cause any injury on person of deceased---Sixteen persons were made accused, which had shown that a net had been thrown wide to involve maximum number of family members of accused, so that nobody should be left behind to pursue the case---Specific injuries were attributed to co-accused who had committed murder of deceased---Question of vicarious liability to the extent of accused, had to be adjudged by the Trial Court on the basis of evidence adduced before it---Contention of counsel for complainant, qua sharing common intention by accused, was not convincing so far as grant of bail to accused by the Court was concerned---Accused, prima facie having made out a case falling under S.497(2), Cr.P.C., they were entitled to concession of bail---Accused were admitted to bail, in circumstances.

Khawaja Fahim Ijaz for Petitioners.

Muhammad Imran Yousaf Gondal for the State with Hameed S.-I. with record.

Syed Ehsan Qadir Shah for Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 409 #

2007 Y L R 409

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD SARWAR---Petitioner

Versus

MUHAMMAD RIAZ and another---Respondents

Criminal Miscellaneous No.937-CB of 2006, decided on 30th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.324, 148, 149 & 109---Bail, cancellation of-Accused named in F.I.R. with specific role---Offence falling under prohibitory clause of S.497(1), Cr.P.C.---Fire-shot hitting straight at the chest of the injured---Effect---Allegation against accused/respondent was that he, while armed with rifle, along with co-accused, fired a straight shot hitting brother of complainant on left side of his chest; and thereafter, two co-accused made fire-shots with their respective weapons which struck on right arm of the injured---Trial Court allowed post-arrest bail to accused/respondent two and half months after his arrest on ground that during the course of investigation, Investigating Officer had opined that accused had used his gun in retaliation and it was yet to be determined as to who was the aggressor and that accused had not repeated the fire-shot---Validity---Accused had been duly nominated in F.I.R. with specific role of causing fire-arm injury to the injured on his chest; it was amazing that Trial Court granted post-arrest bail to accused in an offence attracting prohibitory clause of S.497(1), Cr.P.C. and that too after two and a half months of his arrest on ground that Investigating Officer had opined that accused had used his gun in retaliation and that it was yet to be determined as to who was aggressor---Observation of Trial Court that petitioner had not repeated fire shot, therefore, there was doubt about his intention to kill, was absurd as petitioner had allegedly fired straight at his victim with rifle and fire-shot had landed on left side of the chest---Laboured attempt on the part of Trial Court at making the case of accused one of further inquiry was easily discernible by a plain look at order passed by it---Precarious condition of the injured and his shifting to the Hospital, of another city where he was being tended to by his kin including complainant explained delay in lodging of F.I.R.---Discretion exercised by Trial Court in allowing bail to accused could safely be termed as imprudent, indiscreet and irresponsible---Petition for cancellation of post-arrest bail granted to accused was accepted.

Shahid Hameed Dar for Petitioner.

Muhammad Farooq Bedar for Respondent No.1.

Amjad Iqbal Sindhu for the State with Javed Hussain S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 411 #

2007 Y L R 411

[Lahore]

Before Abdul Shakoor Paracha, J

NASIR MEHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 27-M of 2006 in Criminal Appeal No.19 of 2006, decided on 24th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302(b)---Petition for suspension of sentence---Petitioner/accused had contended that pieces of evidence relied upon by the Trial Court, had not been proved on record---Assistant Advocate-General had stated that contention raised by accused needed reappraisal of evidence which exercise could not be done by the High Court under S.426, Cr.P.C.---Validity-Contention of Assistant Advocate-General was not well-founded because Court in its judgment had recorded the findings that extra judicial confession made by accused was disbelieved due to want of evidence---Trial Court had also found that motive behind the occurrence was unknown, and that evidence of deceased having been last seen alive in the company of accused, was weak type of circumstantial evidence---Petitioner had -made out a case of suspension of sentence---Conviction/sentence recorded by the Trial Court, was suspended, in circumstances.

Naqibullah and another v. The State PLD 1978 SC 21 ref.

Malik Rab Nawaz Noon for Petitioner.

Mudassar Khalid Abbasi A.A.-G. for the State along with Sabir Khan State Counsel.

YLR 2007 LAHORE HIGH COURT LAHORE 413 #

2007 Y L R 413

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

RIAZ AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.27-J and Murder Reference No.257 of 2001, heard on 18th September, 2006.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Benefit of doubt---Conflict between medical evidence and ocular account---Motive, a double-edged sword---Allegation against accused/appellant was that in the morning time he committed murder of three persons with .12-bore gun---Motive as alleged in F.I.R. was that accused wanted to keep his wife's real sister in his house but his in-laws' resistance to his desire resulted in triple murder---Accused contended that deceased were murdered by unknown assailants and he was falsely involved in the case---Trial Court convicted and sentenced accused to death---Validity---Both the eye-witnesses were inimical towards the accused and were chance witnesses---Ocular account furnished by eye-witnesses was not confidence-inspiring---Mode of occurrence, behaviour of eye-witnesses and that of accused, as described by witnesses, was not worth credence---No crime empty was recovered from the spot---Eyewitnesses' account was not supported by medical evidence; for instance as per F.I.R. accused caused two fires at one of the deceased but according to medical evidence the latter received only one fire-arm injury with blackening around it---Both the eye-witnesses not only made dishonest improvements in their statements before the Court but contradicted each other on material points---Complainant had admitted that wife of accused was previously married with another person but she eloped with accused and due to this act of accused and his wife, the complainant party felt humiliated and had a grudge against accused---Motive being a double-edged sword which cut both ways and in this context implication of accused in the case might be due to existing hostility between the parties, could not be ruled out---Accused contended that as per medical report uterus of deceased younger daughter of accused's wife (who was also killed in the incident) was gravid for about two months and accused took her life to conceal his shameful act; but this contention did not have any force as there was no direct evidence available on record that deceased girl had any illicit relation with accused/appellant---Recovery of gun from accused did not support prosecution case as no empty was recovered from the spot; therefore it could not be said that weapon was used during the occurrence; moreover it was a licensed gun of accused---Incident was an un-witnessed occurrence in which accused was roped in due to existing enmity---Prosecution case being replete with doubts, there was no need to look into or assess defence plea which was denial---Appeal was allowed and accused was acquitted.

Ch. Nazeer Ahmad for Appellant.

Ms. Siddiqua Altaf Khan (in appeal) and Saleem Shad (in Murder Reference) for the State.

Rai Muhammad Tufail Kharral for the Complainant.

Date of hearing: 18th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 424 #

2007 Y L R 424

[Lahore]

Before M. A. Shahid Siddiqui, J

QASID ABBAS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8551-B of 2005, decided on 14th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.420, 337-J & 381-A---Bail, grant of---Further inquiry---Accused was not named in F.I.R.---Identification of accused by complainant at the Police Station was of no legal consequence---Investigating Officer had not collected sufficient evidence to establish the identity of accused---Case against accused being of further probe and inquiry, he was ordered to be released on bail.

Malik Muhammad Imtiaz Mahl for Petitioner.

Muhammad Sharif Cheema for the State with Ghulam Murtaza, S.-I -with record.

YLR 2007 LAHORE HIGH COURT LAHORE 431 #

2007 Y L R 431

[Lahore]

Before Syed Sajjad Hussain Shah, J

ABDUL REHMAN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.1041-CB of 2006, decided on 20th July, 2006.

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

----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss.377, 355, 384, 500 & 511---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Pre-arrest bail, cancellation of---Allegation against accused and his co-accused was that, on pistol point they forced victim boy aged 16 years to accompany them in a Baithak belonging to accused; where they tried to commit sodomy upon him and took his nude photographs on pistol point and thereafter at different occasions extorted money from said victim by blackmailing him---Accused was allowed pre-arrest bail in his absence---Nothing was on record to show that accused had been involved in the case with any mala fide intention and such aspect of the matter was even not considered by the lower Court while granting respondent pre-arrest bail, which was an extraordinary relief, which was not granted in routine---Investigation was neither to be frustrated nor blocked by granting pre-arrest bail; it was granted in the cases of intended arrest with mala fide purpose or ulterior motive at the hands of the police---No allegation was available against Investigating Agency, to effect the arrest of accused for any mala fide purpose---Court below while passing impugned order had ignored the fact that discretion to grant anticipatory bail was not totally unfettered---Distinction existed between principles governing the grant of pre-arrest bail and grant of post-arrest bail---Case being not fit for anticipatory bail, impugned bail granting order was set aside accepting petition for cancellation of bail with direction to accused to surrender himself to proper custody.

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

----S. 498---Grant of pre-arrest bail---Principles---Provisions of S.498, Cr.P.C. were intended to be used very sparingly in exceptional cases where, mala fide was patent and even latent---Such provisions could not be used for circumventing normal procedure of arrest and investigation after arrest---Unless accused would show that he had strong case where arrest was sought to be made in a false case to defame and humiliate or blackmail him, the anticipatory bail could not be granted.

Zia-ul-Hassan v. The State PLD 1984 SC 192 and Murad Khan v. Fazal Subhan and another PLD 1983 SC 82 rel.

Babar Waheed for Petitioner.

Maqbool Ahmad Qureshi for the State with Asmatullah, A.S.-I. and Ata Muhammad, A.S.-I. with record.

Zafar Iqbal Chowhan for Respondent No.2.

YLR 2007 LAHORE HIGH COURT LAHORE 434 #

2007 Y L R 434

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

ISHTIAQ HUSSAIN alias SHAKI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.52-J and Murder Reference No.430 of 1998, heard on 12th September, 2006.

Penal Code (XLV of 1860)---

---Ss. 302(b), 392 & 34---Appreciation of evidence---Circumstancial evidence--Identification parade-Extra-judicial confession---Allegation levelled against both accused/appellants (one of whom died of natural death before hearing of appeal) was that they in the garb of passengers hired taxi car driven by deceased and after snatching the same committed his murder---Trial Court convicted and sentenced accused to death---Accused contended that it was an unseen occurrence and that prosecution evidence including extra-judicial confession, recovery evidence failed to connect accused with commission of offence---Validity---Requirement of law was that different pieces of circumstantial evidence were to inter-link like a chain, one end of which was to point to deceased and the other to the neck of accused---One of the most important pieces of prosecution evidence was identification test which in the present case suffered from serious flaws and was not worth reliance, in that; firstly, both the accused were not identified separately; secondly, as per practice, the ratio of strangers and accused were to be 1-9 or 1-10 but in the present case fourteen dummies were mixed up with both the accused; thirdly, no description of either of accused was given in report of proceedings nor it was mentioned therein that dummies had resemblance with the two accused; fourthly, statements of accused or their objections were not recorded, and lastly parentage and address of one of the accused was given in the F.I.R., therefore, there was no occasion to get him identified by prosecution witnesses---No description about the physique, height, complexion, age or features of other accused was given in the F.I.R.---Names of accused were already known to witnesses much earlier than the holding of identification test---Extrajudicial confession allegedly made by accused was not worth credence---Articles (watch, golden ring, locket) allegedly belonging to deceased and recovered from accused were not mentioned in F.I.R.---Neither the dead body nor stolen car was recovered at the instance of any of the accused---Recovery of blood-stained weapons from accused was not worthy of credence for the reason that accused who washed their blood-stained clothes were not supposed to keep blood-stained weapons intact---One weak piece of evidence was not to corroborate or strengthen the other weak piece of evidence---Suspicion, however strong it might be, was to remain a suspicion and was not to be treated as proof---Prosecution case was not free from doubts---Appeal was allowed and accused were acquitted.

Abdul Nasir Jasra for Appellants.

Ashfaq Ahmad Chaudhry (in appeal) and Sheikh Khalid Habib for the State (in Murder Reference).

Syed Hassan Qadir Shah for the Complainant.

Date of hearing: 12th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 441 #

2007 Y L R 441

[Lahore]

Before Sh. Hakim Ali, J

GOHAR JAVED---Petitioner

Versus

THE STATE and another---Respondents

Writ Petition No.964-Q of 2006/BWP, decided on 10th May, 2006.

Penal Code (XLV of 1860)---

----Ss. 503, 506, 148 & 149---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Criminal intimidation---Conditions---Quashing of F.I.R.--- Provisions of S.503, P.P.C. consisted of three main essential ingredients:- viz. there must be a threat; that threat must be causiative of injury to a person, reputation or to his property or to any other one in whom that person could be interested; and that there must be a purpose of threat also which could be to cause harm to that person or to do any act which he was not legally bound to do or to omit which that person was legally entitled to do as the means of avoiding the execution of such threat---Contents of F.I.R. displayed that there was only a simple threat which could not be considered to have caused any harm to informant because no such words depicting such consequences were found in F.I.R.---Not a single word or sentence had shown that any threat was hurled or informant was directed to do any unlawful act or to omit to do an act which the informant was entitled to do legally---Third condition provided in S.503, P.P.C. for applicability of S.506, P.P.C. was missing, even on perusal of contents of F.I.R., it appeared that story was unbelievable and improbable---Commission of offence having not been proved, same stood quashed.

Col. (Retd.) Shah Sadiq v. Muhammad Ashiq 2006 SCMR 276 and Syed Ali Asghar Shah v. The State 1988 PCr.LJ 270 ref.

Muhammad Aslam Chaudhry for Petitioner.

M. A. Farazi for the State along with Amanat Ali, A.S.-I.

Ch. Riaz Abroad for Respondent No.2.

Date of hearing: 10th May, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 445 #

2007 Y L R 445

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ASLAM---Petitioner

Versus

ZAHID HUSSAIN BUTT and another---Respondents

Criminal Miscellaneous No.8122-CB of 2006, decided on 12th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Emigration Ordinance (XVIII of 1979), Ss.17/22---Bail, cancellation of---Accused had not been able to explain as to in what connection he had received amount in dispute from the affectees---Accused had manoeuvred the affidavits and the statements of the affectees on the basis of which bail had been allowed to him---Such a conduct on the part of a person who sought discretionary relief from a Court of law, was most reprehensible---Accused could not be allowed to benefit from an order which he had been able to procure by deceitful means---Petition for cancellation of bail was allowed and order whereby accused had been allowed post-arrest bail, was recalled---Accused would be remitted to custody.

Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231 and Qasim Khan v. Sharafat Khan and another 2003 YLR 2910 rel.

Mrs. Shaista Kaisar for Petitioner.

Ch. Muhammad Hussain Chhachhar, Standing Counsel for Govt. of Pakistan.

Zahid Hussain Butt and Mushtaq Ahmad Qureshi for Respondent No.1.

Muhammad Sarwar, S.-I. Police Station F.I.A./PC, Lahore with record.

YLR 2007 LAHORE HIGH COURT LAHORE 453 #

2007 Y L R 453

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD BASHIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.52 and 53 and Murder Reference No.18 of 2001, heard on 4th December, 2006.

Penal Code (XLV of 1860)----

-----S. 302(b)-Appreciation of evidence---Both eye-witnesses had fully supported prosecution case and nothing could be extracted from their testimony during the course of their cross-examination---Said eye-witnesses had no strong reason to falsely depose against accused; it was rare phenomenon that the real culprits would be substituted for others---Matter was reported to the police on the same day---Three crime empties were taken into possession from the spot and from the personal search of accused, a pistol along with 3 live cartridges was recovered from him---Crime empties and pistol were sent to Fire-arm Expert and report of said Expert was to the effect that all the three crime empties recovered from the spot had matched with the pistol recovered from the personal search of accused---Ocular account in the case was corroborated by the medical evidence---Time between injuries and death and time between death and post-mortem examination, fitted in with the time given by prosecution---Case was that of single accused---Not only one, but accused fired three successive fatal shots which led to the brutal murder of deceased; it was, in circumstances an intentional and pre-meditated murder on the part of accused---Normal sentence, in such-like cases, was death---No mitigating circumstance was available in favour of accused to award him lesser sentence---Prosecution having proved its case against accused beyond any shadow of doubt to sustain his conviction on a capital charge, appeal filed by accused against his conviction and sentence, was dismissed---Murder Reference was answered in affirmative while death sentence awarded to accused, was confirmed.

Barak Ullah v. The State 1997 SCMR 274; Sikandar Hayat v. Ata and others PLD 1970 SC 224; Shahid Ali v. The State 2001 PCr.LJ 700 rel.

Nemo for Appellant .

Syed Hasnain Kazmi A.A.-G. Punjab for the State.

Tariq Azam Chaudhry for the Complainant.

Date of hearing: 4th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 461 #

2007 Y L R 461

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AFZAL and another---Petitioners

Versus

ELECTION TRIBUNAL (UC NO.83), BUREWALA/ADDITIONAL DISTRICT JUDGE, LODHRAN and 7 others---Respondents

Writ Petition No.4060 of 2006, heard on 2nd October, 2006.

Punjab Local Government Elections Rules, 2005---

----R. 35(4) (iii) (a)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Valid votes---Unsigned ballot paper---Grievance of candidate was that although discarded ballot papers did not hear signatures of Presiding Officer, yet official stamp was affixed on them---Plea raised by candidate was that such ballot papers should have been included in the count as valid votes---Validity---Only such votes could be excluded from count, under R.35(4) (iii) (a) of Punjab Local Government Elections Rules, 2005, which did not bear official marks---As the disputed votes did bear the seal of Presiding Officer, those could not have been excluded from the count---High Court directed the authorities to count such disputed votes in favour of candidate and judgment of Election Tribunal was modified---Petition was allowed accordingly.

M. Mehmood Ashraf Khan for Petitioners.

Mian Abbas Ahmad and Ch. M. Guizar for the Respondents Nos.2 and 3.

M. Ihsan Alvi.

Nemo for others.

Date of hearing: 2nd October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 465 #

2007 Y L R 465

[Lahore]

Before Muhammad Akhtar Shabbir, J

NOOR ELAHI---Petitioner

Versus

S.H.O., POLICE STATION, LAYYAH and 7 others---Respondents

Writ Petition No.2515 of 2006, heard on 11th September, 2006.

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

----S. 188---Criminal Procedure Code (V of 1898), Ss.144 & 195(1) (a)---Power to issue order in urgent cases of nuisance---Disobedience to order duly promulgated by public servant---Court to which challan of the case had been sent under S.188, P.P.C. could take cognizance of the matter, if complaint in writing by the public servant or by some other public servant to whom he was subordinate who was competent to enforce S.144, Cr.P.C., in the area, was sent to the Court---Police though was competent to register F.I.R., if from the contents of any application some cognizable offence was made out, but there was a bar on the Court to take cognizance of the matter, if written complaint was not sent by the competent Authority or the public servant.

Muhammad Idrees v. State 2001 PCr.LJ 593; Muhammad Ayub alias Ranjha v. D.C. Multan 2001 PCr.LJ 1039; Malik Muhammad Ayoob Awan v. Akhtar Lodhi S.H.O. 2001 PCr.LJ 1196; Sharif v. State PLD 1975 Lah.1315; Makhdoom Khaliq-uz-Zaman v. The State 1999 P. Cr. LJ 1081; Muhammad Afzaal v. The State 1999 PCr.LJ 1252 and Ghulam Rasool v. The State 1998 PCr.LJ 584 rel.

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

----S. 144---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Section 144, Cr.P.C. was not prevailing in the area at the time of commission of offence under said section---No offence, in circumstances was committed by accused, but without adverting to that legal aspect of the case, police had registered criminal case against delinquent/petitioner---Even otherwise no complaint in writing had been sent along with F.I.R. to the Court of competent jurisdiction-F.I.R. registered against petitioner/accused, was not maintainable in the eyes of law as same was lodged illegally and without lawful authority.

Rafiq Ahmad Malik for Petitioner.

Malik Qasim Khan, A.A.-G. for the Respondents.

Date of hearing: 11th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 468 #

2007 Y L R 468

[Lahore]

Before Muhammad Khalid Alvi and Maulvi Anwarul Haq, JJ

SHABBIR AHMAD ALVI---Appellant

Versus

Haji ABDUL MAJEED and another---Respondents

R.F.A. No.58 of 2005, decided on 14th March, 2006.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2,3---Suit for recovery of amount on basis of cheque---Application for leave to appear and defend suit---Application to appear and defend suit was dismissed by the Trial Court and suit was decreed---Validity---No plausible defence at all having been disclosed by appellant in his application to appear and defend suit, his application was rightly dismissed---Ground taken by appellant during arguments in appeal, was neither taken by appellant in his application for leave to appear and defend nor same was incorporated in the memorandum of appeal---Same could only he termed to be an afterthought---Appeal, was dismissed, in circumstances.

Mubashir Hussain Gillani for Appellant.

Abid Hussain Bhutta for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 472 #

2007 Y L R 472

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD JAHANGIR HAFEEZ---Petitioner

Versus

B.Z.U., MULTAN through Vice-Chancellor and 3 others---Respondents

Writ Petitions Nos.3205 of 2005 and 2609 of 2006, decided on 27th June, 2006.

Educational institution---

----Examination---Declaration of result---Petitioner was a student of B.B.A. in the University, course of which comprised of six Semesters running from years 2003 to 2006---Petitioner appeared in four Semester examination, he was declared pass in first three semesters and was declared failed in 4th Semester on the "ground that he had obtained less than 60% marks---University was directed by the High Court to declare the result of petitioner by evaluating papers on the basis of 50% marks---Petitioner who was promoted to 5th Semester and also appeared in examination, was promoted to 6th Semester and also took examination, but his result was not announced---Petitioner had prayed that University be called upon to announce the result---Validity---Petitioner had passed first, second, third and sixth Semester, but declared failed in 4th Semester---Contention of petitioner was that since it was not his fault that his result was not declared, he was entitled to opportunity to join summer camp so as to save one year of his studies---Petitioner was ready, even to pay amount to the University so as to make up total fee of 10 candidates---Held, it would be just and appropriate to allow prayer of petitioner in the particular circumstances of the case, when despite orders passed by the High Court, he was not informed well in time regarding his result so as to enable him to join regular course at a proper point of time---Petition was disposed of with direction that petitioner would make required payment and after making payment, course for 4th Semester would be made available to him by the University.

Muhammad Amir Bhatti for Petitioner.

M. Tariq Rajwana for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 474 #

2007 Y L R 474

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

GULZAR AHMAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.173-J and Murder Reference No.315 of 2001, heard on 11th September, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 34---Appreciation of evidence---One of the prosecution witnesses was husband of sister of accused persons while other was real sister of accused and both had no previous ill-will or grudge against accused persons so as to depose falsely against them---Occurrence having taken place inside the house, said prosecution witnesses were natural witnesses---Both said witnesses had plausibly explained their presence. in the house on the date of occurrence---Matter was reported to the Police very promptly---Real sister could not involve her real brothers in a false case of murder of her sisters, brother and mother---Ocular account was fully supported by medical evidence and corroborated by circumstances of the case, especially lodging of F.I.R. promptly---One of accused persons had stated in his statement recorded under S.342, Cr. P. C. that he murdered his mother, sisters and brother as they were leading an immoral life which pinched him but no specific incident or any specific allegation had been levelled by him against deceased---Twenty four empties recovered from the spot, tallied with .30 bore pistol, which was recovered from the right folder of trousers wearing by accused---Killing of five persons by accused, was proved by ocular account fully supported by medical evidence and corroborated by circumstances of the case---Act of accused was barbaric, brutal and gruesome as they being heartless killers had taken life of their real mother, brother and sisters---Prosecution had successfully proved its case against accused beyond doubt---In absence of any mitigating circumstance in favour of accused, their appeal was dismissed, their death sentence was confirmed and Murder Reference was answered in affirmative.

Syed Hamid Mukhtar Shah v. Muhammad Azam and others 2005 SCMR 427 ref.

Mian Muhammad Bashir for Appellant (on State expense).

Ms. Tasneem Amin (in Criminal Appeal) and Muhammad Saleem Shad (in Murder Reference) for the State.

Date of hearing: 11th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 478 #

2007 Y L R 478

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

BASHIR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1664 of 2000 and Murder Reference No.403 of 2001, heard on 20th September, 2006.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Case of two versions and occurrence was un-witnessed---Parents of deceased and son-in-law of complainant had furnished evidence of deceased having been last seen in the company of accused as well as motive---Said prosecution witnesses were not shy of telling lie and they had tried to implicate wife of accused and acquitted accused---Statements of said witnesses suffered from inherent defects and they were not corroborated by any other piece of independent evidence---Defence plea which was more plausible and was borne out from the circumstances of the case, further found support from -site plan---Minor contradictions in the statement of accused and F.I.R., were of no consequence, when prosecution had failed to prove its case against accused---Allowing appeal of accused, judgment passed by the Trial Court was set aside---Accused was acquitted of the charge and was released.

Syed Mazahar Ali Akbar Naqvi for Appellant.

Ms. Sarwat Nawaz (in Appeal) and M. Ijaz Bawa (in Murder Reference) for the State.

Date of hearing: 20th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 483 #

2007 Y L R 483

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASLAM and another-Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.6462-B of 2005, decided on 25th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, grant of---Accused though was armed with .12 bore gun, but he did not cause any fire-arm injury to any injured prosecution witness---Accused only gave butt blows to injured prosecution witness---Co-accused along with others caused injuries to two prosecution witnesses---Case of both the accused was on similar footing as that of their co-accused who had already been allowed bail---Following the law of consistency, accused were allowed bail, accordingly.

Imran Asmat Ch. for Petitioners.

Malik Sultan Ahmad for the State along with Aman Ullah S.-I with record.

YLR 2007 LAHORE HIGH COURT LAHORE 484 #

2007 Y L R 484

[Lahore]

Before Muhammad Akhtar Shabbir, J

SHAHID ZAFAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1150-B of 2006, decided on 8th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.408---Bail, grant of---Further inquiry--Investigating Officer declared accused guilty of offence on statement of Managing Director and one employee of the company---Except said two witnesses, statement of no other witness had been recorded---No direct evidence was available on the police file establishing the receipt of the disputed/embezzled amount abroad by accused sent by complainant---Photostat copies of certain documents produced by complainant, had no evidentiary value presently and complainant had to prove said documents during the trial of the case in accordance with law---Offence under S.408, P.P.C. against accused, was not punishable within the prohibition .clause contained in S.497, Cr.P.C. as it was punishable with imprisonment of either description which could extend to seven years' R.I. and liable to fine---Documentary evidence produced by the complainant before Investigating Officer, being in possession of prosecution, there was no possibility of tampering with same if accused was released on bail---Guilt of accused being yet to be determined by producing prosecution evidence in the Court, it was sufficient to bring the case of accused within the ambit of further inquiry---Trial of the case had not commenced and it was a matter of determination whether accused had received disputed amount and misappropriated same as it was a matter of accounts---Accused who was behind the bars, was no more required by the police---Accused, in circumstances being entitled to concession of bail, was admitted to bail.

Lal Hussain v. Muhammad Akbar and 2 others 1995 PCr.LJ 946; Afzaal Ahmad v. The State 2003 SCMR 573; Arif Barlas v. The State 2006 PCr.LJ 202; Saeed Ahmad v. The State 1996 SCMR 1132; Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590; Subhan Khan v. The State 2002 SCMR 1797; Noor Muhammad v. The State 1990 PCr.LJ 732; Khurshid Ahmad v. The State 1987 MLD 1982 and Ch. Tanveer Khan v. Chairman, National Accountability Bureau and others PLD 2002 SC 572 rel.

Salim A. Rehman for Petitioner.

Sardar Muhammad Ishaque Khan for the Complainant.

Ms. Shamim Chaudhry for the State with Zulfiqar S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 488 #

2007 Y L R 488

[Lahore]

Before Tariq Shamim, J

MUHAMMAD SALEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6454-B of 2006, decided on 19th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 467, 468 & 471---Bail before arrest, grant of---Only role assigned to accused was that of attesting agreement purported to have been forged by main accused, who had been granted pre-arrest bail---Since case of accused was on a better footing than that of main accused under the law of consistency, accused was also entitled to same concession---Mala fides of complainant for false involvement of accused, were obvious from the fact that a number of criminal cases were pending between the parties---No recovery had to be effected from accused and investigation being complete, challan had been submitted in the Court---Evidence in the case was documentary in nature and there was no likelihood of accused's tampering with the same---Offence under S.467, P.P.C. was prima facie not attracted to case of accused and other offences mentioned in F.I.R. were punishable with maximum sentence of 7 years and were not covered by prohibitory clause of S.497, Cr. P. C. ---Enough evidence was not available on the record to connect accused with the commission of crime alleged against him---Ad interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Naveed Inayat Malik for Petitioner.

Sh. Asghar Ali for the State with Muhammad Shakoor S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 489 #

2007 Y L R 489

[Lahore]

Before Khawaja Muhammad Sharif, J

FAYYAZ AHMAD and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1391 of 2004, decided on 29th November, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), (c), 148 & 149---Appreciation of evidence---Sentence, reduction in---Grave and sudden provocation---Altering conviction under S.302(b), to S.302(c), P.P.C.--Scope---Allegation against accused/appellants was that they, while hanging deceased upside down on tree, gave him beating with Sota and put on fire to his clothes; that while deceased was being taken to hospital in injured condition he died on the way---Motive as alleged in, F.I.R. was that accused had a suspicion that deceased had developed illicit relations with their sister---Trial Court while convicting accused under S.302(b) sentenced them to imprisonment for life---Validity---Both complainant as well as accused parties had concealed their actual design and role from the Court---Incompleteness of tale, however, was not to deter Court from drawing proper inference from evidence and circumstances---Two of the accused who had taken part in this occurrence were real brothers of the lady with whom deceased allegedly had developed illicit relations---Especially in villages, the aspect of illicit relations had become a matter of family honour---Conduct of eye-witnesses was most unnatural as they did not interfere when accused were giving beating to deceased nor they tried to interfere when deceased was being hanged on a tree---One of the prosecution witnesses was examined by Investigating Officer four months after the occurrence---Number of injuries on the person of deceased also suggested that it was a case of grave and sudden provocation---Conviction was altered from S.302(b), P.P.C. to S. 302 (c), P.P.C. and sentence was reduced from life imprisonment to 10 years' R.I.-No compensation in such-like case, could be awarded to legal heirs of deceased---Appeal was decided accordingly.

1995 PCr.LJ 248; 1996 SCMR 1553; Syed Ali Bepari v. Nibran Mollah and others PLD 1962 SC 502 and Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294 ref.

Syed Zahid Hussain Bokhari and Khalid Parveen for Appellants.

Ch. Imtiaz Ahmad for the State.

Dates of hearing: 23rd and 29th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 493 #

2007 Y L R 493

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ASHRAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.802 and Murder Reference No.449 of 1998, heard on 13th September, 2006.

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

----Ss. 302, 379, 100 & 34---Appreciation of evidence---Case of two versions---Plea of self-defence---Scope and effect---Allegation against accused/appellant was that he along with co-accused (since dead) committed murder of deceased with .12 bore carbine---Accused in his statement under S.342, Cr.P.C. took up plea of self-defence, stating therein; that it were deceased and his companions who opened attack and fired at accused and his co-accused, whereupon the latter exercised their right of self-defence and in cross-firing deceased and co-accused of appellant/accused were killed---Trial Court convicted and sentenced accused to death---Validity---Presence of eye-witnesses on the spot according to F.I.R. was by chance and as background of enmity existed between the parties, therefore, statements of eye-witnesses required deeper scrutiny and independent corroboration---Both the eye-witnesses contradicted each other on material points and their statements were not supported by important features of the case---Circumstances revealed that alleged promptly lodged F.I.R. could not be recorded at the time given therein, rather it was a clear-cut padding on the part of Investigating Officer who wanted. to show that F.I.R. was prompt so that presence of eye-witnesses, who lived at a quite distance, was not to be doubted---Circumstances of the case revealed that eye-witnesses were not present on the spot---Recovery of weapon was not to be used against accused as corroboratory evidence, as neither empties recovered front the spot nor weapon was sent to Forensic Science Laboratory, it was, therefore not possible to say that weapon was used in the occurrence or it was in working condition---Chair on which deceased was murdered was taken into possession but no blood-stained piece of the same was taken from it for the purpose of Chemical Examination to establish that chair was smeared with human blood---Medical evidence did not lead to assailant---Extraordinary delay in sending dead body to mortuary cast doubt on the presence of eye-witnesses---Motive was a double-edged sword which cut both ways and as hostility existed between the parties over murders, therefore, it was not to be used either in favour of prosecution or in favour of accused---Both the accused were already equipped with fire-arms and there was no occasion for them to steal the gun of deceased after commission of his murder and presence of gun, belonging to deceased, near dead body of co-accused led to carving out of false story by prosecution---Act of accused was covered by S.100, P.P.C. and there was no option but to accept defence plea---Accused was acquitted.

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

---Ss. 302, 379, 100 & 34---Appreciation of evidence---Principles---Two versions of incident---Duty of Court---In case of counter-version, if the Court believed prosecution evidence and was not prepared to exclude the same from consideration, it was not to straightaway convict the accused but was to review the entire evidence including circumstances appearing in the case before reaching at a conclusion as to truth or falsity of defence plea/version---Factors favouring prosecution's stance were to be placed in juxtaposition to corresponding factors favouring defence plea and total effect was to be estimated regarding plea raised by accused, established by evidence and circumstances of the case---If the total effect of evidence and circumstances favoured defence plea then the Court was to accept version put forward by accused; but if total effect of evidence and circumstances did not favour defence plea then the Court was not to reject defence plea as being false but to go a step further to find out whether or not there was yet a reasonable possibility of defence plea/version being true---If it were found by the Court that although accused had failed to establish his plea/version to the satisfaction of Court but his plea might reasonably be true, even then the Court was to accept his plea and acquit or convict him accordingly.

Khalid Javed and another v. The State 2003 SCMR 1419 and Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 rel.

Rana Muhammad Arshad Khan for Appellant.

Ashfaq Ahmad Chaudhry (in Murder Reference) and Maqbool Ahmad Qureshi (in appeal) for the State.

Chaudhry M. S. Shad for the Complainant.

Date of hearing: 13th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 501 #

2007 Y L R 501

[Lahore]

Before Khawaja Muhammad Sharif, J

Rana MUHAMMAD ALI SHAKIR---Petitioner

Versus

S.H.O., POLICE STATION, FACTORY AREA, LAHORE and 9 others---Respondents

Writ Petition No.9244 of 2006, decided on 29th November, 2006.

Specific Relief Act (I of 1877)---

----Ss. 12 & 39---Penal Code (XLV of 1860), S.195---Criminal Procedure Code (V of 1898), Ss.22-A & 22-B---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Registration of case---Suits for specific performance of agreement, cancellation of agreement to sell were pending and subsequent agreement to sell was alleged to be ante-dated---Constitutional petition for registration of criminal case---Scope---Petitioner entered into agreement to sell with respondent for purchase of land measuring 2 Kanals, 16 Marlas and allegedly paid half of sale price to the respondent---On refusal of respondent to get sale-deed registered in favour of petitioner, the latter filed suit for specific performance and permanent injunction on 12-10-2004, respondent admitted the agreement to sell with petitioner but stated therein that as petitioner had not approached him within the time fixed for execution of sale-deed, so he refused to have the sale-deed registered qua the said land---Respondent filed a civil suit for cancellation of said agreement to sell on 3-9-2004---Petitioner alleged that respondent in connivance with other respondents made an ante-dated agreement to sell in favour of another person; that as per said agreement, respondent handed over possession of disputed land to said other person (respondent); that respondent also executed general power of attorney in favour of said other person; that on the basis of general power of attorney, said other person (respondent) got sale-deed executed in favour of another respondent; that petitioner filed an application for registration of case against respondents and said other two persons (respondents) but to no avail; that petitioner thereafter filed an application under Ss. 22-A & 22-B, Cr. P. C. but this effort also did not bear fruit---Respondents contended that petitioner had filed constitutional petition to pressurise them; that no criminal case could be registered on the basis of submissions made by petitioner; that petitioner had filed suit against respondent prior to application of petitioner for registration of case; that after dismissal of petition under Ss.22-A & 22-B, Cr.P.C., petitioner filed application before Deputy Inspector. General Police for registration of case and this fact had been concealed in present petition; that if civil court after recording of evidence came to conclusion that agreement between other person and the 'respondent (respondents) was ante-dated, then civil Court could order for registration of case as required under S.195(c), P.P.C.-Validity---Only question agitated before the Court was that agreement to sell between petitioner and respondent was executed but in said agreement a date was given that petitioner was to pay remaining amount and get sale-deed registered but petitioner could not do so; consequently, respondent filed suit for cancellation of said agreement to sell on 3-9-2004 whereas petitioner filed suit for specific performance on 13-10-2004---No case for direction by High Court was made out---Constitutional petition was decided accordingly.?

1982 Law Notes of SC 676 and PLJ 2004 SC 288 ref.

Mian Muhammad Abbas for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.-G.

Naveed Ahmad Kh. for Respondent No.3.

Ch. M. S. Shad for Respondents Nos.5 and 8.

Sh. Muhammad Younis Javaid for Respondent No.4.

C.M. Sarwar for Respondent No.9.

M.A. Zafar for Respondent No.10.

YLR 2007 LAHORE HIGH COURT LAHORE 513 #

2007 Y L R 513

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUSTANSAR ALI alias NATCHA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.187-B of 2006, decided on 1st February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-A(i), 337-F(ii), 148 & 149---Bail, grant of---Further inquiry---Accused and three other co-accused caused injuries to the complainant and all other co-accused had been granted bail---Certificate of the Board of Intermediate and Secondary Education, had shown that accused was a student and below 18 years---Offence allegedly committed by accused also did not fall within the prohibitory clause of S.497, Cr. P. C.---All said facts had provided sufficient grounds to believe that further inquiry was required into the guilt of accused---Accused's age and his being student also warranted a lenient view---Accused was admitted to bail, in circumstances.

Rao Abdul Jabbar Khan for Petitioner.

Miss Yasmin Kanwal for the State.

M. Latif, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 514 #

2007 Y L R 514

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASHRAF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2442-B of 2006, decided on 8th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395 & 412---Bail, refusal of---V.C.D., which was looted during dacoity, had been recovered from accused---Offence under S.412, P.P.C., was punishable with imprisonment for life, which fell within prohibitory clause of S.497(1), Cr.P.C.-No case for bail having been made out, bail petition was dismissed.

Mian Muhammad Maqsood Ahmad for Petitioner.

Muhammad Naveed Shabbir Goraya for the State along with Liaqat S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 515 #

2007 Y L R 515

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD MANSHA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3611-B of 2006, decided on 4th July, 2006.

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

----S. 497---Penal Code (XLV of 1860), Ss.324, 148 & 149---Bail, grant of---Medico-legal report had indicated that injury allegedly attributed .to accused was on the outer side of lower thigh of injured---Accused prima facie had no intention to fire on the vital part of the body of injured for the purpose of launching murderous attack---Challan of the case had been submitted in the Court, trial had commenced,- accused was in custody since arrest and he was no more required for further investigation by the police---No useful purpose would be served by keeping accused in custody---Accused was admitted to bail, in circumstances.

Muhammad Umer's case PLD 2004 SC 477 ref.

Malik Muhammad Imtiaz Mahl for Petitioner.

Muhammad Akbar Khan for the Complainant.

Ch. M. Azeem for the State with Sajid A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 516 #

2007 Y L R 516

[Lahore]

Before Tariq Shamim, J

MUHAMMAD ILYAS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6002-B of 2006, decided on 18th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of---F.I.R. had revealed that after deceased had been done to death by accused and his co-accused, his body was placed in the car and was taken to his village where it was dumped in a field---F.I.R. was lodged promptly after about one hour and twenty five minutes---Accused who was armed with a rifle, had been named in the F.I.R. and specific role of firing at the deceased resulting in his death had been ascribed to him---Witnesses of the occurrence got their statements recorded before the police under S.161, Cr.P.C., further connecting accused prosecution case---Post-mortem report was in conformity with the eye-witness account as number of injuries mentioned there tallied with the number of accused---Accused, though was found innocent during investigation by the police, but discharge report submitted pursuant thereto before Magistrate was not agreed to, which tended to show that conclusions arrived at by the police, were not found to be correct or sustainable under law---Challan had been submitted in the Trial Court and trial was likely to commence in the near future---Offence of murder being punishable with death, in view of evidence on record, it could be safely said that ample evidence was on record to connect accused with commission of offence of murder of deceased---Bail petition was dismissed, in circumstances.

Sheikh Ahmad Akbar v. Government of Pakistan through Secretary to Government of Pakistan, Finance Division and 2 others 1990 SCMR 784; Muhammad Amin and others v. The State 1987 PCr.LJ 1404; Muhammad Amin and another v. The State 1987 SCMR 1522; Fateh Muhammad v. Mst. Naziran Bibi and others 1988 SCMR 1492 and Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 rel.

Ch. Walayat Ali for Petitioner.

Ijaz Ahmed Bajwa for the State along with Muhammad Akram S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 518 #

2007 Y L R 518

[Lahore]

Before Ijaz Ahmad Chaudhry, J

TAHIR RASHID---Petitioner

Versus

THE STATE and 4 others---Respondents

Writ Petition No.7443 of 2006, decided on 14th November, 2006.

Penal Code (XLV of 1860)---

----S. 489-F---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of orders---Investigation in the case had prima facie been conducted mala fide and cancellation report of F.I.R. was prepared merely relying upon the version of respondents/accused party that cheque in question was issued only as a guarantee for a person who had dealing with complainant/petitioner---Cheque in dispute had been issued by respondent in favour of petitioner, which was presented before the Bank, twice, but same was dishonoured each time due to insufficiency of funds and prima facie offence under S.489-F, P.P.C. was made out---Whether cheque in dispute had been issued as a guarantor or towards repayment of a loan or fulfilment of an obligation required recording of evidence and it was the function of the Court to decide whether there was some element of dishonesty on the part of executant of the cheque---Magistrate had agreed with the police report through impugned order in a mechanical manner and he appeared to have not applied judicial mind to consider the facts of the case---Impugned order though was an executive order, but Magistrate was to pass speaking order and he, in no way, was bound by the police opinion to agree with the same---Police opinion was not binding on the Court---Magistrate did not properly exercise jurisdiction vested in him, which had rendered impugned order illegal and without jurisdiction---High Court being competent to interfere therewith, constitutional petition was accepted and impugned order was set aside, with direction to remand case to Magistrate, who would pass fresh orders on cancellation report, submitted by the police within specified period.

Mian Shahzad Hassan for Petitioner.

Naeem Masood Asstt. A.-G. for Respondents Nos. 1 to 3.

Qamar Zaman Qureshi for Respondents Nos.4 to 5.

Farman Ali, S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 522 #

2007 Y L R 522

[Lahore]

Before Tariq Shamim, J

MUHAMMAD ISLAM---Petitioner

Versus

S.H.O., POLICE STATION FACTORY AREA, SARGODHA and 2 others---Respondents

Writ Petition No.8552 of 2006, heard on 1st November, 2006.

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

----S. 550---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of orders---Petitioner had challenged orders passed by the Trial Court on the ground that same being arbitrary and passed on extraneous consideration, were liable to be set aside--Actual owner of vehicle was respondent and case F.I.R. regarding theft of said vehicle stood registered at the instance of said respondent---Magistrate while passing order in favour of petitioner, had lost sight of the fact that petitioner was neither registered owner of vehicle in question nor same was taken into custody by the police from his possession---Argument of counsel for petitioner that petitioner was a bona fide purchaser of vehicle in question; was devoid of any force---Additional Sessions Judge while passing order impugned in the constitutional petition did not act contrary to law and was fully justified in holding that vehicle was case property in F.I.R. and lie had rightly directed the police' to take same into possession pending disposal of main petition---Impugned orders were interlocutory in nature as main controversy regarding superdari of vehicle in question was pending adjudication before Court below--. Only a final order could be brought under challenge in constitutional jurisdiction of High Court---Controversy; in the case essentially pertained to disputed questions of fact, which could not be resolved in constitutional jurisdiction of High Court---Petitioner having failed to point out any illegality, infirmity or jurisdictional error in the impugned orders, warranting interference of the High Court, petition was dismissed, with direction to revisional Court to decide case on merits.

Ghulam Hussain and another v. Malik Shahbaz Khan 1985 SCMR 1925; Abdul Majeed v. Noor Muhammad and two others PLD 2006 Lah. 649 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Only a final order could be brought under challenge in constitutional jurisdiction of High Court---Controversy, in the case essentially pertained to disputed questions of fact, which could not be resolved in constitutional jurisdiction of High Court.

Ch. Naseer Ahmed Bhutta for Petitioner.

Akhtar Masood Khan Awais for Respondent No.3.

Muhammad Ant Bhindcr, Addl. A.-G.

Date of hearing: 1st November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 530 #

2007 Y L R 530

[Lahore]

Before Syed Sajjad Hussain Shah, J

MUHAMMAD AKRAM---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal Nos.30 and Criminal Revision No.37 of 2005, heard on 24th July, 2006.

Penal Code (XLV of 1860)---

----Ss.302(h) & 302(c)---Appreciation of evidence---Grave and sudden provocation--Sentence, reduction in---Trial Court convicted accused solely on his statement recorded under S. 342, Cr.P.C.---Both parties admitted date and time of occurrence---Deceased admittedly had affair with the sister of accused---Accused had himself admitted in his statement under S.342, Cr.P.C. that it was he who had fired at deceased in his house---If statement of accused was to be made basis for his conviction, same should he accepted or rejected as a whole---Whether accused had seen deceased in a compromising position with his sister, accused had not produced any evidence in that respect; it was however, admitted position that it was his first version which was found correct by Investigating Agency---No independent evidence was on record to show that accused had actually seen deceased in compromising position with his sister as he had not fired at his sister---Deceased having been done to death in the house of accused, said circumstances had clearly suggested that accused acted under grave and sudden provocation after seeing deceased in his house with his sister---Accused, in circumstances could he convicted under S.302 (c), P.P.C. instead of S.302(h), P.P.C. as held by the Trial Court---Conviction of accused was converted into S. 302 (C), P.P.C. and was sentenced to seven years' rigorous imprisonment, accordingly.

Talat Mehmood v. Muhammad Ilyas 2002 SCMR 1889 rel.

Malik Rab Nawaz Noon for Appellant.

M. D. Shehzad for Respondent No.1 and Raja Mehfooz Ali Satti for Respondent No.2.

Date of hearing 24th July, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 534 #

2007 Y L R 534

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUHAMMAD YAQOOB and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1097 of 2005, heard on 21st November, 2006.

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

----S. 302/34---Appreciation of evidence--Accused were not nominated in F.I.R., but complainant had nominated them in his supplementary statement for which there was no provision in the Criminal Procedure Code--Prosecution witness who gave ocular account was not resident of same village, but was resident of other Chak---Said witness who had contradicted his own statement in examination-in-chief, was a chance witness---Statement of witness had not been corroborated by any evidence and in absence of any corroborative evidence his evidence had to be excluded from consideration---Witnesses before whom accused had allegedly made extra judicial confession, neither had apprehended accused while allegedly committing murder of deceased nor they were produced before the police, despite the fact that they were not influential persons of the area and it was not understandable that why accused selected them for making extra judicial confession or for securing pardon from complainant---Conduct of said prosecution witnesses being most unnatural, story of extra judicial confession, could not be believed---Even otherwise, extra judicial confession being a weak type of evidence, could not be made basis for conviction of accused without independent corroboration, while no independent corroborative evidence was on record in support of said alleged extra judicial confession---Presence of one of prosecution witnesses at the scene of occurrence at the relevant time was doubtful---Injuries on the person of deceased which were simple in nature, were not sufficient to cause death in ordinary course of nature---Statement of complainant showed that accused killed deceased to snatch cash from him but.. during investigation no amount was recovered from accused---Even otherwise deceased being "manjan" seller, prosecution story would not sound to be natural---Defence version seemed to be plausible---Prosecution having failed to prove its case against accused, they deserved acquittal---Conviction and sentence awarded to accused by the Trial Court, were set aside and accused were released.

Zafar Hayat v. The State 1995 SCMR 896; Muhammad Bashir alias Pervaiz and another v. The State 2005 PCr.LJ 1135; Mst. Manzooran v. The State 1989 MLD 832 and Mst. Jamila Bibi v. The State 1999 PCr.LJ 381 rel.

(b) Criminal trial---

----Supplementary statement---No provision exists in Cr.P.C. about supplementary statement---Generally, such statement is recorded to fill the lacunas in the prosecution case.

Mubarak Ali v. The State 2003 PCr.LJ 986 and Allah Ditta v. Stat PLJ 2000 Cr.0 Lah. 991 rel.

Mian Mahmood Ahmad for Appellants.

M. Saleem Shad for the State.

Date of hearing: 21st November, 2006.

2007 Y L R 625

[Lahore]

Before Syed Sajjad Hussain Shah, J

MUHAMMAD QADEER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2309 of 2003, heard on 2nd November, 2006.

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

----Ss. 302(b) & 392---Appreciation of evidence---Circumstantial evidence---Value---Scope---Contention of accused was that since prosecution case was based solely on circumstantial evidence, it could not have been, concluded with certainty that accused was responsible for the offence---Validity---Occurrence, no doubt was unseen, but no rule existed that conviction could not be based on circumstantial evidence alone---Absence of direct evidence would not mean that guilt could not be fixed---Circumstantial evidence was the evidence of basic facts wherefrom, further fact could be inferred or natural conclusion, according to reason and logic could be deduced however, its strength, as per circumstances of the case, could vary from case to case---Often it was stronger and more satisfactory, than direct evidence, because it was not liable to delusion or fraud---In some cases, where direct evidence was either not available or witnesses were not deemed wholly credible, circumstantial evidence, could be more convincing---Test was that it should not only be relevant, but consistent and conclusive as well and should be so convincing that circumstances or facts proved on record must lead to only one conclusion---In order to carry conviction, it must be incompatible with any reasonable hypothesis of innocence of accused---In the present case there was strong circumstantial evidence, which had led to inference that occurrence, in the case had taken place in the manner as suggested by the prosecution---Prosecution case was based on medical as well as circumstantial evidence---Trial Court had rightly held accused .responsible for offence on basis of such evidence.

Khuda Bakhsh v. The State 2004 SCMR 331; Daulat Ali v. Muhammad Asalm and others 1999 SCMR 845; The State v. Manzoor Ahmad PLD 1966 SC 664 and Karamat Hussain v. The State 1977 SCMR 15 rel.

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

----Art.3---Child witness---If a Judge who examined a child witness, recorded a note that he was satisfied that the witness was intelligent and capable of understanding the question which was likely to he put to it, nothing was in the law to prevent Appellate Court from accepting that note as sufficient proof of the capacity of the child to be a witness under Qanun-e-Shahadat, 1984---Such a note having been made during the course of trial, should be presumed to represent the truth.

Ameer Umar v. The State 1976 SCMR 338; Muhammad Ismail and another v. The State 1995 SCMR 1615 and 1968 SCMR 852 rel.

----Ss. 302(b) & 392---Appreciation of evidence---Prosecution witness who was 11 years old girl, was niece of accused, had given ocular account---Trial Court made a note to the effect that certain questions were put to said witness to ascertain her capacity to appear and depose as a prosecution witness and that said witness had replied those questions properly---Manner in which the girl had testified and gave intelligent answers to cross-examination by the defence, had given a least idea that she was a tutored witness as alleged by defence, her testimony was intrinsically true and worth credit---Said witness could not be even presumed to falsely implicate her maternal uncle for murder of her mother and brother---Accused along with his acquitted co-accused was seen by prosecution witnesses coming out of the house of deceased in a perturb condition---Said witnesses were independent and residents of the same locality where occurrence took place; they had no relation with the complainant party or ill-will against accused---Recovery of pistol, articles belonging to deceased and two empties from the place of occurrence, on the pointation of accused, had fully been proved---Report of Fire-arm Expert in respect of empties and offensive weapon, was positive---Time of occurrence was confirmed by mescal evidence---Trial Court, in circumstances had rightly inferred that accused was responsible for commission of offence---Both deceased were last seen alive in the company of accused and accused had the knowledge of place where he had kept pistol after occurrence and recovery of articles belonging to deceased, which were recovered at the instance of accused in presence of prosecution witnesses---Crime empties found at the place of occurrence were-matched with the pistol recovered from accused---Appeal against conviction and sentence of accused, was dismissed.

Gulzar alias Gulla v. The State PLD 1996 SC 263; Abdul Ghaffar v. The State 1993 Law Notes Lah. 537; Gul Muhammad alias Guloo v. The State 2004. YLR 216; Habib alias Habib-ur-Rhman v. The State 2004 YLR 206; Nazir Ahmad v. The State 1996 MLD 635; Jailed Iqbal alias Akhtar Shah v. The State PLD 1995 Lah. 498; Saifal Khan and another v. The State 2003 YLR 1227; Zafar Iqbal and another v. The State 2003 YLR 1364; Muhammad Froze v. The State PLD 2003 Karachi 355; Abdullah Shah alias Babar Ali and other's case1998 PCr.LJ 1236; Muhammad Alam alias Shin v. The State 2001 PCr.LJ 86; Nazir Ahmad v. The State 1996 MLD 635; Zafar Iqbal and another v. The State 2003 YLR 1364; Safdar Abbas and two others v. The State PLD 1987 SC 467 and The State v. Rebnawaz and others PLD 1974 SC 87 ref.

(d) Criminal trial---

----Circumstantial evidence---Evidentiary value---Scope.

Khuda Bakhsh v. The State 2004 SCMR 331; Daulat Ali v. Muhammad Asalm and others 1999 SCMR 845; The State v. Manzoor Ahmad PLD 1966 SC 664 and Karamat Hussain v. The State 1977 SCMR 15 rel.

Ch. Ehsan Sabir for Appellant.

Badar Munir Malik for the State.

Date of hearing: 2nd November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 646 #

2007 Y L R 646

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ARSLAN---Petitioner

Versus

THE STATE through Station House Officer, Police Station, Ghulam

Muhammadabad, Faisalabad and others-Respondents

'Writ Petition No.19345 of 2005, heard on 20th January, 2006.

Penal Code (XLV of 1860)---

---Ss.398 & 401---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Quashing of F.I.R. ---Offence under S.398, P.P.C. would be attracted if at the time of attempting to commit robbery or dacoity, offender was armed with any deadly weapon---F.I.R., in the present case showed that. no attempt to commit any robbery or dacoity was underway at the time of apprehension of petitioner/accused and his co-accused---Absolutely no material or evidence was available on record to show that any such attempt had actually been made by accused and his co-accused at the relevant time---Mere presence of armed accused at the place would not by itself attract the provisions of S.398, P.P.C.-Offence under S. 401, P.P.C. would be constituted, if accused belonged to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery, but in the present case absolutely no proof was available on the record to show or to establish that accused and his co-accused were members of a gang of persons habitually committing theft or robbery---Accused or his co-accused had been proved to be not belonging to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery---Complainant was not right to have implicated accused in an offence under S.401, P.P.C.-Both offences allegedly committed by accused and his co-accused did not stand constituted on the basis of the facts alleged in impugned F.I.R.---Lodging of F.I.R. and pursuing same any further by prosecution appeared to be an exercise in futility---Impugned F.I.R., was quashed, in circumstances.

Nadeem Shibli for Petitioner.

Faisal Ali Qazi, Assistant Advocate-General for Respondents Nos.1 and 2.

Munir Hussain Cheema for Respondent No.7.

Respondent No.8 in Person.

Date of hearing: 20th January, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 647 #

2007 Y L R 647

[Lahore]

Before Maulvi Anwarul Haq, J

TEHSIL MUNICIPAL ADMINISTRATION/TEHSIL COUNCIL, NAUSHERA VIRKAN, DISTRICT GUJRANWALA through Nazim---Petitioner

Versus

Mst. ZUBAIDA BEGUM and 4 others-Respondents

Civil Revision No.1983 of 2006, heard on 5th December, 2006.

Civil Procedure Code (V of 1908)---

----O.XXVI, R.9---Specific Relief Act (I of 1877), S. 8--- Suit for possession---Appointment of Local Commissioner---Demarcation report by Local Commissioner---Requirements---Suit for possession alleging that plaintiffs were owners of 12 Marlas of land in specific Khasra number which had been occupied by defendant and despite a demarcation report which had depicted encroachment, defendant had refused to vacate said land---Suit having concurrently been decreed by the Trial Court and Appellate Court, defendant filed revision against said concurrent judgments and decrees, which revision was allowed, both judgments and decrees were set aside with direction to appoint a Local Commissioner, who would demarcate land strictly in accordance with the High Court (Lahore) Rules and Orders---Local Commissioner was appointed after remand, who filed his report and on basis of said report suit was concurrently decreed by the Trial Court and Appellate Court---Validity---Primary requirement for a valid demarcation was that the Local Commissioner should summon the Field Map (Aks Shajra or Latha) prepared during the last settlement and the measurements of land were to be conducted with reference to said document---Report as well as statement of the Local Commissioner in the present case, was absolutely silent as to how he conducted measurement---No attempt was made by the Local Commissioner to determine any other point as directed by High Court and as prescribed by the Rules and orders of High Court---Report of Local Commissioner did not at all meet the prescribed criteria---Impugned judgment and decree based on said report of Local Commissioner, passed by Appellate Court were set aside and case was remanded with a direction to appoint another Local Commissioner, preferably Tehsildar concerned who would conduct demarcation and prepare encroachment plan, if he would find an encroachment of suit-land and submit report after spot inspection in accordance with Rules and Orders of the High Court.

Dr. M. Mohyuddin Qazi for Petitioner.

Zafar Iqbal Chohanfor Respondents.

Date of hearing: 5th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 654 #

2007 Y L R 654

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUHAMMAD IQBAL---Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.77 and Murder Reference No.123 of 2001, heard on 25th September, 2006.

Penal Code (XLV of 1860)---

----S.302 (b)---Appreciation of evidence---Extenuating circumstances ---Sentence, reduction in---Murder not a premeditated incident---Single Churri blow---Due to quarrel between the children, accused and deceased grappled each other and accused gave a Churri blow, which resulted into death of deceased---Trial Court convicted the accused and awarded death sentence to him---Validity---No previous background of enmity existed between the parties---Just before actual occurrence of murder, a quarrel had taken place . between the children and son of accused received head injury---Dead body of deceased had only one injury that was a stab wound on the left side of chest and accused did not repeat the injury---Occurrence was not a premeditated murder and had taken place at the spur of moment in the heat of passion without taking undue advantage---High Court taking such facts as extenuating circumstances, maintained conviction under S.302 (h) P.P.C. but converted sentence of death into imprisonment for life---Appeal was allowed accordingly.

M.A. Zafar for Appellant.

Malik M. Suleman Awan for the State.

Date of hearing: 25th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 662 #

2007 Y L R 662

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ASHRAF and another---Petitioners

Versus

THE STATE-Respondent

Criminal Appeals Nos.1324, 1381 and Murder Reference No.601 of 2001, heard on 12th September, 2006.

Penal Code (XLV of 1860)---

----S. 302 (b)---Appreciation of evidence---Sentence, reduction in---Complainant, who was brother of deceased and other prosecution witness; who was also related to deceased, were chance witnesses and both had thrown a large net by involving five adults, who were related inter se--Deceased had received one fire-arm injury---Co-accused was saddled with responsibility of holding deceased, but allegation of holding deceased by co-accused, was ridiculous which was further belied by medical evidence---Prosecution witnesses had improved their statements regarding existence of electric bulb at the spot at relevant time, their dishonest improvement was fully exposed by the site plan which was prepared by Investigating Officer when he visited the spot, wherein no source of light had been shown---It was, in circumstances an un-witnessed occurrence and prosecution witnesses were not present at the time of incident---Defence plea taken by accused was supported by certain circumstances---Impugned judgment to the extent of co-accused was set aside and he was acquitted of all charges against him---Conviction of accused was altered from offence under S.302(b), P.P.C. to S.302(c), P.P.C. and his sentence was reduced to the period already served out by him.

Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294 ref.

Syed Ijaz Qutab for Appellants.

Sardar Khurram Latif Khan Khosa for Complainant.

Ch. Nazir Ahmad for the State (in Criminal Appeal No.1324 of 2001)

Ch. Nazir Ahmad for the State (in Criminal Appeal No.1381 of 2001 and Sh. Khalid Habib in Murder Reference.

Date of hearing: 12th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 666 #

2007 Y L R 666

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

ALLAH RAKHA---Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.104I and Murder Reference No.453 of 2001, heard 19th September, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence---Accused had taken specific plea of grave and sudden provocation---Case of two versions---Prosecution, in order to support the version of F.I.R., had not produced independent witness during trial---Prosecution witness produced by prosecution lived at a different place and was present at the time of occurrence per chance---No independent witness had been produced in support of the motive---Sister of accused appeared as defence witness and she supported defence, plea taken by accused---Said witness was subjected to cross-examination, but her credibility could not be shaken---Defence plea of accused was more plausible as same was borne out from the circumstances of the case---In the eventuality of possibility of two views, one favouring accused should be preferred---Conviction of accused was altered from offence under S.302(b), P.P.C. to offence under S.302(c), P.P.C.---Accused having already spent more than nine years in jail, his sentence was reduced to the period already served out by him as same would meet the ends of justice.

Meraj Begum v. Ejaz Anwar and others PLD 1982 SC 294 ref.

Ch. Muhammad Nazir Ahmad for Appellant.

Ashfaq Ahmad Chaudhry for the State (In Murder Reference) and Badar Munir Malik for the State (in Criminal Appeal).

Date of hearing: 19th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 670 #

2007 Y L R 670

[Lahore]

Before Khawaja Muhammad Sharif, J

RIAZ HUSSAIN SHAH ---Appellant

Versus

THE STATE--Respondent

Criminal Appeals Nos.842, 1047 and Criminal Revision No.429 and P.S.L.A. No.57 of 2005, decided on 6th November, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 34, 109, 201, 148 & 149---Criminal Procedure Code (V of 1898), S.342---Appreciation of evidence---Benefit of doubt---F.I.R. recorded on complaint of police official---Private complaint---Ocular account not supported by medical evidence---Dishonest improvements made in private complaint---Motive not proved--Incriminating piece of evidence not referred to accused while recording statement under S.342, Cr. P.C.---Conspiracy not proved---Doubtful presence of eye-witnesses on the spot---Effect---Allegation against accused/ appellant was that they along with co-accused committed murder of deceased with fire-arms---F.I.R. was recorded on complaint of Assistant Sub-Inspector Police wherein two persons who allegedly accompanied deceased were cited as eye-witnesses of occurrence---Cousin of deceased moved an application to police claiming himself to be eye-witness of occurrence, stating therein that on eventful night. accused/appellant armed with rifle Kalashnikov type along with four unknown persons dragged deceased ,from his van whereupon principal accused fired two shots hitting deceased at his back---Cousin of deceased claimed that he along with eye-witnesses, witnessed occurrence in tile light of two vehicles---Applicant further alleged that conspiracy of murder of deceased had been hatched in the house of a political personality and two persons were mentioned as witnesses of conspiracy---Motive stated in application was that deceased had produced a person in 'open Katchehry' of the then Prince Minister wherein the said person levelled serious allegations against principal accused and said political personality---Ten months after occurrence said cousin of deceased filed private complaint against 12 persons including accused/appellants---Trial Court convicted and sentenced three accused to imprisonment for life and acquitted rest of the accused including those named in private complaint---Validity---Prosecution had failed to explain blunt weapon injuries on the body of deceased as it was never stated by prosecution that deceased was also given injuries with Danda, Sota or any blunt weapon---Had eye-witnesses been present on the spot they were to have mentioned such injuries in application moved to police on the day of occurrence---No evidence was on record that deceased was dragged to some reasonable distance and that blunt weapon injuries were in fact dragging marks---Application submitted by cousin of deceased showed that principal accused was armed with "rifle Kalashnikov type' while rest of the accused were armed with rifles---Complaint filed by cousin of deceased changed weapon of offence from "rifle Kalashnikov type" to "gun Kalashnikov type "--Dishonest improvement in complaint was made in order to being case in line with post-mortem report because injuries on the person of deceased were caused with gun and not with rifle---Had eye-witnesses been present on the spot they could not have made such mistakes---No recovery was effected from principal accused---Five persons armed with fire-arms fired at the spot but none of witnesses received a single scratch on his body which aspect falsified presence of witnesses on the spot---Two crime empties were recovered from the spot and there was no matching report from the office of Fire-arms Expert---In investigation conducted by many senior police officers, principal accused was found. not to be present on the spot---Statement of conspiracy witness was not believable as door of the room where conspiracy was being made was not supposed to remain open so that said witness could hear about conspiracy---Identification test was of no consequence for the reason that as description of none of the accused. was given in application moved by cousin of deceased it was very easy for eye-witnesses to state that accused which they had identified in jail were murderers of deceased---Proceedings of identification test were never put to accused/appellants in their statements recorded under S.342, Cr. P. C. as being incriminating evidence---Court witnesses of abetment while deposing before Trial Court had not stated a single word against principal accused and they had not supported the charge but they were not even declared hostile---Person in whose favour deceased made a protest in open Katchery of the then Prime Minister was never produced by prosecution so the allegation that for this reason deceased was murdered was not established, thus motive was not proved---Incriminating evidence regarding recovery of weapon of offence had not been put to accused/appellants in their statements recorded under S.342, Cr. P. C. ---Newspaper clippings produced by prosecution were not admissible in evidence---Prosecution also failed to produce any evidence to the effect that any of prosecution witnesses allegedly present on the spot took dead-body of deceased in injured condition to hospital---Prosecution concocted story about the incident and eye-witnesses were not present on the spot---Complaint was filed with delay of 10 months without any explanation---Case against accused/appellants being doubtful, they were given benefit of doubt and their appeals were accepted.?

1989 PCr.LJ 92; 1993 SCMR 550; 1984 SCMR 930; 1976 SCMR 236; 1974 PCr.LJ 391; 2006 PCr.LJ 944; 1988 PCr.LJ 674; 1978 PCr.LJ Note 10 at p.7; PLD 1974 Lah. 306; 1976 PCr.LJ 65; 1997 SCMR 1531; NLR 1990 Criminal 282; PLD 1990 Kar. 314; PLD 2006 Pesh. 144; 1996 PCr.LJ 238; PLJ 1996 FSC 239; 1984 PCr.LJ 2069; 1975 PCr.LJ 1116; PLD 1972 Lah.129; 1969 SCMR 777; PLD 1961 Lah. 146; PLD 1955 FC 88; PLD 1955 FC 129; PLD 1952 FC 63; PLD 1952 FC 1; 1996 SCMR 176; 2002 SCMR 1842; 2002 SCMR 429 and 2005 SCMR 49 ref.

Munir Ahmad Bhatti, Inayat Ullah Cheema and Syed Mazahar Ali Naqvi for Appellant.

M. Azhar, Ch. Ijaz Ahmad Chadhar for Complainant.

M. Hanif Khatana, Addl. A.-G. and Raja Akhtar Nawaz for the State.

Dates of hearing: 29th September, 2nd, 4th, 5th; 6th, 9th, 10th, 12th, 27th 30th and 31st October and 1st November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 688 #

2007 Y L R 688

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

BABAR HUSSAIN---Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.320, Murder Reference No.864 and Criminal Revision No.145 of 2001, heard on 8th December, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Case against accused was of circumstantial evidence, resting on statement of father of deceased who stated that accused and deceased went together from his house---Such statement was recorded after thirteen days of registration of F.I.R.---Prosecution witnesses who had stated that they had last seen deceased and accused together, their statements could not be called as evidence of last seen as there was no proximity of time and place---One of said witnesses was a friend of complainant party-Extra-judicial confession allegedly made by accused .before prosecution witnesses, could not, be believed as said witnesses neither raised hue and cry nor informed the police---Even `otherwise extra-judicial confession had always been treated as a very weak type of evidence, especially when there was no evidence whatsoever against accused; extra-judicial confession was ruled out, in circumstances---Bones allegedly recovered, were not even sealed into a parcel---Such fact by itself would support the conclusion that bones were not that of deceased-Even father and brothers of deceased had not identified any of the bones by stating that those belonged to deceased---No motive whatsoever for killing deceased was brought on record either during the course of investigation or during the course of trial---Prosecution had failed to prove its case against accused beyond doubt---Conviction and sentence awarded to accused by the Trial Court, were set aside granting him benefit of doubt and accused was acquitted.

Umaid Ali v. The State PLD 1978 (B.J.) 31 and Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 rel.

Sardar Muhammad Ishaq Khan for Appellant.

Tanvir Iqbal, Asstt. A.-G. for the State.

Nemo for the Complainant.

Date of hearing: 8th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 693 #

2007 Y L R 693

[Lahore]

Before Syed Hamid Ali Shah, J

AHMAD SOHAIB---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Housing and others---Respondents

Writ Petition No.10169 of 2005, decided on 16th June, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition--Maintainability---Land claimed by petitioner to be reserved for park, was a private land, acquisition whereof had been challenged by respondent and a decree of a Court of competent jurisdiction in favour of respondent had been passed---Appeal against said decree was pending in Appellate Court below---No park could be developed at a disputed place unless, controversy was resolved---Matter was pending before a court of competent jurisdiction---Respondent had levelled -serious allegations against petitioner and had submitted that act of filing of petition was sheer blackmailing---No direction could be issued to respondent unless litigation was concluded---Petition being devoid of force, was dismissed.

Petitioner in person.

Mumtaz Hussain Bokhari for Respondent No.4.

Syed Ikhtisar Hussain for Respondent No.5.

YLR 2007 LAHORE HIGH COURT LAHORE 696 #

2007 Y L R 696

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD AKRAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5492-B of -2006, decided on 7th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(iii), 337-F(v), 337-L(ii), 379, 411, 148 & 149---Bail, refusal of---Accused was specifically nominated in F.I.R. with specific role of raising lalkara and causing injuries to prosecution witness with his hatchet---Challan against accused had been submitted in the Court in which charge had been framed---Accused absconded and remained fugitive from law for more than two years and seven months, when he was arrested by the police such noticeable abscondence had not been explained by the accused---Fugitive from law and courts, would lose some of normal rights granted by the procedural and substantive law---Accused, was not entitled to post-arrest bail, in circumstances.

Rehmat Ullah v. The State 1999 PCr.LJ 579 rel.

Ijaz Hussain Gorcha for Petitioner.

Ghulam Hussain Malik for the Complainant.

M. Aslam Malik for the State with Umar Hayat A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 699 #

2007 Y L R 699

[Lahore]

Before Sh. Javaid Sarfraz, J

QASIM alias BHAI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5851-B of 2006, heard on 26th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302, 324, 109/34---Pre-arrest bail, refusal of-Statements of prosecution witnesses who levelled allegations against accused, having been promptly recorded, there was no occasion for deliberations by the complainant party---Counsel for accused had not been able to explain the reason as to why said two witnesses would depose against accused---Deceased before his death, also had nominated accused and had stated with vehemence that it was only on account of accused that occurrence had taken place---Accused had not been able to show any mala fide as to why case had been registered against him---Pre-arrest bail could only be allowed on the ground of mala fide, which was missing in the case---Accused being not entitled to any pre-arrest bail concession, his bail petition was dismissed.

Ejaz Ahmad Janjua for Petitioner.

Sardar Bilal Ahmad for the State with Irshad Ali S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 702 #

2007 Y L R 702

[Lahore]

Before Syed Hamid Ali Shah, J

Mst. SARWARI BIBI---Petitioner

Versus

ARSHAD ALI KHAN and others---Respondents

Writ Petition No.12936 of 2003, decided on 14th July, 2005.

West Pakistan Land Revenue Rules, 1968--

-----Rr. 17 & 19---Constitution of Pakistan (1973), Arts.25(2) & 199---Constitutional Petition---Appointment of female as Lambardar---Petitioner was resident of village concerned and owned agricultural land--Father and grandfather of the female also remained lambardars of the village---Report of Field Staff showed that petitioner on the basis of her family background, kinship and being real sister of deceased lambardar, could be considered as suitable candidate for lambardar, but Authorities had totally ignored recommendation of Field Staff on ground of incapacity of petitioner on account of her being female---Rule 19(2) (d) of West Pakistan Land Revenue Rules, 1968, had provided that ordinarily, a female should not be appointed as lambardar, but she could be appointed when she was sole owner or for special reasons---Right of female was fully granted by Constitution under Art.25(2) thereof and provisions of R.19(2) (d) of West Pakistan Land Revenue Rules, 1968, were unconstitutional---Petitioner, in circumstances, could not be ignored for appointment as lambardar, only on the ground that she was a female, if otherwise she was most suitable for such appointment---Impugned order passed by Member, Board of Revenue, spoke only suitability of respondent but was silent with regard to suitability of petitioner for appointment in question--Impugned order was set aside and case was remanded to Member, Board of Revenue for its decision afresh on the basis of report of Field Staff and keeping in view provisions of R.17(a) of West Pakistan Land Revenue Rules, 1968.

Muhammad Sarwar v. Umar Din PLD 1957 Revenue 31; Ghulam Rasul v. Hasan Muhammad PLD 1960 Revenue 52; Ch. Asghar Ali v. Member, Board of Revenue and others 1993 CLC 858; Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484; Mushtaq Hussain v. Naeem Akhtar PLD 1982 SC 271; Mussarat Uzma Usmani and another v. Government of Punjab through Secretary Health, Lahore and another PLD 1987 Lah. 178 and Mushtaq Hussain v. Mst. Naseem Akhtar and others PLD 1982 SC 271 ref.

Zafar Iqbal Chauhan for Petitioner.

Syed Farooq Hassan Naqvi for Respondent No. 1.

Date of hearing: 2nd June, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 709 #

2007 Y L R 709

[Lahore]

Before Syed Zahid Hussain, J

MUAHMAMD ISMAIL and others-Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No.12524 of 2004, decided on 19th October, 2005.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 10, 11 & 13---West Pakistan Land Revenue Act (XVII of 1967), S.164---Constitution of Pakistan (1973), Art.199---Constitutional petition---Confirmation of consolidation Scheme---Revisional powers of Board of Revenue---Scope and extent--Consolidation Scheme of village concerned was confirmed in the year 1996---On receipt of complaints of alleged illegalities and irregularities, Additional Commissioner (Consolidation) took up and probed the matter, annulled the Scheme and remanded the matter to Consolidation Officer for proceedings afresh---Said order having been upheld in revision by Member, Board of Revenue was assailed in constitutional petition---Validity---Scope of revisional powers of Board of Revenue under S.13 of West Pakistan Consolidation of Holdings Ordinance, 1960, was large and extensive and was akin to provisions of S.164 of West Pakistan Land Revenue Act, 1967 and said powers were not hedged by any constraint or limitation---Only requirement was that before passing any order, reversing or modifying the proceedings or order of subordinate officials opportunity of hearing was to be afforded to the person concerned---Such was the aim and object of subsection (4) of S.13 of West Pakistan Consolidation of Holdings Ordinance, 1960---Mere filing of appeal by some of the aggrieved persons in the hierarchy, would not denude the Board of Revenue of its powers vested in it under S.13 of West Pakistan Consolidation of Holdings Ordinance, 1960, who happened to be at the apex of that hierarchy and charged with the supervisory duty under the law and it was for the Board of Revenue to consider in each case when it would come before it, the nature, amplitude and import of each illegality and irregularity and to determine whether it appropriately attracted its jurisdiction and power of annulment of the Scheme---Concurrent view expressed by two successive Members i.e. the statutory functionaries, as to the commission of illegalities and irregularities in the preparation of consolidation Scheme, could not be substituted by High Court, in exercise of its constitutional jurisdiction.

Atta Muhammad and 6 others v. Member (Consolidation), Board of Revenue of Punjab, Lahore and 9 others 2002 CLC 464; Abdul Majid Khan etc. v. Member Board of Revenue (Consolidation), etc. 1986 MLD 782; Kala v. Board of Revenue and another PLD 1985 SC 208; Najabat Ali v. Bashir Ahmad and others PLD 1987 SC 16 and Atta Muhammad and 6 others v. Member (Consolidation), Board of Revenue, Punjab, Lahore and 9 others 2002 CLC 464 rel.

Syed Zafar Ali for Petitioners.

Ch. Muhammad Hussain for Respondents.

Ch. Aamir Rehman, Addl. A.-G. Punjab for Respondents.

Date of hearing: 10th October, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 717 #

2007 Y L R 717

[Lahore]

Before Jawwad S. Khawaja, J

Haji SAKHI MUHAMMAD---Petitioner

Versus

MUHAMMAD NAWAZ---Respondent

Civil Revision No.615 of 2006, decided on 27th June, 2006.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Suit for recovery of amount---Suit filed by petitioner was decreed by the Trial Court, but Appellate Court reversed said decree and dismissed suit on ground that it was barred by time---Contention of the plaintiff was that defendant had not raised any objection on the ground of limitation and that said issue was not raised by defendant before the Trial Court---Validity---Preliminary objection was specifically made by defendant in the written statement to the effect that suit was time-barred---Issue was expressly framed on the question of limitation---Contention of plaintiff that no objection had been raised as to limitation and that no issue had been framed in respect thereof, held, were not in accordance with the record---Petition was dismissed.

Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822 ref.

Naseem Ullah Khan Niazi for Petitioner.

Abdul Wahid Chaudhry for Respondent.

Date of hearing: 6th June, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 718 #

2007 Y L R 718

[Lahore]

Before M. A. Shahid Siddiqui and Hasnat Ahmad Khan, JJ

MUHAMMAD TARIQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3213-B of 2006, decided on 2nd November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Drugs Act, (XXXI of 1976), Ss.24 & 27---Bail before arrest, grant of--Non-bailable warrants issued by Trial. Court---Complainant-Drug Inspector seized pamphlets for treatment of various diseases from Dawakhana of accused/petitioner and submitted complaint against him---Trial Court issued non-bailable warrant of arrest to procure attendance of accused which could not be executed---Trial Court, thereafter, issued proclamation before proceeding under S. 512, Cr.P.C. and then again issued non-bailable warrant of arrest to procure attendance of accused---Accused apprehending his arrest had applied for pre-arrest bail before High Court which was granted for a period of one month.

Ch. Mehmood Ali for Petitioner.

Miss Aasia Abbasi for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 719 #

2007 Y L R 719

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD HAYAT KHAN---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Communication and Works and others---Respondents

Civil Revision No.1252 of 2006, decided on 23rd June, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiff who was awarded. a contract for collection of Toll Tax by Authorities for an initial period of three years, had prayed in his suit for declaration that Authorities be directed to extend period of said contract for further period of two years---Claim of plaintiff was that according to terms and conditions of contract, he was entitled .for an extension for .further period of two years with enhancement of 5%---Provision of contract had provided that period of contract could he extended for a further period of two years, subject to only two conditions; firstly with the consent of the parties; and secondly ,with approval of Competent Authority---Case of plaintiff was not that he alone had unilateral right for extension of contract---Nothing was provided in terms of contract that either party could force the other to continue with the contract for an extended period without its consent---Evidence on record had .shown that neither Authorities nor any officer competent or otherwise, ever communicated consent of Authorities for extension of contract---In the absence of consent of authorities to the extension of contract, no right was conferred upon plaintiff which could come within the purview of S.42 of Specific Relief Act, 1877---Appellate Court, in circumstances had rightly found that suit was not maintainable which was liable to be dismissed---In absence of any material irregularity in exercise of jurisdiction by Appellate Court below, its judgment could not be interfered with by High Court.

Ch. Fawad Hussain for Petitioner.

Malik Zafar Iqbal Awan, Addl. A.-G. for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 723 #

2007 Y L R 723

[Lahore]

Before Hasnat Ahmad Khan, J

MULAZIM HUSSAIN and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.715 of 2001, heard on 28th November, 2006.

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

----Ss. 302 & 324/34---Appreciation of evidence---Benefit of doubt---Medical evidence in conflict with ocular account--Identification of accused in dark night---Considerations---Source of light (torch) not recovered---Failure of witnesses to specify role of each accused during identification parade--- Effect--- Allegation against accused/appellants was that they, while armed with fire weapon, knife and screw driver, committed murder of complainant's son and caused injuries to his other son---Trial Court convicted accused under Ss.302 & 34, P.P. C. and sentenced them to life imprisonment---Accused were further convicted under Ss.324 & 34, P.P. C. and sentenced to five years imprisonment .for launching murderous assault on the injured son of complainant-Validity--Complainant did not claim in the F.I.R. that it was a moonlit night---Had it been a moonlit night complainant would have definitely mentioned this fact and there was no need to mention identification through torch light---Investigating Officer, during trial, had admitted that it was a dark night---Most important article which could have established the source of light was torch in. the light of which complainant allegedly identified accused, was not taken into possession---For identification of accused in dark night, in the light of electric bulb, lantern etc., availability of sufficient light, opportunity to witness to have a good look or a, dialogue with accused, the intimacy of accused with witnesses; the availability of an unobstructed view of accused to witnesses at the time of occurrence, were important aspects to be taken into consideration---No previous intimacy of accused with witnesses existed and admittedly no dialogue was exchanged between both sides---Prosecution also failed to prove that it was a moonlit night---Accused were arrested in the case one year after the occurrence and it was too much to expect from witnesses to identify accused whose features they had got little chance to memorise, especially when they were seen in dark night and there was no intimacy between both the parties---Objection of accused that at the time of identification parade they were shown to prosecution witnesses by police could not be easily brushed aside, keeping in view the record of their arrest---Complainant in his cross-examination admitted that during investigation he had stated before Investigating Officer that if present accused were arrested, murder of his son could be traced and at that time he gave names, parentage and residences of all accused which exercise made identification process meaningless; it did not become clear that how accused were traced as real culprits except for afore-said suspicion---Complainant, according to identification proceedings, could not identify all accused during investigation, benefit of which could not be extended in any manner to prosecution and it had to go to the accused---Witnesses did not specify role of each accused who were identified by them---Witnesses if did not specify the role of each accused during identification parade, such identification lost its efficacy and importance--Evidence of identification of accused was to be sufficient to exclude all possibilities of mistake or exaggeration---Benefit of doubt, however slightest it might be, was to be given to accused and it would be safe to acquit accused rather than to convict them; for it was better to err on acquittal than to err on conviction---Medical evidence contradicted ocular version as all injuries suffered by deceased were found to be of incised wounds and none of injuries could be termed to have been suffered with pointed weapon like screw driver---Prosecution had failed to prove its case against accused beyond any shadow of doubt---Accused were acquitted of charge on ground of benefit of doubt---Appeal was accepted.?

1985 SCMR 721; 1988 SCMR 557; 1995 SCMR 127 and PLD 2006 Sr.C. Lah. 290 rel.

Khadim Hussain v. The State 1985SCMR 721; Muhammad Arshad v. The State PLD 1995 SC 475; Ghulam Rasul and 3 others v. The State 1988 SCMR 557; Sajjad Hussain v. The State 1997 SCMR 174; Gullan v. The State PLJ 1990 Cr.C. (Karachi) 340; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Farman Ali v. The State 1997 SCMR 971 and State through Advocate General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 ref.

(b) Criminal trial---

----Benefit of doubt---Benefit of doubt, however slightest it might be, was to be given to accused and it would be safe to acquit accused rather than to convict them; for it was better to err on acquittal than to err on conviction.?

Sahibzada. Farooq Ali Khan for Appellants.

Altaf Ibrahim Qureshi for the Complainant.

Rao Aatif Nawaz for the State.

Date of hearing: 28th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 730 #

2007 Y L R 730

[Lahore]

Before Khawaja Muhammad Sharif, J

ZAFAR AHMED and others---Appellants

Versus

THE STATE---Respondent

Criminals Appeals Nos.816 and 1006 of 2003 and Criminal Revision No.556 of 2003, decided on 3rd October, 2006.

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

----S. 302---Appreciation of evidence---Accused and one of his co-accused were named in the F.I.R.---Two eve-witnesses who had appeared before the Trial Court, had no animus against them---Accused and co-accused had opened attack though said fire-shots hit on the motorcycle of deceased--Recoveries were also effected from them and those recoveries matched with the empties recovered from the spot---Said two accused were equally liable for the act committed by their other co-accused who was a proclaimed offender---Two accused persons had facilitated the commission of murder of deceased---Appeal to the extent of said accused and co-accused was dismissed and conviction and sentence recorded against them by the Trial Court, was maintained in toto---Accused persons were on bail and would be taken into custody and sent to judicial lockup to serve their remaining part of sentence.

2004 SCMR 1185; 1982 SCMR 49; 1999 SCMR 114; 1995 SCMR 1293; 1995 SCMR 1735; 2004 YLR 1469 and 1995 SCMR 896 rel.

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

----S. 302---Appreciation of evidence---Co-accused was not named in F.I.R., but was named later on in supplementary statement by complainant---No identification parade was held---One of the prosecution witnesses, who was witness of "Wajtakkar" had made dishonest improvements--Recovery allegedly effected on pointation of the co-accused, seemed to be doubtful--Conviction and sentence recorded against the co-accused, was set aside; he was on hail and would be discharged from his bail bond.

Sardar Shahbaz Khan Khosa for Appellants.

Nemo for the State.

Dr. Khalid Ranjha for the Complainant.

Date of hearing: 29th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 735 #

2007 Y L R 735

[Lahore]

Before Ijaz Ahmad Chaudhry and Muhammad Farrukh Mahmud, JJ

ALLAH DITTA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.709-J of 2001 and Murder Reference No.639 of 2001, heard on 21st November, 2006.

Penal Code (XLV of 1860)---

----Ss: 302, 364 & 201/34---Appreciation of evidence---Benefit of doubt---Case was based on circumstantial evidence only---No independent person was produced to substantiate the version of complainant that from the very first day after the missing .of deceased, complainant had been approaching accused for his return---Registration of F.I.R. in the case with the delay of one month and twenty one days had cast serious doubt about the version of complainant---Two accused had been acquitted on the same evidence, which had caused a serious dent in prosecution version---One of the witnesses who was produced to prove last seen evidence, did not report the matter immediately to the police---Other witness of last seen was resident of place which was at a distance of about 15 miles from residence of said first witness of last seen and he did not disclose any specific reason for his presence in the house of said first witness of last seen---Both said witnesses were not natural witnesses---No time had been mentioned in the F.I.R. when said witnesses had seen deceased and they also failed to narrate that as to which side they were proceeding---Defence during cross-examination, had fully proved that narration of complainant about occurrence, was entirely different from the allegation levelled in F.I.R.---Conduct of witnesses of last seen could not satisfy that they had seen deceased in the company of accused---Nothing had been recovered from any of accused, including money, which was being carried by deceased at the time of departure with accused---Last seen evidence, which otherwise was a weak type of evidence, could not be relied upon---Conduct of prosecution witnesses had shown that story had been concocted regarding making of extra judicial confession by accused before paternal and maternal uncles of deceased---Said extra judicial confession was not acceptable as there was no reason to make such confession by accused---Recovery evidence was legally inconsequential and immaterial to prosecution case---Prosecution having not been able to prove case against accused beyond shadow of doubt, impugned judgment of conviction and sentence recorded by the Trial Court against accused, were set aside---Accused were acquitted of the charge by extending them benefit of doubt and were released.

Ch. Waseem Ahmad Gujjar for Appellants.

Ijaz Ahmad Bajwa (in Murder Reference No.639 of 200I) for the State.

Siddiqua Altaf Khan (in Criminal Appeal No.709-J of 2001) for the State.

Date of hearing: 21st November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 744 #

2007 Y L R 744

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

ABID HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.159 of 2001 and Murder Reference No.354 of 2001, heard on 6th December, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence--Sentence, reduction in---Deceased was murdered in the house of complainant, who was a school teacher, and blood-stained earth was also taken from that place---Complainant, being a school teacher at the relevant time (8.15 A.M.), ought to have been present in the school and not at home---Defence of accused was that complainant had illicit relations with his deceased wife and seeing deceased and complainant in compromising position committed murder of deceased and suggestions to that effect were put to prosecution witnesses before the Trial Court-Dead-body of deceased having been found in the bolted room of house of complainant, as was evident from site-plan, and complainant being a school teacher, his presence at 8.15 A.M. on the day of occurrence in his home, had spoken of something else and it lent support to the defence set up by accused, though he did not take such a defence in his statement under S.342, Cr. P. C. ---Father of deceased was not present at the spot at the time of occurrence, but was away on his business place as he was a milk-seller by profession---Complainant at the relevant time was committing sexual inter-course with deceased. in his house and accused on seeing her (his deceased wife) under grave and sudden provocation murdered her---Conviction of accused was converted from S. 302 (b), P.P.C. to S. 302(c), P.P.C.---Accused being behind the bars since 18-7-1999, sentence, which accused had already suffered, was treated " to be sufficient to meet the ends of justice---Sentence of compensation was set aside---Death sentence awarded to accused by the Trial Court, was not confirmed and Murder Reference was answered in the NEGATIVE.

Syed Ali Bepari's case PLD 1962 SC 502; Muhammad Nawaz and another v. The State PLD 2005 SC 40 and Mairaj Begum v. Ejaz Anwer and others PLD 1"982 SC 294 ref.

Chaudhry Riasat for Appellant.

Tanvir Iqbal, A.A.-G. for the State.

Date of hearing: 6th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 748 #

2007 Y L R 748

[Lahore]

Before Ijaz Ahmad Chaudhry and M. A. Shahid Siddiqui, JJ

AMANAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.710 of 2001 and Murder Reference No.750 of 2001, heard on 11th December, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---F.I.R. was got lodged with promptitude without any inordinate delay in which name of accused as a single accused with specific role had been mentioned, which had-eliminated the possibility of fabricating false story for the involvement of accused as a single accused with main role as co-accused were not attributed any effective role, while all injuries were attributed to accused---Accused was next door neighbour of complainant for the last so many years, who was cultivating his lands in the same vicinity and they were known to each other---No possibility of misidentity of accused in the case---Acquittal of co accused who was rightly extended benefit of doubt, would not make case of accused as that of acquittal being distinguishable .from the case of co-accused---Complainant though nearly related to both deceased, but nothing was on record to discard her statement and declare her as an interested witness---Complainant had faced the test of cross-examination successfully and defence failed to gain anything out of it to establish false implication of accused by letting off real culprit; she remained consistent regarding the time, place and manner. in which occurrence had taken place with the previous statement made by her before the police---Though some contradictions and improvements were found in statement of complainant, but same were not sufficient to exonerate accused from commission of occurrence as a single accused---Said contradictions could be termed as lapses of time and even otherwise complainant was a simpleton villager and also a - lady---Statement of witness which was found trustworthy to the extent of accused, could be relied upon even without any corroboration through any independent piece of evidence---Accused remained fugitive from justice for about twenty days---Such abscondence' could be termed as intentional to avoid legal consequences of the case registered against him and it had given sufficient corroboration to ocular account regarding his involvement in the occurrence---Motive set up by prosecution against accused was fully proved---Medical evidence . had fully supported ocular account---Recovery of gun .from accused also gave corroboration to the solitary statement of complainant---Prosecution having been able to bring home guilt to accused beyond any shadow of doubt, conviction of accused was maintained and in absence of any mitigating circumstance warranting lesser sentence, his death sentence was confirmed.

Haroon Rasheed and 6 others v. The State and another PLJ 2006 SC 137 and Chakkar and another v. The State 1971 PCr.LJ 1121 and Beekho alias Imran Bus and 2 others v. The State 1973 PCr.LJ 896 rel.

Muhammad Yar Khan Daha for Appellant.

Ch. Mahmood Ahmad for the Complainant.

Mian Abdul Qayyum Anjum (in Murder Reference No.750 of 2001) for the State.

Sheikh Asif Hussain (in Criminal Appeal No.710 of 2001) for the State.

Date of hearing: 11th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 758 #

2007 Y L R 758

[Lahore]

Before Ijaz Ahmad Chaudhry and Asif Saeed Khan Khosa, JJ

IHSAN ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.436-J of 2001 and Murder Reference No.849 of 2001, decided on 18th July, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Occurrence had taken place during night and according to F.I.R. as well as statements of eye-witnesses, electric bulbs were alight at the place of occurrence at the relevant time, but according to statement of Investigating Officer, no electric bulb was secured from the place of occurrence---F.I.R. in the case had been lodged with a significant delay and explanation given for said delay, could not be believed---Post-mortem of dead body of deceased was also conducted after considerable delay---Such delayed post-mortem examination, would generally be suggestive of a real possibility regarding time having been consumed by complainant party and the police in procuring and planting eye-witnesses and in cooking up a story of prosecution---Medical evidence available on record, instead of providing support to the ocular account, had gone a long way in discrediting the eyewitnesses---Complainant was mother of deceased, whereas other prosecution witness was a daughter-in-law of the complainant and sister-in-law of deceased---Ocular account furnished by said two witnesses did not inspire confidence---Husband of complainant and father of deceased who had allegedly seen the occurrence, had been given up by the prosecution as unnecessary---Neighbour of complainant, who also had - witnessed alleged occurrence, had been given up by the prosecution as having been won over---Said two male witnesses, had not been produced and instead two ladies had been produced to provide ocular account---Eyewitnesses produced by prosecution having utterly failed to inspire confidence, would be considered to be unworthy of implicit reliance on a capital charge---Prosecution had miserably failed to establish any motive on the part of accused to do away with deceased---No weapon had been recovered from the possession of accused during investigation---Ocular account, in circumstances had failed to receive any corroboration on that score either---Accused was aged about 16/17 years at the time of alleged occurrence; it was unbelievable that accused, a young lad of 16/17 years of age, could venture to murder deceased for no rhyme or reason---Prosecution having failed to prove its case against accused beyond reasonable doubt, conviction and sentence of accused recorded by the Trial Court, were set aside and accused was acquitted of the charge by extending him benefit of doubt and was released from the jail.

Muhammad Sarwar Awan for Appellant at State Expense.

Chaudhry Muhammad Arshad Bajwa (in Criminal Appeal No.436-J of 2001) for the State.

Ishfaque Ahmad Chaudhry (in Murder Reference No.849 of 2001) for the State.

Date of hearing: 18th July, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 764 #

2007 Y L R 764

[Lahore]

Before Hasnat Ahmad Khan, J

AKHTAR MUHAMMAD---Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.702 of 2002, heard on 29th November, 2006.

Penal Code (XLV of 1860)---

----S. 302 (b)---Appreciation of evidence---Counsel for accused had not seriously challenged conviction and prayed only for conversion of conviction of accused from S.302(b) to S.302(c), P.P.C.---Sufficient material was available on record in the form of ocular evidence and evidence of injured prosecution witnesses to maintain conviction of accused---Incident was a day time occurrence and venue and time of occurrence had not been challenged by accused---Ocular evidence had got ample support from medical evidence---Part attributed to accused of causing hatchet blow to deceased, was fully corroborated by evidence of Doctor who medically examined the deceased---No ground was available for discarding prosecution version which was supported by injured witnesses---Accused with all of his co-accused were declared proclaimed offenders during investigation---Accused remained fugitive from law for a period of 6-1/2 months which had also corroborated prosecution version---Apart from motive, no serious enmity existed between the parties---Witnesses could not be termed as interested witnesses---Prosecution, in circumstances had proved case against accused beyond any shadow of doubt--Accused had caused hatchet blow on the head of deceased which coupled with the other injuries caused death of deceased---Offence was committed on a petty issue---Contention of counsel for accused that accused had not come on the spot with intention to commit Qatl-e-Amd, was repelled as intention of accused to commit some offence was always gathered from attending circumstances of each case, and intention to commit crime could be developed even at the spur of moment---Accused along with his co-accused having committed intentional murder of deceased he was rightly convicted under S.302(b), P.P.C., conviction and sentences awarded to accused under S.302(b), P.P.C., called for no interference---Conviction and sentence awarded to accused could not be converted from S.302(b) to S.302(c), P.P.C., as prayed by counsel for the accused.

Khalid Bin Aziz and M. Shahzad Farid for Appellant.

Jamil Ahmad Chauhan for the State.

Date of hearing: 29th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 769 #

2007 Y L R 769

[Lahore]

Before Syed Sajjad Hussain Shah, J

ABDUL REHMAN---Petitioner

Versus

DEPUTY SUPERINTENDENT OF POLICE, CITY CIRCLE, SARGODHA and 2 others-Respondents

Writ Petition No.12334 of 2004, decided on 21st July, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 155(2)---Penal Code (XL V of 1860), Ss.420, 468 & 471---Jurisdiction of High Court under S.561-A, Cr. P. C. ---Scope---Quashing of F. I. R. --Allegation against petitioner/accused was that he being nephew of respondent/complainant was assigned the duties of Manager of hotel of respondent and petitioner forged decree of civil court regarding change of ownership of land owned by respondent---Evidence on record had fully established that petitioner prepared false, forged and fabricated decree of the Court---Petitioner had contended that respondent had remedy to challenge decree under S.12(2), C.P.C. and that offences alleged against him being non-cognizable, investigation could not be carried out without obtaining permission from Magistrate---Validity---Contention that only remedy available to respondent/ complainant was to challenge the decree under S.12(2), C.P.C., was repelled, because provisions of S.12 (2), C.P.C. could only be invoked if a decree was obtained through fraud or misrepresentation, whereas in the present case according to prosecution no such decree existed and even no suit was filed in the Court---Second contention that non-cognizable offence could not be investigated without the permission of the Magistrate, also had no force, because where a case was registered relating to facts entailing commission of both cognizable and non-cognizable offence, section 155(2), Cr.P.C. was not attracted and police could investigate such a case without permission of the Magistrate---F.I.R. was registered under Ss.420, 468 & 471, P.P.C., and Ss.468 & 471, P.P.C. though were non-cognizable, but S.420, P.P.C. was cognizable offence; in considering question of quashing of criminal proceedings at the preliminary stage, when evidence was yet to come, High Court had to take the allegations against accused at their face value and accept same in their entirety and then see if those constituted any offence---High Court in its limited jurisdiction under S.561-A, Cr.P.C. as well as under constitutional jurisdiction, would not embark upon inquiry to ascertain innocence or otherwise of accused---If allegation disclosed an offence, case could not be quashed merely because accused had denied allegation and that he had good defence, which defence was yet to come---Allegation against the petitioner did not disclose any offence under Penal Code, where alternate remedy was available, resort to inherent jurisdiction ought not to be had.

Sheikh Tariq Mehmood for Petitioner.

Muhammad Arif Bhinder, Additional Advocate-General, Punjab with Ahmad Sher, S.-I. with Record.

YLR 2007 LAHORE HIGH COURT LAHORE 771 #

2007 Y L R 771

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

IKRAM UL HAQ and another---Appellants

Versus

THE STATE-Respondent

Criminal Appeals Nos.518-T of 2004, 228-T, 223-T, 383-T, 229-T and 254-T of 2003 and Murder Reference No.36-T of 2003, heard on 11th December, 2006.

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

----S. 7(e)-Penal Code (XLV of 1860), S.365-A---Appreciation of evidence---Complainant had no animus against accused to falsely implicate him; he was resident of same District from where victim was recovered---Case against the accused having fully been proved beyond any shadow of doubt, conviction and sentence recorded against him by the Trial Court, were maintained in toto---Death sentence awarded to accused was confirmed and Murder Reference to his extent was replied in affirmative---Other accused was not proved to be present at the spot and it had also come on record that he had been searching the victim along with the complainant--Said accused was neighbourer of complainant---Said co-accused was granted benefit of doubt and conviction and sentence recorded against him was set aside and he was released---Case against all other co-accused was of doubtful nature because abductee was not recovered from them---Conviction and sentence recorded against them by the Trial Court, were set aside and they were also released---Case against the driver of the car used having not been pressed by the complainant, conviction and sentence recorded against him by the Trial Court, were also set aside and he was released.

Saeed Yousaf Khan for Appellants.

Basharat Ullah Khan for the Complainant.

Tanveer Iqbal, A.A.-G. for the State.

Date of hearing: 11th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 777 #

2007 Y L R 777

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

EJAZ HUSSAIN alias JADOO---Petitioner

Versus

THE STATE-Respondent

Criminal Appeal No.377 and Murder Reference No.814 of 2001, heard on 8th December, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Accused had been proved to have committed the murder of deceased, but accused had pleaded that he had committed murder because of provocation as he had suspicion that deceased had illicit relations with his wife---Mitigating circumstances existing in favour of accused, while maintaining his conviction under S.302(b), P.P.C., his sentence of death was converted to imprisonment for life---Order of the Trial Court under S.544-A, Cr. P. C. was also set aside as in such like cases compensation could not be awarded.

NLR 1984 Cr1. Cases 7(SC); 1990 ALD 693(1); PLD 2001 SC 96; PLD 2002 SC 5581 and Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294 rel.

Malik Shahzad Ahmad Khan for Appellant.

Tanvir Iqbal, Assistant Advocate-General for the State.

Malik Rab Nawaz Noon for the Complainant.

Date of hearing: 8th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 779 #

2007 Y L R 779

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

SHARAFAT ALI and another---Appellants

Versus

THE STATE-Respondent

Criminal Appeal No.528 of 2001 and Murder Reference No.275 of 2001, heard on 13th November, 2006.

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

----S. 302(b)/34---Criminal Procedure Code (V of 1898), S.173---Appreciation of evidence---Private complaint---Delay in lodging of F.I.R. and conducting of postmortem---Motive not established---Eye-witnesses related inter se and with deceased---Ocular account not supported by medical evidence---Effect---Accused appellants, along with co-accused, allegedly committed murder of deceased with fire-arm shots---Motive behind the occurrence was alleged to be that accused persons wanted to get the land released which complainant party had taken on least and due to this grudge accused committee murder of deceased---Complainant being dissatisfied with the conduct of investigation lodged private complaint---Trial Court, while acquitting co-accused, convicted and sentenced accused/appellants to death---Accused contended that both eye-witnesses were interested witnesses being related inter se and with deceased closely; that during investigation statements of eye-witnesses had been discarded and new set of accused was introduced against whom report under S.173, Cr. P. C. was submitted in the Court to face trial; that private complaint had been filed with mala fide intention; that there were contradictions in the statements of both the eye-witnesses; that medical evidence did not support ocular account; that no crime empty was recovered from the spot and that motive had not been proved against accused---Validity---Delay of five hours in lodging of F.I.R. and then conducting of post-mortem on the next day in the evening was sufficient to belie prosecution story---No importance could be given to the names of witnesses and accused mentioned therein as delay in conducting post-mortem examination on the dead body of deceased was sufficient to draw an inference that police papers were not prepared and due to that reason post-mortem was conducted with delay---Prosecution story was belied during investigation and complainant was constrained to file private complaint---Eye-witnesses, no doubt, were related inter se and with deceased closely but they had no previous enmity with accused and they could not be termed as interested witnesses---Such alone, however, was not sufficient to hold that they had stated the gospel truth---Both eye-witnesses appeared to have made improvement regarding the motive alleged in the case as according to prosecution version narrated in F.I.R., accused persons wanted to get the land - released which had been taken on lease by them---F.I.R. did not show that said land was owned by accused or any body else---Complainant during cross-examination admitted that neither lease deed nor any revenue record was produced by him during investigation to show that complainants were in possession of land as lessees---Even witnesses of transaction for obtaining the land on lease were not produced---No document was produced to show that deceased was at least examined by any doctor at hospital for confirming his death---No death certificate of deceased was on the file from said hospital---Time of occurrence was also not supported by medical evidence as according to doctor, the time between death and post-mortem examination was 29 hours which meant that incident might have taken place 5 'hours earlier than the time mentioned in F.I.R.---Medical evidence was found in contradiction with ocular account as according to prosecution both accused/ appellants were armed with rifles with which they fired at deceased but during post-mortem examination pellets were recovered from injuries attributed to both accused, which showed that injuries had not been caused with rifle as alleged by prosecution---Such aspect threw doubt about presence of witnesses on the spot, who, if had witnessed the occurrence, would have disclosed correct fire-arms used by assailants in the occurrence and also given the correct name and address of deceased before doctor at the time of post-mortem examination---During investigation of the case, number of persons appeared before police, who were natural witnesses being shop-keepers and residents of the same area, who professed about the innocence of accused/appellants and their acquitted co-accused whereupon police carne to the conclusion that accused/ appellants and acquitted co-accused had not participated in the incident---Police had also submitted report under S.173, Cr.P.C, against some other accused person-Such report under S.173, Cr.P.C. was not opinion of police rather it was documentary evidence---Opinion of police being not a substantive piece of evidence, was not binding on the Courts---Perusal of statements of eye-witnesses indicated that they had not spoken truth and had tried to conceal certain facts---Such statements of eye-witnesses required independent corroboration which Was lacking in the case---Weapons were shown to have been recovered from the spot but no empty had been recovered from spot and it had not been proved that said weapons were used in the incident---Prosecution had not been able to prove the case against accused/ appellants beyond any shadow of doubt---Appeal was accepted and accused were acquitted of the charge.

(b) Criminal trial---

----Opinion of police not being a substantive piece of evidence, was not binding on the Court.

----S. 173---Report under S.173, Cr. P. C. was not opinion of police rather it was a documentary evidence.

Arif Chaudhry for Appellants.

Khurram Latif Khan Khosa for the Complainant.

Saleem Shad for the State (in Murder Reference No.275 of 2001).

Mirza Abdullah Baig for the State (in Criminal Appeal No.528 of 2001).

Date of hearing: 13th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 788 #

2007 Y L R 788

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

FIDA HUSSAIN and 2 others---Appellants

Versus

THE STATE-Respondent

Criminal Appeal No.83 and Criminal Revision No.89 of 1992, heard on 4th December, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 307, 148 & 149---Appreciation of evidence---Benefit of doubt---Crime empties were taken into possession from the spot, but none of those matched with the fire-arm recovered at the instance of accused persons---Long standing enmity existed between complainant and accused---No recovery had been effected at the instance of accused---Presence of one of accused persons who had been acquitted, being not free from doubt, his conviction could not be maintained---Appeal to extent of said accused was accepted extending him benefit of doubt and impugned judgment to his extent was set aside and he was acquitted of all the charges---Appeal to the extent of remaining two accused had become infructuous as they had already served out their sentence.

Sardar Muhammad Ishaq Khan for Appellants.

Sardar Muhammad Hanif for (Respondent No.3).

Nemo for the Complainant.

Tanvir Iqbal, Assistant Advocate-General for the State.

Date of hearing: 4th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 796 #

2007 Y L R 796

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

IBRAR HUSSAIN alias BARA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1250 of 1999, Criminal Revision No.24 of 2000 and Murder Reference No.25 of 2000, heard on 14th November, 2006.

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

----Ss. 302(b), 34, 324 & 337-D---Criminal Procedure Code (V of 1898), S.161---Appreciation of evidence---Delay in lodging of F.I.R. explained---Eye-witnesses closely related inter se and with deceased---Medical evidence in line with ocular account---Contradiction in statements of injured witness one recorded under S.161, Cr. P. C. and other made before Trial Court---Single shot and quantum of sentence---No crime empty recovered---Report of Forensic Science Laboratory not available on record---Accused/appellant allegedly committed murder of complainant's maternal nephew with a single fire of shotgun while absconding co-accused (real brother of accused) caused injury with pistol shot to other nephew of complainant in the same occurrence---Motive as alleged in F.I.R. was that deceased and his brother had restrained accused party and co-accused from standing in the street owing to which grudge deceased was murdered and his brother was injured---Trial Court convicted and sentenced accused to death and imprisonment of various descriptions--Accused/appellant contended; that there was delay of four hours in lodging F.I.R.; that medical evidence was in contradiction with ocular account; that there were contradictions in statements of prosecution witnesses; that motive was not proved; that recovery of weapon from accused was inconsequential and that accused had not repeated the shot, thus, it was not a case of capital punishment---Validity---Delay in lodging of F.I.R. had been properly explained by complainant as naturally the first preference of complainant was to save the life 'of injured and to take them to the hospital---Incident allegedly took place due to the reason that deceased had restrained accused persons from standing in street in front of his house and there was nothing on record to disbelieve motive set up in F.I.R., which even otherwise was admitted by defence during cross-examination on complainant---Doctor had noted down that injured' was brought to hospital by complainant as such presence of complainant on the spot could not be doubted---Site-plan" proved presence of injured witness on the spot which fact was further stamped by receiving of fire-arm injury by him in the occurrence---Bout eye-witnesses, no doubt, were related inter se and with deceased closely but close relationship itself was not sufficient to term them as interested witnesses---Both eye-witnesses had no previous enmity to falsely involve accused and his co-accused in present case by letting off the real culprit---Perusal of statements of eye-witnesses revealed that ocular account was trustworthy and was sufficient to connect accused with commission of crime even without any independent corroboration---Medical evidence fully supported ocular account---Doctor had noted down the fire-arm injuries on the persons of deceased and injured witness on the same locale and mere opinion of doctor that probable time between injuries and death of deceased was 4 to 6 hours was not sufficient to discard prosecution version---Contradiction in statements of injured witness recorded under S.161, Cr. P. C. and one made before Trial Court as to his presence at the time of incident was not sufficient to discard the evidence as statement in trial had' been recorded 3 years after the occurrence---Recovery of crime weapon from accused was though inconsequential as no empty was recovered from the spot and there was no report of Forensic Science Laboratory, but this alone was not sufficient to exonerate accused from commission of alleged crime---Accused used to stand in front of house of deceased and being restrained from doing so by deceased, it could not be said that deceased had provoked accused and contributed to his own death---Accused had acted in a cruel manner while firing in the chest of deceased and killing him on a petty matter---Intention of accused could be gathered from act committed by them---Accused did not deserve leniency and Trial Court was quite justified in awarding death penalty to accused---Mere making of single shot, non-availability of motive and taking place of occurrence at the spur of moment were not mitigating circumstances for award of lesser sentence---Appeal was dismissed.?

PLD 1995 SC 684 and 2005 SCMR 427 rel.

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

----Ss. 324, 34 & 337-D---Sentence---Enhancement of---Sharing of common intention with co-accused---Injury specifically attributed to co-accused---Accused/appellant was convicted under Ss.324, 34 & 337-D for sharing common intention in launching murderous assault on injured witness along with absconding co-accused who was specifically attributed fire-arm injury on the person of the injured---Trial Court sentenced accused to 7 years imprisonment on each count---Application for enhancement of sentence---Validity---Accused was only convicted and sentenced for the said offences for sharing common intention and fire-arm injury on the person of injured witness which was specifically attributed to absconding co-accused and there was no justification for enhancement of the said sentences which even otherwise had been directed to run concurrently by High Court---Criminal revision was dismissed.?

Sardar Khurram Latif Khan Khosa and Gohar Razzaq Await for Appellant.

Muhammad Yousaf Asim and Amir Sabir Joiya for the Complainant and Petitioner (in Criminal Revision No.24 of 2001).

Mian Abdul Qayyum Anjum for the State (in Murder Reference No.25 of 2000).

Raja Sher Zaman for the State (in Criminal Appeal No.1250 of 1999).

Ch. Nazir Ahmad for the State (in Criminal Revision No.24 of 2000).

YLR 2007 LAHORE HIGH COURT LAHORE 807 #

2007 Y L R 807

[Lahore]

Before Asif Saeed Khan Khosa, J

ROZDAR KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4789-B of 2004, decided on 2nd July, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.419, 420, 463, 468 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Further inquiry---Accused had not been nominated in the F.I.R. in any capacity whatsoever and his name had been introduced in the case through a statement made by a co-accused during investigation of the case---Accused had no role to play in the actual sale or purchase of relevant parcel of land and was not a witness of any transaction of sale or purchase and he was not even a beneficiary of any such sale or purchase---Allegation levelled by prosecution against accused was that he had identified the person at the time of issuance of a Fard Malkiyat by a Patwari and at the time of issuance of Fard Malkiyat---Such identification was merely secondary to the main allegation levelled against co-accused regarding actual sale and purchase of relevant piece of land--Investigation of the .case had already been finalized and a challan had been submitted---Continued physical custody of accused in jail, was not likely to serve any beneficial purpose---Question regarding sharing of common intention by accused with his co-accused and also the question regarding his vicarious liability for the offence allegedly committed by his co-accused, were questions which required further inquiry within the purview of subsection (2) of S. 497, Cr. P. C. --Accused was admitted to bail, in circumstances.

Muhammad Akram Javed for Petitioner.

Irfan Qadir for the State.

Ghulam Hussain, S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 809 #

2007 Y L R 809

[Lahore]

Before Tariq Shamim, J

MUHAMMAD HANIF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6748-B of 2006, decided on 20th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail, refusal of---Injured complainant was shot at by accused and his co-accused on both legs and injuries ascribed to accused and his co-accused were declared to be fire-arm injuries by the Medical Officer---Medico-legal Report, in circumstances was in conformity with eye-witness account---Two eye-witnesses in their statements before the police under S.161, Cr.P.C., had fully supported the case of prosecution---Police, after thorough investigation, found accused to be fully involved in the occurrence---Recovery of .30 bore pistol had also been effected from accused, which further connected him with the crime---F.I.R. in .the case was promptly lodged and it being a daylight occurrence, there was no question of mistaken identity, in circumstances---Accused was a record holder, inasmuch as five F.I.Rs. under various sections of P.P.C. stood registered against tom---Such fact alone was sufficient to show that accused was habitual offender and was involved in cases of serious nature---Prima facie, provisions of S.324, P.P.C. were attracted to the case of accused which offence fell under the prohibitory clause of S.497, Cr.P.C.---Bail petition was dismissed, in circumstances.

Muhammad Anwar Bhatti for Petitioner.

Ch. Asad Abbas for the State along with Muhammad Hussain, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 811 #

2007 Y L R 811

[Lahore]

Before Muhammad Farruk Mahmud and Ijaz Ahmad Chaudhry, JJ

ALLAH DITTA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.294-J of 2001 and Murder Reference No.463 of 2001, heard on 20th September, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---F.I.R. was lodged promptly, which led to the logical conclusion that prosecution witnesses were present at the time of occurrence---Occurrence having taken place when daylight was available, question of non-identification did not arise---Both prosecution witnesses had no serious enmity or ill-will against accused so as to involve him .in a false case; they both had given trustworthy account of the occurrence and had corroborated each other on all material points and their statements were fully supported by medical evidence and corroborated by the recovery of licensed rifle of accused---Motive, which itself had been admitted by accused had successfully been proved by prosecution---Prosecution in circumstances had successfully proved its case beyond doubt against accused---No previous ill-will or enmity existed between deceased and accused and accused did not repeat the fire---Case, in circumstances was not of extreme penalty---Maintaining conviction of accused, his sentence of death was reduced to imprisonment for life with benefit of S.382-B, Cr. P. C.

Imtiaz Ahmad Chaudhry for Appellant.

Sh. Naveed Masood for the Complainant.

Muhammad Azam (in Criminal Appeal) and Ashfaq Ahmad Chaudhry (in Murder Reference) for the State.

Date of hearing: 20th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 814 #

2007 Y L R 814

[Lahore]

Before Tariq Shamim, J

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1708-B of 2006, decided on 22nd March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Bail, refusal of-Case' was investigated twice and in both the investigations accused was found fully involved---Pistol .30 bore had been recovered from accused and spent with corresponding bullet holes had also been taken into possession by the police--Accused was nominated in the F.I.R. and specific role of firing at the complainant was attributed to him---Assertion of counsel for accused that accused was entitled to the concession of bail as the only allegation against him was of ineffective firing, was repelled as in case of ineffective firing, grant of bail was neither a rule of law nor could same be treated as a rule of prudence---Bail in each case was to be considered on its own merits as facts differed .from case to case---Witnesses mentioned in the F.I.R. had fully implicated accused in their statements before the police under S.161, Cr. P. C. and the factum of recovery of .30 bore pistol further supported case of prosecution---Offence under S.324, P.P.C. was a non-bailable offence, which was punishable with imprisonment for 10 years---Case against accused fell within prohibitory clause of S.497, Cr.P.C.---Tentative assessment of evidence on the record had shown that ample evidence was available to connect accused with the commission of the offence, mentioned in F.I.R.---Bail was refused.

Awan Muhammad Hanif Khan for Petitioner.

Malik Muhammad Asghar Ali Awan for the State with Ishfaq, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 816 #

2007 Y L R 816

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD YAR and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9373-B of 2006, decided on 24th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.379---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Pre-arrest bail, refusal of---Contention of accused was that an agreement to sell property in question, had been arrived at between late husband of complainant and accused---Possibility could not be ruled out that accused who were tenants of the husband of complainant, after his death had prepared the agreement to sell to deprive the widow/complainant and her children from their valuable property as such a tendency was being developed in the society and the Courts were taking notice thereof---Accused had claimed that a suit for specific performance of alleged agreement of sale had been filed by them---Possibility could not be ruled out that accused who allegedly had committed the offence of theft and having knowledge that complainant was trying to get a criminal case registered against them, had managed to file suit by preparing so-called agreement to sell---Even otherwise, mere execution of agreement to sell was not sufficient to declare accused as owner of land owned by 'complainant---Specific allegation of theft had been levelled against accused and recovery was yet to be effected from them---Conduct of accused before the Court of first instance, was that they, after the grant of ad interim pre-arrest bail, had failed to appear in the Court---Bail before arrest was an extraordinary relief which was meant to protect the innocent citizens, if they were found to have been falsely involved in the case---Contention of accused, were not sufficient to hold that accused had been falsely implicated in the case.

Ijaz Qutab for Petitioners.

M. Saleem Shad for the State.

Dost Muhammad S.I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 822 #

2007 Y L R 822

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD WARIS and 4 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8239-B of 2006, decided on 31st October, 2006.

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

----S. 498---Penal Code (XLV of 1860), Ss.324, 379, 427, 452, 148 & 149---Pre-arrest bail, refusal of---Accused were nominated in F.I.R. with specific role of causing firearm injury to nephew of complainant---Accused persons who also alleged to have demolished the boundary wall of the complainant's house and also demolished one room and removed the superstructure, were found guilty as per investigation of police---Recovery of weapons used in occurrence, were yet to be effected from them---No case for grant of extraordinary relief of pre-arrest bail having been made out, bail application to their extent was dismissed.

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

----S. 498---Penal Code (XLV of 1860), Ss.324, 379, 427, 452, 148 & 149---Pre-arrest bail, confirmation of-General allegations of demolishing house of complainant had been levelled against co-accused, whereas they were said to be armed with deadly weapons, but no specific role was attributed to them---Case of co-accused calling for further inquiry into their guilt, interim bail already granted to them, was confirmed.

Imdad Ali v. The State 2006 PCr.LJ 1087; Muhammad Ashraf v. The State 1982 SCMR 626; Ali Sher v. The State 2005 MLD 535; Malik Muhammad Ashraf v. The State 2004 PCr.LJ 277 and Meeran Bux v. The State and another PLD 1989 SC 347 ref.

Sajjad Ahmad Chaudhry for Petitioners.

Naveed Shahryar for the Complainant.

M. Aslam Malik for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 825 #

2007 Y L R 825

[Lahore]

Before Sardar Muhammad Aslam and Umar Ata Bandial, JJ

IRFAN AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.7-E and 10-E of 2006, heard on 22nd November, 2006.

Penal Code (XLV of 1860)---

----Ss. 420, 468, 471, 409 & 109---National Accountability Ordinance (XVIII of 1999), Ss.9(a)(vi), 10 & 15---Appreciation of evidence---Confessional statement of accused was recorded by Senior Special Magistrate, when accused was in custody of FIA---Accused was not informed that after recording his statement, he would be handed over to FIA---Confessional statement was recorded after Court hours and was exculpatory in nature---Accused included the name of firm in question in the tender inquiry for a healthy competition, its approval, however was given by senior officials and accused claimed himself to be innocent---Confessional statement of accused being relied upon by prosecution very heavily, was also not put to accused in their statements under S.342, Cr.P.C.---Conviction could not be based on material not put to accused in his statement under S.342, Cr.P.C.---Accused was not asked whether he had made confessional statement voluntarily, before the Magistrate---Statement of accused was not put to co-accused, that the accused had made a confessional statement involving him in the offence and what was his explanation---Prosecution, in circumstances had failed to bring home guilt to accused---Report of the Court of Inquiry showed names of six highups besides accused persons, but Reference to National Accountability Bureau was sent only against accused leaving said highups, high and dry, without any rhyme or reason---Only evidence against co-accused was the statement of accused recorded under S.164, Cr.P. C. and said statement was exculpatory in nature and it could not be read against other accused---Said co-accused, in circumstances, could not be convicted only on that piece of evidence---No other evidence was available on record connecting said co-accused with the crime---Prosecution, in circumstances had badly failed to prove the charge against accused beyond reasonable doubt---Conviction of accused recorded against them by the Trial Court, was set aside and they were released from jail.

Dr. Khalid Ranjha and Tariq Mehmood Butt for Appellant.

Muhammad Naeem Sheikh, A.D.P.G. (NAB) for the State.

Date of hearing: 22nd November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 831 #

2007 Y L R 831

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

SHAHID MAHMOOD---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.133 and 189 of 2001, Criminal Revision No.74 of 2001 and Murder Reference No.353 of 2001, heard on 6th December, 2006.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Only fatal injury on the person of deceased was with .12 bore gun according to post-mortem report and not with the rifle as was mentioned in the F.I.R.---Connivance with the police, in order to fill up the lacuna in the prosecution case was apparent for not only the weapon of offence was charged, but also the name of accused was changed---Fatal shot, as per F.I.R. was attributed Jo co-accused, but before the Trial Court, it was stated that in fact accused was armed with .12 bore gun who had fired a shot---Incident being a broad daylight occurrence, there should not have been any mistake, especially when parties were nearly related to each other---Glaring conflict was found between the ocular account and medical evidence, coupled with factum of charging accused who fired shot on deceased---Case of prosecution against accused was of doubtful nature and benefit of doubt always would go to accused and not to prosecution---Allowing appeal, conviction and sentence recorded by the Trial Court against accused, were set aside and accused was acquitted of all charges against him and he was released.

Abdul Waheed v. The State 2003 SCMR 668; Arshad Ali alias Achhu v. The State 2002 SCMR 1806 and Mst. Dur Naz (widow) and another v. Yousuf and another 2005 SCMR 1906 rel.

Muhammad Ilyas Siddiqui for Appellant.

Tanveer Iqbal, Asstt. A.-G. for the State.

Malik Anwar-ul-Haq for the Complainant.

Date of hearing: 6th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 842 #

2007 Y L R 842

[Lahore]

Before Muhammad Muzammal Khan, J

SHABBIR HUSSAIN alias PAPPOO---Petitioner

Versus

S.H.O., POLICE STATION BUMBANWALA, DISTRICT SIALKOT and 3 others---Respondents

Writ Petitions Nos.544 and 595 of 2005, decided on 18th April, 2006.

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

----S. 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Petition for quashing of F.I.R.---Allegation against accused was that he abducted sister-in-law of complainant---Complainant recorded the age of alleged abductee as 17 years and according to alleged abductee, herself, her age was of 19 years---Alleged abductee in her affidavit had stated that nobody had abducted her and that she had entered into a tie of marriage with accused against a dower of Rs. 3, 000, of her own volition---Alleged abductee had stated that her marriage was performed through registered Nikah Nama and that since her marriage she was living with her husband/accused---Girl on attaining age of puberty, which was 13 years, would be deemed to have attained majority---Alleged abductee was major, appeared to be sensible from her appearance---Both spouses were living together for about 1-1/4 years and in view of respective claims of parties and registered Nikah Nama, it appeared that there had been a lawful marriage union between accused and alleged abductee---Two major Muslims of sound mind having solemnized marriage, no cognizable offence under Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was made out---F.I.R. registered against accused, was quashed, in circumstances.

Khalid Parvez and others v. The State PLD 1981 FSC 306; Muhammad Imtiaz and another v. The State PLD 1981 FSC 308; Arif Hussain and Azra Parween v. The State PLD 1982 FSC 42 and Muhammad Ramzan v. The State PLD 1984 FSC 93 rel.

Mian Muhammad Bashir for Petitioner.

Muhammad Akbar Cheema for Respondents.

Ch. Muhammad Arshad for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 845 #

2007 Y L R 845

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD ZUBAIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.550, 552 of 2003.

Criminal Appeal No.134 and Criminal Revision No.60 of 2006 and Murder Reference No.8-T of 2004, heard on 11th December, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 394, 396 & 412---Anti-Terrorism Act (XXVII of 1997), S. 7(h)-Appreciation of evidence---Incident was a Bank dacoity and a broad daylight occurrence---Description of accused was given in F.I.R.---Accused and his co-accused were apprehended immediately after occurrence---Car on which accused came in the Bank was also recovered from an abandoned place near the place of occurrence---Repeater gun belonging to deceased Security Guard of the Bank along with a .30-bore pistol was recovered from co-accused and a .30-bore pistol was also recovered from accused---Eye-witnesses, especially the injured prosecution witness had no animus whatsoever against accused---One Security Guard of the Bank was murdered by accused and another one had sustained injuries---Accused had been identified in identification parade---Independent witnesses in the case had no animus or motive whatsoever to falsely implicate accused-Death sentence awarded to accused was confirmed and' Murder Reference, was answered in the affirmative.

The State through Advocate-General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1; Sabir Ali v. The State 2006 PCr.LJ 1400; Saiful Malook and others v. The State and others 1992 SCMR 1597; Zulfiqar Ali v. The State 1993 PCr.LJ 168; The State v. Niaz Muhammad and another PLD 1976 B.J. 10; Abdul Majeed v. The State 1992 SCMR 329; Mushtaq alias Shaman v. The State PLD 1995 SC 46; Muhammad Akbar v. The State 1998 SCMR 2538 and Mushtaq Hussain alias Mushtaqi v. The State PLD 2006 SC 519 rel.

Ch. Zaffoor Hussain, Muhammad Arshad Tabrez and Basharat Ullah Khan (in Criminal Appeals Nos.550 of 2003, 552 of 2003 and. 134 of 2006) respectively for Appellant.

Muhammad Asif Chaudhry (in Criminal R. No.60 of 2004) for Widow of Deceased.

Tanveer Iqbal, A.A.-G. for the State.

Date of hearing: 11th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 854 #

2007 Y L R 854

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

ASGHAR MASIH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.89 and Murder Reference No.194 of 2001, heard on 6th December, 2006.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Being a broad-daylight occurrence, their was no question of substitution.---Delay, if any, in lodging F.I.R., was reasonably explained---Even otherwise delay, per se, in lodging F.I.R., was not fatal to prosecution case---All prosecution witnesses had fully supported the version of the prosecution---Said witnesses had no deep rooted enmity or any grouse to falsely depose against accused---Accused got recovered a pistol along with crime empty which was lying in it---Report of Fire-arm Expert was positive in nature according to which said empty, recovered along with the weapon, was fired from the said pistol---Ocular account in the case was corroborated by medical evidence coupled with its further support from the factum of recovery and positive report of the Fire-arm Expert---Weapon (fire-arm) used, place of injury and damage caused, had suggested that no mitigating circumstance was. available in favour of accused to award him lesser sentence---Prosecution had ,proved its case against accused beyond any shadow of doubt to sustain conviction on a capital charge---Conviction and sentence awarded to accused by the Trial Court, were maintained in toto---Murder Reference was answered in the affirmative, while death sentence awarded to accused, was confirmed.

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; Miss Najiba and another v. Ahmad Sultan alias Sattar 2001 SCMR 988; Mosaddi Rai v. Emperor AIR 1933 Patna 100; Abdul Sattar v. Muhammad Anwar PLD 1974 SC 266; Nabu v. The State PLD 1975 SC 478; Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452; Bakhsh Elahi v. The State 1977 SCMR 389; Jetharam v. Weram 1986 SCMR 1056; Maqsood Ahmad v. The State 1987 SCMR 1059; Muhammad Sharif v. The State 1991 SCMR 1622; Noor Muhammad v. The State 1999 SCMR 2722 and Muhammad Afzal v. Ghulam Asghar and others PLD 2000 SC 12 rel.

Ch. Abdul Aziz for Appellant.

Tanveer Iqbal, Asstt. A.-G., Punjab for the State.

Nemo for the Complainant.

Date of hearing: 6th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 865 #

2007 Y L R 865

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

WALAYAT and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.31-J, 32-J, 33-J of 2002, 341-J, 342-J, 343-J, 344-J and Murder Reference No.714-J of 2001, decided on 1st June, 2006.

Penal Code (XLV of 1860)---

----S. 302 (b)---Appreciation of evidence---Benefit of doubt---Both eye-witnesses produced by prosecution were related, inimical and chance witnesses, who had failed to receive any independent corroboration or support---Complainant could not explain as to how and why he was present at the scene of crime at the relevant time---F.I.R. had maintained that prosecution witness had not himself witnessed any firing by accused party and that upon seeing him approaching the place of occurrence, complainant party had left the spot---Both eye-witnesses produced by prosecution proved to be false who had absolutely no regard for the truth---Both complainant and prosecution witness had made significant improvements before the Trial Court regarding their attribution against different accused persons and they had been duly confronted in that regard with their earlier statements made before the police---Complainant and prosecution witnesses in their statements made before the police as well as before the Trial Court had failed to specify any seat of injury of any of deceased or of injured victims---Both said eye-witnesses had already been disbelieved by the Trial Court qua four co-accused of accused against whom those eye-witnesses had levelled allegations of effective participation in the main occurrence---Complainant was a convicted murderer and he had already served a sentence of life imprisonment prior to present incident---One of prosecution witnesses had also remained involved in. many cases of murder---Said witnesses, in circumstances, could not be believed without looking for independent corroboration which was non-existent in the case---Guns and rifles allegedly were recovered from accused, but no crime-empty had been recovered from the place of occurrence, so as to connect recovered fire-arms with alleged offences---Said recovery from accused was legally inconsequential, especially when no corroboration to ocular account was forthcoming---Not only F.I.R. was lodged with considerable delay' but post-mortem of dead body of deceased, was also conducted with delay---Such delay was generally suggestive of a real possibility regarding time having been utilised by complainant party and the police in procuring and planting eye-witnesses and in cooking up a story of prosecution---Prosecution had utterly failed to prove its case against accused beyond reasonable doubt---Conviction and sentence recorded by the Trial Court against accused, were set aside and they were acquitted of the charge by extending benefit of doubt to them and were released.

Ishfaque Ahmad Chaudhry (in Criminal Appeal No.31-J of 2002) for Appellant.

Imtiaz Ahmad Chaudhry (in Criminal Appeal No.32-J of 2002) for Appellant.

Masood Sadiq Mirza (in Criminal Appeal No.33-J of 2002) for Appellant.

Sardar Zahid Gul Khan (in Criminal Appeal No.341-J of 2001) for Appellant.

Tariq Waheed Khan (in Criminal Appeal No.342-J of 2001) for Appellant.

Mian Abdul Qayyum Anjum (in Criminal Appeal No.343-J of 2001) for Appellant.

Maqbool Ahmad Qureshi (in Criminal Appeal No.344-J of 2001) for Appellant.

Syed Tahir Abbas Rizvi (in Criminal Appeal No.31-J of 2002) for the State.

M. Saleem Shad (in Criminal Appeal No.32-J of 2002) for the State.

Shehzad Hassan (in Criminal Appeal No.33-J of 2002) for the State.

Naeem Ahmad Khan Lodhi (in Criminal Appeal No.341-J of 2001) for the State.

Raja Akhtar Nawaz (in Criminal Appeal No.342-J of 2001) for the State.

Siddiqa Altaf Khan (in Criminal Appeal No.343-J of 2001) for the State.

Ch. Muhammad Siddique (in Criminal Appeal No.344-J of 2001) for the State. .

Ch. Zafar Iqbal Gondal (in Murder Reference No.714 of 2001) for the State.

Mian Muhammad Shafique Bhandara for the Complainant.

Date of hearing: 1st June, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 893 #

2007 Y L R 893

[Lahore]

Before Maulvi Anwarul Haq and Muhammad Khalid Alvi, JJ

MUHAMMAD ARSHAD---Appellant

Versus

Ch. UMER MAHMOOD, ADVOCATE and another---Respondents

Regular First Appeal No.33 of 2004, decided on 16th March, 2006.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2 & 3---Suit for recovery of amount---Leave to defend suit---Suit was decreed in favour of plaintiff and defendant was directed to deposit decretal amount who deposited the same---Parties arrived at agreement during pendency of appeal which was disposed of in the terms that impugned judgment and decree, was set aside; leave to defend suit was granted subject to the condition that decretal amount deposited in the court would remain to be deposited by way of surety for payment of decretal amount; and said decretal amount would be invested by the Trial Court in profit bearing scheme of government to be disbursed along with profit to the party succeeding in the suit---Trial Court would take all steps to decide suit within specified period.

Tariq Zulfiqar Ahmad Chaudhry for Appellant.

Javed Ahmad Khan for Respondent No. 1.

Nemo for Respondent No.2.

YLR 2007 LAHORE HIGH COURT LAHORE 898 #

2007 Y L R 898

[Lahore]

Before Mian Hamid Farooq, J

FARZANA through L.Rs.---Petitioner

Versus

NIKKA alias HASOO through Mst. Allah Wasai and others---Respondents

Civil Revision No.2646 of 2001, decided on 20th June, 2006.

Civil Procedure Code (V of 1908)---

----O.XX, R.5, O.XLI & S.115---Contention of the petitioner in revision was that Appellate Court below had erred in law while failing to render findings on all the issues and in circumstances it had violated the mandatory provisions of O.XX, R.5 read with O.XLI, C.P.C. and that there would be no objection to remand of the case with direction to Appellate Court below to decide appeal afresh after giving findings on all issues---Revision was allowed and impugned judgment and decree was set aside, and case was remanded accordingly.

Zafar Iqbal Chohan for Petitioners.

Mian Shah Abbas for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 901 #

2007 Y L R 901

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD IMRAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5621-B of 2006, heard on 26th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.458---Bail, refusal of---Allegation against accused was that he along with his co-accused trespassed into the house of complainant at 7.00 p.m. armed with fire-arms and looted on gun point golden ornaments and other articles worth Rs.5 lac---Contention of counsel for accused that names of accused were not mentioned in the F.I.R., had no force; because it was commonly known that "robbers" and "dacoits", were not known to the complainant party and they never told their names at the time of commission of the offence and their names come on surface during the course of investigation when some clue would come on record---Such was the reason for non-mentioning names of accused in the F.I.R.; benefit of which could not be extended to accused---Offence against accused was a heinous one and it was not against an individual, but against. the society---Such-like cases were at peak and persons accused therein, could not be let loose on the society, merely on technical grounds to give them a chance to repeat offence---Accused was connected with commission of offence which. fell within the prohibitory clause of S.497(1), Cr.P.C. and he was not entitled to bail.

1997 SCMR 971 and 2006 YLR 14 rel.

Hafiz Khalil Ahmad for Petitioner.

Tabasem Ansar for the State with Sanaullah A.S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 910 #

2007 Y L R 910

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. SALEEMA BIBI and another---Petitioners

Versus

Mst. RAMZAN BIBI and others-Respondents

Civil Revision No.79 of 1991 and Criminal Revision No.729 of 1996, heard on 11th December, 2006.

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

----Art. 79, proviso---Registration Act (XVI of 1908), Preamble---Civil suit---Disputed execution of gift deed and registered sale-deed---Proviso to Art.79 of Qanun-e-Shahadat, 1984---Scope and interpretation---Scribe, attesting witness of registered deed and Local Commissioner not produced---Effect---Plaintiffs (wife and husband) filed suit for separation of their share in suit propertyby partition on ground that plaintiff being daughter.-in-law of deceased was gifted 1/3rd share of suit property by him (deceased) by executing an agreement on 13-7-1965 and put her in possession of one room under said gift and she was continuing in its possession ever since---Plaintiff (son of deceased) claimed his Islamic share in said suit property---Defendants (second wife of deceased and her children) filed written statement taking plea that deceased had transferred suit property in favour of defendant/second wife of deceased by means of registered sale deed and factum of gift in favour of plaintiff was denied---Suit was dismissed by Trial Court and appeal filed thereagainst was also dismissed by lower Appellate Court---Plaintiffs filed another suit against defendants seeking declaration that registered sale deed in favour of defendant wife of deceased was illegal and void---Trial Court rejected the plaint and appeal filed thereagainst was also dismissed by lower Appellate Court---Plaintiffs contended that lower courts had proceeded to hold that sale deed had been executed when there was no evidence on record to said effect; that it was incumbent upon defendants to prove valid execution of registered sale deed and that valid gift in faovur of plaintiff had been proved---Validity---Criteria applied by courts below an the matter of gift document was not applied to sale deed solely on ground that it was a registered document---Courts below had misinterpreted proviso to Art.79 of Qanun-e-Shahadat, 1984 which resulted in judgments suffering from material irregularities---Interpretation of proviso to Art.79 of Qanun-e-Shahadat, 1984 by courts below that execution had to be denied by person executing the document was wrong---Proviso to Art.79 of Qanun-e-Shahadat, 1984 nowhere stated that denial had to be made by person executing the document---Denial referred to in proviso to Art.79 of Qanun-e-Shahadat, 1984 was a denial by a party of the fact that document executed by person by whom it purported to have been executed---Document, in the present case had been relied upon in written statement---Registered deed by itself, without proof of execution and genuineness of transaction covered by it, would not confer any right---Such documents being part of public record were admissible in evidence but they by their own force would not prove genuineness and execution of that to which they related unless transaction covered by them was substantiated from independent and reliable source---Admissibility was to be distinguished from proof required by law for determining the execution and genuineness of document---Scribe of the document and other attesting witness were not produced and no reason was forthcoming as to why said witnesses had not been produced---Proceedings were conducted by Local Commissioner but he was also not produced---No plea and no evidence was on record to show as to why a few days before his death the said deceased deemed it proper to sell his property to his wife---Courts below had failed to read the registered sale deed while holding it as validly executed document---Judgments and decrees passed by both the courts below were set aside---Shares of the parties in suit property were determined according to law of inheritance .and case was decided accordingly.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 rel.

Ch. Farooq Mahmood Kahloon for Petitioners.

Masood A. Malik for Respondents.

Date of hearing: 11th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 919 #

2007 Y L R 919

[Lahore]

Before Asif Saeed Khan Khosa, J

Mst. KALSOOM BIBI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9321-B of 2005, heard on 16th January, 2006.

Criminal Procedure Code (V of 1898)---

----5.498---Penal Code (XLV of 1860), S.302---Pre-arrest bail, grant of---No allegation had been levelled against accused in the F.I.R. and she had been implicated in the case at a later stage with an allegation of applying 'Japha' to deceased so as to facilitate her co-accused in stabbing deceased---Accused had already joined investigation and nothing was to be recovered from her custody---Investigation had revealed that accused was merely present at the scene of the crime at the relevant time and had committed no overt act at all---Belated implication of accused in the case, exaggeration found by the police, and allegation levelled by the complainant against accused, prima facie hinted at mala fide of complainant party against accused---Accused was a woman and by virtue of her gender, she was entitled to a concessionary treatment in the matter of bail--Ad interim pre-arrest bail granted to accused was confirmed, in circumstances.

Zafar Iqbal Chohan along with Petitioner in person.

Saleem Shad for the State with Muhammad Yousaf, S.I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 922 #

2007 Y L R 922

[Lahore]

Before Fazal-e-Miran Chauhan, J

LIAQAT ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1250-B of 2005, decided on 5th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11--Bail, refusal of---Specific role of committing Zina with victim girl had been attributed to accused---Police record showed that accused along with his co-accused were involved in such cases of committing Zina and abduction of girls--Accused who was involved in a heinous crime, was not entitled for the grant of bail at that early stage of the case---Bail application of accused was dismissed, in circumstances.

Muhammad Naveed Rana for Petitioner.

Saghir Ahmad Bhatti for the Complainant.

Pir Atif Sajjad Qureshi for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 925 #

2007 Y L R 925

[Lahore]

Before Sh. Hakim Ali, J

Mst. RASHEEDA BANO---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No.2074 of 2006/BWP, decided on 8th September. 2006.

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

----S. 8--Civil Procedure Code (V of 1908), O. VII & R.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of possession--Rejection of plaint---Defendant filed application under O.VII, R.11, C.P.C. for rejection of plaint alleging that she had earlier filed a suit for permanent injunction against plaintiff by claiming ownership of suit house---Application of defendant was dismissed by Trial Court and revision against judgment of the Trial Court, was also dismissed---Assertion of plaintiff was that defendant had occupied house in-question as tenant, but afterwards she had denied that relationship by filing suit for permanent injunction and had refused to pay the rent also and if relationship of landlord and tenant between the parties was not admitted, owner/landlord of the property could not approach the Rent Controller---Plaintiff at that stage had two options open to him; either to avail remedy before Rent Controller or to avail remedy before a Civil Court for recovery of possession on the basis of ownership and in a suit for possession, declaration was the prerequisite condition---Validity---Unless plaintiff was able to prove his ownership of the property, prayer for possession could not be granted to him---In view. of contention of defendant that plaintiff was not owner of suit house and defendant herself was owner thereof, jurisdiction of Rent Controller would not be attracted---Relationship of tenancy having been denied and hostile and counter title had been set up, filing of suit for possession would not be barred by O. VII, R.11, C.P.C.-Impugned order passed by Courts below could not be declared illegal and unlawful in circumstances.

Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1 and Haji Muhammad Ali Khan and 4 others v. Nur Muhammad Khan and 15 others PLD 1972 Pesh. 66 ref.

Zafar Ali Hashmi for Petitioner.

YLR 2007 LAHORE HIGH COURT LAHORE 928 #

2007 Y L R 928

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD YAR and others---Petitioners

Versus

MUHAMMAD MUZAFFAR KHAN and another---Respondents

Civil Miscellaneous No. 2426 of 2006 in R.S.A. No.813 of 1978/LHR, decided on 13th December, 2006.

Civil Procedure Code (V of 1908)---

----S.12(2)---Punjab Pre-emption Act (IX of 1991), Ss.6 & 13---Limitation Act (IX of 1908), S.14 & Art.181---Suit for preemption---Withdrawal of appeal---Petition against---Plea of fraud and misrepresentation---Suit for pre-emption against vendee of suit land having been decreed by the Trial Court, vendee filed appeal against judgment and decree of the Trial Court---Said appeal was withdrawn by one of the sons of deceased vendee who was attorney of defendants/other legal heirs of deceased vendee---Order of withdrawal of appeal having been upheld even upto Supreme Court; defendants filed petition under S.12(2), C.P. C. alleging that son of deceased vendee had committed fraud by withdrawing appeal---Validity---Son of deceased vendee, who had withdrawn appeal being attorney of defendants, was competent to withdraw appeal and said withdrawal could not to be considered to be fraud committed with the Court within the compass of provisions of S.12(2), C.P. C.--Defendants had the knowledge of order of withdrawal well in time, but despite that they had opted not to file petition under S.12(2), C.P.C. within prescribed period of 3 years and had been pursuing the other remedies till the dismissal' of their appeal from Supreme Court and had spent a long period of 14 years in that pursuit---Such inordinate delayed period of 14 years could not be condoned to be a period having been spent with bona fide intention or in good faith---Defendants were not entitled for condonation of delay of period of 14 years'---Defendants' petition apart from being hopelessly barred by time was not based on sound reasons on factual as well as on legal footing and was liable to be dismissed.

Hamid Akhtar for Petitioners.

YLR 2007 LAHORE HIGH COURT LAHORE 937 #

2007 Y L R 937

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD USMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6584-B of 2006, decided on 20th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, refusal of---Alleged delay in lodging F.LR. had been fully explained---Charge against accused, who remained absconder, was that he came along with his co-accused and opened attack and fired at deceased which hit on the thigh of deceased---Accused had remained absconder---Recovery had been effected from accused---Offence against accused fell within the prohibitory clause of S.497(1), Cr.P.C.---No ground for grant of bail having been made out, bail petition of accused, was dismissed.

Sardar Sami Hayat for Petitioner.

Kashif Sohail Ghaus for the State along with Naeem, S.I.

YLR 2007 LAHORE HIGH COURT LAHORE 939 #

2007 Y L R 939

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ZAHID SAGHEER---Petitioner

Versus

ZIA-UL-HAQ and another---Respondents

Criminal Miscellaneous Nos. 3339-BC and 3340-BC of 2006, decided on 13th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.324---Application for cancellation of bail---Allegation against accused was that he armed with pistol had fired two shots, which did not hit any body---Accused had been found innocent in three consecutive investigations---Finding of the police though was not binding upon the Court, hut due to peculiar circumstances of the case, it had become relevant for grant of bail---Trial had also; commenced and one prosecution witness had been examined---No case for cancellation of bail having been made out---Application was dismissed.

PLD 1983 SC 82; PLD 1984 SC 102; PLD 2006 SC 243 and PLD 1972 SC 81 rel.

M. Javed Ghani for Petitioner.

Ms. Najma Parveen for the State.

Ms. Shahram Sarwar and Iftikhar Ahmed Mian for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 942 #

2007 Y L R 942

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD HUSSAIN and others---Appellants

Versus

SOHRAB KHAN and others---Respondents

Regular Second Appeal No.46 of 1999, heard on 14th November, 2006.

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

----Ss. 12 & 27(b)---West Pakistan Border Area Regulation, 1959 [M.L.R.9], Para. 11(iii) (b)---Suit for specific performance of agreement---Land sold with permission of General Head Quarter---Discharge of burden under S.27(b) of Specific Relief Act, 1877---Findings recorded by courts below in view of pleadings and evidence on record---Effect--Plaintiff entered into agreement with defendants for sale of land and paid earnest money to the latter and balance amount was to be paid after getting permission' from Deputy Commissioner and the GHQ--Defendants, in the meanwhile, transferred land to other persons vide registered sale deed---Plaintiff filed suit for specific performance of agreement against vendors/defendants on ground that defendants/vendees were fully aware of agreement between plaintiff and vendors---Defendants alleged that it was plaintiff who was guilty of breach of terms of agreement and he did not arrange balance amount despite the fact that he was approached on several occasions---Defendants contended that they were bona fide purchasers for value without notice; that agreement sought to be performed was wholly void in absence of permission to be granted by GHQ in terms of Para-11 of West Pakistan Border Area Regulations, 1959 and that plaintiff did not even assert in the witness box that defendants were aware of previous agreement and as such specific performance could not be ordered in terms of S.27(b) of Specific Relief Act, 1877---Trial Court decreed the suit and appeal filed thereagainst was dismissed by lower Appellate Court---Validity---Specific denial . of agreement was not spelt out .from written statements filed by two sets of defendants---Plaintiff had produced the said agreement before the court along With its scribe who stated that agreement had been written under instructions of general attorney of the vendor---Scribe was not even cross-examined by any of defendants---Condition No.11 added in Schedule-III to West Pakistan Border Area Regulation, 1959 was applicable in the matter of alienation by an allottee and in the present case defendant/vendor had sold away the land to defendants/vendees with permission of the GHQ---Specific performance, in terms of S.27(b) of Specific Relief Act, 1877, could be enforced against a person claiming under a party to an agreement of a title arising subsequently to the contract---Burden imposed on defendants by S. 27(b) of Specific Relief Act, 1877, stood discharged in view of statements of plaintiff and one of the defendants, however, in circumstances reflected in pleadings as well as evidence on record, the findings recorded by courts below that defendants were aware of agreement were not liable to interference by High Court in second appeal---Appeal was dismissed.

Muhammad Sharif v. Zafar Khan and others Civil Appeal No.804 of 1990; Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74 and Mst. Khair-un-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 rel.

(b) West Pakistan Border Area Regulations, 1959 [M.L.R. 9]---

----Schedule Third, cl. (11)---Suit filed for specific performance of agreement to sell land located in border area---Permission not obtained from General Head Quarter for sale of land---Dismissal of suit by courts below---Effect---Sale agreement itself providing for requisite permission, suit could not be decreed without proving that permission was required---Held, plaintiff if succeeded in obtaining permission of GHQ in terms of Clause (11) of Third Schedule to MLR, 9, he would have fresh cause of action to seek enforcement of sale agreement.?

Muhammad Sharif v. Zafar Khan and others Civil Appeal No.804 of 1990 rel.

Jehangir A. Jhoja for Appellants.

Rana Muzaffar Hussain for Respondent No.1.

Nemo for other Respondents.

Date of hearing: 14th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 954 #

2007 Y L R 954

[Lahore]

Before Fazal-e-Miran Chauhan, J

Brig. (Retd.) MUHAMMAD ZUBAIR

HASHMAT KHAN---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Defence Pak Secretariat, Islamabad and 3 others---Respondents

Writ Petition No.1550 of 2004, decided on 19th December, 2006.

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

----Arts. 6 & 129---Affairs of State---Privileged evidence, principle of---Applicability---Presumptions, departure from---Scope---Evidence as to affairs of State is dealt with under Art. 6 of Qanun-e-Shahadat, 1984---Not all records relating to affairs of State are privileged but only those, the disclosure of which would result in an injury being caused to public interest---Principle that has been given effect to in Art. 6 of Qanun-e-Shahadat, 1984, is that public interest must be paramount and private interest must give way when there is any conflict between public and private interest---Since a document which is material and relevant is allowed to be withheld from the Court contrary to the general rule of presumption of Art.129 of Qanun-e-Shahadat, 1984, therefore, serious departure from ordinary rules of evidence has been made in Art.6 of Qanun-e-Shahadat, 1984.

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

----Arts.6 & 158---Production of document---Privileged document---Determination---Court has been authorized under Art.158 of Qanun-e-Shahadat, 1984, to decide whether privilege claimed against production of a document is well-founded or not---Such determination can only be done on inspection of that document by Court---Person in possession of disputed document, is bound under Art.158 of Qanun-e-Shahadat, 1984, to produce the same for inspection of the Court to decide whether privilege with regard to the same can be claimed or not.

PLD 1969 SC 14 and PLD 1969 Lah. 928 rel.

----Art.129 (g) ---Presumption---Withholding material evidence---Effect---Inference from non-production of evidence is one of the strongest presumption of fact or circumstance known to law and law allows it against the party who is withholding the evidence, which the nature of his case would be manifested.

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

----Arts.6, 129 (g) & 158---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Allotment, cancellation of---Principle of audi alteram partem---Applicability---Withholding of evidence---Presumption---Petitioner being a retired army officer was allotted land in question but the allotment was cancelled due to some inquiry conducted against him after his retirement alleging misappropriation in government funds---Grievance of petitioner was that allotment of land was cancelled without holding any inquiry---Despite direction of High Court, authorities did not produce inquiry proceedings conducted against petitioner on the ground of being a privileged document---Validity---Since the authorities had failed to produce the order of inquiry despite direction, strong presumption would arise under Art.129 (g) of Qanun-e-Shahadat, 1984, that the document had been deliberately withheld as the same would have gone against the authorities, if produced---No penal action, in circumstances,' could be taken against the petitioner in shape of cancelling his agricultural land---Valuable right in property had accrued to petitioner and he could not he deprived of the same by the authorities on the pretext that an adverse order had been passed against him, holding him guilty of misappropriation which was proved by the competent authority, while the same was never conveyed to petitioner by the authorities---Such action on the part of authorities appeared as one sided and if any order had been passed, the authorities should have produced the same taking the Court in confidence---Non-production of record/order by the authorities on the pretext of claiming privilege was not accepted---Valuable right had been accrued in favour of petitioner and he could not be deprived of the same by authorities without affording him an opportunity of hearing to him and conveying the order passed against him in any such proceedings---Order of cancellation of allotment of 'agricultural land was set aside by High Court in exercise of constitutional jurisdiction:-Petition' was allowed in circumstances.

Dr. A. Basit for Petitioner.

Ch. Zafar Iqbal, D.A.-G., Raja Hashim Sabir A.A.-G., Hafiz Khalil Ahmad and Muhammad Rafiq Chaudhry for Respondents.

Date of hearing: 2nd November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 965 #

2007 Y L R 965

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD RAMZAN---Appellant

Versus

MUHAMMAD HUSSAIN---Respondent

Regular Second Appeals Nos.37 to 40 of 2003, heard on 13th December, 2006.

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

----Ss. 6 & 13---Suit for pre-emption---Superior right of pre-emption---Suit having concurrently been decreed by the Trial Court---Pre-emptor claimed his superior right of pre-emption on ground of being a co-sharer as well as Shafi Khalit and Jar---Contention of vendee was that Courts below were not justified to hold pre-emptor to be Shafi Jar and Shafi Khalit as land owned by him was not adjacent to the suit-land and that it was in his evidence itself that common passage, in fact, was a public road---Validity---Pre-emptor had himself stated that someone else's land intervened between his property and the suit-land---Public road or thoroughfare, would not constitute a special right attached to the property sold to vendee within the provisions of S.6 of Punjab Pre-emption Act, 1991---Pre-emptor could not prove to be co-sharer in the suit-land as according to Register Haqdaran Zamin, khasra number in which suit-land comprised and khasra number in which land owned by pre-emptor comprised both formed part of separate khatas---Courts below, in circumstances had misread evidence on record and had not taken note of the relevant law oh the subject while holding pre-emptor to be Shafi Khalit and Shaft Jar---Judgments and decrees of courts below were set aside and suits were dismissed.

Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and Karim Bakhsh v. Khuda Bakhsh ILR All. 247 rel.

Mehdi Khan Chauhan for Appellant.

Mian Yousaf Umar for Respondent.

Date of hearing: 13th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 976 #

2007 Y L R 976

[Lahore]

Before Fazal-e-Miran Chauhan, J

ABDUL SATTAR alias MUHAMMAD SATTAR---Petitioner

Versus

ZAFAR ULLAH KHAN TARAR and 2 others---Respondents

Writ Petition No.8606 of 2005, decided on 20th December, 2006.

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

----Ss. 6 & 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for pre-emption---Deposit of 1/3rd of sale price in the Court---Limitation---Starting point---Mandatory for the court to direct plaintiff to make deposit in Court 1/3rd of the sale price of the suit property in cash within such period as the court would fix, but proviso (1) of S. 24 of -Punjab Pre-emption Act, 1991, had imposed limitation on the court to extend the time of deposit beyond 30 days of the filing of the suit, meaning thereby, that the court could, on the first date of hearing, fix any date for deposit of 1/3rd of sale price in cash in the court, but such period fixed by the court for deposit, would not be extended beyond 30 days and the day on which order was passed by the Court, directing the pre-emptor to make the deposit, should be excluded---By exclusion thereof, deposit made by pre-emptor, would be within 30 days time---Where no delinquency and default could be attributed to pre-emptor, dismissal of suit by Appellate Court for non-compliance of deposit of Zar-e-Soem 1/3rd was illegal and without jurisdiction, which could not be sustained in the eye of law---Impugned judgment and decree passed by Appellate Court was set aside and order passed by the Trial Court whereby permission was granted for deposit of 1/3rd, was restored.

Mst. Said Bibi v. Additional District Judge Bahawalpur and 5 others 2005 CLC 375; Muhammad Ilyas and 4 others v. Munshi Khan 2003 CLC 1815; Raja Hassan Ali Khan v. Additional District Judge, Islamabad and 2 others 2003 CLC 1819; Jamshaid Ali and 2 others v. Ghulam Hassan 1995 CLC 957; Ghulam Hassan v. Jamshaid Ali and others 2001 SCMR 1001; Mian Muhammad Lutfi v. Mian Muhammad Talha Adil NLR 2000 Civil 422; Muhammad Yousaf and 3 others v. Zafarullah and another 1992 SCMR 117; Mst. Wafa Jan v. Mahram Zad 1995 CLC 2002; Ahmad Bakhsh v. Nasir Khan and others 2002 CLC 119; Muhammad Jahangir v. Muhammad Abbas and 2 others 2004 CLC 538; Muhammad Sharif v. Qutba and others 2006 YLR 1939; Fazal Elahi v.. Noor Ahmed and 2 others PLD 2006 Lah. 318; Imran Ahmed and another v. The District Judge, Dera Ghazi Khan and 2 others 2003 CLC 1597 and Ghulam Mustafa Khan v. Ashiq Hussain and others 2003 CLC 1661 rel.

(b) Words and phrases---

---"Filing" and "institution "---Connotation.

Malik Muhammad Akram Khan Awan for Petitioner.

Respondent No.3 in person.

Date of hearing: 30th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 985 #

2007 Y L R 985

[Lahore]

Before Tariq Shamim, J

MUHAMMAD RAFIQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.6446-B and 6444-B of 2006, decided on 1st September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 468 & 471---Pre-arrest bail, refusal of---Complainant was a lady who had been deprived of huge amount by accused on the pretext of providing a plot of land to her and in furtherance of said design prepared a fictitious and forged agreement to sell---Amount in question was received by accused from complainant---One of accused persons after dismissal of his application did not surrender to the police, but escaped from the Court---Co-accused after grant of ad interim pre-arrest bail did not appear before the Court when case was fixed for confirmation---Both accused after grant of ad interim pre-arrest bail did not join investigation---Amount in question had to be recovered from accused---Counsel for accused could not point out any mala fide on the part of complainant or the police for false involvement of accused in the case---Prima facie ample evidence was on record to connect accused with the commission of offences alleged against them---Accused had misused concession of ad interim pre-arrest bail granted to them---Accused were not entitled to extraordinary concession of pre-arrest bail.

Amjad Ali Chatha (in Criminal Miscellaneous No.6446-B of 2006) for Petitioner.

Shahadat Ali Javaid (in Criminal Miscellaneous No.6444-B of 2006) for Petitioner.

Kazim Iqbal Bhangu (in Criminal Miscellaneous No.6446-B of 2006) for the State.

Ms. Tasneem Amin (in Criminal Miscellaneous No.6444-B of 2006) for the State with Amanat Ali with record.

Liaqat Ali Khan for Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 1000 #

2007 Y L R 1000

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. ROBINA KAUSAR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SHAKKARGARH, DISTRICT

NAROWAL and others-Respondents

Writ Petition No.5006 of 2006, decided on 8th January, 2007.

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

----S. S. Sched---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dower---Enhancement of amount of dower---Suit filed by petitioner for recovery of dower amount was decreed by the Family Court, but on filing appeal by respondent, Appellate Court reversed findings of the Family Court and petitioner's suit relating to dower amount, was dismissed---Validity---Appeal of respondent was mainly accepted by Appellate Court below, doubting execution of agreement whereby dower amount in question was fixed---Agreement whereby dower amount was fixed had fully been proved---Law regarding enhancement of dower amount was firmly settled to the effect that same could be done at any stage of continuance of marriage life and it could even be done orally, whereas in the present case it was dote through written agreement duly proved by plaintiff's witnesses---Record had shown that court of appeal was not justified in disbelieving agreement and reversing findings of Family Court with regard to recovery of dower amount---Judgment/decree passed by Appellate Court being opposed to evidence on file and law applicable, deserved to be declared illegal and of no legal consequence---Constitutional petition was allowed.

Sana Ullah Khan v. Feroze Din 1994 MLD 618 and Sana Ullah Khan v. Feroze Din 1994 MLD 618 ref.

Akbar Ali Tahir for Petitioner.

Respondent No.2 already ex parte.

YLR 2007 LAHORE HIGH COURT LAHORE 1008 #

2007 Y L R 1008

[Lahore]

Before Sh. Hakim Ali, J

PROVINCE OF PUNJAB---Petitioner

Versus

JAVED IQBAL and others-Respondents

Civil Revision No.335 of 2002/BWP, decided on 19th October, 2006.

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

----Ss. 19, 30 & 36---Allotment of land under Grow More Food Scheme---Resumption of land---Land in dispute which was duly allotted to predecessor-in-interest of respondents under `Grow More Food Scheme', in the year, 1960 was subsequently resumed by Authority without issuing notice to its original allottee---Suit for declaration and permanent injunction filed by original allottee against said resumption which was made in violation of terms and conditions of allotment, had concurrently been decreed by the Trial Court and Appellate Court ---Validity---Member Board of Revenue had no jurisdiction/power to resume the land which had become the property of original allottee who had been granted proprietary rights in respect of land in dispute---If provisions of S.30 of Colonization of Government Lands (Punjab) Act, 1912 was to be invoked by Member, Board of Revenue, then there must have been a notice issued to allottee, specifying and pointing out the allegations of the kind of fraud or misrepresentation which allegedly was committed by original allottee, in process of obtaining State land and its formal conveyance deed---No notice was issued and no opportunity of hearing for cancellation of allotment in favour of allottee was granted by Member, Board of Revenue---No flaw or defect of jurisdictional nature having been found in the concurrent findings rendered and delivered by both the Courts below, impugned judgment and decree passed by Appellate Court was upheld and revision against said judgment was dismissed.

Ch. Shafi Muhammad Tariq, A.A.-G. for Petitioner.

Azhar Nadeem Chaudhry for Respondents Nos.1-A to 1-P.

Ch. Mushtaq Ahmad on behalf of Sh. Karimuddin, Advocate, learned original counsel for Respondent No.2.

Date of hearing: 19th October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1013 #

2007 Y L R 1013

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAHID IQBAL and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4516-B of 2006, decided on 16th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302 & 109---Pre-arrest bail, confirmation of---Five accused were named in F.I.R., and three had been shown to be abettors---Eight accused in all were in the case who all were blood relations' and closely related inter se---Application for grant of bail of main accused was dismissed in limine and he was taken into custody--Injury attributed to one accused was found to be an exit wound and complainant who had not denied that fact, had submitted that said accused raised `Lalkara' and thereafter he also fired in the air---One of co-accused was attributed Danda blow on the person of deceased, but according to post-mortem report no such injury was found on deceased and police also found the said co-accused innocent---Another co-accused was minor---One other co-accused was accused of ineffective firing, but police also found him innocent during course of investigation---Another co-accused was accused of abetment, but story of abetment was found to be false and incorrect by the police and it had been submitted by Investigating Officer that he was present at the spot, but without any overt act---Medical evidence contradicted the story given in the F.I.R.---Case being of further inquiry falling under subsection (2), of S.497, Cr. P. C. , interim bail already granted to accused persons, was confirmed.

Kh. Awais Mushtaq for Petitioners.

Ch. Shaukat Ali Javed for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 1017 #

2007 Y L R 1017

[Lahore]

Before Tariq Shamim, J

MUHAMMAD AYUB---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION, CITY

LALA MUSA and another-Respondents

Criminal Miscellaneous No.1148-H of 2006, decided on 3rd October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Three detenus were in the third storey of the police station and fourth one was not found---S.H.O. concerned had informed the Bailiff that he had not arrested detenus as they were not required in any case, who had voluntarily entered the premises of the police station prior to the raid conducted by the Bailiff---Since detenus were neither nominated in any F.I.R. nor were they required by the police of said police station they were set at liberty---Explanation given by the police officer did .not appeal to the mind, District Police Officer was directed by the High Court to probe into the matter and if he would come to a conclusion that any illegality had been committed by S.H.O. or other police officers, he could initiate appropriate action against delinquent officials.

Ch. Muhammad Rafiq Jathol for Petitioner.

Muhammad Arif, Additional Advocate-General.

Muhammad Ihsan-ul-Haq, Bailiff.

Asif Ali, Inspector.

YLR 2007 LAHORE HIGH COURT LAHORE 1020 #

2007 Y L R 1020(2)

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD LAL ---Petitioner

Versus

GHULAM SUBHANI; GENERAL MANAGER, MULTAN, TELECOMMUNICATION REGION (PTCL), MULTAN-Respondent

Crl. Org. No.193/W of 2006 (in Writ Petition No. 8785 of 2002), decided on 20th July, 2006.

Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3 & 5---Contempt of Court---High Court in constitutional petition earlier filed by petitioner, had directed respondent to consider petitioner in employment being the son of deceased employee---Present petition had been filed by petitioner complaining that judgment passed by High Court, was not being complied with by respondent---Respondent did not deny the fact that petitioner was son of deceased employee---Non-compliance of the judgment of the High Court had taken place, but in circumstances of the case where respondent-officer had pleaded confusion or discrepancy in the date of birth of the petitioner vis-a-vis the date of his father's death, no punitive action was called for--Petition for contempt of Court was disposed of with direction to respondent to comply with the judgment and to issue requisite orders within specified period.

Ghulam Murtaza Malik for Petitioner.

Muhammad Tariq Rajwana for Respondent.

Ghulam Subhani for PTCL, Multan.

YLR 2007 LAHORE HIGH COURT LAHORE 1024 #

2007 Y L R 1024

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ILYAS---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.1102-B of 2006, decided on 10th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.161, 409 & 420---Prevention of Corruption Act (II of 1947), S.5(2)---Pre-arrest bail, confirmation of---Offence against accused under Ss.161 & 420, P.P.C. were bailable---Accused being not a public servant, his alleged connection with the offences under S.409, P.P.C. and S.5(2), Prevention of Corruption Act, 1947 was indirect at the best---Accused according to prosecution, had received 269 gunny bags which he had allegedly misappropriated and in order to compensate for the same he had issued a cheque which was subsequently dishonoured, but prosecution remained unable to refer any particular document to prove alleged misappropriation of said gunny bags---Said cheque had not been issued in favour of relevant department or in favour of any official of relevant .department, but had been issued in favour of `self'---Issuance of said cheque by accused and its connection with allegation levelled against him was a matter which called for further probe---Accused was not named in the main narrative of the F.I.R. and no allegation whatsoever had been levelled against him. therein---Accused had been implicated in the case during inquiry proceedings and in that inquiry the role allegedly played by accused in the entire transaction had, prima facie, failed to travel beyond mere sketchy allegations---Plea regarding mala fide implication of accused in the case, was not without any foundation or substance---Investigation of the case had already been finalized and challan had also been submitted before the Trial Court---Physical custody of accused, in circumstances, was not required by Investigating agency---Ad interim pre-arrest bail already allowed to accused, was confirmed, in circumstances.

Imran Asmat Chaudhry With Petitioner in Person.

Ishfaq Ahmad Chaudhry for the State with Ghias-ud-Din, Circle Officer, ACE, Hafizabad, Inspector Headquarter, Gujranwala.

YLR 2007 LAHORE HIGH COURT LAHORE 1026 #

2007 Y L R 1026

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

MUHAMMAD ISHAQUE ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7484-B of 2005, decided on 10th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497----Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9---Bail, refusal of---Contention of accused was that a quantity of 250 grams of Post' was recovered from him which was sent to Chemical Examiner who reported that it contained 0.0816% of narcotic/Morphine' and that he was entitled to bail---Held, there was no need for ascertaining the quantity of narcotic in thePost' which was sent to Chemical Examiner as `Post' itself was narcotic substance---Prima facie, accused being involved in a case falling within the prohibitory clause of S.497, Cr.P.C., he was not entitled to concession of bail.

Khalil Ahmad v. State PLD 2005 Lah.440 ref.

Ch. Qamar Shahid for Petitioner.

Ch. Nazir Ahmad for the State.

Ch. Muhammad Sharif (CC No.1555). for A.N.F.

YLR 2007 LAHORE HIGH COURT LAHORE 1028 #

2007 Y L R 1028

[Lahore]

Before Fazal-e-Miran Chauhan, J

Mst. ZAHIDA SHER---Petitioner

Versus

S.H.O., POLICE STATION NEW MULTAN and another-Respondents

Criminal Miscellaneous No.34/HB of 2006, decided on 24th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 491---Custody of minors---Scope of S.491, Cr.P.C.-Minors who were in the legal custody of petitioner, having been removed by respondent forcibly, petitioner, moved petition under S. 491, Cr. P. C. before Sessions Judge with the prayer to recover the minors from respondent and be handed over to her---Validity---Proper forum to determine question of custody of minors was the Guardian Court under Guardians and Wards Act, 1890---Section 491, Cr.P.C. was not meant to pre-empt the jurisdiction of Guardian Court or in any manner to substitute the proceedings to be conducted by the Guardian Judge---Order under S.491. Cr.P.C. was tentative in nature as a stop gap arrangement subject to final determination by the Guardian Judge---Minors were ordered to be handed over to petitioner; respondent however, could approach the Guardian Judge for redressal of his grievance under Guardians and Wards Act, 1890.

Rana Jahanzaib Khan for Petitioner.

Sh. Faizan Ahmad for Respondent No.2.

Mubashar Latif Gill, A.A.-G. along with Muhammad Afzal S.-I. with Record.

YLR 2007 LAHORE HIGH COURT LAHORE 1030 #

2007 Y L R 1030

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD SALEEM---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.8768-B of 2006, decided on 14th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---Occurrence in the case had taken place during night and even according to F.I.R. itself accused, was empty handed at that time---Accused had not caused any injury to any person during alleged occurrence and only role attributed to him in the F.I.R. was that of catching hold of deceased and facilitating his co-accused to fire at deceased which allegation prima facie appeared to be unbelievable--Investigation of the case had already been finalized and report under S.173, Cr.P.C. had been submitted according to which investigating agency had found that accused was not present at the scene of the crime at. relevant time and that he had arrived at the spot after the main incident was already over---Accused was languishing in judicial lock-up and his continued custody in jail was not likely to serve any beneficial purpose at that stage---Case against accused calling for further inquiry into his guilt within purview of subsection (2) of S.497, Cr.P.C., he was admitted to bail.

M.A. Zafar for Petitioner.

Miss Samina Shahzadi for the State with Rana Sana Ullah, S.-I., with Record.

YLR 2007 LAHORE HIGH COURT LAHORE 1031 #

2007 Y L R 1031

[Lahore]

Before M.A. Shahid Siddiqui, J

ALI SHER---Petitioner

Versus

THE STATE and others---Respondents

Criminal Revision No.963 of 2005, decided on 1st June, 2006.

Penal Code (XLV off 860)---

---Ss.302, 218, 109 & 34---Police Order, (22 of 2002), Arts.155 & 156---Petitioner had assailed the order of Additional Sessions Judge whereby petitioner was summoned for facing trial in a criminal case---Petitioner was father of main accused and basis for his summoning to face the trial was that he had participated in conspiracy hatched for Qatl-i-Amd of deceased---Nothing was on record to show that petitioner contacted co-accused for alleged conspiracy or took any step towards the commission of the crime of murder of deceased---Mere presence of petitioner at the time when uncle of deceased who intended to kill deceased, uttered his said intention in the meeting, was not sufficient to show his involvement in the occurrence---Same utterance had been heard by two prosecution witnesses, but the only difference was that said witnesses were outside the Behtak where alleged conspiracy was hatched, while petitioner was inside the Behtak---In the absence of any other tangible incriminating material, it would be highly unjust to put a person on trial on a capital charge---Complainant could not be allowed to liberally widen the net and rope in innocent persons without any tangible evidence---Primary duty of the Court was not to convict the wrong-doer, but to save innocent person from unnecessary rigors of trial---Trial of petitioner would be an exercise in futility and sheer abuse of process of law--Impugned order whereby petitioner had been summoned to face trial, was held to be illegal and without any lawful justification and same was set aside.

Syed Karamat Ali Naqvi for Petitioner.

Sardar Akbar Ali Dogar for Respondent No.2.

2007 Y L R 1052

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhy, JJ

NOOR MUHAMMAD and another-Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.106 of 2002 and Murder Reference No.854 of 2001, heard on 2nd November, 2006.

Penal Code (XLV of 1860)---

----Ss.302, 324, 325, 337-A(ii) & 34---Appreciation of evidence---Sentence, reduction in---Ocular account supported by medical and circumstantial evidence---Case of accused at par with co-accused---Quantum of sentence---Determination of---Accused/appellant along with co-accused, both armed with fire-arms, entered house of complainant and committed murder of his brother and injured a female on account of domestic dispute---One of the accused was apprehended on the spot along with his pistol---Motive as alleged in F.I.R. was that deceased, who was cousin of wife of accused tried to settle dispute between the spouses and favoured wife of accused and due to that grudge deceased was murdered---Trial Court, while passing conviction, sentenced both accused/appellants to death and life imprisonment respectively---Co-accused was acquitted on basis of compromise---Accused contended; that witnesses were inimical towards them and no independent witness was produced during trial; that recovery evidence was of no consequence as pistol allegedly belonging to one of the accused was handed over to police officer by complainant and it did not contain any live bullet or any empty and that case of accused who was sentenced to death was at par with co-accused who was sentenced to life imprisonment---Validity---Complainant and injured female witness appeared before the Court in support of prosecution case---Both the witnesses were inmates of the house and were natural witnesses---Statements of witnesses were consistent, coherent, natural and trustworthy which were supported by medical evidence and corroborated by circumstances like apprehension of one of the accused on the spot and registration of case without delay---Eye-witnesses had no previous enmity or ill-will against accused to involve them falsely in the. case---Trial Court had rightly believed direct evidence and ignored discrepancies in medical evidence---Plea taken by accused that an inmate of the house had fired at him which accidentally hit deceased was absurd because he was unable to name any inmate of the house who had fired at him---No other motive existed except the one narrated in F.I.R.'--Prosecution had proved its case against accused beyond doubt---Accused/appellant had also been convicted for offence under Ss.324 & 337-A(ii), P.P.C. on allegation that he caused fire-arm injury on the head of injured female witness but this allegation was contradicted by medical evidence---Lady doctor who had examined the injured witness had opined that injury was caused by blunt weapon which could not be attributed to accused/appellant---Judgment of Trial Court to that extent was set aside---As to quantum of sentence, it was found that case of accused/appellant was at par with co-accused who was sentenced to life imprisonment by Trial Court, and was treated leniently---Conviction of accused was maintained under Ss. 302 (b) & 34 but his death sentence was reduced to life imprisonment---Appeal was partly allowed.

Ms. Najma Pervin for Appellants.

Ch. Nazir Ahmad (in Criminal Appeal) and Sh. Khalid Habib (in Murder Reference) for the State.

Date of hearing: 2nd November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1057 #

2007 Y L R 1057

[Lahore]

Before Khawaja Muhammad Sharif, J

IMTIAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.287/J of 2002, decided on 16th June, 2006.

Penal Code (XLV of 1860)---

---S.302(b)/34---Criminal Procedure Code (V of 1898), S.345---Appreciation of evidence---Legal heirs of one of the deceased having entered into compromise with accused, appeal of accused to the extent of said deceased and murder reference was decided by Division Bench of the High Court on the basis of compromise---Case was that of promptly lodged F.I.R. occurrence having taken place in broad-daylight---F.I.R. revealed that accused was armed with Kalashnikov while co-accused (Proclaimed offender) was also armed with Kalashnikov---Both of them while sharing their common intention committed murder of two innocent persons---For the murder of one of deceased persons accused was awarded death sentence, but he having entered into compromise with legal heirs of said deceased, on the basis of compromise Division Bench of High Court had acquitted him to the extent of the said deceased---Accused was awarded imprisonment for life for the murder of other accused---Accused who was proclaimed offender, was subsequently arrested---Such fact had gone against accused---Section 34, P.P.C. was fully applicable in the case as he along with his co-accused since proclaimed offender, had committed the murder of two innocent persons---No leniency could be shown towards accused---Conviction and sentence of imprisonment for life awarded to him was maintained in toto.

Muhammad Khan Dial for Appellant.

Saleem Shad for the State.

Date of hearing: 16th June, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1060 #

2007 Y L R 1060

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

AMAN ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.249-J and Murder Reference No.541 of 2001, heard on 16th November, 2006.

Penal Code (XLV of 1860)---

----Ss.302(b) & 302(c)---Appreciation of evidence---Sentence, reduction in---Incident was a case of two versions, as accused had taken a specific plea of grave and sudden provocation---Both prosecution witnesses were not only closely related to deceased, but were also inimical towards accused---Statements of said interested witnesses were not plausible and both of them had made dishonest improvements during trial and were duly confronted with their earlier statements---Case was recorded after due deliberations---Defence plea taken by accused was more plausible and was borne out from circumstances of the case---Accused having acted under grave and sudden provocation, his conviction was altered under S.302(c), P.P.C. and as he had spent eight years in jail, his sentence was reduced to the period already served out by him which would meet the ends of justice---Accused was released from jail, in circumstances.

Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294 ref.

Muhammad Arif Rana for Appellant.

Badar Munir Malik (in Criminal Appeal) and A.H. Masood (in Murder Reference) for the State.

Date of hearing: 16th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1065 #

2007 Y L R 1065

[Lahore]

Before Muhammad Jehangir Arshad, J

KHALID MEHMOOD---Petitioner

Versus

Mst. ANJUM FIRDOUS and others-Respondents

Writ Petition No.3446 of 2005, decided on. 21st March, 2006.

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

---S.5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of amount of maintenance---Family Court dismissed suit for recovery of maintenance amount filed by wife, but on appeal, Appellate Court set aside judgment of Family Court and allowed the wife maintenance allowance at the rate of Rs.1000 per month from the date of institution of the suit---Husband after obtaining permission from Arbitration Council in terms of S.6 of Muslim Family Laws Ordinance 1961, contracted second marriage and he was enjoying matrimonial life having three children from his second wife; whereas the lady was being kept in matrimonial bond without any reason--.-When suggested by High Court to counsel for petitioner/husband whether he was ready to divorce the lady in lieu of one-half of amount of maintenance decreed by Appellate Court below from the date of institution of suit in lieu of consideration of Khula; he consented with condition that amount of Rs.1000 per month be reduced to Rs.800 per month---Said suggestion as well as request of counsel for husband having been accepted by the lady constitutional petition was disposed of accordingly.

Sardar Muhammad Iqbal Khakwani for Petitioner.

Shamsher Iqbal Chughtai for Respondent No. 1.

Date of hearing: 21st March, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1067 #

2007 Y L R 1067

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

GHULAM QASIM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.421-J and Murder Reference No.772 of 2001, heard on 31st October, 2006.

Penal Code (XLV of 1860)---

----S.302/34---Appreciation of evidence-Medical evidence in conflict with ocular account--- Supplementary statement---Delayed dispatch of crime empty to Forensic Science Laboratory---Effect---Allegation against accused/ appellant was that he being servant of deceased committed her murder in the night time with fire gun shot and hatchet blows---Accused was convicted and sentenced to. death by Trial Court--Accused contended that ocular account was in conflict with medical evidence; that occurrence was not witnessed by anybody and that F.I.R. was recorded with delay---Validity---Medical evidence revealed that deceased had received three injuries on her person, two of which were caused by a sharp-edged weapon whereas third was caused by fire-arm but injuries caused by sharp-edged weapon were not mentioned in F.I.R. which led to conclusion that it was an un-witnessed occurrence--Injuries caused by sharp-edged weapon were mentioned in supplementary statement of complainant which could not be equated with F.I.R.---Supplementary statements are mostly recorded in order to fill lacuna in prosecution case or to add number of accused---Supplementary statement of complainant in the present case was recorded by Investigating Officer after examination of deceased---Motive was not proved as there was contradiction in statements of witnesses about harvesting season of crop which was allegedly misappropriated by accused/appellant---Eye-witnesses stated that accused had fled from the spot along with hatchet and gun but both weapons were recovered from Chaff-room of deceased---No independent witness of recovery of weapons was produced by prosecution---Crime empties which were recovered from spot before recovery of gun were not sent to Forensic Science Laboratory rather the same were despatched to Laboratory along with gun after its recovery---F.I.R. did not mention that accused was holding a' double barrel gun---Factum of hatchet was never mentioned in F.I.R. and in any case there was no reason for assailant to use two weapons to cause death of deceased---Prosecution case was replete with doubts---Accused was acquitted of all charges---Appeal was allowed.

Ms. Lubna Ghulam Murtaza for Appellant.

Badar Munir Malik (in Criminal Appeal) and Maqbool Ahmad Qureshi (in Murder Reference) for the State.

Date of hearing: 31st October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1074 #

2007 Y L R 1074

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

AHMAD YAR and another---Petitioners

Versus

DISTRICT COLLECTOR, PAKPATTAN SHARIF and 3 others---Respondents

Civil Revision No.458 of 2004, decided on 18th September, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Application for restoration of "Khal" (watercourse) which allegedly was dismantled---Said application having been dismissed, appeal, against such dismissal was accepted by Appellate Authority directing restoration of "Khal "---Plaintiffs filed suit for declaration alleging that impugned order was illegal, without jurisdiction, and based on mala fide---Trial Court decreed suit, buy Appellate Court below accepted the appeal and judgment of the Trial Court was set aside---Validity---Defendant had fully proved that plaintiffs had dismantles "Khal "---Appeal had been decided by Appellate Authority after site inspection and "Khal" was sanctioned which was dismantled by plaintiffs---Appellate Court; in circumstances had rightly accepted appeal brought by defendant---Judgment had shown that Appellate Court had decided appeal after appraisal of entire material available on record---Counsel for plaintiffs had failed to point out any misreading or non-reading of evidence---In absence of any illegality or infirmity in the impugned judgment, no justification existed to warrant interference of High Court in judgment of Appellate Court below.

Ch. Nusrat Javed Bajwa for Petitioners.

Ch. Muhammad Yaqoob Sindhu for Respondents.

Khan Muhammad for Respondent No.4.

Date of hearing: 18th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1076 #

2007 Y L R 1076

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

NAUBAHAR alias BAHARU---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.37-J of 2002 and Murder Reference No.797 of 2001, heard on 1st November, 2006.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S.342---Appreciation of evidence---Ocular account was fully supported by medical evidence---Question as to incriminating evidence was not put to accused while recording his statement under S.342, Cr. P. C. ---Effect---Allegation against accused/appellant was that he along with co-accused, who had raised Lalkara, committed murder of deceased with their respective weapons---Motive behind occurrence as stated in F.I.R. was that hot words had been exchanged between parties several times over theft of a bull--Accused/appellant was arrested about seven months after occurrence---Co-accused having died before commencement of trial, Trial Court convicted accused/appellant and sentenced him to death---Accused contended that it was an un-witnessed occurrence; that motive as alleged in F.I.R. led to conclusion that complainant party had grudge against accused and that abscondence of accused was not judicially proved---Validity---Promptly lodged F.I.R. ruled out fabrication in story of F.I.R.---Independent prosecution witness having no enmity or ill-will against accused had corroborated statement of complainant on all material points---Intrinsic value of incriminating evidence furnished by these witnesses could not be shaken during cross-examination---Ocular account was fully supported by medical evidence---Deceased had lost his life due to injuries caused by accused/appellant---Motive as set down in F.I.R. was admitted by accused---Prosecution in order to prove abscondence of accused produced police constable whose statement remained unchallenged which meant that statement was admitted as true by defence side---Such evidence of abscondence, however, could not be used against accused as Trial Court did not put question about abscondence when statement of accused was recorded under S.342 Cr.P.C., hence, accused was not given chance to explain factum of abscondence---Prosecution had proved its case against accused beyond doubt---Appeal was dismissed.

Ch. Imtiaz Ahmad Khan for Appellant.

Naeem Ahmad Lodhi and Mirza Abdullah Baig (in Criminal Appeal No.37-J of 2002) and (Murder Reference No.797 of 2001) respectively for the State.

Date of hearing: 1st November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1086 #

2007 Y L R 1086

[Lahore]

Before Umar Ata Bandial, J

Mrs. TASNIM MALIK---Petitioner

Versus

SECRETARY COOPERATIVES and others---Respondents

Writ Petition No.6272 of 2006, decided on 29th September, 2006.

Constitution of Pakistan, 1973---

----Art. 199---Constitutional petition---Petitioner was an allottee in possession 'under a registered sale deed executed by the Housing Society since 3-11-1990---Affairs of the Housing Society were badly tainted with fraudulent dealings and 153 allottees thereof were without possession of any plots---Thirteen years after the handing over of possession of the plot to petitioner, the Society attempted to re-open the petitioner's case in 2003 by alleging that the petitioner had been given possession of a plot belonging to another allottee---Fact that respondent was also an allottee who was never heard at any stage justified that the interest of both the parties should have been considered and weighed by the authorities before arriving at a decision in the matter---Respondent allottee could not be shut out on the ground of limitation without an- opportunity of hearing on the facts alleged by the petitioner---If the respondent allottee crossed that hurdle he would need to meet the petitioner's defence, inter alia, on question of locus poenitentiae, vested right, fraudulent deprivation against the Society and locus standi and collusion against the respondent allottee---Record showed that factual controversy was involved even on the question of limitation which might necessitate recording of evidence---Held, appellate Court, had rightly ordered remand of the case to the authorities---Observation made in the appellate order that limitation did not run against the respondent allottee, however was unsubstantiated because it was neither based on a finding of the factual controversy nor made with reference to specific law---Said observation, therefore, shall have no bearing on the remand proceedings before the authorities in respect of which the direction given in the remand order of appellate Court was upheld---Authorities were directed to conclude such proceedings within two months of the receipt by them of a certified copy of order of the High Court.

Muhammad Ismail Malik for Petitioner.

Ahmad Waheed Khan for Respondent No.2.

YLR 2007 LAHORE HIGH COURT LAHORE 1090 #

2007 Y L R 1090

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

NAZIR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1737 and Murder Reference No.716 of 2001, heard on 23rd November, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Complainant and all prosecution witnesses not only were inter se related, but were also related to deceased---Occurrence had taken place at the time when daylight was not available---Enmity existed between deceased and accused, evidence furnished by related and per chance witnesses needed deeper scrutiny, especially when they contradicted each other on material points---Matter was reported to police after delay of 4-1/2 hours, not ,at the police station, but at a chowk/crossing where per chance the police officer was available, whereas police station was at a distance of only two miles from place of occurrence---Prosecution had failed to explain said delay in reporting the matter to the police---F.I.R. not reported at the police station, was surrounded by inherent doubt that it was recorded by the police officer after visiting the spot and due deliberation---Complainant and prosecution witness had also made dishonest improvements while specifying the weapons of offence and in recovery of empties---One of the prosecution witnesses had stated that he had not witnessed the occurrence and that he came to know later that he was cited as eye-witness in the case---Prosecution witness had also given two contradictory statements---No reliance could be placed on statement of said witness---Medical evidence supported prosecution case only to the extent that deceased lost his life due to fire-arm injuries, but it did not lead to killer---Empties recovered from the spot and the weapons were sent to Forensic Science Laboratory and according to its report empties were not found to have been fired from recovered weapons---Report of said Laboratory was in favour of accused, who claimed that it was un-witnessed occurrence and they were roped in the case due to existing enmity---Prosecution case being not free from doubt against accused, judgment passed by the Trial Court against accused was set aside---Accused was acquitted of all charges and was released.

Hassan Ahmad Kanwar for Appellant.

Badar Munir Malik and A.H. Masood (in Criminal Appeal No.1737 of 2001 and Murder Reference No.716 of 2001) respectively for the State.

Date of hearing: 23rd November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1098 #

2007 Y L R 1098

[Lahore]

Before Tariq Shamim, J

ZULFIQAR and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6900-B of 2006, decided on 5th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.458, 506, 148 & 149---Bail before arrest, refusal of----Accused was nominated in the F.I.R. and specific role had been attributed to him---Accused had failed to prove any mala fide or ulterior motive on the part of the complainant or the police for his false involvement in the case---Accused had not joined investigation after grant of ad interim bail and also failed to appear before the court---Accused, in circumstances had misused the concession of ad interim pre-arrest bail granted to him by the Trial Court---Ground on basis of which the police had declared accused innocent, was not sufficient to form opinion of innocence of accused---Weapon of offence, rifle, which allegedly was used during occurrence by accused, was to be recovered from him---Offence of lurking house trespass against accused was punishable with imprisonment for 14 years which fell within the ambit of subsection (1) of S.497, Cr. P. C. ---Tentative assessment of the evidence on the record, revealed that prima facie sufficient incriminating material was available on record against accused---Ad interim pre-arrest bail granted to accused, was recalled, in circumstances.

Abdur Razzaq Qazi for Petitioners.

Maqbool Ahmad Qureshi with Muhammad Nawaz, S.-I. for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 1100 #

2007 Y L R 1100

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

BAKHSHA and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.402 and Murder Reference No.72 of 2001, heard on 7th November, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 379, 109, 148 & 149---Appreciation of evidence---Ocular account not confidence-inspiring---Medical evidence in conflict with ocular account---Recovery of crime empties and weapons not established---Allegation against accused/ appellants was that, in the eventful night, they all armed with rifles and gun, committed murder of three persons including a female and caused injuries to two other persons---Motive was alleged to be that 13/14 years prior to occurrence, complainant's brothers had committed murder of real brother of accused and due to that grudge triple murder was caused---Trial Court, while acquitting two co-accused, convicted and sentenced three accused to death---Accused contended that occurrence took place during dark of the night and assailant could not be identified by prosecution witnesses; that previous enmity existed between parties and accused were roped in the case falsely; that plea of alibi was successfully established by two co-accused and that strong corroboration was required to warrant conviction of the rest of accused---Validity---F.I.R. had been recorded with delay after due deliberations---Prosecution witnesses were seriously cross-examined on the source of light and all of them gave different versions---Prosecution witnesses tried to make dishonest improvements about the time of occurrence which led to conclusion that occurrence took place in the dark of night---Two of the accused who were attributed firing at deceased woman and an injured eye-witness, had successfully established their plea of alibi before Trial Court---Statements of prosecution witnesses could be relied upon against remaining accused in presence of reliable strong and independent corroborative evidence which was lacking in the case---Motive alleged by prosecution was based on suspicion due to which accused were roped in the case---Medical evidence supported the case of prosecution to the extent that deceased and witnesses received injuries with fire-arm weapons and not beyond that---Eyewitnesses had alleged that injuries to deceased were caused by rifle alone but instead of any bullet, a pellet was recovered from dead body which aspect belied prosecution case---Recovery of crime empties was not established by prosecution---No crime weapon was recovered from one of the accused and gun recovered from another accused was never sent to Forensic Science Laboratory---Recovery of a rifle at the instance of one of the accused could not be used against him as no empty was recovered or sent to Forensic Science Laboratory, hence, it could not be said with certainty that rifle was used during the occurrence--Prosecution case was not free from doubt---Accused/appellants were acquitted of all charges---Appeal was allowed.

Sardar Khurram Latif Khan Khosa for Appellants.

Miss Sarwat Nawaz and Masood Sadiq Mirza in Criminal Appeal No.402 of 2001 and Murder Reference No.72 of 2001 respectively for the State.

Date of hearing: 7th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1109 #

2007 Y L R 1109

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmood, JJ

QADEER AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.317 and Murder Reference No.661 of 2001, heard on 7th December, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Complainant was real mother of deceased aged three years while accused was her brother---Question of false implication, in circumstances, would not arise---Ocular account furnished by real mother of deceased was fully corroborated by medical evidence---Complainant being real mother and also being inmate of the house where occurrence had taken place, her presence at the spot could not be denied---Real mother would not leave actual killer of her minor son and falsely implicate her real brother, there was no reason to disbelieve her testimony---Evidence of having seen accused coming out from the house of complainant with a pistol after occurrence, furnished by prosecution witness was available---Conviction, in a murder case, could be based on the testimony of a, single witness, if the court was satisfied that he was reliable---Court had to see the quality and not the quantity of evidence---Report of Fire-arm Expert, with regard to crime empty and weapon of offence, was positive, which had lent support to case of prosecution---Contention that it was a case of single shot and that motive remained shrouded in mystery, was devoid of force because insufficiency of motive or motive being shrouded in mystery, the occurrence having taken place at the spur of moment or that case being of single shot, were no grounds even for lesser sentence---Prosecution had proved its case successfully against accused beyond any shadow of doubt---In absence of any mitigating circumstances in favour of accused for lessersentence, conviction and sentence recorded against accused by the Trial Court, was maintained in toto; death sentence was confirmed and murder reference was answered in the Affirmative.

2005 YLR 220; 2006 YLR 994; 2003 SCMR 884 and Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 rel.

Babar Bilal for Appellant.

Tanvir Iqbal A.A.-G. for the State.

Ch. Muhammad. Akhtar Khan for the Complainant.

Date of hearing: 7th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1113 #

2007 Y L R 1113

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ABDULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8936-B of 2006, decided on 20th November, 2006.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 337-F(iv)/34---Bail, grant of---Further inquiry---Accused was empty handed and had not caused any injury to any person during occurrence---Allegation levelled against accused in F.I.R. was that he had taken two of the victims in his clasp and in that way had facilitated his co-accused in giving dagger blows to them---Police had found in investigation that allegations levelled by complainant party against accused regarding taking the victims in his clasp and even regarding his presence at the scene of the crime at the relevant time were factually incorrect---Such opinion of investigating agency, though not binding upon the court, was surely adverse to case of prosecution against accused who, in circumstances, appeared to be entitled to take benefit of the same at the present juncture---Challan after completion of investigation, had already been submitted---Continued custody of accused in jail, was not likely to serve any beneficial purpose at that stage---Concession of bail ought not to be withheld by way of premature punishment---Case against accused calling for further inquiry into his guilt within the purview of subsection (2) of S.497, Cr.P.C., he was admitted to bail, in circumstances.

M.A. Zafar for Petitioner.

Ch. Kausar Ali for the State with Rehmat Ali A.S.-I. with record.

M. Asghar Khan Rokhri for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 1115 #

2007 Y L R 1115

[Lahore]

Before Ijaz Ahmad Chaudhry and M.A. Shahid Siddiqui, JJ

MUHAMMAD ARIF alias MAHI and others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.79-J and Murder Reference No.17 of 2002, heard on 7th December, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Occurrence was un-witnessed and dead body of deceased when recovered the matter was reported to the police immediately---Evidence of last seen had been furnished by father and mother of deceased, but dishonest improvement in their evidence was sufficient to discard their testimony---Evidence of extra judicial confession allegedly made by accused before prosecution witness, whose evidence had - been disproved qua remaining four accused, was not corroborated by any other evidence---Recovery of two Chhuries was made almost one month and sixteen days after the occurrence---Except a Police Constable, no other person from the locality was associated during recovery proceedings---During cross-examination, it transpired that said witness of Chhurries had not stated in his statement made under S.161, Cr.P.C. that those Chhurries were blood-stained---Even otherwise delay in the recovery of said Chhurries, was bound to result in disintegration of blood---Report of Chemical Examiner and that of Serologist, were of no consequence---Prosecution having failed to prove its. case against accused beyond any doubt, his conviction and sentence recorded by the Trial Court, could not be maintained---Impugned judgment was set aside and accused was acquitted and Set at liberty.

Rao Abdul Jabbar Khan for Appellants.

Ishaque Masih Naz Deputy Prosecutor General for the State.

Date of hearing: 7th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1120 #

2007 Y L R 1120

[Lahore]

Before Syed Shabbar Raza Rizvi, J

AMAN ULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8726/B of 2006, decided on 17th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Maximum punishment for offence under S.489-F, P.P.C. being not more than three years, the case was not covered by prohibition contained in S.497, Cr.P.C.---F.I.R. did not indicate the purpose for which huge amount of Rs.55,00,000 was given to accused by the complainant---F.I.R. also did not show any effort on behalf of the complainant for seeking the return of said amount---Accused, was admitted to bail, in circumstances.

PLD 1995 SC 34 ref.

M.A. Zafar for Petitioner.

Azam Nazir Tarar for the Complainant.

Ijaz Ahmad Bajwa for the State.

Muhammad Usman, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1121 #

2007 Y L R 1121

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD YOUSUF alias AYUBI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1517 and Murder Reference No.624 of 2001, heard on 21st November, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Case was registered after discovery of dead-body of deceased son of complainant from a canal---Incident was an un-witnessed occurrence and prosecution's case rested on circumstantial evidence---Matter was not reported to the police for 16 long days---Recovery of hatchet and Churri from a "Kacha" room which had no roof, was effected by Investigating Officer in violation of provisions of S.103, Cr.P.C.---Was also not believable that accused would keep blood-stained weapons intact till his arrest, which was effected after more than a month of registration of case---Recovery was proved to be planted in order to provide corroboratory evidence--Medical evidence showed that deceased lost his life due to injuries, which were caused by sharp-edged weapon, however according to Doctor, time elapsed between death and post-mortem was 2 to 3 weeks---Medical evidence could not be used against accused as it provided no clue about the Killer, who caused the injuries---Prosecution having failed to prove its case against accused, conviction and sentence recorded against him by the Trial Court, were set aside and accused was acquitted of all the charges.

Muhammad Saleem Virk for Appellant.

Maqbool Ahmed Qureshi (in Criminal Appeal No.1517 of 2001) and A.H. Masood (in Murder Reference No.624 of 2001) for the State.

Date of hearing: 21st November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1128 #

2007 Y L R 1128

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

ASGHAR HAYAT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7854/B of 2006, decided on 18th December, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.222, 223, 224 & 225---Bail, grant of---Co-accused had been allowed bail and case of accused was identical with the case of co-accused---Accused too deserved concession of bail---Accused was in judicial lock-up since 24-4-2005 but co-accused had not appeared before the Trial Court---Case was fit for grant of bail to accused---State counsel had not opposed bail application of accused---Accused was admitted to bail, in circumstances.

Malik Muhammad Imtiaz Mahal for Petitioner.

Nazir Hussain Mirza for the State with Muhammad Riaz, A.S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 1129 #

2007 Y L R 1129

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

SHAUKAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.208 and Murder Reference No.816 of 2001, heard on 8th December, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence--Delay, if any in lodging F.I.R. had reasonably been explained, even otherwise delay per se, in lodging F.I.R. was not fatal to prosecution case---Star witness who was injured, though was closely related to deceased, but he had no enmity or strong motive to falsely implicate accused in the case---Said witness had reasonably explained his presence at the place of occurrence; he was subjected to cross-examination, but nothing could be shaken from his testimony---Other prosecution witness also remained consistent on all material particulars of the case and nothing could be shaken from his testimony despite his cross-examination to which he was subjected during the trial he corroborated statement of eye-witness on the main points---Such witnesses though was also cousin of deceased, but he had no enmity with accused to falsely depose against him, he had also reasonably proved his presence at the spot to have witnessed the occurrence and her testimony was worthy of credence---Accused was arrested after one and half year of occurrence, proceedings under S.512, Cr.P.C. were initiated against him and evidence was recorded---Deceased was done to death for no fault of his in a very brutal and callous manner by accused---Ocular account in the case was fully corroborated by medical evidence coupled with its further support from the factum of recovery, and long abscondence of accused for a period of one and half year---Incident was a case of single accused---Prosecution, in circumstances had proved its case against accused beyond any shadow of doubt to sustain conviction of accused on a capital charge---Appeal against conviction and sentence was dismissed, Murder Reference was answered in Affirmative and death sentence awarded to accused was confirmed.

Abdur Rehman v. The State 1998 SCMR 1778; Miss Najiba and another v. Ahmad Sultan alias Sattar 2001 SCMR 988; Mosaddi Rai v. Emperor AIR 1933 Patna 100; Abdul Sattar v. Muhammad Anwar PLD 1974 SC 266; Nabu v. The State PLD 1975 SC 478; Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452; Bakhsh Elahi v. The State 1977 SCMR 389; Jetharam v. Weram 1986 SCMR 1056; Maqsood Ahmad v. The State 1987 SCMR 1059; Muhammad Sharif v. The State 1991 SCMR 1622; Noor Muhammad v. The State 1999 SCMR 2722 and Muhammad Afzal v. Ghulam Asghar and others PLD 2000 SC 12 rel.

Babar Bilal for Appellant .

Tanveer Iqbal A.A.-G. for the State.

Raja Zahoor Ahmad for the Complainant.

Date of hearing: 8th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1135 #

2007 Y L R 1135

[Lahore]

Before Sardar Muhammad Aslam, J

Rana RIAZ AHMAD and others---Petitioners

Versus

THE STATE---Respondent

Criminal Revisions Nos.311 and 721 of 2006, decided on 11th January, 2007.

West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961)---

----S. 8---Investigation in case---Jurisdiction of Court---Petitioner had impugned orders, whereby Special Judge directed remission of file to the Anti-Corruption Establishment for investigation according to law; and then send a report under S.173, Cr. P. C. ---Investigation conducted by the local police was neither subservient to nor governed by subordinate legislation provided in Rules as S.8 of West Pakistan Anti-Corruption Establishment Ordinance, 1961, was enacted in addition to all other provisions of law---Impugned order was set aside---Challan having been submitted in the Court, trial would commence from the stage of framing of charge.

Shafaqat Hussain and another v. Malik Sarfraz and another 2000 PCr.LJ 1995-DB and M. Abdul Latif's case 1981 SCMR 1101 rel.

Rana Iqbal Ahmad Khan for Petitioners.

Ahmad Rauf Deputy Prosecutor General for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 1138 #

2007 Y L R 1138

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

ABDUL SATTAR alias MUHAMMAD ILYAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1935 and Murder Reference No.857 of 2001, heard on 2nd November, 2006.

Penal Code (XLV of 1860)---

----S. 302/34---Qanun-e-Shahadat (10 of 1984), Art.46---Appreciation of evidence---Dying declaration not supported by any corroborative evidence---Effect---Allegation against accused/appellant as per F.I.R. was that he sprinkled Kerosene oil on deceased, who was standing at corner of street, and set him on fire---Deceased who was seriously burnt was then taken to hospital by accused and after getting him admitted there, he fled away---Deceased allegedly recorded his dying declaration and named accused as perpetrator of offence---Trial Court convicted accused and sentenced him to death---Accused contended that deceased recorded two statements as dying declaration and there were variations in both statements; that dying declaration was not supported either by circumstances or by corroborative evidence and that Investigating Officer recorded statements of deceased without getting permission from doctor which also did not contain any time---Validity---Prosecution case rested on statement made by deceased before prosecution witnesses which was admissible as dying declaration under Art.46 of Qanun-e-Shahadat, 1984---Statements of deceased did not reveal that while he was set on fire, the occurrence was witnessed by any passerby or resident of locality---Story given in F.I.R. and statement of deceased recorded by Investigating Officer contradicted each other---F.I.R. stated that deceased was set on fire in street whereas in statement recorded by Investigating Officer it was stated that deceased was set on fire in a house---Even two statements recorded by Investigating Officer were different from each other---Investigating Officer did not take any permission from doctor before recording statement of deceased nor it was recorded in presence of doctor---Prosecution case was supported by medical evidence to the extent that deceased lost his life due to burns caused by fire and not beyond that---Recovery of plastic gallon from the house of accused at his own instance was of no consequence as; it was recovered with delay; it did not have any distinguished features, and eye-witness was produced in support of recovery---It. did not appeal to reason that accused after setting deceased on fire would himself carry him to hospital at the great risk of being pointed out by deceased as culprit---Deceased was a narcotic addict and a case had been registered against him---Deceased narrated different stories to prosecution witnesses and Investigating Officer and his dying declaration was not worth credence---Case of prosecution rested solely on dying declaration unsupported by any corroborative evidence---Prosecution case was not free from doubt---Accused was acquitted of all charges---Appeal was allowed.

Hameed Gul v. Tahir and 2 others 2006 SCMR 1628 rel.

Syed Zahid Hussain Bokhari for Appellant.

Akhtar Ali Monga and Ch. Nazeer Ahmad in Criminal Appeal No.1935 of 2001, and Murder Reference No.857 of 2001 respectively for the State.

Date of hearing: 2nd November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1143 #

2007 Y L R 1143

[Lahore]

Before Sh. Javaid Sarfraz, J

ZAHID alias TAHIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8626-B of 2006, decided on 10th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Bail, grant of---Further inquiry---Despite lapse of over three and a half months, report of Chemical Examiner had not been obtained---Case, in circumstances, was of further enquiry, entitling accused to the grant of bail---Offence under Art.4 of Prohibition (Enforcement of Hadd) Order, 1979 was a bailable offence and in such-like cases grant of bail was a right and not a grace from the court---Offence 'under Art.3 of Prohibition (Enforcement of Hadd) Order, 1979 was punishable with imprisonment upto 5 years, which did not fall within the prohibitory clause of S.497, Cr. P. C. and in such-like cases grant of bail was a rule while refusal was an exception---Accused was allowed bail, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.

Samson Joseph for Petitioner.

Nasim Noor for the State with Mahboob Ahmad, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1145 #

2007 Y L R 1145

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD QAMAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.58-B of 2007, decided on 6th February, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.380 & 454---Bail, grant of---Section 454, P.P.C. was punishable with three years, but if trespass was completed with theft, sentence could be extended to 10 years---Prima facie, it was yet to be established that accused was convicted with the actual theft or not, which could only be determined after recording of evidence---No previous record of accused was available and offence did not fall within the prohibitory clause of S.497, Cr.P.C.-No exceptional circumstances for refusal of bail having been pointed out in the offences against accused, and the offence did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was admitted to bail in circumstances.

Malik Muhammad Aslam for Petitioner.

Muhammad Afzal Pansota Addl. Prosecution General for the State with Muhammad Sadiq S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1146 #

2007 Y L R 1146

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASHRAF and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8525-B of 2005, decided on 29th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), S.7---Bail before arrest, grant of---Accused was an old man, while co-accused was a lady---Another co-accused who was son-in-law of complainant and son of one of the accused was allowed bail after arrest---Accused were found innocent during course of two investigations, discharge report was prepared and even their case was recommended for cancellation---Sentence provided for alleged offence was eight stripes---Accused was presumed to be innocent in the eye of law and it was bounden duty of the prosecution to prove its case against accused to the hilt---Offence against accused not falling within the prohibitory clause of S.497(2), Cr.P.C., coupled with the fact that no sentence of imprisonment was provided under said provisions of law and sentence of stripes could not be inflicted in anticipation, interim pre-arrest bail already allowed to accused, was confirmed.

Shahid Hameed Dar for Petitioners.

Chaudhry Muhammad Hanif Khatana A.A.-G. assisted by Muhammad Tufail for the State with Shaukat Ali A.S.-I. with record.

Syed Karamat Ali Naqvi for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 1148 #

2007 Y L R 1148(1)

[Lahore]

Before M. A. Shahid Siddiqui, J

IRSHAD HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2328-B of 2004, decided on 9th September, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina.(Enforcement of Hudood) Ordinance (VII of 1979), S.18---Bail, grant of---Offence against accused not falling within prohibitory clause of S.497, Cr. P. C. , accused was admitted to bail.

Sardar Zafar Ahmad Loud for Petitioner.

Rana Jahanzeb Khan for the Complainant.

Sh. Arshad Ali for the State.

Abdul Rehman A.S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 1149 #

2007 Y L R 1149

[Lahore]

Before Syed Shabbar Raza Rizvi, J

ALI AMMAR and another---Petitioners

Versus

THE STATE and 2 others---Respondents

Writ Petition No.16392 of 2005, decided on 2nd June, 2006.

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

----S.10---Police Rules, 1934, R.25.2---Constitution of Pakistan (1973), Art. 199---Quashing of F. I. R. ---Constitutional petition---Petitioners stated that all concerned police officers had already recommended cancellation of F.I.R.; Magistrate had also. passed order of cancellation of F.I.R. and that after order of cancellation passed by the Magistrate, said F.I.R. could not be re-investigated---Validity---Fact of cancellation of F.I.R. was also reflected in the order of Addl. Sessions Judge---F.I.R., was quashed in circumstances.

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

----S. 156-Re-investigation-Repeated investigations were disapproved and disliked by the superior courts---Satisfaction of the parties in the investigation was not necessary---Investigating Officer, had to collect material during the course of investigation and if during investigation no incriminating material was collected by Investigating Officer or there was no evidence against accused, Investigating Officer would report accordingly---Rule 25.2 of Police Rules, 1934 also demanded from concerned Police Authorities that through the investigation they should try to discover the truth and also to save innocent persons from the disgrace of investigation and trial.

Khizar Hayat v. IGP, PLD 2005 Lah. 470 ref.

Muhammad Kazim Khan for Petitioner.

Ch. Khurshid Anwar Bhinder, Addl. A.-G. for the State.

Muhammad Ilyas, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1150 #

2007 Y L R 1150

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

NAWAB DIN alias BABU---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5479-B of 2006, decided on 8th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.435---Bail, grant of---Allegation against accused was that he along with co-accused, set on fire wheat crop belonging to complainant---Unexplained delay of four days was in lodging F.I.R. and accused was entitled to get benefit of the same---F.I.R. showed that co-accused was also present at the scene of occurrence at the relevant time, but during investigation, he was found innocent---Accused was in judicial lock-up for quite some time but no prosecution witness had been examined so far---Offence against accused did not fall within the prohibitory clause of S.497, Cr.P.C.---Case being fit for grant of bail to accused, he was admitted to bail, accordingly.

Muqtedir Akhtar Shabbir for Petitioner.

Syed Imdad Hussain Hamdani for the Complainant.

Mian Abdul Qayyum for the State with Nazir A.S.-I. along with record.

YLR 2007 LAHORE HIGH COURT LAHORE 1152 #

2007 Y L R 1152

[Lahore]

Before Fazal-e-Miran Chauhan, J

NAZAR HUSSAIN and another-Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.l87-B of 2006, decided on 2nd March, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 497---Penal Code (XLV of 1860), Ss. 337-A (ii), 337-F(iii)/34---Bail, cancellation of---Accused earlier were granted bail after arrest, but on filing application for cancellation of bail by complainant, notices were issued to accused who did not appear before the court and consequently their bail was cancelled---Court, however without taking any step to secure their attendance in the Court had straightaway cancelled their bail---Counsel for accused had thus rightly contended that accused were not served and the report submitted by the police regarding service of notices was false and fabricated---Order cancelling bail, was accordingly set aside, and application for cancellation of bail would be deemed to be pending before the court below which would decide the same on merits---Accused would appear before the Court on date fixed in that respect.

Muhammad Waseem Shahab for Petitioners.

Ghulam Farid for the Complainant.

Rao Atif Nawaz for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 1153 #

2007 Y L R 1153

[Lahore]

Before Ijaz Ahmad Chaudhry and M. A. Shahid Siddiqui, JJ

ZULFIQAR ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1640 of 2001 and Murder Reference No.26 of 2002, heard on 12th December, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Occurrence had taken place in the house of the complainant---Presence of the complainant in the house at the relevant time was not disputed even by the accused---Complainant had denied the suggestion that he had a pistol in his hand at the time of occurrence with which he fired a shot at his daughter, but the same hit his deceased wife---Had the complainant any pistol with him he could have easily fired at the accused and killed him---Plea taken by accused that due to merciless beating of the complainant he was lying unconscious when the police arrived at the spot, was not supported by any evidence on record---Statement of the complainant alone was sufficient to prove the charge against the accused beyond any doubt---Accused according to record was a spoiled young man of 20 years of age who had entered into the house of the complainant with evil intention---No mitigating circumstance was available in favour of accused---Conviction and sentence of death of accused were upheld in circumstances.

M. A. Zafar for Appellant.

Shahbaz Ahmad Khan for the State.

Badar Munir Malik for the State (in Criminal Appeal No.1640 of 2001).

Mian Abdul Qayyum Anjum for the State (in Murder Reference No.26 of 2002).

Date of hearing: 12th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1159 #

2007 Y L R 1159

[Lahore]

Before Asif Saeed Khan Khosa, J

SHAFAQAT HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8578-B of 2006, decided on 31st October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.452, 337-A(i), 337-F (i), 337-H(2) & 337-L(2)/34---Pre-arrest bail, grant of---F.I.R. showed that accused had accompanied his co-accused to the place of occurrence and had joined them in perpetrating alleged offences, but no specific or particular role individually played by accused in the entire transaction had been specified in the F.I.R.---Allegations levelled against accused in the F.I.R. were couched in :generalized and collective terms---Name of accused had not figured in F.I.R. and accused did not stand directly connected with the motive set up in the F.I.R.---Background of bitterness between the parties was over the issue of a marriage of a girl---Submission of counsel for accused regarding mala fide implication of accused in the case, could not be without any foundation or substance---Accused had already joined investigation---Accused having not resorted to firing at the spot, any recovery of a fire-arm from his possession was legally inconsequential--Pre-arrest bail could not be refused to accused merely for the purpose of facilitating the police to effect a recovery from him, if such recovery was likely to be otherwise legally inconsequential---Two co-accused had already been admitted to post-arrest bail, while on merits of the case, accused had a better case for bail than said co-accused---No reason existed as to why accused could not be treated in the like manner---Ad interim pre-arrest bail already allowed to accused, was confirmed, in circumstances.

Muhammad Sharif v. The State PLD 2004 Lah. 511; Muhammad Ramzan v. Zafar Ullah and another 1986 SCMR 1380 and Gulfraz Khan and another v. The State 1991 PCr.LJ Note 42 at p.30 rel.

Chaudhry Imran Raza Chadhar and Ch. Zaheer Afzal Chadhar with the Petitioner in person.

Chaudhry Muhammad Ashraf Bajwa for the State with Muhammad Sharif S.-I. with record.

2007 Y L R 1181

[Lahore]

Before M. A. Shahid Siddiqui, J

MUHAMMAD AMIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7712-B -of 2006, decided on 11th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Pre-arrest bail, confirmation of---Accused was not named in the F.I.R. lodged by the father of deceased--Even injured prosecution witness in his statement under S.161, Cr.P.C. had not mentioned the name of accused---Subsequent involvement of accused by the witnesses, whose presence was not reflected in the F.I.R. was open to inquiry---Ad interim pre-arrest bail granted to accused earlier was confirmed, in circumstances.

N. A. Butt for Petitioner.

Mirza Abdullah Baig for the State.

Farman Ali, S.-I. Police Station Gulshan-i-Ravi, Lahore with record.

YLR 2007 LAHORE HIGH COURT LAHORE 1182 #

2007 Y L R 1182

[Lahore]

Before Ijaz Ahmad Chaudhry, J

GHULAM AKBAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4621-B of 2006, decided on 13th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Police Order (22 of 2002), Art.155---Bail before arrest, refusal of---Bail before arrest was meant to protect the innocent citizens, if they were found to have been involved in the case with mala fide intention- and ulterior motive---Accused, (Investigating Officer) was supposed to hand over articles in question immediately to Moharrar for keeping same in the Malkhana---Prima facie accused had misappropriated said articles and offence under S.409, P.P.C. was attracted in the case which fell within the prohibitory clause of S.497, Cr.P.C.---Accused was also bound to deposit amount in the double lock, which he failed to do and same could not be Superdar---Affidavit of complainant, wherein articles were recovered, was of no help to accused, rather it could be gathered that he was tampering with prosecution evidence---Investigating Officer and S.H.O. of the police station in league with accused, being their colleagues had tried to create some evidence to save accused from the offence of misappropriation, which could not be considered at bail stage---Accused having failed to show any mala fide and his false implication in the case and no ground existed for grant of pre-arrest bail to him, his petition for grant of bail, was dismissed.

Rana Sohail Ashraf for Petitioner.

Saif Ullah Khalid for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 1184 #

2007 Y L R 1184

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3459-B of 2006, decided on 28th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 109/34---Bail, refusal of---Motorcycle allegedly used during the occurrence which belonged to accused had been recovered from his co-accused---Accused was also a proclaimed offender in another case of recovery of Charas from him in which he was convicted and sentenced and he remained proclaimed offender---Motive in the present case was that accused had suspected that deceased was the source of information to authorities on basis of which raid had been conducted in said other criminal case against accused---Charge in the present case had already been framed and trial was in progress---Prima facie ample material was available against accused to connect him with commission of alleged offence---Application for bail having no merit, same was dismissed.

N. A. Butt for Petitioner.

M. Akram Qureshi for the Complainant.

Abdul Majeed Chishti for the State.

Muhammad Boota Inspector/ S.H.O. and Sikandar Sarwar Ali, A.S.-I. P.S. Sabazpir, District Sialkot with record of F.I.R. No.277 of 2005.

Imtiaz Ahmed, S.-I. P.S. Johar Town, Lahore with police file.

YLR 2007 LAHORE HIGH COURT LAHORE 1186 #

2007 Y L R 1186

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD HAYAT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8415-B of 2006, decided on 30th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.394---Bail, grant of---Further inquiry---Sufficient material had been brought on record by accused about the enmity between father of accused and father of injured prosecution witness---Accused had not caused any injury to deceased and nothing had been recovered from his possession during investigation---Accused was behind the bars for the last 7 months and he was not involved previously in cases of such like nature---Chance of false implication of accused in the case could not be ruled out---Accused had been alleged to be a minor and police also declared him innocent during investigation---Opinion of the police, though was not binding upon the Court, but it could be considered at bail stage, if same was based on solid reasons---Whether accused had shared common intention during the occurrence, was a question of further inquiry---Accused was admitted to bail, in circumstances.

Mian Muhammad Hussain Chotya for Petitioner.

Ms. Tahira Sultan for the State.

Ghulam Sarwar, S.-I. with record.

2007 Y L R 1191

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Ijaz Ahmad Chaudhry, JJ

NASEER AHMED GHUMAN---Petitioner

Versus

ABDUL JABBAR KHAN---Respondent

Criminal Original No.847-W of 2006 in I.C.A. No.290 of 2006, decided on 24th November, 2006.

Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court Act (LXVI of 1976), Ss.3 & 4---Petition for contempt of Court had been filed simply alleging that while filing Intra-court appeal by respondent, certain false and incorrect assertions were made before the Court---Validity---Assailing of some order before the higher forum was not contempt of the Court---Even otherwise, during the hearing of said Intra-court appeal, the only contention made was that application filed by respondent for transfer of the investigation was not being disposed of by the Police Authorities and a direction was issued to decide the same in accordance with law while keeping in view the principle that to claim for the fair investigation was the right of every citizen---Respondent had not made any contempt of the Court in circumstances---Petition being misconceived, was dismissed.

Pervaiz Inayat Malik for Petitioner.

YLR 2007 LAHORE HIGH COURT LAHORE 1192 #

2007 Y L R 1192

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ILYAS and another-Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4938-B of 2006, decided on 12th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.354, 379, 452, 147 & 149---Pre-arrest bail, refusal of---Accused had been duly nominated in the F.I.R.---Accused were close relatives of the complainant and no reason for their false implication had been pointed out by accused---Mere assertion of accused that there was some dispute regarding theft of pigeons, would be of no avail to accused unless mala fides had been specified---Recovery was to be effected from accused who were allegedly armed with Dandas---Conduct of accused and their co-accused who were all armed with Dandas and had entered the courtyard of complainant, dragged her and outraged her modesty was sufficient to refuse discretionary extraordinary concession of pre-arrest bail to accused.

Rana Muhammad Arshad Khan for Petitioners.

Ejaz Hussain Ghauri for the Complainant.

Mrs. Shazia Khalil for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 1193 #

2007 Y L R 1193

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Ijaz Ahmad Chaudhry, JJ

NASEER AHMAD GHUMAN---Petitioner

Versus

JAMIA MASJID BAGHDADI HANFI RIZVI BRAILVI (REGD.) and 20

others through President---Respondents

Review Petition No.81 of 2006 in I.C.A. No.290 of 2006, decided on 24th November, 2006.

Civil Procedure Code (V of 1908)---

----S. 114 & O. XLVII---Police Order (22 of 2002), Art. 18(6)---Review petition---Investigation---To ask for fair investigation, was the right of each and every citizen---If accused had been asking for the production of some further evidence in his defence during the investigation, he could not be deprived of the same as the purpose of investigation was to collect evidence and the courts had to decide about the guilt or otherwise of accused on the basis of evidence---Direction of High Court in Intra-Court appeal not to consider the portion of the order of Single Judge of the High Court for submission of challan within a week, was outcome of whole order---No order was passed against petitioner at his back as alleged by hint---No ground having been made out for review of the order, petition was dismissed.

Pervaiz Inayat Malik for Petitioner.

YLR 2007 LAHORE HIGH COURT LAHORE 1194 #

2007 Y L R 1194

[Lahore]

Before Hasnat Ahmad Khan, J

AZHAR HUSSAIN and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3851-B of 2006, decided on 17th January, 2007.

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

----S. 497---Penal Code (XLV of 1860), Ss.302 & 392---Bail, refused of---Question of identification of accused related to deeper appreciation of evidence which could not be considered at bail stage---Police opinion was not binding on Court especially when the same was not based upon sound material and in the presence of statements of eye-witnesses no reliance could be placed on it---Accused were involved in a heinous case of robbery in which father of the complainant had lost his life due to fire-arm injuries caused by the accused---Offences committed by accused fell within the prohibitory clause of section 497 (1), Cr. P. C. ---Specific role had been attributed to accused who, prima facie, had fully and actively participated in the crime and caused the murder of an innocent person just to snatch a motorcycle---Bail was refused to accused in circumstances.

Tahir Mehmood v. The State 2002 PCr.LJ 1591; Farman Ali v. The State 1997 SCMR 971; Muhammad Akbar v. The. State 1998 SCMR 2538; Liaqat Ali v. The State PLD 1994 SC 172; Razzaq Ahmed v. The State 2002 SCMR 1876 and Muhammad Afzal and another v. The State 1982 SCMR 12 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.302 & 392---Bail, grant of---Complainant and the eye-witnesses had identified the three main accused in the case who had allegedly committed the offence---Present accused had been involved in the case as companion of the said three main accused on the basis of circumstantial evidence provided by prosecution witnesses---Complainant and eye-witnesses had not seen the accused at the time of commission of offence---Case of accused, thus, needed further inquiry---Accused was allowed bail accordingly.

Tahir Mehmood v. The State 2002 PCr.LJ 1591; Farman Ali v. The State 1997 SCMR 971; Muhammad Akbar v. The State 1998 SCMR 2538; Liaqat Ali v. The State PLD 1994 SC 172; Razzaq Ahmed v. The State 2002 SCMR 1876 and Muhammad Afzal and another v. The State 1982 SCMR 12 ref.

Malik Muhammad Iftikhar Arif for Petitioners.

Sardar Muhammad Zafar Lound for the Complainant.

Ms. Asiya Abbasi for the State with Imtiaz S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1203 #

2007 Y L R 1203

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ISHAQUE---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.380-J of 2001 and Murder Reference No.671 of 2001, decided on 29th May, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---F.I.R. was not got recorded with promptitude---Post-mortem examination of deceased had been conducted with delay without any reason---Possibility could not be ruled out that time was consumed in fabricating the story---Said F.I.R. could not be used as a corroborative piece of evidence---Both prosecution witnesses being brothers and sister were related inter se and with deceased---Such prosecution witnesses who had previous enmity with accused, could be termed. as interested witnesses-Incident was a night occurrence and prosecution could not prove that there was light or electric bulb was on at the relevant time at the place of occurrence---Both eye-witnesses also failed to give any reason for their presence at the spot at relevant time---Ocular account furnished by both the eye-witnesses was not believable as occurrence had taken place in the dark hours of night when there was no source of light---Medical evidence was also found in contradiction with ocular account--Sufficient doubt had been created about the involvement of accused in the case as role attributed to him was not supported by medical evidence and prosecution evidence was not worthy of reliance---Previous enmity 'existed between the parties and ocular account being inimical, could not be relied upon, unless same was corroborated by some independent piece of evidence, which was lacking in the case---Rifle was shown to have been recovered from accused from his residential room---Said place of recovery was surrounded by other houses, but no person from the locality was associated in the recovery proceedings by Investigating Officer---Report of Forensic Science Laboratory was that rifle recovered from accused was in working condition and did not disclose that said rifle was used in the same incident---Such recovery of offensive weapon was inconsequential---Prosecution having 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 accused was acquitted of the charge against him and was set at liberty.

Ch. Muhammad Anwar Bhinder for Appellant.

M. Saleem Shad (in Murder Reference No.671 of 2001) for the State.

Ms. Najma Parveen (in Murder Reference No.671 of 2001) for the State.

Date of hearing: 29th May, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1209 #

2007 Y L R 1209

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD AMIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7968-B of 2006, decided on 31st October, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.354, 452, 467, 468 & 471---Prearrest bail, grant of---Further inquiry---Section 452, P.P.C., had been deleted by Investigating Officer, whereas S.354, P.P.C., was bailable---Addition of Ss.467, 468 & 471, P.P.C. had been made by the police as according to them a spurious certificate had been produced by accused allegedly authored by an Advocate and according to said certificate co-accused had been allowed bail by the Court of Session---Was not denied that ca-accused had been allowed ad interim pre-arrest bail by the Court of Session---True import of said certificate would be determined during the course of trial---Even otherwise it was yet not clear as to how the police instead of registering a separate case, added Ss.467, 468 & 471, P.P.C. in the present F.I.R.---Case of accused in view of deletion of S.452, P.P.C., had become of further inquiry as envisaged by subsection (2) of S.497, Cr. P. C. ---No useful purpose would be served in sending accused behind the bars---Ad interim pre-arrest bail allowed to accused, was confirmed, in circumstances.

Mian Muhammad Hussain Chotya for Petitioner.

Malik Ghulam Hussain for the Complainant.

Ch. Abdul Ghani for the State.

Muhammad Ayub A.S.-I., P.S. Saddar Depalpur, District Okara with police file.

YLR 2007 LAHORE HIGH COURT LAHORE 1210 #

2007 Y L R 1210

[Lahore]

Before Syed Sajjad Hussain Shah, J

MUHAMMAD FAROOQ---Appellant

Versus

THE STATE---Respondent

Appeal No.63-J of 2005, decided on 5th July, 2006.

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

----Ss.13 & 13-R---Appreciation of evidence---Sentence, reduction in---Both prosecution witnesses had fully supported recoveries and they were consistent regarding time, place and mode of recovery---No discrepancy or contradiction was found between the statements of prosecution witnesses; their statements were confidence-inspiring and there was no reason to discard their testimony---Contention of accused regarding non-compliance of provision of S.103, Cr.P.C. was also misconceived, as in such-like cases compliance of S.103, Cr.P.C. was not mandatory---Accused had not been able to point out any discrepancy or contradiction on the file---Prosecution having proved its case beyond any shadow of doubt against accused, appeal against judgment of Trial Court, was dismissed---Sentence awarded to accused, however, was too harsh as case against accused was decided after about 10 years and accused had faced the agony of protracted trial for such a long period---Accused deserved leniency and by taking a lenient view, sentence awarded to accused was reduced to three years.

Syed Ali Raza Giliani for Appellant.

Maqbool Ahmed Qureshi for the State.

Date of hearing: 5th July, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1213 #

2007 Y L R 1213

[Lahore]

Before Maulvi Anwarul Haq, J

SAEEDAN BIBI---Petitioner

Versus

NASIR HUSSAIN and 3 others---Respondents

Criminal Miscellaneous No.260-H of 2006, decided on 15th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Report of Bailiff who raided the premises showed that respondents were able to make good their escape and that minor was not present in the house, while ladies present in the house assaulted petitioner---Directions were issued to S.H.O. concerned by the High Court to record statement of petitioner and to register a case against culprits under S. 363, P.P.C. or under such outer provisions as were found to be attracted and to take all steps for the recovery of minor child of petitioner.

Abid Hussain Bhutta for Petitioner.

Nazir Ahmad Bailiff for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 1214 #

2007 Y L R 1214

[Lahore]

Before Ijaz Ahmad Chaudhry and M. A. Shahid Siddiqui, JJ

MUHAMMAD SALEEM and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.85-J and Murder Reference No.99 of 2002, heard on 14th December, 2006.

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

---Ss. 302(6)/34 & 324/337-A(i)/337-L(ii)/34,--Appreciation of evidence---Sentence, reduction in---Prosecution had failed to prove the motive for the offence---One eye-witness was no doubt related to the deceased, but the other two eye-witnesses were not so related, who were residents of the same Chak and had reasonably explained their presence at the spot at the relevant time---Said eye-witnesses were named in the. promptly lodged F.I.R. and. were not shown on record to have any ill-will or motive for false implication of accused---Ocular testimony was consistent and was supported by medical evidence---Convictions of accused were consequently maintained---One accused had given a Chhurri blow under neath the arm pit of the deceased which proved fatal and death sentence awarded to him was confirmed---Sentences of death awarded to other accused being harsh had been altered to imprisonment for life each---Sentences were directed to run concurrently with benefit of S. 382-B, Cr. P. C.

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

---- Ss. 302(b)/34 & 324/337-A(i)/337-L(ii)/34---Appreciation of evidence---Motive for the offence was not proved by the prosecution---Accused had not caused any injury to any deceased---One hatchet blow was attributed to accused on the left arm of a prosecution witness which was not supported by medical evidence--Improvements made by the prosecution witnesses in this regard were wilful---Accused was acquitted in circumstances.

Ch. Majid Hussain for Appellants Nos.1 and 2.

M. A. Zafar for Appellant No.3.

Malik Tariq Malhi for Appellant No.4.

Abdullah Hameed Awan for Respondent.

Inayat Ullah Khan Niazi, Additional Prosecutor General for the State.

Date of hearing: 14th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1219 #

2007 Y L R 1219

[Lahore]

Before Sh. Hakim Ali and Muhammad Jehangir Arshad, JJ

CHIEF ENGINEER, WAPDA and others---Appellants

Versus

MANZOOR AHMAD and others---Respondents

R.F.A. No.136 of 2001, decided on 7th December, 2005.

Land Acquisition Act (I of 1894)---

----Ss. 4, 18, 23, 28 & 54---Acquisition of land---Determination of compensation---Reference to Court---Appeal---Land having been acquired, Land Acquisition Collector made award, whereby land-owners 'were allowed compensation under S.23 of Land Acquisition Act, 1894 determining price of property at the rate of Rs.12, 864 per acre---Dissatisfied with said amount" of compensation, land-owners prayed for Reference in terms of S.18 of Land Acquisition Act, 1894---Referee Court determined rate of Rs. 24, 518 per acre along with other incidental charges---Authority in whose favour land was acquired challenged judgment of Referee Court in first appeal alleging that land-owners had failed to produce any cogent, convincing evidence to prove average market price of similar kind of land similarly located on the basis of price prevailing during the period of twelve months preceding the date of publication of notification under S.4 of Land Acquisition Act, 1894---Validity---Objector had to disprove determination by Land Acquisition Collector by producing convincing acid legal evidence---Acquired land in the present case, was agricultural land and no agricultural land was sold in the relevant village during crucial period---In absence of any such evidence, only evidence which could be considered would be the price of similar kind of land similarly located in the adjacent village and while enhancing the price from Rs.12, 864 per acre to Rs.24,518 per acre, Referee Court followed said formula, but fell into error by placing reliance only on average sale price of one adjacent village, and ignoring the average sale price of similar kind of land in two other adjacent villages---Findings of the Referee Court thus were not based on proper appraisal of evidence; it would be in the safer administration of justice if average sale price was worked out by consolidating the average sale price of land in all the three adjacent villages and after working out same, it came to Rs. 22, 801 per acre and same was fixed in the light of facts, circumstances and evidence available on record---Findings of Referee Court were modified by the High Court and land-owners were held entitled to receive compensation at the rate of Rs.22,801 per acre along with compulsory acquisition charges at the rate of 15% in terms of S.23(2) of Land Acquisition Act, 1894 and 8% interest from date of taking possession of land to the date of payment of enhanced amount as required by S.28 of the said Act.

Federation of Pakistan v. Shaukat Ali PLD 1999 SC 1026 rel.

Hafiz Muhammad Abdul Qayum for Appellants.

Ch. Muhammad Nawaz for Respondents.

Date of hearing: 7th December, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 1222 #

2007 Y L R 1222

[Lahore]

Before Sh. Abdur Rashid and M. Bilal Khan, JJ

LIAQUAT ALI and 2 others---Petitioners

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT NO.1, GUJRANWALA and 3 others---Respondents

Writ Petition No.11807 of 2005, decided on 5th October, 2005.

Penal Code (XLV of 1860)---

----Ss.324 & 353--- Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 23---West Pakistan Arms Ordinance (XX of 1965), S.13---Explosive Substances Act (XI of 1908), Ss.3 & 4---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Transfer of case from Anti-Terrorism Court to ordinary court---Entire case had been built up on the strength of police witnesses alone---Despite availability of public witnesses at the spot, not a single person from the public was shown in the investigation---Fire-arms and empties collected from the place of occurrence, had not been sent to the Forensic Science Expert to prove the factum that crime empties had been actually fired from the fire-arms allegedly recovered from petitioners/ accused---Prima facie no material was on the file to suggest that accused had resorted to firing at the police party---No police officer sustained any injury, despite the fact that indiscriminate firing by petitioners had been alleged against members of the police party who were many in number---Factum of firing by petitioner at the police party had not been brought on the file through any independent source---Act of petitioners did not fall within the purview of Ss.6 & 7 of Anti-Terrorism Act, 1997---Impugned order was set aside and case was transferred to ordinary court of competent jurisdiction for trial.

Khalid Masood Ch. for Petitioners.

Najeeb Faisal Ch., Addl. A.-G. for Respondents.

Date of hearing: 5th October, 2005.

2007 Y L R 1247

[Lahore]

Before Ijaz Ahmad Chaudhry, J

NIAZ MUHAMMAD---Petitioner

Versus

THE STATE and 5 others---Respondents

Criminal Revision No.839 of 2001, heard on 1st March, 2006.

Criminal Procedure Code (V of 1898)---

---Ss. 200, 202 & 203---Penal Code (XLV of 1860), S.302---Dismissal of private complaint---Petitioner/complainant who was father of deceased girl, had not mentioned the names of any of accused who had committed murder of deceased and had only stated that she was taken by the police in custody---Petitioner had also claimed that the police station concerned took an amount of Rs. 1,00,000 and registered case of theft against them; it was also stated that girl was murdered in the mysterious manner and that the police had wrongly claimed that girl had taken the poison---Other witnesses who were not eye-witnesses of the occurrence had not specifically pointed out their fingers at accused who committed the offence---Only mentioning of the police official, was not sufficient to initiate the process against the police officials---In a private complaint, before accused was summoned to face the trial, the Trial Court had to satisfy that prima facie case against accused was made out-Accused who had been summoned, also had a right to know that why he had been summoned and on the basis of which evidence he had been summoned to face the trial in a murder case, wherein he could be convicted and sentenced to death---Evidence produced by the petitioner, was based on conjectures and surmises and even the names of accused and their roles, had not been explained---Death of girl in the police custody could be a strong circumstance against police officials, but it was the duty of complainant to point out the police officials who had taken her in custody and in whose custody she was administered poison, but no details of occurrence had been mentioned and no witness was produced in that connection---Trial Court, had rightly dismissed complaint due to those technical reasons---Petition having no merits, was dismissed.

Tariq Masood for Petitioner.

Nemo for Respondents.

Date of hearing: 1st March, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1249 #

2007 Y L R 1249

[Lahore]

Before Muhammad Jehangir Arshad, J

QAMAR ABBAS alias BASU---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1875-B and 1519-B of 2006, decided on 28th June, 2006.

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

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i), 337-F(i) & 337-L(ii)---Pre-arrest bail, grant of----Contents of the F.I.R. as well as medical report showed that injuries attributed to both accused persons, were covered by Ss.337-A(i), 337-F(i) & 337-L(ii), P.P.C., punishable either with one or two years---Concession of bail before arrest, in circumstances could not be refused to accused, their pre-arrest bail, was confirmed, in circumstances.

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

----S. 498---Penal Code (XLV of 1860), S.337-A(v)---Bail before arrest, refusal of---Case of co-accused was distinguishable from other two accused who were granted bail as he was guilty of repeated injuries

with "Sarria "---Case of co-accused was covered by S. 337 A(v), P.P.C. punishable with five years, though same was not within the prohibitory clause of S.497, Cr.P.C., but because of repeated injuries inflicted by him, he was not entitled to concession of pre-arrest bail which was extraordinary in nature---Interim bail granted to said co-accused earlier, was recalled.

Abdul Aziz Khan Niazi for Petitioner.

Muhammad Anwarul Haq for the State.

Rana Jehanzeb for the Complainant.

Tahir Mehmood, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1251 #

2007 Y L R 1251

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD SHAFIQUE alias BHOLA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.810 and Criminal Revision No.424 of 2003, heard on 29th November, 2006.

Penal Code (XLV of 1860)---

----S. 302 (c)---Appreciation of evidence---Benefit of doubt---Prosecution, in order to prove its case against accused, had relied upon evidence of dying declaration, last seen, extra judicial confession of accused, recovery of incriminating articles at the instance of accused---Deceased, in the dying declaration had not disclosed the identity of accused who had caused him injuries which part of evidence was of no help to prosecution case---Witness of last seen never appeared before the police on the day when F.I.R. was registered, although he had participated in the funeral ceremony of deceased and at that time police officials were also present, but said witness never made statement before the police at that time and got recorded his statement under S.161, Cr. P. C. at the police station after 10/12 days of the occurrence---Said unexplained delay of many days in recording statement of witness during investigation of the case; had cast doubts upon the authenticity of evidence of last seen---Even otherwise evidence of last seen, in the absence of any corroborative piece of evidence, was of no legal value--No occasion existed for accused to make alleged extra judicial confession before the witness because said witness neither was closely related to the complainant party nor was in a position to exert his influence on complainant party for compromise or to give pardon to accused---Statement of said witness was absolutely silent with regard to any promise with accused about any kind of help to save his life---Said witness after hearing the confessional statement, never attempted to apprehend accused at the spot nor he raised hue and cry to attract attention of passengers in that regard---Conduct of said witness was also very unnatural and sufficient to doubt his credibility---Regarding recovery of incriminating articles at the instance of accused, fact was that accused was taken into custody after 10/11 days of occurrence and he had ample time to wash blood stains from said articles or to destroy the same---Accused got recovered said articles from bushes on the bank of rain storm channel, which was an open place accessible to public---Possibility of placing said articles later on by someone else, could not be ruled out---Such loopholes, were sufficient to doubt credibility of prosecution case entitling accused to get benefit of the same---Conviction and sentence awarded to accused by the Trial Court, was set aside and he was acquitted from charge.

Ch. Shafqat Ali Sularia for Appellant.

Syed Karamat Ali Naqvi for the Complainant.

Miss Tehsin Irfan for the State.

Date of hearing: 29th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1256 #

2007 Y L R 1256

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

Chaudhry GHULAM HAIDER---Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT NO.III, LAHORE and another---Respondents

Writ Petition No.6779 of 2006; heard on 16th November, 2006.

Criminal Procedure Code (V of 1898)---

----Ss.516-A & 517--- Penal Code (XLV of 1860), Ss.302, 324, 120-B, 109/34---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Superdari of motorcar---Motorcar in question had been taken into custody by Local Police as case property in connection with case registered at Police Station concerned---Application filed by petitioner seeking superdari of said motorcar having been dismissed by Judge, Anti-Terrorism Court, petitioner had filed revision against impugned order---Prosecution's version was that motorcar in question had been used by accused party for coming to and going away from the place of occurrence---Vehicle used only for coming to and going away from the place of occurrence could not be treated as case property---Petitioner seeking superdari, was a registered owner of motorcar in question and he was the only person who had come forward to claim superdari of the same---Said motorcar was parked in the premises of a Police Station ever-since its recovery and its condition must be deteriorating day by day---Order passed by Judge Anti-Terrorism was set aside by declaring same as without lawful authority and of no legal effect---Application of petitioner seeking superdari of motorcar was accepted with direction to release the motorcar on superdari in favour of petitioner, accordingly.

Humanyun Azam v. Ch. Sadiq, Inspector/S.H.O. of Police Station Kunjah District Gujrat and 3 others 1999 MLD 1676 and Javed Hayat and another v. The State PLD 2006 Lah. 167 ref.

N. A. Butt for Petitioner.

Tahir Mehmood Gondal, A.A.-G. for Respondents with Muhammad Arif, S.-I with record.

Mamoon Rashid Pirzada for the Complainant.

Date of hearing: 16th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1258 #

2007 Y L R 1258

[Lahore]

Before Sardar Muhammad Aslam, J

ROOP KHAN alias ABDUL RAOOF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8018-B of 2006, decided on 11th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 337-A(i), 337-F(i), 148 & 149---Pre-arrest bail, grant of---Medical officer who examined the injured, declared both injuries on his person as "Shejah-i-Khafifah "---Even the description of one of the injuries which had been attributed to accused, had suggested that it was most likely the result of a fall on some rough surface---Accused had been found innocent in successive investigations---Prima facie implication of accused was false based on some other consideration---Accused was admitted to bail, in circumstances.

Syed Karamat Ali Naqvi for Petitioner.

Naeem Ahmad Khan for the State along with Javed Iqbal, S.-I with record.

YLR 2007 LAHORE HIGH COURT LAHORE 1264 #

2007 Y L R 1264

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD AKMAL KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1994-B of 2006, decided on 14th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.468, 471, 420 & 489-F---Bail, grant of---F.I.R. lodged with delay of four years---Litigation existed between parties---Allegation against accused/petitioner was that he along with co-accused told complainant that on payment of certain amount government land would be allotted in his favour---Complainant alleged in F.I.R. that despite payment of amount to accused, no land was got allotted to him, and when matter was reported to Punchayat accused gave to complainant cheques which were later on' dishonoured---Complainant further alleged that accused also issued forged receipt of bank to him about depositing of money regarding allotment of land in his favour---Post-arrest bail of accused was dismissed by Trial Court---Accused contended that there was delay of four years in lodging of F.I.R.; that there was no signature on cheques and allotment letter allegedly issued in favour of complainant and also on receipt of bank; that complainant himself was involved in case registered under S. 489-F, P.P.C.---Validity---F.I.R. had been lodged against accused and co-accused after delay of four years and offence under Ss.468, 471 & 420, P.P.C. had been added later on---Offence under Ss.468 & 471, P.P.C. were non-cognizable---Receipts allegedly issued by bank did not bear signature of accused---Offences alleged against accused under Ss.468, 471 & 420, P.P.C. did not fall within prohibitory clause of S.497, Cr. P. C. ---Complainant himself was involved in case registered under S.489-F, P.P.C. which showed that there was litigation between parties---Sufficient reasons were available to believe false involvement of accused in commission of offence which brought his case within ambit of further inquiry---Pre-arrest bail of co-accused had been confirmed by High Court, hence, rule of consistency was attracted to case of accused as his case was at par with the co-accused---Detention of accused for indefinite period was not to serve any useful purpose---Accused/petitioner was admitted to post-arrest bail.

Muhammad Bilal Butt for Petitioner.

Muhammad Bukhsh Complainant in person.

Ch. Muhammad Akbar for the State with Shabbir Hussain, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1266 #

2007 Y L R 1266

[Lahore]

Before Tariq Shamim, J

Mst. NAZIA and another---Petitioners

Versus

THE STATE and 6 others---Respondents

Writ Petition No.11172 of 2006, decided on 19th December, 2006.

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

----S.11---Penal Code (XLV of 1860), S.380---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---F.I.R. had revealed that prima facie offences under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and S.380, P.P.C. were made out against petitioner/accused---Allegations levelled in F.I.R. did not appear to be without any basis---Challan in the case had . been submitted in the Trial Court concerned---Prayer made by petitioner for quashing of F.I.R., in circumstances had lost its relevance---Petitioner could avail other alternate remedies available to them under the law---Even otherwise, allegations levelled in impugned F.I.R. and denial of the same by petitioners, necessarily required holding of an inquiry into disputed questions of fact---Such exercise could not be undertaken by High Court in proceedings under Art.199 of the Constitution---Petition was dismissed.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

Muhammad Rashid Ahmad for Petitioners.

2007 Y L R 1273

[Lahore]

Before Mian Saqib Nisar, J

EHSAN ELAHI and 7 others---Appellants

Versus

Haji MUHAMMAD ZAKARULLAH and another---Respondents

R.S.A. No.12 of 1984, heard on 31st January, 2007.

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

----S. 12---Civil Procedure Code (V of 1908), S.100---Suit for specific performance of agreement of sale---Suit filed against predecessor-in-interest of defendants, was dismissed by the Trial Court, but on appeal, Appellate Court reversed' findings of the Trial Court and decreed the suit---Validity---Defendant's predecessor did not deny the execution of agreement of sale or receipt of consideration or delivery of possession to plaintiffs but had taken up plea that they were not ready and willing to perform their part of agreement and that the time was the essence of agreement of sale, which had lapsed on account of plaintiffs---Evidence on record had proved that delay in the case could not be attributed to plaintiffs because they had been perpetually trying to approach defendants' predecessor seeking to perform their part of agreement---Case of defendants was not that they did not possess requisite balance amount of consideration or were unwilling to pay the same-Facts on the record had established. that transaction could not be finalized, not due to any fault of plaintiffs, but because of the circumstances that plaintiffs lost the possession to some third party, who had a dispute with defendants---Concurrent findings of fact of two courts below that plaintiffs had been ready and willing to perform their part of agreement, did not suffer from any misreading or non-reading of evidence---Appellate court, in circumstances had rightly exercised its discretion in favour of plaintiffs.

Sirbaland v. Allah Loke and others 1996 SCMR 575; Rabnawaz and others v. Mustaqeem Khan 1999 SCMR 1362; Muhammad Yaqub v. Muhammad Nasrullah Khan and others PLD 1986 SC 497; Syed Liaqat Ali v. Kazi Syed Muzafar Hussain and 2 others 1996 CLC 1198; Abdul Ghafoor and others v. Mst Anwar Jehan Begum and others 2004 MLD 894; Ferozdin v. Jan Bibi and others 2006 CLC 1815 and Sarfaraz Haider and others v. Mst. Khatija Bai and 4 others 1990 CLC 1649 rel.

(b) Discretion---

----Exercise of---Principles---Discretion had to be exercised on the basis of sound principles, weighing the case on the basis of the rules of equity and should .not be arbitrary and whimsical exercise---Courts while exercising discretion, though could consider as to who would be put to disadvantage and face the hardship, but it should be in the context of the evidence of the case and the conduct of the parties.

Malik Muhammad Nawaz and Malik Muhammad Aslam for Appellants.

M. A. Prizada for Respondents.

Date of hearing: 31st January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1277 #

2007 Y L R 1277

[Lahore]

Before Muhammad Farrukh Mahmud, J

MEHTAB ALI---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.618-B of 2006, decided on 20th March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Amount of cheque in question had not been mentioned in the F.I.R. at all---Cheque in question was issued about three months prior to reporting of matter to the police---Neither the cheque issued by accused nor its attested copy was available on record of the case and no Bank Officer had been cited as witness---Accused was admitted to bail, in circumstances.

Rana Jehanzaib Khan for Petitioner.

Sh. Muhammad Arshad for the State with Mubarak Ali, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1278 #

2007 Y L R 1278

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RAZZAQ---Petitioner

Versus

MUHAMMAD AKRAM alias BHAGA and another-Respondents

Criminal Miscellaneous No.4608-B of 2006, decided on 30th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302- & 324---Bail, cancellation of---Application for---Accused did not surrender for more than 50 days---One person had lost his life and two persons were injured in the occurrence---Accused had caused injury with his rifle on three star witnesses of the occurrence--Certificate from an Orthopaedic Surgeon had been produced by counsel for complainant in which Doctor had stated that injured was unable to move---Case was not the one in which occurrence had taken place at the spur of moment---F.I.R. showed that accused waylaid complainant party when it was coming while accused along with his co-accused fired at complainant party and caused injuries on the person of deceased and injured persons---Offence against accused fell within the prohibitory clause of S.497(1), Cr. P. C. ---Injured eye-witnesses still were supporting case of prosecution and three accused were still at large---Accused persons being not entitled to the grant of bail, bail granting order was withdrawn.

Rai Muhammad Zafar Bhatti for Petitioner.

Ch. Liaqat Ali for the State along with Muhammad Yaqoob, S.-I.

Rana Altaf Hussain Khan for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 1280 #

2007 Y L R 1280

[Lahore]

Before Syed Shabbar Raza Rizvi, J

SANA ULLAH---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.8727-B of 2006, decided on 17th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Maximum punishment for offence under section 489-F, P.P.C. being not more than three years, present case was not covered by prohibition contained in S.497, Cr.P.C.---F.I.R. did not indicate the purpose for which a huge amount of Rs.1,10,00,000 was given to accused by the complainant---F.I.R. also did not show any effort made by complainant for seeking the return of said amount---Accused was admitted to bail, in circumstances.

PLD 1995 SC 34 ref.

M.A. Zafar for Petitioner.

Azam Nazir Tarar for the Complainant.

Ijaz Ahmad Bajwa for the State. Muhammad Usman, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1281 #

2007 Y L R 1281

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD KHALID---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.1698-B of 2005, decided on 16th March, 2006.

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

---S. 497(2)---Penal Code (XLV of 1860), Ss.302, 109, 148 & 149---West Pakistan Arms Ordinance (XX of 1965), S.13---Bail, grant of---Further inquiry---F.I.R. had not mentioned as to what weapon accused was carrying---Fire caused by accused did not hit either deceased or any of prosecution witnesses---No recovery was effected from accused during investigation and according to findings of the police, accused was empty-handed---Case of accused, in circumstances fell within the provisions of subsection (2) of S.497, Cr.P.C., which needed further probe and inquiry---Trial had commenced, but rule of propriety could not defeat statutory right of accused---Accused was admitted to bail, in circumstances.

Ch. Pervez Aftab for Petitioner.

Mehar Muhammad Saleem for the State with Muhammad Tariq, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1282 #

2007 Y L R 1282

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ARSHAD KAUSARI---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.9718-B of 2006, decided on 5th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 468 & 471---Pre-arrest bail, grant of---F.I.R. in the case had been lodged with a delay of about eleven years--Offences under Ss.420 & 471, P.P.C. were bailable and matter regarding offence under S.468, P. P. C., and genuineness or otherwise of relevant document was pending before Civil Court; even otherwise offence under S.468, P.P.C. did not attract the prohibitory clause contained in subsection (1) of S.497, Cr.P.C.---No evidence was on record of investigation to assert that it was the accused himself who had committed alleged forgery---Surmises and conjectures had no place in criminal law---Both beneficiaries of relevant documents, had already been admitted. to pre-arrest bail---Accused and complainant were real brothers and complainant had instituted a civil suit in respect of same dispute way back in the year 1996, which suit was pending before civil court---Dispute in the case was between two real brothers over the property of another brother who had died---Delay of eleven years in lodging of F.I.R. and conduct displayed by complainant in the matter prima facie had provided substance to submission made by counsel for accused regarding mala fide implication of accused in the case---Accused had already joined investigation and nothing was to be recovered from his possession---Honour and dignity of a citizen could not be allowed to be sacrificed at the altar of a mere formality---Ad interim pre-arrest bail already allowed to accused, was confirmed, in circumstances.

Chaudhry Imran Raza Chadhar and Ch. Zaheer Afzal Chadhar with the Petitioner in person.

Ishfaque Ahmad Chaudhry for the State with Ghulam Rasool, Inspector with Record.

M. Aqeel Wahid Chaudhry for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 1284 #

2007 Y L R 1284

[Lahore]

Before Tariq Shamim, J

ABDUL MALIK---Petitioner

Versus

THE STATE-Respondent

Writ Petition No.8560 of 2006, decided on 11th September, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition-Application under Ss.22-A & 22-B, Cr. P. C. before Justice of Peace for registration of criminal case against petitioner---Justice of Peace sought a report from S.H.O. concerned and without waiting for the report by S.H.O., which was a legal requirement, decided the application---Validity---Justice of Peace was not bestowed with any authority or jurisdiction under Ss. 22-A & 22-B, Cr.P.C. to give any direction to S.H.O. to intimate the Public Prosecutor of - the court regarding proceedings taken on an application---Order to that extent was clearly without jurisdiction and beyond purview of Ss.22-A & 22-B,' Cr.P.C.-Impugned order was set aside, application would be deemed to be pending before Justice of Peace, who would decide same afresh after hearing parties.

Khizar Hayat v. The State PLD 2005 SC 470 rel..

Ch. M.S. Shad for Petitioner.

Javed Bashir for Respondent No.4.

Muhammad Arif Bhinder, Addl. Advocate-General.

Miss Bushra Aziz, S.H.O. Women Police Station, Race Course, Lahore.

YLR 2007 LAHORE HIGH COURT LAHORE 1286 #

2007 Y L R 1286

[Lahore]

Before M.Bilal Khan, J

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE and 7 others-Respondents

Writ Petition No.8417 of 2006, decided on 22nd November, 2006.

Penal Code (XLV of 1860)---

----Ss.420, 468 & 471---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Petitioner had sought quashing of F.I.R. alleging that complainant was motivated by malice--Serious allegations were made against petitioner and contention of petitioner with regard to malice of complainant needed factual inquiry, which High Court in exercise of its constitutional jurisdiction, could not undertake---Challan had been submitted and petitioner was appearing before the Trial Court---Trial Court; in circumstances was the best forum where petitioner could agitate all his grievances---Even otherwise despite repeated queries of the court, petitioner had failed to explain as to how he came to possess property in dispute---Petition was dismissed.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 and Muhammad Saleem Bhatti v. Syed Safdar Ali Rizvi and 2 others 2006 SCMR 1957 ref.

Agha Abul Hassan Arif for Petitioner.

Syed Hassam Qadir Shah and Mian M. Ismail Thaheem for Respondent No.8./ Complainant.

Tahir Mehmood Gondal, A.A.-G. for the State.

Abdul Rahman A.S.-I. Police Station, Satellite Town, District Sargodha with Record.

YLR 2007 LAHORE HIGH COURT LAHORE 1287 #

2007 Y L R 1287

[Lahore]

Before Tariq Shamim, J

MUHAMMAD AKRAM---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.6541-B of 2006, decided on 11th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Emigration Ordinance (XVIII of 1979), Ss.17(i) & 22(b)---Pre-arrest bail, refusal of---Accused was named in F.I.R. and serious allegations had been levelled against him---Complainant had made a statement before the F.I.A. Authority to the effect that accused had received Rs.5,70,000 from him on the pretext of sending him abroad for the purpose of employment---Prima facie Ss.17 & 22, Emigration Ordinance, 1979, were attracted to the case of accused---Offence under section 22 of Emigration Ordinance being punishable with imprisonment of fourteen years, same was hit by prohibitory clause of S. 497, Cr. P. C. ---No mala fides had been shown by accused against officials of F.I.A. for his false implication in the case-Maki fides was prerequisite for grant of extraordinary concession of pre-arrest bail, which was lacking in the case---Two other similar cases stood registered against the accused---Accused, after grant of ad interim bail, did not appear before lower court when case was fixed for confirmation of his bail---Accused, in circumstances had misused concession of pre-arrest bail granted to him by the lower court---Witnesses of F.I.R. had fully supported prosecution case in their statements before F.I.A. Authorities, which had further connected accused with offences alleged against him---Ample evidence being on record to connect accused with commission of crimes alleged against him, ad interim pre-arrest bail granted to him, was withdrawn.

Amjad Hussain v. The State 2004 PCr.LJ 550 rel.

Amjad Farouck Bismell Rajput for Petitioner.

Ch. Muhammad Hussain Chhachhar, Standing Counsel for Federation of Pakistan.

Rai Nasrullah, Inspector and Shahid Habib, Sub-Inspector, F.I.A., Gujranwala.

YLR 2007 LAHORE HIGH COURT LAHORE 1289 #

2007 Y L R 1289

[Lahore]

Before Muhammad Jehangir Arshad, J

MERWAAN MURSHIDI and 15 others---Petitioners

Versus

THE STATE-Respondent

Criminal Miscellaneous No.3419 of 2006, decided on 30th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Agricultural Pesticides Ordinance (II of 1971), S.23(a)---Bail, grant of----None of the offences against accused being punishable with more than three years, same- would not fall within prohibitory clause of S.497, Cr. P. C. ---Grant of bail to an accused in a case not falling within the prohibitory clause of S.497, Cr. P. C. was a rule and refusal was an exception---Accused were behind the bars since 1-10-2006, challan had been submitted and they were no more required---Accused were admitted to bail, in circumstances.

PLD 1968 SC 349 ref.

Pervaiz Aftab for Petitioners.

Imtiaz Ahmad Sheikh for the State.

Akhtar Hussain, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1290 #

2007 Y L R 1290

[Lahore]

Before Tariq Shamim, J

IRFAN SAEED---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.6466-B of 2006, decided on 13th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 16---Pre-arrest bail, refusal of---Accused was nominated in F.I.R. and serious allegations of abduction for purposes of committing Zina, had been levelled against him---Alleged abductee in her statement under S.161, Cr.P.C. had fully supported prosecution case---Accused had failed to dilate upon any mala fide of complainant on account of which he could have been falsely involved in the case---Accused had misused concession of ad interim pre-arrest order as he absented himself in the court---Accused, after dismissal of his bail by the Trial Court, remained fugitive from law for almost 24 days---Ample evidence was on record to connect accused with the offences alleged against him, which even otherwise fell within the prohibitory clause of 5.497, Cr. P. C. ---Bail was refused.

Asif Ali Chaudhry for Petitioner.

Malik Mushtaq Ahmed for Complainant.

Maqbool Ahmed Qureshi for the State along with Muhammad Shoban, S.-I. with Record.

YLR 2007 LAHORE HIGH COURT LAHORE 1292 #

2007 Y L R 1292

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. SUGHRAN BIBI---Petitioner

Versus

DISTRICT POLICE OFFICER, LODHRAN and 5 others-Respondents

Writ Petition No.3984 of 2006, decided on 18th August, 2006.

Constitution of Pakistan (1973)-

----Art. 199---Constitutional petition---Petitioner who was sui juris muslim girl, had contended that she had contracted marriage with a person with her free-will and consent, but without approval of her relatives---Girl had alleged that Police official concerned at behest of her relatives was causing harassment and interference in peaceful enjoyment of her matrimonial life---Petitioner being sui juris muslim girl by contracting marriage with her free-will and. consent, had not violated any principle of Islamic Law---Police was directed to remain within its lawful authority and not cause any harassment to petitioner or her husband.

Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219 ref.

Muhammad Bilal Butt for Petitioner.

Sughran Bibi in person along with her husband Zakir Hussain.

YLR 2007 LAHORE HIGH COURT LAHORE 1293 #

2007 Y L R 1293

[Lahore]

Before Sh. Javed Sarfraz, J

GHULAM MURTAZA and another-Petitioners

Versus

THE STATE-Respondent

Criminal Miscellaneous No.1-B of 2006 in Criminal Revision No.784 of 2006, decided on 29th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.324, 452, 148 & 149----Suspension of sentence---Sentence of 5 years awarded to accused was a short sentence and revision filed by accused was not likely to be fixed in near future---Possibility was that revision could be fixed after 2/3 years and by that time accused would have served his sentence and he would have lost his valuable right---Sentence awarded to accused by the Trial Court was suspended, in circumstances and accused was allowed bail.

Abdul Hameed v. Muhammad Abdullah and others 1999 SCMR 2589 and Nazir Ahmad and 2 others v. The State 2005 PCr.LJ 657 ref.

Syed Karamat Ali Naqvi for Petitioners.

Kazim Iqbal Bhanghu for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 1294 #

2007 Y L R 1294

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. ROMA BIBI alias KIRAN and another---Petitioners

Versus

THE STATE-Respondent

Criminal Miscellaneous No.3345-B of 2006, decided on 19th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Pre-arrest bail---Female accused present in the court admitted co-accused as her legally wedded husband---Since accused had admitted co-accused as her husband, after incorporation of S.156-B, Cr. P. C. prohibiting the arrest of an accused in a case under Hudood Laws, except case of Zina-bil-Jabr, which was not the position in the case, without the consent of Magistrate, accused required no bail order at all.

Malik Waqar Haider Awan for Petitioners.

2007 Y L R 1306

[Lahore]

Before Hasnat Ahmad Khan, J

SALAMAT ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4160-B of 2006, decided on 17th January, 2007.

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

----S. 498---Penal Code (XLV of 1860), Ss. 420/468/471 /489-F---Pre-arrest bail, refusal of---Apart from the allegations levelled in the F.1.R., accused had disentitled himself to the concession of pre-arrest bail by not appearing before the Sessions Court on the date of confirmation or otherwise of his, interim pre-arrest bail, when his bail application was dismissed on merits---Even otherwise, serious allegations had been levelled against the accused who was specifically named in the F.I.R.---Extraordinary relief of pre-arrest bail could only be granted in appropriate cases to protect the good names of the citizens--Most prominent ingredient for grant of pre-arrest bail was to show mala fides of police and the complainant against the accused---No ill-will or previous enmity had been pointed out by the accused against the complainant---Offences of fraud and forgery, prima facie, were made out against the accused and he was not entitled to pre-arrest bail---Bail application was dismissed accordingly.

Murad v. Fazle-Subhan, PLD 1983 SC 82 and Zia-ul-Hassan v. The State PLD 1984 SC 192 rel.

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

----S. 498---Pre-arrest bail---Scope--- Essential ingredient---Relief of extraordinary bail before arrest can only be granted in appropriate cases, as the same is meant to protect the good names of citizens---Most prominent ingredient for grant of pre-arrest bail is to show mala fides of police and the complainant against the accused.

Murad v. Fazle-Subhan, PLD 1983 SC 82 and Zia-ul-Hassan v. The State PLD 1984 SC 192 rel.

Rana Abdul Hakeem Khan for Petitioner.

Ali Azhar Khan for the Complainant.

Abdul Hameed Khokhar for the State with Abdul Rehman, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1309 #

2007 Y L R 1309

[Lahore]

Before Asif Saeed Khan Khosa, J

YASMEEN AKHTAR---Petitioner

Versus

MUHAMMAD ARSHAD and 4 others---Respondents

Criminal Revision No.883 of 2006, heard on 3rd November, 2006.

Penal Code (XLV of 1860)---

----S. 324---Juvenile Justice System Ordinance, (XXII of 2000), S.7---Appreciation of evidence---Petitioner was victim of injuries---Trial Magistrate after a full-dress trial convicted and sentenced accused persons for various offences--Appellate Court, on filing appeal against judgment of Trial Magistrate, remanded case for holding a fresh trial of accused persons while treating one of the accused as a "child" within the purview of Juvenile Justice System Ordinance, 2000---Said judgment of Appellate Court had been assailed by petitioner---Validity---Accused who was treated as a 'child' during the trial held by Magistrate, had never urged or claimed that he was child' under the provisions of Juvenile Justice System Ordinance, 2000 and question of his juvenility had been agitated for the first time before the Appellate Court---Both parties produced evidence and various documents to prove their respective claims with regard to age of said child accused and Appellate Court relying upon the age of said accused mentioned in the slip Saza and statement of said accused recorded under S.342, Cr. P. C. had concluded that he was a:child" at the time of alleged occurrence---Counsel for petitioner during the course of hearing of present revision, had produced a copy of extract from the Register of Birth maintained at the relevant Union Council to assert that said accused was more than eighteen years of age at the time of occurrence---Consensus had emerged between counsel for all parties, during the hearing of revision, to the effect that question regarding age of said accused at the time of occurrence needed a proper and thorough probe; all were agreed that matter - could be remanded to Appellate Court for attending to question of the accused's age in some detail with reference to relevant material available with the parties---High Court allowed revision petition and impugned order passed by Appellate Court was set aside and matter was remanded to Appellate. Court accordingly and appeal was to be re-decided by Appellate Court below after determining age of the said accused after appreciation of evidence on record and also getting him medically examined by the Board of Doctors.

N. A. Butt for Petitioner.

Rana Mohsan Qayyum for Respondents Nos.1 to 4.

Ch. Muhammad Siddique for the State with Muhammad Saleem Awan, S.-I. with record.

Date of hearing: 3rd November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1313 #

2007 Y L R 1313

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD AKBAR alias GHULAM AKBAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3946-B of 2006, decided on 8th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Bail, refusal of---Accused was duly named in F.I.R. with a specific role---Accused had caused fire-arm injury on the head of injured prosecution witness who survived just by sheer luck---Medico-legal certificate duly supported ocular version---Intention of an accused was always judged by considering the weapon of offence used by him and the seat of injuries received by the injured or deceased without delving deeper into the facts of the case lest it should prejudice the case of either parry---Accused was involved in a case which fell within the prohibitory clause of S.497, Cr. P. C. ---Injured prosecution witness had duly corroborated the version given in F.I.R.---No case for grant of bail having been made out, bail was refused to accused.

Muhammad Yaqoob v. The State PLJ 2005 Criminal Cases Lah. 428; Azhar Ali v. State 2001 YLR 2601; 1999 SCMR 2147 and Muhammad Aslam v. The State 1999 SCMR 214 rel.

Malik Nazar Hussain Punnta for Petitioner.

Rashid Ahmad Chand for the Complainant.

Mumtaz Hussain Awan for the State with Tassaduq Abbas S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1315 #

2007 Y L R 1315

[Lahore]

Before Muhammad Nawaz Bhatti, J

INAM ABBAS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3682-B of 2005, decided on 13th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Bail, grant of---Accused was not nominated in F.I.R., but was later on involved, even then no overt act was attributed to accused and allegation against him was only of his presence at the spot---Question of vicarious liability, would be determined during the trial---Accused was behind the bars since long---Investigation in the case was complete and challan had been submitted in the court---Accused was admitted to bail, in circumstances.

Malik Javed Akhtar Wains for Petitioner.

Sh. Javed Rashid for the State. Nazir Ahmad, A.S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 1316 #

2007 Y L R 1316

[Lahore]

Before Syed Hamid Ali Shah, J

ABDUL SATTAR KHAN and 4 others---Petitioners

Versus

PROVINCIAL GOVERNMENT PUNJAB through Collector District Mianwali and

4 others---Respondents

Civil Revision No.1415 of 2005, decided on 11th January, 2007.

Land acquisition---

----Demarcation---Land acquired by Irrigation Department in 1953 for construction of Rajbah Piplan---Both the petitioner/owner' of land as well as respondent Department did not dispute the claim of each other qua land in vicinity---Contention however was with regard the land falling along with the distributory---Courts below rightly held that disputed portion of land could be ascertained only through demarcation and that petitioners should have filed a suit to that effect---Such concurrent findings were not open to exception.

Zia Ullah Khan Niazi for Petitioners.

Najeeb Faisal Chaudhry, Addl. A.-G. for the State.

Muhammad Farooq, District Forest Officer.

YLR 2007 LAHORE HIGH COURT LAHORE 1317 #

2007 Y L R 1317

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

GHULAM QADIR---Petitioner

Versus

SUPERINTENDING CANAL OFFICER, NILI BAR CIRCLE, SAHIWAL and

another---Respondents

Writ Petition No.955 of 2005, decided on 23rd January, 2007.

Canal and Drainage Act (VIII of 1873)---

--- S. 20---Constitution of Pakistan (1973), Art.199---Constitutional petition---Shifting of area from one outlet tail disty to other---Petitioner was owner of agricultural land, which, due to length of watercourse and other factors was not being properly irrigated through concerned outlet---Petitioner, in circumstances filed application under S.20 of Canal and Drainage Act, 1873 to Divisional Canal Officer for shifting of area from said outlet disty---Divisional Canal Officer initiated proceedings and after protracted and detailed inquiry passed order in favour of petitioner and forwarded his decision for confirmation to Superintending Canal Officer---Superintending Canal Officer did not confirm said recommendations, and outrightly rejected the same---Validity---Under S.20 of Canal and Drainage Act, 1873, Superintending Canal Officer had the power to confirm or modify decision of Divisional Canal Officer, but said section did not confer any authority upon him to outrightly reject decision of Divisional Canal Officer---Superintending Canal Officer could only make alterations or changes in the order of Divisional Canal Officer---Impugned order passed by Superintending Canal Officer was set aside by High Court with direction to pass speaking order after hearing petitioner in accordance with law.

Sahibzada Mehboob Ali for Petitioner.

Rao Muhammad Hameed Ziladar for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 1319 #

2007 Y L R 1319

[Lahore]

Before Muhammad Muzammal Khan, J

RIFFAT IQBAL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MANDI BAHAUDDIN and

4 others---Respondents

Writ Petition No.6333 of 2004, decided on 20th February, 2006.

Civil Procedure Code (V of 1908)---

----Ss. 148, 149, 151, 115 & O. VII, R.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Rejection of plaint---Petitioner filed suit for possession through pre-emption and plaint being deficient in court fee, Trial Court directed petitioner to make good such deficiency by a certain date---Petitioner on the last day filed, application under Ss.148, 149 & 151, C.P.C. for extension of time to make up deficiency in court fee, which application was accepted---Plaint of petitioner was rejected under O. VII, R.11, C.P.C. in revision against said order---Petitioner filed constitutional petition against order passed in revision rejecting plaint of petitioner---Validity---Stance of petitioner could not be termed as sufficient cause for extension of time for making good deficiency in the court fee under Ss.148, 149 & 151, C.P.C., especially when same was not supported by any documentary proof---Under law, on .account of lapse of petitioner to mare good the deficiency in court fee, within time fixed by the Trial Court, valuable rights had accrued to defendants which could not be taken away without furnishing sufficient cause and providing an opportunity of filing reply or hearing them---Ground urged by petitioner for extension of time being not sufficient cause within the meaning of S.148, C.P.C., application of petitioner could not have been accepted through a sketchy/ unreasoned order depriving defendants of their rights which, had accrued to them on account of petitioner's default after order of extension of time by the Trial Court---Defendants were left with no other alternative except to invoke revisional jurisdiction under S.115, C.P.C. where lis was correctly concluded---Appellate Court had committed no illegality/irregularity amenable to constitutional jurisdiction of High Court---Lawful decision within the ambit of conferred jurisdiction, could not be interfered with in constitutional petition.

Tariq Masood for Petitioner.

Ch. M. Naeem for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 1327 #

2007 Y L R 1327

[Lahore]

Before Tariq Shamim, J

MUHAMMAD KHAN and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.957 and Criminal Revision No.135 of 2004, heard on 8th January, 2007.

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

----Ss.302(b)/34, 364/34 & 404---Appreciation of evidence---Prosecution case rested only on circumstantial evidence---Complainant was not found to be present when the deceased had left in the company of accused---No plausible explanation was provided by the complainant for not immediately ' reporting the matter to the police---Statement of complainant regarding availability of blood under and near the dead body of deceased was belied by Investigation Officer---Evidence furnished by complainant was full of dishonest improvements and contradictions---Motive of , suspicion of illicit relations between deceased and daughter of accused was not proved---Prosecution evidence that the witness had heard the conversation of the accused of having murdered the deceased at 11-00 p.m. from a distance of about four or five Killas from his Dera, was not only unrealistic but beyond comprehension---Said witness even did not deem it fit to inform the family members of the deceased about the above mentioned conversation---Prosecution witness before whom the accused had made extra judicial confession had neither immediately contacted the police nor approached the relatives of the deceased, although he was involved in the search of the deceased who was his nephew---Accused had no plausible reason to make confessions before a close relative of the complainant---Even otherwise, evidence of extra judicial confession being a weak type of evidence, by itself was not sufficient to base conviction upon---Last seen evidence brought on record appeared to be lacking and could not be accepted without strong corroboration-.-Despite admitted presence of a number of persons from the locality, none of them was associated by the Investigating Officer to witness the incriminating recoveries---Recoveries having been effected in flagrant disregard of the mandatory provisions of S.103, Cr. P. C., could not be relied upon---Factum that the number of the recovered gun sent to Forensic Science Laboratory did not tally with the number of the gun mentioned in the memo had also a negative bearing on the prosecution case---Accused were acquitted in circumstances.

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

----Ss.302(b)/34, 364/34 & 404--- Appreciation of evidence-Extra-judicial confession---Evidentiary value---General \rule---Evidence of extra judicial confession is a weak type of evidence which by itself is not sufficient to base conviction upon.

S. M. Masood for Appellants.

Ch. Ghulam Hussain for the Complainant.

Maqbool Ahmed Qureshi for the State.

Date of hearing: 8th January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1334 #

2007 Y L R 1334

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD AKRAM MATILA---Petitioner

Versus

ELECTION TRIBUNAL FOR LOCAL BODIES ELECTION, 2005

and 4 others-Respondents

Writ Petition No.10507 of 2006, decided on 31st January, 2007.

Punjab Local Government Elections Rules, 2005---

----R. 7S-Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court---Scope---Election dispute---Fresh election at one polling station---Substituting decision by High Court in constitutional jurisdiction---Remand of case---Principles--During polling violence took place and one of the voters was murdered---Election Tribunal after trial set aside the election result and passed an order for re polling at one polling station where violence took place---Validity---Issue that will of people had been subverted through violence was not disputed---No further inquiry into the facts was required to be conducted and no other issue was left undecided by Election Tribunal necessitating further adjudication by it---Ordinarily, High Court while exercising its constitutional jurisdiction did not substitute its own decision with that of subordinate Tribunal or Authority, where such decision involved adjudication upon questions not decided by such Tribunal or Authority or required investigation or recording of fresh evidence---High Court was vested with jurisdiction to ensure that justice was done in accordance with law and litigation concluded rather than remanding case by way of a formality and thereby condemning parties to a further round of litigation---High Court declined to remand the case and modified the order of Election Tribunal to the extent that entire election for the seat of Nazim and Naib Nazim of Union Council in question was declared to be null and void---High Court directed that fresh election for the post of Nazim and Naib Nazim would be conducted in the entire constituency---Petition was allowed accordingly.

Muhammad Hanif Shah v. Election Tribunal and others 1985 MLD 374; Sardar Hussain and others v. Mst. Parveen Umer and others PLD 2004 SC 357 and Syed Azmat Ali v. - The Chief Settlement and Rehabilitation Commissioner, Lahore and 2 others PLD 1964 SC 260 ref.

Chaudhry Riasat Ali for Petitioner.

Ch. Muhammad Anwar Bhinder for Respondents Nos.2 and 2-A.

YLR 2007 LAHORE HIGH COURT LAHORE 1338 #

2007 Y L R 1338

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD USMAN through Attorney---Petitioner

Versus

MUHAMMAD IKRAM-Respondent

R.S.A. No.3 of 2005 and C.R. No.631 of 2004, heard on 1st February, 2007.

(a) Benami transaction---

----Burden of proof---Determining factors.

Following are the factors to be taken into consideration by a Court while determining Benami transaction:

(i) Source of consideration;

(ii) From whose custody original title deed and other documents came in evidence;

(iii) Who is in possession of suit property; and

(iv) Motive for Benami transaction.

Initial burden is upon the party alleging that the transaction is Benami.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577 and Hameeda Begum v. Farzand Ali 2002 YLR 1311 rel.

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

----S.42---Benami transaction---Proof---Concurrent .findings of fact by the Courts below---Parties were real brothers and plaintiff claimed to be owner in possession of suit house and alleged that it was purchased by defendant in his own name, whereas consideration amount was sent by plaintiff' from abroad---Suit and appeal were dismissed by Trial Court and Appellate Court, respectively---Validity---No evidence was available on record that consideration paid same from any monetary source of plaintiff and there was no evidence of any bank drafts allegedly being sent to defendant and more particularly there was not an iota of evidence as to point of time when the bank drafts were sent---Vendor was produced as defence witness, who supported the version of defendant---Original title deed and also title deed of vendor were produced by defendant---No explanation was available for possession of title deeds by defendant on record---Courts below had correctly found on the basis of evidence on record including witnesses of plaintiff that additional construction was made by defendant---Defendant was proved to have remained in possession of suit house and had been in receipt of rent on self occupation basis from his employer---Case of plaintiff was not that he had constructed the additional portion---High Court declined to interfere with the concurrent judgments passed by two Courts below.

Ghulam Muhammad v. Noor Muhammad 2001 CLC 174; Jan Muhammad v. Mulla Abdul Rehman and 4 others 1999 CLC 266; Haji Feroze Khan and another v. Amir Hussain through L.Rs. and others 2004 SCMR 1719 and Abdul Majeed's case 2005 SCMR 577 ref.

Mian Abdul Qayyum Nazar for Appellant.

Muhammad Ilyas Sheikh for Respondent.

Date of hearing: 1st February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1343 #

2007 Y L R 1343

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD SHAFI---Petitioner

Versus

MUHAMMAD NAWAZ and 7 others-Respondents

Civil Revision No.909 of 2006, heard on 11th January, 2007.

Islamic Law---

----Inheritance---Plaintiff filed a declaratory suit contending that suit property had originally been allotted to his father but after his death defendant, brother of plaintiff, had obtained entries in revenue record showing allotment in his name alone to the exclusion of other legal heirs---One of the brothers and a sister acknowledged conferment of proprietary rights in favour of defendant through their written statement---Trial Court dismissed plaintiff's suit but Appellate Court decreed the suit--Validity-Appellate Court proceeded on valid reasoning that allotment was entitlement of deceased and after his death all legal heirs were entitled to the same---To this extent appellate decree was not open to exception however to the extent of those legal heirs who had accepted the claim of defendant as owner of suit property, appellate decree was modified whereby defendant, plaintiff and one of their sisters were held entitled to 5/8th, 2/8th and 1 /8th shares respectively in the suit property.

M.R. Raza Khokhar for Petitioner.

Zafar Iqbal Chohan for Respondents Nos.1, 4, 5, 6 and 8.

Muhammad Aslam Riaz for Respondents Nos.1, 4,5,6 and 8.

Date of hearing: 11th January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1347 #

2007 Y L R 1347

[Lahore]

Before Syed Asghar Haider, J

GHULAM RASUL and 5 others---Petitioners

Versus

KHAN MUHAMMAD-Respondent

Civil Revision No.1163 of 1999, decided on 19th December, 2006.

Civil Procedure Code (V of 1898)---

----S.115---Punjab Pre-emption Act (IX of 1991), S.13---Revision---Misreading of evidence---Pre-emption suit---Suit decreed but decree was reversed in first appeal---Validity---Plaintiff had been non-suited by the lower Appellate Court on assumption that witness A was son of another witness and there were discrepancies in their statements---Although there was similarity of the name of father of witness A and name of other witness but it was a matter of record -that age of witness A was 50 years while the age of witness was 60 years therefore, obviously, they were not father and son---Impugned judgment was clearly a result of misreading of evidence hence not sustainable--Proceedings would be deemed pending before the lower Appellate Court for decision afresh , on merits.

Sheikh Fateh Muhammad v. Abdul Aziz PLJ 2003 Lah. 1815; Fazal Muhammad v. Ghulam Shabbier 2003 CLC 936; Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Amirzada Khan and others v. Ahmad Noor and others PLD 2003 SC 410; Ruqiya Bibi v. Samiullah 2004 YLR 2607; Muhammad Malik and another v. Muhammad Ismail and another 2004 YLR 871; Inayat Uliah v. Mst. Begum Bibi and another PLD 2006 Lah.267; Akhtar Nawaz and others v. Muhammad Nazir and others 2005 YLR 77; Walayat Khan v. Muhammad Sharif 2004 CLC 240; Muhammad Siddique v. Muhammad Sharif and others 2005 SCMR 1231; Haji Lal Shah and another v. Abdul Khaliq and another 2004 SCMR 409; Abdul Qayyum v. Muhammad Rafiq 2001 SCMR 1615; Muhammad Ramzan v. Lal Khan 1995 SCMR 1510 and Rahimzada v. Muhammad Ayub Khan and others PLD 2003 Pesh. 53 ref.

Ch. Muhammad Anwar Bhindar for Petitioners.

Sh. Naveed Shahryar for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 1350 #

2007 Y L R 1350

[Lahore]

Before Muhammad Jehangir Arshad, J

MANZOOR HUSSAIN--Petitioner

Versus

S.H.O. POLICE STATION, CITY DUNYANPUR, DISTRICT

LODHRAN and 6 others-Respondents

Writ Petition No.25 of 2007, decided on 18th January, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Locus standi to maintain petition---Respondent had placed on record copy of order of High- Court passed in earlier constitutional petition and submitted that adopted daughter of petitioner had contracted marriage with respondent and acknowledged her said marriage not only through the said constitutional petition, but also by appearing herself in the Court---Petitioner, who claimed himself to be step-father of said girl, had no locus standi to maintain petition---Being not appropriate to proceed further in the petition where the very locus standi of petitioner to maintain constitutional petition, was doubtful, same was dismissed by the High Court.

Ch. Muhammad Arshad for Petitioner.

Muhammad Bilal Butt for Respondent No.4.

Fayyaz, Inspector.

YLR 2007 LAHORE HIGH COURT LAHORE 1351 #

2007 Y L R 1351

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD YOUSAF---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.2827-B of 2006, decided on 4th December, 20.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392---Bail, refusal of---Accused though was not nominated in the F.1.R., but he was subsequently named by the complainant and was also identified by one of the witnesses during the identification parade-Such facts were sufficient to show that accused was involved in the case---Offence under S.392, P.P.C. fell within prohibitory clause of S.497, Cr. P. C. ---Accused having failed to make out a case for bail, his application was dismissed.

Javed Shoukat for Petitioner.

Muhammad Bilal Butt for the Complainant.

Ijaz Ahmad Khan for the State. Liaqat Ali, S.-I. with Record.

YLR 2007 LAHORE HIGH COURT LAHORE 1352 #

2007 Y L R 1352

[Lahore]

Before Mian Saqib Nisar and Fazal-e-Miran Chauhan, J

FATEH KHAN and others---Petitioners

Versus

ZULFIQAR KHAN and others-Respondents

R.F.A. No.241 of 2002, heard on 7th February, 2007.

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

----S. 54---Registration Act (XVI of 1908), S.17---Immovable property valuing more than one hundred rupees---Unregistered sale of such property---Effect--Plaintiffs filed suit for possession through partition on basis of title in 1/5th share of joint property---Plea taken in defence was that said 1/5th share of property had been sold by predecessor of plaintiffs to defendant---No documentary evidence was produced in proof of alleged sale---Admittedly disputed share of property was of a value of above one hundred rupees hence sale of said property was invalid on account of the provisions of section 54 Transfer of Property Act and section 17 of Registration Act, 1908--No misreading or non-reading of evidence was made out---Appeal was dismissed.

Mian Humayoon Aslam for Appellant.

Muhammad Farooq Qureshi Chishti for Respondents.

Date of hearing: 7th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1354 #

2007 Y L R 1354

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD SAEED---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous Application No.1390-B of 2007, decided on 9th March, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Accused was in Jail since one year---No progress had been made after submission of challan in Court---Nothing had been recovered from accused and his custody was no more required by Police---Offence under S.489-F, P.P.C., did not fall within prohibitory clause of S.497, Cr.P.C. ---Keeping accused behind the bars for an indefinite period of time would not serve or advance prosecution's case, rather same would amount to punishment before conviction, which was not permissible under criminal jurisprudence---Bail was granted to accused.

Saleem Anwar Khan for Petitioner.

Farzana Khan, Assistant Prosecutor General with Muhammad Rafique, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1355 #

2007 Y L R 1355

[Lahore]

Before Muhammad Sayeed Akhtar and Muhammad Jehangir Arshad, JJ

Syed IQBAL HUSSAIN SHAH and others---Petitioners

Versus

PROVINCE OF PUNJAB through Collector Muzaffargarh and

others-Respondents

Review Application No.10-C of 2004 in C.R. No.682 of. 2002, heard on 13th November, 2006.

Civil Procedure Code (V of 1908)---

----S. 114 & O.XLVII, R.1---Specific Relief Act (I of 1877), Ss.42 & 54---Review of judgment of High Court---Suit for declaration and permanent injunction---Suit' for declaration and permanent injunction filed by respondent against applicants as well as other respondents, was dismissed by the Trial Court---Appeal filed against judgment of the Trial Court was accepted by Appellate Court and case was remanded to the Trial Court with the direction to implead certain persons and defendants and thereafter to decide suit afresh in accordance with law---Petitioners, against said judgment of remand, filed revision which was dismissed by High Court holding that impleading of new defendants being justified, remand order passed by Appellate Court below did not suffer from any illegality---Petitioners had filed application for review of judgment of High Court---Validity---Judgment under review was very much clear, wherein all the points agitated, had been answered by High Court and it could not be said, in circumstances that High Court had omitted to take notice of points raised by applicants before the High Court---Even otherwise, it was applicant's own case before the Trial Court that suit was not maintainable in the absence of some necessary parties---Appellate Court below allowing application of respondents to implead relevant persons as party, had only removed lacunae pointed out by the Trial Court, in order to avoid further litigation---Appellate Court below through remand order, had kept the matter open on all other issues and the Trial Court would be free to decide all issues afresh,, including the question of jurisdiction of civil court to try the suit as well as question of limitation.

Abdul Rouf and others v. Qutab Khan and others 2006 SCMR 1574 and Board of Intermediate and Secondary Education, Lahore, through Chairman v. Bashir Ahmad Khan' PLD 1997 SC 280 ref.

Mian Bashir Ahmad Bhatti for Applicants.

Sh. Ghias ul Haq for Respondents.

Date of hearing: 13th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1358 #

2007 Y L R 1358

[Lahore]

Before Muhammad Farrukh Mahmud, J

KHURSHEED AHMAD---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.1627-B of 2006, decided on 26th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.382, 406 & 420---Bail, grant of---Accused was in jail for more than one year and eight months---Co-accused were admitted to bail---Matter was reported to the police after a delay of more than 5-1/2 months---Accused was admitted to bail in circumstances.

Malik Javed Akhtar Wains for Petitioner.

Ijaz Ahmad Khan for the State with Irfan, A.S.-I.

2007 Y L R 1368

[Lahore]

Before Muhammad Jehangir Arshad, J

NASIR ALI---Petitioner

Versus

SUPERINTENDENT, NEW CENTRAL JAIL, MULTAN and another-Respondents

Writ Petition No.5065 of 2006, decided on 20th October, 2006.

Criminal Procedure Code (V of 1898)---

----S.401---Constitution of Pakistan (1973), Art. 199---Penal Code (XLV of 1860), Ss.302 & 307/34---Constitutional petition---Remissions---Entitlement---Petitioner was convicted and was awarded punishment--Grievance of petitioner was that he was allowed remissions as an under-trial prisoner but said remissions were withdrawn by the Superintendent of Jail in the light of judgment of Supreme Court---Remissions once added to the credit of petitioner could not be withdrawn as the judgment of Supreme Court which was passed long after granting remission to petitioner was meant for future cases and had no retrospective effect---Remissions earned by petitioner and added to his credit before the judgment of Supreme Court, were declared valid and would remain intact.

Haji Abdul Ali v. Haji Bismillah and 3 others PLD 2005 SC 163 rel.

Ch. Zulfiqar Ali Sidhu for Petitioner.

Mubashir Latif Gill, A.A.-G. along with Ali Akbar, Assistant Superintendent, New Central Jail, Multan.

YLR 2007 LAHORE HIGH COURT LAHORE 1369 #

2007 Y L R 1369

[Lahore]

Before Jawwad S. Khawaja, J

TARIQ SHABEER---Petitioner

Versus

MUHAMMAD IJAZ-Respondent

Civil Revision No.2393 of 2005, heard on 14th November, 2006.

Specific Relief Act (I of 1877)---

----S. 12---Transfer of Property Act (IV of 1882), S.58---Specific performance of agreement to sell acquiring the character of a mortgage rather than a sale---Plaintiff alleged that defendant obtained an amount from him by way of loan and had executed agreement stipulating that if amount was not paid by a specified date, title in property would be deemed to have passed to plaintiff---Although the date fixed for payment of disputed amount was extended through a second agreement but defendant failed to return the loan---Declaratory suit filed by plaintiff was amended to specific performance of agreement---Performance was allowed by courts below---Validity---Agreements establishing that in fact amount was paid as loan and. agreements were executed for the purpose of security of refund of loan, left no room for doubt that the transaction was in the nature of a mortgage---Such agreements to sell were un-executable for purpose of sale and could not have been enforced through a decree for specific performance---Impugned agreements could only have been treated as agreements to sell of suit property if disputed 'amount was mentioned in said agreements as consideration for the sale without any stipulation of repayment of amount in question---Such legal aspect of the case was not considered by courts below while allowing the performance---Denial of defendant from execution of agreements was not established through concurrent decrees---Concurrent decrees of courts below were therefore modified by High Court directing defendant to pay the disputed amount back to plaintiff with a return thereon at the rate of 10 per cent per annum as defendant had been enjoying benefits of sum in question since 1995.

Abdul Sattar v. Mst. Sardar Begum etc. 1992 SCMR 417 ref

Salim Ullah Faridi and 8 others v. Amjad Sharif Qazi and 7 others 2003 YLR 1112 and Zafar Mehmood Shaikh v. Prudential Discount and Guarantee House Limited and 4 others 2003 CLD 1740 distinguished.

Ch. Shaukat Ali Javed for Petitioner.

Mehdi Khan Chohan for Respondent with Muhammad, Ilyas, Attorney/Brother of Respondent No.1.

Date of hearing: 14th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1373 #

2007 Y L R 1373

[Lahore]

Before Tariq Shamim, J

MUHAMMAD SHABIR alias SHABO and 5 others---Petitioners

Versus

JUDICIAL MAGISTRATE, DUNIYAPUR, DISTRICT LODHRAN and 4 others---Respondents

Writ Petition No.2938 of 2006, decided on 29th June, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 169 & 173---General Clauses Act (X of 1897), S.24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Police report--Discharge of report---Petitioners had alleged that Magistrate declined to agree with discharge report and in a mechanical manner had disagreed with the opinion of the Investigating Officer with non-speaking order without perusing record or hearing the parties---Order passed by the Magistrate had revealed that same was passed by Magistrate without application of judicious mind and without perusing the police file---Under provisions of S.24 of General Clauses Act, 1897, any Authority whether judicial or quasi-judicial or even an executive Authority vested with' any power to pass an order, was required to give reasons in respect thereof---Impugned order could not be termed as a judicious or a speaking order---High Court accepting constitutional petition set aside impugned order, with direction to Magistrate to pass an order afresh after hearing and perusing the record through speaking order.

Federation of Pakistan v. Muhammad Tariq Pirzada and others 1999 SCMR 2744 and Ahmad Din v. Illaqa Magistrate and others 2003 YLR 1049 ref.

Malik Javed Akhtar Wains for Petitioner.

M.R. Khalid Malik, Addl. A.-G. on Court's Call.

Sardar Zafar Ahmad Lund, for Respondent No.3.

YLR 2007 LAHORE HIGH COURT LAHORE 1374 #

2007 Y L R 1374

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

TARIQ MASOOD CH.---Appellant

Versus

DASTAGIR PAPER & BOARD MILLS (PVT.) LTD. and

8 others-Respondents

E.F.A. No.642 of 2002, heard on 27th November, 2006.

(a) Act of Court---

----Mistake of Court---Effect---No party should be made to suffer due to any mistake of Court.

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

----O. XXI, R.90 & S.12(2)---Sale through auction, setting aside of---Sale of property was made through court auction in execution of decree---Auction sale was confirmed by Court and sale certificate was issued in favour of auction purchaser---One of the judgment-debtors challenged entire proceedings on ground of fraud allegedly committed by Court Auctioneer who managed to get the property to be sold for inadequate consideration---Application under S.12(2), C.P.C. seeking setting aside of sale was allowed---Validity---Record revealed that only once in presence of all concerned a direction was issued to the Court Auctioneer by Executing Court to the effect that reserve price was Rs.14.179 millions and property was to be sold at a price higher than the same but thereafter entire proceedings took place in the absence of judgment-debtors---Executing Court in its naivety proceeded to sell the property evaluated by itself at Rs.14.179 millions for Rs. 3, 30, 000 and even forgot to approve the schedule which apparently the Court Auctioneer prepared in anticipation of further reduction of price---Contention that sale through auction could not have been set aside on ground of inadequacy of consideration was repelled because it was not simply a question of inadequacy of consideration rather the very basis on which the sale was conducted was found to be illegal on the face of record---Objections to a sale could have been raised only after the sale had taken place and not before, hence question of court becoming functus officio did not arise in circumstances---Executing Court proceeded in a post-haste manner in the matter of confirmation and delivery of possession which was not warranted by law.

Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC (sic); Speciality Traders v. Firdous Textile Mills Ltd. 1987 CLC 2109 and Messrs United Bank Ltd., Karachi v. Mst. Asma Zafarul Hasaan 1980 CLC 565 ref.

Hameed-ud-Din Chaudhry for Appellant.

Muhammad Khalid Mehmood for Respondents Nos.1 and 2.

Nemo for others.

Date of hearing: 27th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1378 #

2007 Y L R 1378

[Lahore]

Before Muhammad Jehangir Arshad, J

SHAHZAD WASEEM and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3874-B of 2006, decided on 19th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, grant of---Cheque in dispute was never issued by any of the accused persons, but was issued by the brother of co-accused---Ad interim pre-arrest bail earlier granted to accused was confirmed in circumstances.

Ch. Shehzad Aslam for Petitioners.

Syed Kashif Abbas Gillani for the Complainant.

Sh. Imtiaz Ahmad for the State and Rehmat Ali, A.S.-I. with Record.

YLR 2007 LAHORE HIGH COURT LAHORE 1379 #

2007 Y L R 1379

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD MANSHA---Petitioner

Versus

MUHAMMAD MANSHA-Respondent

Civil Revision No.933 of 2005, heard on 21st December, 2006.

Specific Relief Act (I of 1877)---

----S. 10---Contract Act (IX of 1872), S.65---Suit for possession---Plaint averred that defendant had received Rs.15, 000 in cash plus clothes and gold ornaments on the pretext of getting the plaintiff married but marriage could not take place---Plaintiff, earlier got a criminal case registered against defendant under sections 420 and 406, P.P.C. whereafter defendant allegedly agreed vide agreement to satisfy claim of plaintiff but failed to do so---Suit was decreed and decree affirmed in appeal---Validity---Concurrent finding of facts that cash, clothes and gold ornaments changed hands and were never returned to plaintiff, remained undisputed---Execution of agreement in question had been proved---Contention that agreement was void, being against public policy was not enforceable, had no force because by virtue of section 65 of Contract Act, 1872 all benefits obtained under a void agreement were liable to be returned.

Muhammad Yousaf Khan for Petitioner.

Muhammad Akmal Saleemi for Respondent.

Date of hearing: 21st December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1380 #

2007 Y L R 1380

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mirza MUHAMMAD RAMZAN---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.1177-B of 2007, decided on 2nd March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.406-Pre-arrest-bail, confirmation of--Record had shown that accused had not tampered with any document, but had put his signature on the receipt for the verification of a person who had sold vehicle---From the bare perusal of the F.I.R., it appeared that dispute was of civil nature between the parties for the purchase and sale of vehicle, which had been converted into criminal offence---No evidence was available on record that accused had committed any breach of trust with the complainant---Sending of accused to jail would not advance prosecution case any more as nothing was to be recovered from him, who admittedly was not beneficiary of alleged fraud committed with the complainant---Even otherwise delay of about 3-months in the registration of F.I.R., was very significant and possibility of false implication of accused, could not be ruled out---Pre-arrest bail, already granted to accused was confirmed, in circumstances.

Dr. Ehsan-ul-Haq for Petitioner.

Naeem Tariq Sanghera, Deputy Prosecutor General for the State.

Muhammad Ikram, A.S.-I. with Record.

YLR 2007 LAHORE HIGH COURT LAHORE 1382 #

2007 Y L R 1382

[Lahore]

Before Jawwad S. Khawaja, J

BAHADAR KHAN through Legal Heirs and others---Petitioners

Versus

ABDUL GHANI through Legal Heirs and others---Respondents

Civil Revision No.395 of 2006, heard on 18th January, 2007.

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

----S.42---West Pakistan Land Revenue Act (XVII of 1967), S.42---Contract Act (IX of 1872), S.19---Suit for declaration---Mutation of sale sanctioned in year 1948 in favour of defendant's predecessor by plaintiff's predecessor was alleged to be fraudulent and was not implemented in revenue record---Revenue record since 1948 showed name of defendant's predecessor as mortgagee and not as owner---Defendant produced suit-mutation in evidence, but did not produce any witness relating to transaction of suit-mutation---Trial Court and Appellate Court decreed suit---Validity---Original Jamabandi for year 1947-48 summoned by High Court showed in its Column No.13 entry of suit-mutation in red ink appearing to be fresh and much brighter than entries of other mutations---Handwriting in respect of suit-mutation in such Jamabandi was different from handwriting of other mutations---Khasra Girdawaris showed defendant as cultivator in capacity as mortgagee and not as owner of suit-land---Such material circumstances supported concurrent decrees of Courts below---High Court dismissed revision petition in circumstances.

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

----S. 115---Revision---Joint suit by several plaintiffs for declaring them to be owners of suit-land---Decree in plaintiffs' favour was challenged by defendant in appeal and then in revision, wherein one of the plaintiffs was not impleaded as respondent---Effect---Appeal as well as revision petition were not competent---Decree of trial Court declaring all plaintiffs to be owners of suit-land was indivisible---Such decree had attained finality, which could not be bifurcated, even if defendant established a good case on merits---High Court dismissed revision petition.

Mst. Murad Begum and others v. Muhammad Rafiq and others PLD 1974 SC 322 and Mst. Maqbool Begum etc. v. Gullan and others PLD 1982 SC 46 rel.

Ch. Nisar Ahmad Dhillon for Petitioners.

Sheikh Naveed Shahryar for Respondents.

Date of hearing: 18th January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1385 #

2007 Y L R 1385

[Lahore]

Before Sh. Azmat Saeed, J

Mst. FATIMA BIBI and 7 others---Petitioners

Versus

PROVINCE OF THE PUNJAB through Collector, Sargodha

and others---Respondents

Civil Revision No.1437 of 1996, heard on 5th December, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.100---Suit for declaration---Presumption as to documents thirty years old---Shop in question was an evacuee property and was originally allotted to the common ancestors of parties---Said ancestor who died before issuance of the transfer deed was survived by a widow and two sons the predecessors of parties---Widow and predecessor of plaintiffs relinquished/surrendered their rights in favour of predecessor of defendants hence disputed shop was transferred to the last mentioned person vide permanent transfer deed to the exclusion of former---Such surrender which had been duly recorded in the proceedings of Settlement Authorities was challenged by plaintiffs being on basis of fraud---Plaintiff's prayer for declaration of their title in disputed shop was allowed by Trial Court but was dismissed by appellate Court---Validity---Important pieces of evidence in defence were pointed out in application filed before Settlement Authorities by predecessor of plaintiffs consenting transfer of property in favour of contesting defendants, an agreement in this behalf, supporting affidavit and PTD issued in 1961 along with certified copies of said documents---Age of documents and the fact that same pertained to official acts having a presumption of truth attached which plaintiffs were unable to displace---Predecessor of plaintiffs died 13 years after issuance of PTD, but did not make any effort during his life to challenge the transfer in favour of predecessor of defendants---Said material evidence made the Appellate Court to return a finding that plaintiffs had been unable to prove their claim---Such finding of fact based on cogent evidence and sound reasoning did not suffer from any illegality or irregularity in exercise of jurisdiction.

Ch. Muhammad Aslam Sindhu for Petitioners.

Rana Muzaffar Hussain and Malik Zafar Iqbal Awan, Addl. A.-G. for Respondent's.

Date of hearing: 5th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1388 #

2007 Y L R 1388

[Lahore]

Before Syed Asghar Haider, J

MAHMOOD AHMED and another---Petitioners

Versus

PROVINCE OF PUNJAB through Divisional Canal Officer and 2 others---Respondents

Civil Revision No.'1707 of 2006, decided on 14th December, 2006.

Canal and Drainage Act (VIII of 1873)---

---Ss. 20, 20-A & 68---Sanction of nakka previously existing and not a new one--Jurisdiction of Canal Authorities--Application of defendant for sanction of new Nakka was allowed by Canal Authorities---Order granting 'new' Nakka was challenged by plaintiff by filing suit contending that order in question was obtained with connivance of defendant with Canal Authorities hence was illegal---Suit was decreed but decree was set aside in appeal---Validity---Canal Authorities had jurisdiction to examine spot and note contentions of parties before deciding the matter---Civil court could not interfere unless the discretion exercised under Canal and Drainage Act, 1873 a special statute, was fanciful, arbitrary, or result of gross abuse of authority or was mala fide---No jurisdictional error in the ,proceedings of the Authorities, or mala fides or alleged connivance was established on record---Record revealed that construction of a metalled road had necessitated the Nakka in question and that the same was sanctioned after thorough inquiry---Provisions of S.68(4) of the Act were not applicable as no new Nakka was sanctioned---No material illegality or irregularity was pointed out, petition was dismissed in circumstances.

Rai Muhammad Tufail Khan Kharal for Petitioners.

Riaz ul Haq for Respondent No.3.

Muhammad Najam-ul-Hassan Gill, A.A.-G. for Respondents Nos.1 and 2.

YLR 2007 LAHORE HIGH COURT LAHORE 1390 #

2007 Y L R 1390

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD SARWAR---Petitioner

Versus

MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE

and 7 others---Respondents

Writ Petition No.21269 of 1998, heard on 10th September, 2002.

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

----Art. 199---Qanun-e-Shahadat (10 of 1984), Art.89---Constitutional petition---Maintainability--Evacuee Property---Public document---Proof---Question of fact---Suit land was originally owned by a non-muslim who allegedly died in Pakistan in 1947---Subsequently land in dispute had been included in the list of evacuee property---Rehabilitation Department allotted suit land to father . of respondents as Jammu and Kashmir refugee before settlement and consolidation operation in the estate who further sold it to another person---Petitioner contended that allotment in favour of respondents' father was without lawful authority---Petitioner's prayer for correction of record of rights was refused by Deputy Commissioner/Collector---Appeal before Commissioner and Board of Revenue failed---Validity---Petitioner's claim for correction of revenue record was based on an order passed by Additional Custodian, Evacuee Property, in 1962---Application in which order of Additional Custodian was passed did not mention the Khasra number of disputed land the correction of which was sought by petitioner nor said order bore the signatures of Additional Custodian---Such document being not a public document within the meaning of Art.89 of Qanun-e-Shahadat, 1984 had to be proved by producing original record for inspection of court---Whether non-muslim owner of suit land died in Pakistan in 1947 was a question of fact which could be decided after an elaborate inquiry---Issues regarding legality of allotment by Rehabilitation Department, validity of sale made by respondents' father and bona fides of subsequent vandee, would have been determined by a competent court of law---Case therefore was remanded by High Court with direction that matter should be decided under procedure of a civil suit.

Zafarullah Khan v. Custodian of Evacuee Properties PLD 1964 SC 865 distinguished.

Tariq Masud for Petitioner.

Ms. Roshan Ara, Asstt. A.-G. and Muhammad Arif for Respondents.

Date of hearing: 10th September, 2002.

YLR 2007 LAHORE HIGH COURT LAHORE 1392 #

2007 Y L R 1392

[Lahore]

Before Syed Asghar Haider, J

Mistri MEHRAJ DIN---Petitioner

Versus

Sheikh MUHAMMAD AKBAR---Respondent

C.R.No.400 of 1990 and R.S.A. No.185 of 1988, decided on 29th December, 2006.

Civil Procedure Code (V of 1908)---

----S. 114 & O.XLVII, R.7---Review---Grounds---Law provides that powers of review can be exercised upon discovery of new and important matter of evidence which was not in the knowledge of party or could not be produced by it at time when decree was passed or order was made---Review can also be sought on account of some mistake or error on the face of record or for any other sufficient reason---No such compelling reason was pleaded before first appellate court---Only ground for seeking review as made but by petitioners was that lower appellate court held a view contrary to the petitioner's view hence was erroneous---Such point could hardly provide a ground for review---Petitioners therefore, should have knocked at the door of a higher forum in circumstances---Appellate findings revealed that same was based on merits---Incorrect or mistaken exposition of law was no ground for review---Reasons for grant of review, in circumstances, , were conspicuously missing---Petition was dismissed.

Abdul Hakeem and others v. Khalid Wazir 2003 SCMR 1501; Sultan Khan and 3 others v. Sultan Khan 2004 MLD 918; Abdul Ghafoor Khan v. Syed Tasawar Hussain Shah 1989 Law Notes (Lahore) 1343; Millat Tractors Ltd. v. Rahim Bakhsh PLD 1995 Lah. 377; Muhammad Bux v. Muhammad Ali 1984 SCMR 504; Mst. Shamero v. Sardaraz Khan and 8 others PLD 2001 Pesh.54; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; S. A. Rizvi v. Pakistan Atomic Energy Commission and another 1986 SCMR 965; Mst. Majida Begum v. Sh. Zulfiqar Ali and another 198 CLC 309; Mst. Sardar Begum and 2 others v. Ahmad Khan and 4 others 1983 CLC 621; Muhammad Khan v. Government of West Pakistan and others PLD 1971 Baghdad-ul-Jadid 53; Abdul Kairm and 3 others v. Abdul Ghani and another 1988 CLC 409; Chiragh-ud-Din v. Muhammad Ibrahim and others 1995 CLC 1632; Faqir Muhammad Khan v. Mir Akbar Shah PLD 1973 SC 110 and Tikamdas and another v. Adbul Wali and others PLD 1968 SC 241 ref.

Ch. Muhammad Arshad for Petitioner.

Riaz Ahmed Kasuri for Respondent.

Date of hearing: 7th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1395 #

2007 Y L R 1395

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

ATTA MUHAMMAD and 2 others---Petitioners

Versus

HAQ NAWAZ---Respondent

Civil Revision No.560 of 2006, heard on 28th November, 2006.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement---Temporary injunction, grant of---Courts below had concurrently refused to grant temporary injunction to plaintiffs---Tentative assessment of the documents showed that an agreement to sell was executed between the parties---Decision of Panchiat and Fard Mutation, indicated existence of agreement---Even written statement submitted by defendants had shown that plaintiffs were in possession of the land as tenants---All said facts had shown that plaintiffs had a prima facie case, which entitled them to grant of temporary injunction in the form of status quo--Impugned concurrent orders of Courts below were set aside and application of plaintiffs for grant of temporary injunction was accepted to the extent that status quo would be maintained till final decision of the main suit.

1991 CLC 255; 2004 YLR 361 and 1990 CLC 1601 rel.

Malik Javed Akhtar Wains for Petitioners.

Khawaja Noor Mustafa for Respondent.

Date of hearing: 28th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1398 #

2007 Y L R 1398

[Lahore]

Before Hasnat Ahmad Khan, J

ZAKIR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.100-B of 2007, decided on 8th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2) ---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 18---Bail, grant of---Further inquiry--Parties had entered into compromise---Offence allegedly committed by accused though was not compoundable, but filing of affidavit by complainant would mean that she was no more interested to prosecute accused---Little chance of conviction of accused existed---Case against accused having become that of further inquiry, he was admitted to bail, in circumstances.

PLD 2004 SC 477 and PLD 2005 Kar. 255 rel.

Miss Humaira Khand for Petitioner.

Muhammad Sarwar Awan for the Complainant.

Ishaq Masih Naz, D.P.G.

YLR 2007 LAHORE HIGH COURT LAHORE 1399 #

2007 Y L R 1399

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

FIDA HUSSAIN alias PEERO---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4039-B of 2006, decided-on 11th January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4---Bail, grant of---Co-accused having been declared innocent, had brought heavy clouds on prosecution case---Accused was behind the bars for the last four months---Offence against accused did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Tariq Bahir's case PLD 1995 SC 34 rel.

Muhammad Bilal Butt for Petitioner.

Abdul Hameed Khokhar for the State.

Javed, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1401 #

2007 Y L R 1401

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

Khawaja JAMEEL AHMAD---Petitioner

Versus

JUDGE, FAMILY COURT, MULTAN and 2 others---Respondents

Writ Petition No.726 of 2006, heard on 22nd January, 2007.

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

----Ss. 5, Sched. & 17-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance---Interim maintenance, grant of---Default in payment of maintenance by petitioner---Interim maintenance allowance Rs.1000 fixed by Family Court, was upheld by Appellate Court---Applications by petitioner for recalling order fixing amount of dower had been dismissed by Appellate Court---Validity---Held, Family Court was fully justified in closing petitioner's right of defence under S.17-A of West Pakistan Family Courts Act, 1964, when petitioner defaulted in payment of interim maintenance---Applications of petitioner for recalling of orders were dismissed for the reason that Family Court had no jurisdiction to recall or review its "earlier orders---Counsel for petitioner was unable to pinpoint any illegality or irregularity having been committed by the' Court below---No interference, in circumstances was called for in exercise of constitutional petition.

Ch. Sarfraz Ahmad Zia for Petitioner.

Ch. Naveed Akhtar for Respondents Nos.2 and 3.

Date of hearing: 22nd January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1402 #

2007 Y L R 1402

[Lahore]

Before Ali Nawaz Chowhan, J

RIZWAN KASHIF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3525-B of 2006, decided on 14th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324 & 34---Bail, grant of---Further inquiry---Investigating Officer stated that accused though was present at the place of occurrence, but he was not among the aggressors, rather he was trying to bring about compromise inter se the parties; and was trying to part them away from fight and in that connection he had also snatched a gun from one of the assailants---Such role of accused was confirmed by many other eye-witnesses---Ipse dixit of police though was not binding on the court, but what had been stated by Investigating Officer was not ipse dixit as it was based on proper and thorough investigation, about which he had made a full mention in his detailed Zimni---Said opinion of police, in circumstances would be of value for accused at bail stage---Case of further inquiry having been made out against accused, he was admitted to bail.

Aftab Ahmad Bajwa for Petitioner.

Ms.Naurin Fatima for the State.

Tariq Awan, Inspector.

YLR 2007 LAHORE HIGH COURT LAHORE 1404 #

2007 Y L R 1404

[Lahore]

Before Muhammad Khalid Alvi, J

ASIF IMTIAZ---Petitioner

Versus

THE STATE and 4 others---Respondents

Criminal Miscellaneous No.25-T/BWP of 2006, decided on 20th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), S.302---Transfer of case---Applicant had alleged that respondents/accused had settled something with the Presiding Officer of the Court with the help of local M.N.A. who visited court of the Presiding Officer---Validity---No doubt, for the purposes of transfer of a case matter in the shape of evidence was not required to be produced by the party apprehending unfair trial, but, there must be some material in order to substantiate the apprehensions entertained by a party---If M.N.A. wanted to interfere in the trial of a murder case, he would not, in the ordinary course, visit the Presiding Officer in the court premises and that too in his Chambers in the view of public at large---Even if that allegation was true, petitioner was having many persons who could testify the same through their affidavits, but nothing had been placed on record in that context---Application for transfer of case having no merit, was dismissed.

Abdul Rasheed Rashid for Petitioner.

YLR 2007 LAHORE HIGH COURT LAHORE 1405 #

2007 Y L R 1405

[Lahore]

Before Ijaz Ahmad Chaudhry, J

FAKHAR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8087-B of 2005, heard on 25th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 364, 201, 109, 148 & 149---Bail, grant of--Accused though was named in the F.I.R. as one of accused, who had participated in the occurrence of abduction along with others, but he was declared innocent by the police---Report of the police had shown that nothing was on record regarding participation of accused in the commission of murder of deceased---Police opinion showed that accused was only accompanying accused party, but he was not guilty of the murder of deceased---Finding of the police was based on the statements of witnesses of the locality, who had joined investigation before the first and second Investigating Officer---Finding of the police, though was not binding upon the courts, but same could be considered at bail stage---Facts and circumstances of the. case showed that accused had no previous ill-will against complainant party---Challan had been sent up in the court of competent jurisdiction---Police report revealed that accused was only accused of offence under S.201, P.P.C. which was punishable with 7 years' imprisonment---Even otherwise, role under Ss.302 & 364, P.P.C. was attributed to other accused and further detention of the accused in jail, would not serve any useful purpose for prosecution---Accused was admitted to bail, in circumstances.

Ch. Noor Muhammad for Petitioner.

Sohail Tariq for the State.

Ch. Muhammad Ashraf for the Complainant along with Iftikhar Ahmad, S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 1407 #

2007 Y L R 1407

[Lahore]

Before Muhammad Jehangir Arshad, J

ABDUL QAYYUM KHAN---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Local Government and

Rural Development, Lahore and 4 others---Respondents

Writ Petition No.4059 of 2006, heard on 6th February, 2007.

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

----Ss. 42, 112 & 132(g)---Zila Council, Muzaffargarh (Conduct of Meetings By-Laws), 2000, By-Law No.23---Constitution of Pakistan (1973), Art.199---Constitutional petition---Budget meeting of Zila Council, calling of---Cancellation of meeting by Naib Nazim, but its holding at direction of Nazim on earlier specified date---Approval of budget of Zila Council in such meeting, but refusal of Provincial Government to implement same---Budget prepared by Provincial Government on such failure of Zila Council to give budget for financial year---Validity---Naib Nazim had not cancelled meeting at the request of majority of members of Zila Council or with prior approval of Government---Such cancellation of meeting was not legal---Neither Nazim nor any person had a right to summon meeting suo motu or without notice to members of Zila Council or to Government functionary informing that despite cancellation of meeting by Naib Nazim, same would be held and budget would be presented---Budget passed in such meeting would not be a legal document and binding on Government---Unless Zila Council failed to approve or pass budget, Local Government or Provincial Government had no power to pass or approve budget---After cancellation of such budget session, no session for such purpose had been called by Naib Nazim or any competent person---Zila Council could not be said to have failed to approve budget or pass budget within statutory extended period---Provincial Government, thus, could not prepare, approve and authenticate budget for full year---Budget so prepared and approved by Government was neither a lawful document nor had any legal effect---Naib Nazim, instead of cancelling budget session could postpone same and fix fresh date for same, which he had not done arbitrarily---Naib Nazim had acted in clear violation of Punjab Government Ordinance, 2001 and Zila Council, Muzaffargarh (Conduct of Meetings By-Laws), 2000, for which he was liable to be penalized within mechanism provide under S. 132(g) of Punjab Local Government Ordinance, 2001 High Court accepted constitutional petition while directing District and Session Judge to preside over budget session to be held within specified time and restraining Naib Nazim from acting as such till decision of his case by Punjab Local Government Commission in terms of S.132(g) of Ordinance, 2001---Principles.

Zahoor Elahi's case PLD 1975 SC 383 rel.

(b) Administration of justice---

----When law requires a thing to be done in a particular manner, then same must be done in such manner and anything done or act committed in violation of legal requirement would be nothing, but an exercise in futility having no legal effect.

Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Ltd. PLD 1965 (W.P.) Lah. 82; Mst. Sardar Begum v. Lahore Improvement Trust Lahore and 3 others PLD 1972 Lah. 458 and Muhammad Yaqoob v. The State PLD 1978 Kar. 723 rel.

----Preamble---Local Government System in Pakistan---Object and history of its development stated.

Zulfiqar Ali Babu v. Government of the Punjab PLD 1997 SC 11 and PLD 1997 SC 11 ref.

Mian Abbas Ahmad for Petitioner.

M. Ramzan Khalid Malik, Addl. A.-G. and Muhammad Arif for Respondents.

Date of hearing: 6tht February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1418 #

2007 Y L R 1418

[Lahore]

Before Mian Hamid Farooq and Iqbal Hameed-ur-Rahman, JJ

NAEEM ULLAH KHALID and another-Petitioners

Versus

Dr. Hafiz MUSHTAQ AHMAD and 3 others---Respondents

Writ Petition No.6023 of 2006, decided on 18th December, 2006.

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

----S. 152(2)---Punjab Local Government Elections Rules, 2005, R.65---Constitution of Pakistan (1973), Art.199---Chief Election Commissioner, powers of---Scope---Powers conferred upon Chief Election Commissioner by provisions of S.152(2) of Punjab Local Government Ordinance, 2001 were independent of any other remedy or law---Pendency of election petition or constitutional petition would not debar Chief Election Commissioner from exercising his such powers, unless valid injunctive order was in field and operative---Principles.

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

----O. XLI, R.5---Stay by Appellate Court---Scope---Mere filing of appeal against a decree or order would not operate as stay of proceedings, unless Appellate Court specifically stays proceedings or grants injunction.

-----S. 152(1) (e) ---Higher Education Commission Ordinance (LIII of 2002), S.10(o)---Election of Nazim and Naib Nazim-Academic qualification of candidate for election of Naib Nazim---Sanad known as Shahadat-ul-Sanvia issued to such candidate by institution not recognized by University Grant Commission/Higher Education Commission without having passed additional subjects of English, Urdu and Pakistan Studies and without obtaining equivalence Certificate from Inter-Board Committee of Chairman---Validity---Such candidate was disqualified to contest election and was not entitled to hold such elective office---Principles.

Sanaullah Khan and others v. District Returning Officer, Mianwali and others PLD 2005 SC 858; Abdul Khaliq and another v. Maulvi Muhammad Noor and others PLD 2005 SC 962 and Muhammad Younis Iqbal and another v. District Returning Officer, Gujranwala and 9 others PLD 2005 Lah. 695 fol.

Muhammad Irfan Wyne for Petitioners.

Ch. Shakir Ali for Respondents Nos.1 and 2.

Ch. Saghir Ahmad, Standing Counsel for Respondents Nos.3 and 4.

YLR 2007 LAHORE HIGH COURT LAHORE 1423 #

2007 Y L R 1423

[Lahore]

Before Ijaz Ahmad Chaudhry and M. A. Shahid Siddiqui, JJ

MUHAMMAD KHALID---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.72-J, 544 and Murder Reference No.167, Criminal Revision No.475 of 2002, heard on 24th January, 2007.

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

---S. 302(b)/34---Appreciation of evidence---Related witness, credibility of---Principle---Close relationship of eye-witnesses inter se and with the deceased alone is not sufficient to discard their statements and to declare them as interested witnesses, unless they are proved to be inimical towards the-accused.

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

----S. 302(b)/34---Site plan---Evidentiary value---Site-plan cannot be used as a substantive piece of evidence.

---S. 302(b)/34---Appreciation of evidence---Eye-witnesses were natural and independent witnesses, who had remained consistent on material points regarding the time, place and manner of the occurrence--Bona fides of eye-witnesses were clear, as they had attributed all the injuries suffered by the deceased only to the accused---Even otherwise, accused had admitted his presence at the spot and causing of fire-arm injuries to the deceased, but in a 'different manner---Medical evidence and circumstances of the case had fully supported the ocular. testimony---Motive .was proved---No crime empty having been recovered from the place of occurrence, recovery of weapon from accused was legally of no consequence---Ocular account was further corroborated by the abscondence of accused after the occurrence for a period of six months---Accused was obliged under Art.121 of the Qanun-e-Shahadat, 1984, to prove his plea of self-defence, but he had failed to discharge such burden---No injury, whatsoever, had been received by the accused during the occurrence---Defence plea was discarded, which had itself also provided corroboration to the ocular evidence---Accused had not only brought the fire-arm with him, but had also made firing at the deceased resulting in his death and thus he did not deserve any leniency in the quantum of sentence---Conviction and sentence of death of accused were upheld in circumstances.

Haroon Rasheed and 6 others v. State 2005 SCMR 1568 and Sultan Khan v. Sher Khan PLD 1991 SC 520 ref.

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

--S. 302(b)/34---Appreciation of evidence---Motive, absence of---Principle---Non-existence of motive or non-proving of the same is . not sufficient to affect the prosecution case, if the eye-witnesses are proved to be reliable regarding the involvement of the accused.

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

----S. 302(b)/34---Criminal Procedure Code (V of 1898), S.342---Appreciation of evidence---Defence plea---Exculpatory part of the statement of accused in his statement under section 342, Cr. P. C. can be taken out of consideration, if his defence plea is disbelieved and other evidence is available on record to connect him with the commission of the crime.

Sultan Khan v. Sher Khan PLD 1991 SC 520 ref.

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

----S. 302(b)/34---Appreciation of evidence---Benefit of doubt---Involvement of accused in the crime was not supported by any evidence including the ocular testimony and circumstances of the case---No injury either to the deceased or to any prosecution witness was attributed to the accused---No crime empty was recovered from the spot which could show that large number of fires had been made by the assailants---Accused had no motive to chase the deceased and to commit his murder, which was assigned to the principal co-accused alone, who had admitted his participation in the occurrence with the exclusion of accused---Prosecution had failed to justify participation of accused in the occurrence and sharing common intention with the co-accused for committing murder of deceased---Accused being closely related to principal co-accused, their false implication by the complainant by widening the net could not be ruled out---Accused were acquitted on. benefit of doubt in circumstances.

Salman Safdar (in Criminal Appeal No.72-J of 2002) for Appellant.

Syed Zahid Hussain Bokhari (in Criminal Appeal No.544 of 2002) for Appellant.

Shaukat Rafique Bajwa (in Criminal Revision No.475, of 2002) for Petitioner.

Shaukat Rafique Bajwa (in Criminal Appeal Nos.72-J and 544 of 2002) for the Complainant.

Ch. Muhammad Hussain Chhachar, Addl. Prosecutor General on behalf of the State.

Date of hearing: 24th January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1433 #

2007 Y L R 1433

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ASHFAQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.223 and Murder Reference No.334 of 2002, heard on 14th February, 2007.

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

----Ss. 302(b) & 302(c)---Appreciation of evidence---Sentence, reduction in---Accused and the deceased were neighbours and no ill-will or enmity existed between them---Altercation allegedly having taken place between the accused and the deceased four days prior to the occurrence, was not proved by any independent evidence---Complainant feeling aggrieved over the injury caused to his son had given an exaggerated version of the incident implicating all the three brothers in the' case---Defence plea of accused that he had given a first blow to the deceased 'who fell on the ground and received the head injury by striking against a "Thara ", was totally belied by medical evidence---Evidence on record showed that the deceased and the accused flared up over an issue of standing of the deceased outside his house while ladies were to pass and in the heat of passion accused who was 18 years of age picked up a brick and gave a blow on the head of the deceased, which proved fatal--Act of accused, thus, fell under Exception 4 to S.300, P.P.C. (old)---Provisions of old law could be looked into for just decision of the case---Conviction of accused under S.302(b), P.P.C. was consequently altered to S.302(c), P.P.C. and his sentence of death was reduced to 14 years' R.I. in circumstances.

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

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

----Ss. 302---Crime and punishment--Administration of justice---Old law to be looked into---Provisions of old law can be looked into for the just decision of the case.

Ali Muhammad v. Ali Muhammad and another PLD 1-996 SC 274 ref.

Ch. Asghar Ali for Appellant.

Munir Ahmad Bhatti for the Complainant.

Muhammad Hussain Chachar Additional Prosecutor General for the State.

Date of hearing: 14th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1440 #

2007 Y L R 1440

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

MANSIB ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.396-J of 2001, Murder Reference No.769 of 2001, heard on 23rd January, 2007.

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

----S. 302 (b) ---Appreciation of evidence---Benefit of doubt---Complainant had been making divergent statements---Case was registered after more than six hours of the occurrence---F.I.R. Was not lodged at police station---Such F.I.R. had an inherent doubt regarding the case having been registered after due deliberations and consultations---Medical evidence had not supported the prosecution version---Eyewitnesses were not found to have seen the occurrence---Motive was not proved through any independent witness---Gun had been recovered at the instance of accused after five years of the incident which was hidden in an open place and the same was never sent to any expert for determination whether it was in working order or not---No independent witness was associated with recovery proceedings---Such recovery was not worthy of any credence---Abscondence of accused was not proved according to judicial standard---Even otherwise, evidence of abscondence being not a substantive piece of evidence, conviction could not be based on such evidence alone---Accused was extended benefit of doubt and acquitted in circumstances.

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

----S.302(b)---Criminal Procedure Code (V of 1898), S.154---F.I.R. not lodged at police station---Value---F.I.R. not lodged at police station, but statement of complainant recorded by police officer outside police station---Such F.I.R. is surrounded by inherent doubt that in fact the case was registered after due deliberations and consultations.

----S. 302(b)--- Abscondence--- Evidentiary value---Evidence of abscondence being not a substantive piece of evidence, conviction cannot be based on such evidence alone.

Shah Ahmad Khan Baloch for Appellant.

Inayat Ullah Khan, Additional Prosecutor General for the State.

Date of hearing: 23rd January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1445 #

2007 Y L R 1445

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

ALLAH DITTA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.468 of 2002 and Murder Reference No.239 of 2002, heard on 24th January, 2007.

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

----Ss.302(b) & 449---Appreciation of evidence---Benefit of doubt---Star witness of the case mentioned in the F.I.R. was not produced during trial---Eye-witnesses including the complainant had made dishonest improvements in their statements before the trial Court in order to show their presence on the roof of a house from where they were able to see the occurrence taking place in the odd hours of the night---Presence of prosecution witnesses on the roof of the said house on the eventful night was not explained---No crime empty was recovered either from the compound or outside of the house of the deceased---Complainant had implicated twelve persons in the F.I.R. naming ten of them therein, two accused out of whom were exonerated by him subsequently---Quality of evidence of the complainant could be judged from his said conduct---Eye-witnesses were not worthy of any credence---Role assigned to the accused was similar to the role assigned to two co-accused, who had already been acquitted by trial Court---Medical evidence could only tell about the cause of death and did not lead to the assailants---Motive though set up in the F.I.R. was not proved by the best available evidence, which even otherwise was three years old and nothing happened in between---Recovery of fire-arm from accused was of no legal consequence in the absence of recovery of crime empties from the spot---Delay of 3-1/2 hours in lodging the F.I.R. was due to deliberation and consultation---Accused were acquitted on benefit of doubt in circumstances.

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

---S.302(b)---Murder---Medical evidence---Evidentiary value---Medical evidence tells only about the cause of death and does not lead to assailants.

Nayyar Iqbal Ghouri for Appellants.

Inayat Ullah Khan, Additional Prosecutor-General for the State.

Date of hearing: 24th January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1454 #

2007 Y L R 1454

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM HASSAN through Representatives---Appellants

Versus

Mst. KANIZ BEGUM and others---Respondents

R.S.A. 17 of 1989, heard on 28th February, 2006.

(a) Islamic Law---

----Gift---Registered deed---Burden of proof---Primarily, party pleading in his favour a valid gift would have to prove execution and registration of gift-deed.

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

----Ss.39 & 42---Court Fees Act (VII of 1970), Ss. 7(iv) (c) & 13---Suit for declaration---Registered gift deed claimed by plaintiff not binding on him---Liability of plaintiff to pay court fee on such claim---Scope---Plaintiff was not party to such deed regarding which declaration was sought---Plaintiff was not at all required to seek cancellation of such deed neither he sought same---Plaintiff's case was covered by S. 7(iv) (c) of Court Fees Act, 1870---Court fee paid by plaintiff was directed to be refunded to him.

Mian Habib-ur-Rehman Ansari for Appellants.

Malik Javed Akhtar Wains for Respondent No.1.

Date of hearing: 28th February, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1462 #

2007 Y L R 1462

[Lahore]

Before Hasnat Ahmad Khan, J

ALLAH RAKHA---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.669 and 753 of. 2002, heard on 9th February, 2007.

Penal Code (XLV of 1860)---

----S.302(c)---Appreciation of evidence---Sentences, reduction in---Injured prosecution witness had supported the prosecution case---Occurrence had been reported to police with 50 minutes---Medical evidence had supported the role of causing fire-arm injuries attributed to accused---Occurrence had taken place in daylight---Substitution of the main culprits with innocent persons was not possible---Although accused at the time of occurrence had acted in defence of their property and in self-defence, yet they had exceeded their right of self-defence---Accused had received only blunt weapon injuries, but in exercise of their right of self-defence they had resorted to reckless firing, whereby deceased had sustained 17 injuries and the complainant had received 12 injuries---No doubt, once the right of self-defence had accrued to the accused the same could not be weighed in golden scales, yet the use of fire arms and number of injuries caused by accused to the complainant party showed that the accused had clearly over-reacted and had gone beyond their right of self defence and consequently did not deserve acquittal---Co-accused had been acquitted not on benefit of doubt, but on their plea of self-defence---Acquitted co-accused, according to prosecution, had also caused blunt as well as fire-arm injuries to the deceased and to the injured prosecution witness---All the injuries suffered by the deceased and the witness could not be attributed to the accused and they deserved reduction in their sentence---Conviction of accused under S.302(c), P.P.C. was consequently maintained---Sentence of imprisonment for life of accused who had caused fatal fire-arm injuries to the deceased was reduced to 12 years' R..I. and sentence of other accused was reduced from 14 years' R.I. to one already undergone by him which was about 7-1/2 years, in circumstances.

Altaf Ibrahim Qureshi for Appellant.

Rao Atif Nawaz for the State.

Date of hearing: 9th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1471 #

2007 Y L R 1471

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

BAHADAR---Appellant

Versus

THE SATE---Respondent

Criminal Appeal No.15-J of 2003 and Murder Reference No.53 of 2002, heard on 16th January, 2007.

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

----S. 302 (b) ---Appreciation of evidence---F.I.R. contained the details of occurrence including description of the assailants, weapons used by them and the injuries sustained by the deceased---Complainant party after narrating the true facts to police apparently changed its mind and implicated the accused in the case---Eye-witness produced in the case lived at a distance of one kilometer from the house of occurrence and he could not possibly reach the spot while the accused were present there, as the occurrence had lasted only for 4/5 minutes---Statement of the said eye-witness was recorded on the next day of occurrence---Supplementary statement of the complainant could not be equated with the F.I.R. and the same was recorded either to fill the lacunas in the prosecution case or to add the number of accused---Unexplained inordinate delay of more than twelve hours in reporting the matter to police itself denoted that the assailants were not know to witness---Weapon of offence had also been changed from dagger to hatchet in view of the nature of injuries mentioned in medical evidence---Motive was not proved by any independent evidence which appeared to be an afterthought---Hatchet recovered at the instance of accused was not stained with blood, even otherwise the accused could not keep the same with him intact for about a month---Defence plea of accused of having been roped in the case due to existing grudge between him and the aforesaid eye-witness over demand of wages seemed to be plausible and worthy of credence-Prosecution case was not free from doubt---Accused was acquitted accordingly.

Khalid Javed and another v. The State 2003 SCMR 1419 rel.

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

----Ss.154 & 156---Penal Code (XLV of 1860), S.302(b)---Supplementary statement---Evidentiary value---Supplementary statement of the complainant recorded by Investigating Officer after registration of the case cannot be equated with F.I.R., but can be read as a part of the F.I.R.---Supplementary statement is recorded either in order to fill the lacunas in the prosecution case or to add the number of accused.

Khalid Javed and another v. The State 2003 SCMR 1419 rel.

Salman Safdar for Appellant.

Mirza Abdullah Baig for the State (on Court's call).

Date of hearing: 16th January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1479 #

2007 Y L R 1479

[Lahore]

Before Syed Asghar Haider, J

MAQBOOL HUSSAIN---Petitioner

Versus

ANJUMAN MASJID AL-BADR AHL-E-HADITH and 3

others---Respondents

Civil Revision No.1608 of 2006, heard on 30th October, 2006.

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

---S.9---Civil Procedure Code (I of 1908), O.XXVI, Rr.9 & 10---Suit for possession---Appointment of Local Commission to inspect the spot---Report of Local Commissioner---Filling of objections---Dismissal of appeal without deciding objection---Held, impugned judgment having not reflected the disposal of said objection same was violative of law.

Messrs M.A. Chaudhry and 3 others v. National Bank of Pakistan, Faisalabad through General Attorney 2005 CLD 875; Shabbir Ahmad Malik v. Small Business Finance Corporation, Okara, through Manager 2005 CLD 1741 and Multan Edible Oil Extraction Limited v. National Bank of Pakistan and 2 others 2005 CLD 688 ref.

Muzamil Akhtar Shabir for Petitioner.

Riaz-ul-Haq for Respondent.

Date of hearing: 30th October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1481 #

2007 Y L R 1481

[Lahore]

Before Hasnat Ahmad Khan, J

MEHBOOB HUSSAIN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.19-B of 2007, decided on 20th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of---Accused were specifically named in F.I.R. which had revealed a story of shocking crime---Both accused had caused fatal sickle blows to deceased---In the presence of the statement of injured prosecution witness, no undue importance could be given to the opinion of the police, which even otherwise was not binding upon the Courts moreso when same was not found to be based upon sound material---Plea of counter version could not be considered at the bail stage as decision on such plea was likely to cause prejudice the case of either of the parties specially when the trial was nearing to its completion---Delay in the trial could not be made a ground for bail as provisions guaranteeing the right of bail on the expiry of statutory period, were no more part of S.497, Cr. P. C. ---Delay had occurred due to the fact that accused remained fugitive from law for a period of more than two years, which had necessitated the holding of de novo trial---Absconder would lose some of his normal rights---Application of accused for grant of bail, was dismissed, in circumstances, with direction to conclude the trial expeditiously.

Allah Ditta v. The State 1990 SCMR 307 and Awal Gul v. Zawar PLD 1985 SC 402 rel.

Muhammad Jehangir Khan for Petitioners.

Malik Umair Saleem for the Complainant.

Zahoor Ahmad Chughtai for the State with Abdul Ghaffar, A.S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 1485 #

2007 Y L R 1485

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. SALLAH KHATOON and others---Petitioners

Versus

SULTAN and others---Respondents

C.R. No.1709 of 2004, decided on 15th February, 2007.

Canal and Drainage Act (VIII of 1873)---

----S. 68---Change of water outlet---Change effected on the application of defendants was challenged by plaintiffs through a declaratory suit contending that Superintending Canal Officer had not given lawful reasons in declining to invoke his appellate jurisdiction though it was proved that change of moga from old outlet to new outlet was detrimental to irrigational interest of land owners---Trial Court decreed the suit and decree was affirmed in appeal---Validity---Superintending Canal Officer and Sub-Divisional Officer appearing as witnesses, could not deny that old outlet was in working condition whereas new outlet was not only out of order but was also located at a distance of 100 feet Burji away from the outlet sought to be changed---Witnesses admitted that 420 acres of land was being irrigated through old outlet since 1952 and that on account of change introduced, rectangle (No.5) would go out of command---Command report clearly depicted that in the earlier arrangements entire Chakbandi was commandable whereas by new change a part of the land of Chakbandi would go barren, being located on a higher place---Field map from the record of Ziladar of Canal Department also confirmed said situation---Divisional Canal Officer's order fixing new outlet was apparently passed on basis of statements of co-sharers but plaintiffs, who were also co-sharers in the Chakbandi, were not signatories of same along with certain other land owners and had not consented to the change of outlet prayed by defendants---Record and judgments revealed that shifting of old outlet was absolutely unjustified and was not beneficial to any of the co-sharers of Chakbandi thus same was correctly struck down by courts below---No illegality /irregularity in terms of section 115, C P. C. was made out in circumstances.

Nadeem-ud-Din Malik for Petitioners.

Mian Hamayoon Aslam for Respondents Nos.1 to 14.

Zafar Iqbal, Ziladar, Khushab for Respondents Nos.15 to 18.

YLR 2007 LAHORE HIGH COURT LAHORE 1490 #

2007 Y L R 1490

[Lahore]

Before Muhammad Akhtar Shabbir and Maulvi Anwarul Haq, JJ

MUHAMMAD ARSHAD QAYYUM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.22 of 2006, heard on 23rd January, 2007.

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

----S.9(c)---Appreciation of evidence---Chemical Examiner's report regarding sample of the recovered heroin was in positive---Recovery evidence supported by the said positive report inspired confidence---Accused had not challenged the nature of the recovered substance other than the separated sample---Arrest of accused was not denied---Customs officials had made consistent statements on material points against the accused who was not known to them earlier---Accused had not urged any animosity against the Customs Officials, who were competent prosecution witnesses---Minor discrepancy with regard to the date pointed out by the accused was not sufficient to discard the prosecution evidence and the concerned document itself---Accused did not appear as his own witness as required under S.340(2), Cr.P.C. to contradict the prosecution version---No mitigating circumstances was available for reduction in sentence of accused---Conviction and sentence of accused were maintained accordingly.

Ali Muhammad v. State 2002 SCMR 54 and Feroze Shah v. State 2002 PCr.LJ 1470 ref.

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

-----S. 9(c)---Evidence---Police witnesses, credibility of---Principle---Police witnesses are competent witnesses in the eye of law and unless they are demonstrated to have any motive or reason to falsely implicate the accused, their testimony cannot be discarded only because they happened to be employees of police/Customs Department.

Feroze Shah v. State 2002 PCr.LJ 1470 ref.

Dr. Babar Awan for Appellant.

M. Tariq Ch., APG Punjab for the State.

Date of hearing: 23rd January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1496 #

2007 Y L R 1496

[Lahore]

Before Khawaja Muhammad Sharif, J

NIZAM DIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1023 and Criminal Revision No.585 of 2004, heard on 7th February, 2007.

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

--S. 302(b)/34---Appreciation of evidence---During investigation accused was found to be innocent and placed in Column No.2 of the challan---Accused had been appearing in a civil case against the complainant party and was also suspected to have got a criminal case registered against a prosecution witness---Complainant party always involved innocent persons along with main accused so that nobody should be left behind to pursue the prosecution case---Three sons of the accused had also been involved in the case who had been acquitted by Trial Court and appeal against their acquittal had also been dismissed---Possibility of false implication of accused in the case could not be ruled out---Accused was given benefit of doubt and acquitted in circumstances.

(b) Penal Code (XLV of 1860)-

---S. 302(b)/34--Appreciation of evidence---Accused had caused an injury with his "Dang". on the person of the deceased---Blood-stained "Dang" had been recovered from the accused---Eye-witnesses had fully implicated the accused in the crime---Ocular testimony was completely corroborated by medical evidence---No reason had appeared for false implication of accused in the case---Conviction and sentence of accused were maintained in circumstances.

Syed Zahid Hussain Bokhari for Appellants.

Zafar Iqbal Chohan for the Complainant.

Naseer-ud-Khan Nayyar, APG for the State.

Date of hearing: 7th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1503 #

2007 Y L R 1503

[Lahore]

Before M. Bilal Khan, J

ARSHAD ALI---Petitioner

Versus

LIAQUAT DHUDHI and 5 others---Respondents

Criminal Revision No.856 of 2006, heard on 31st January, 2007.

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

----Ss.200, 345(2), 248 & 403---Penal Code (XLV of 1860), Ss. 302/324/392/148/149---Constitution of Pakistan (1973), Art.13---Second private complaint, maintainability of----Previous private complaint filed by the complainant had been dismissed as withdrawn by Sessions Court on the basis of compromise allegedly arrived at between the parties---Second private complaint pertaining to the same incident filed by the complainant had been dismissed by the Sessions Court vide the impugned order on the ground that the same could- not be legally entertained---Validity---Composition in offences under Ss.302 and 324, P.P.C. as provided in S.345(2), Cr.P.C. was to be brought about before the Court where prosecution for such offences was pending---Case, before the Sessions Court being only at the inquiry stage, no prosecution was pending before the Court and, therefore, no compromise as contemplated under S.345(2), Cr.P.C. could be effected so as to entitle the accused to acquittal from the charge---Even otherwise, composition of the offence required the cooperation and participation of both the parties, whereas withdrawal was a unilateral act of the complainant---Mere declaration of the complainant that he had compromised with the accused would not be sufficient---Trial Court had to satisfy itself about the genuineness of the compromise and the capacity of the legal heirs or those entitled to compound the offence to enter into such a compromise---Trial Court would also look into the contention raised by any of the parties that compromise had been extracted from it by coercion, misrepresentation or under duress---Section 248, Cr.P.C. was applicable only in cases where the trial had commenced---Admittedly trial had not commenced in the case, even the accused persons had not been summoned to face trial---Thus, neither a valid compromise had taken place, or S. 248 Cr.P.C. was attracted---Accused respondents, therefore, could not claim acquittal of the charge against them, so as to attract the bar contained in S.403, Cr.P.C. and Art.13 of the Constitution---Impugned order was consequently set aside---Private complaint filed by the complainant would be deemed to be pending and decided by the Sessions Court strictly in accordance with law---Revision petition was allowed accordingly.

Azmat Bibi and another v. Asifa Riaz and 3 others PLD 2002 SC 687 ref.

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

----S. 248-Withdrawal of complaint---Scope and application of S. 248, Cr.P.C.---S.248, Cr.P.C. is applicable only in those cases where the trial has commenced.

Azmat Bibi and another v. Asifa Riaz and 3 others PLD 2002 SC 687 ref.

Muhammad Waseem for Petitioner.

Mian Parvez Hussain Vice Rai Asif Mehmood Kharal for Respondents.

Naseer-ud-Khan Nayyar, Addl. Prosecutor-General assisted by Ch. Nazeer Ahmed for the State.

Date of hearing: 31st January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1538 #

2007 Y L R 1538

[Lahore]

Before Sh. Azmat Saeed, J

MUNIR AHMAD and 2 others---Petitioners

Versus

ARSALAN (minor) and another---Respondents

Civil Revision No.2253 of 2006, decided on 18th December, 2006.

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

----S.13---Suit for pre-emption---Making of Talbs---Trial Court found that Talb-i-Muwathibat had not been proved by plaintiffs because plaintiffs' witnesses had contradicted each other and made inconsistent statements regarding the time of Talb-i-Muwathibat---Appellate Court had reversed finding of Trial Court merely on ground that six years had elapsed between the event and recording of statements in the court---Contradictions in statements, particularly with reference as to whether Talb-i-Muwathibat was exercised in the morning or evening were too glaring to be ignored but Appellate Court had erred in law by brushing aside said inconsistencies/ contradictions which were material in nature---Appellate judgment and decree was therefore set aside and judgment of Trial Court was restored.

Ch. Muhammad Rafique Warriach for Petitioners.

Qaisar Nawaz Khan for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 1540 #

2007 Y L R 1540

[Lahore]

Before Mian Saqib Nisar, J

ABDUL RASHEED---Petitioner

Versus

KHUSHI MUHAMMAD-Respondent

Civil Revision No.1455 of 2006, heard on 16th November, 2006.

Civil Procedure Code (V of 1908)---

----O.VII, R.11 & O.XXIII, R.1---Specific Relief Act (I of 1877), S.8---Suit for possession---Withdrawal of suit with permission to file fresh proceedings---Rejection of plaint---Plaintiff brought a suit for possession against defendant with regard to suit property---Plaintiff, during pendency of suit, made statement that he intended to file ejectment application against defendant and sought permission to withdraw suit to file fresh proceedings---Trial Court dismissed suit with permission to file fresh proceedings---Plaintiff brought second suit for possession, but plaint in said second suit was concurrently rejected by the Trial Court and Appellate Court on the ground that plaintiff in fact having sought permission for filing of ejectment application, he could not file suit for possession---Contention of plaintiff was that notwithstanding the request for filing of ejectment application, the court had permitted plaintiff to bring a fresh suit and that order was to be considered and not the statement of plaintiff---Validity--Plaintiff had rightly contended that it was the order of the court which had to be looked at and not the statement of plaintiff---Both courts below, in circumstances, were not justified in passing impugned orders---Impugned orders of courts below were set aside and matter was remanded to the Trial Court for decision afresh in accordance with law.

Malik Muhammad Imtiaz Mahl for Petitioner.

Akhtar Masud Khan for Respondent.

Date of hearing: 16th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1541 #

2007 Y L R 1541

[Lahore]

Before Sh. Azmat Saeed, J

S.D.O., WAPDA/GEPCO, WAZIRABAD and 3 others---Petitioners

Versus

RANA RICE MILLS through Muhammad Aslam---Respondent

Civil Revision No.1331 of 2006, decided on 8th February, 2007.

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

----Art. 114---Civil Procedure Code (V of 1908), 5.115---Estoppel---Matter pertaining to the claim of petitioner against respondents in the facts and circumstances of the case had been concluded firstly through judgments and decrees of the courts below and then through subsequent order---Petitioner was estopped from raising any further claim---Counsel for petitioner was unable to identify any misreading or non-reading of evidence available on record---Concurrent findings of two courts below were based on proper application of judicial mind and proper evaluation of evidence---If at all any amount was allegedly due from respondent and not raised at the appropriate time, petitioner should proceed against its own employees for dereliction of duty rather than hounding the respondent---Petitioner could not be allowed to take advantage of its incompetence.

Mian Zulfiqar Ali for Petitioners.

Liaqat Ali Butt for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 1542 #

2007 Y L R 1542

[Lahore]

Before Sardar Muhammad Aslam, J

IMTIAZ HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5161-B of 2006, decided on 21st September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Dishonouring of Cheque for Rs.9,10,500 issued by accused in favour of complainant---Effect---Accused was under an obligation to see that his cheque was honoured, and that he had sufficient funds with his Bank, so that such cheque could be honoured---Accused having defrauded complainant with such amount, was not entitled to any favour/concession---Bail petition was dismissed in circumstances.

Muhammad Sharif Butt for Petitioner.

Ch. Abdul Ghani for the State.

Ch. Muhammad Ishtiaq for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 1543 #

2007 Y L R 1543

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD RAMZAN and 3 others---Petitioners

Versus

ABBAS ALI and 6 others---Respondents

Civil Revision No.569 of 2006, decided on 19th January, 2007.

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

----S. 42---Suit for declaration---Sale mutation---Proof---Plaintiffs sought declaration to the effect that sale by their predecessor in favour of defendants through mutation was the result of fraud---Appearance of predecessor before concerned Patwari and Tehsildar for purpose of sanction of mutation in question was not disputed---Contention however was with regard to the agreed consideration which was allegedly not paid---Patwari appeared and deposed that he had confirmed from plaintiff/vendor about the receipt of consideration before sanction of mutation---Witnesses also stated that consideration was passed in their presence---Record showed that a few days after the sanction of mutation in question sister and brother-in-law of predecessor sold their respective land to defendants--Trial Court, on basis of said evidence found that mutation in question was legal, valid and with consideration---Action of predecessor vendor of facilitating the sale of further land to defendants was not the conduct of a person who had been defrauded a few days earlier by said defendants---Conclusion drawn by Trial Court was upheld/affirmed in appeal---Concurrent finding of fact not suffering from any illegality or perversity, could not be interfered with by High Court.

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

----S. 115---Revision---Reappraisal of evidence---Reappraisal of evidence not possible in revisional jurisdiction of High Court.

Ch. Muhammad Abdul Saleem for Petitioners.

Mansoor Ali Bokhari for Respondents Nos. 2 to 5.

YLR 2007 LAHORE HIGH COURT LAHORE 1545 #

2007 Y L R 1545

[Lahore]

Before Mian Muhammad Najum-uz-Zaman, J

MUHAMMAD RAFIQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1263-B of 2007, decided on 6th March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.409---Prevention of Corruption Act (II of 1947), 'S.5(2)---Bail, grant of---Out of disputed amount, some amount had already been deposited by accused in government exchequer---Department had not only reinstated accused, but had also directed that remaining amount along with interest, would be recovered from him in sixty equal instalments---Further incarceration of accused, in circumstances would not serve any purpose---Accused was admitted to bail, in circumstances.

Dr. Ehsan ul Haque Khan for Petitioner.

Ch. Jamshed Hussain, D.P.G. for the State.

Sh. Nasir Mehmood, Inspector/ C.O.

YLR 2007 LAHORE HIGH COURT LAHORE 1547 #

2007 Y L R 1547

[Lahore]

Before Sh. Azmat Saeed and Umar Ata Bandial, JJ

CANTONMENT BOARD, LAHORE CANTT. through Executive Officer

and 2 others---Appellants

Versus

Mst. SULTAN JAHAN---Respondent

I.C.A. No.353 of 2006 in W.P. No.9344 of 2006, decided on 31st January, 2007.

Cantonments Act (II of 1924)---

----S. 60---Punjab Local Government Ordinance (VI of 1979), Ss.137, 138, Second Sched. [as amended by Punjab Local Government (Amendment For Abolition of Certain Taxes) Ordinance (XXIX of 1999)j---Law Reforms Ordinance (X11 of 1972), S.3---Intra-Court appeal---Refund of tax---Appellant had called in question the validity of order of single Bench of High Court, whereby Cantonment Board was directed to refund impugned tax to the respondent---High Court (Single Bench) in its judgment had held that tax in question purported to have been levied under S. 60 , of Cantonments Act, 1924, whereunder a tax which was levied in the municipal area could also be chargeable in the Cantonment area--Tax on transfer of immovable property was initially leviable under Punjab Local Government Ordinance, 1979 under Ss.137 & 138 thereof, which provision was, however deleted from Second Sched. of the Ordinance by an amending Ordinance on 29-6-1999---In the relevant period i.e. the date of sale deed (10-2-2000), said tax was not leviable in the municipal area---Tax, in circumstances could not be charged in the Cantonment area or recovered from the respondent---No exception, in circumstances could be taken to conclusion arrived at by High Court---Intra Court appeal was dismissed in circumstances.

Mst. Nargis Moeen v. Govt. of Pakistan PLD 2003 Lah. 730 rel.

Muhammad Rashid Ahmed for Appellants.

Multi ud Din Qazi for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 1548 #

2007 Y L R 1548

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Haji GHULAM ABBAS and another---Petitioners

Versus

CHIEF ENGINEER, IRRIGATION, DERA GHAZI KHAN ZONE and

6 others---Respondents

Writ Petition No. 2451 of 2004, decided on 1st June, 2006.

Canal and Drainage Act (VIII of 1873)---

----S. 68---Constitution of Pakistan (1973), Art.199---Constitutional petition---Sanction/change of warabandi---Powers of Sub-Divisional Canal Officer---Appeal against the order of SDCO before Divisional Canal Officer---Competency--Under S.68 of Canal and Drainage Act, 1873 only Sub-Divisional Canal Officer was empowered to make the changes in warabandi and could sanction a fresh warabandi---Any person aggrieved against the order of Sub-Divisional Canal Officer could file an appeal before Divisional Canal Officer---Chief Engineer, Irrigation and Superintending Engineer Irrigation did not figure anywhere in the Canal and Drainage Act, 1873 for sanction of warabandi and resolving matters between private persons regarding passage of water as well as supply of water to their land, any order passed by Chief Engineer and Superintending Engineer Irrigation regarding change of warabandi and sanction of water was illegal and unlawful.

Sahibzada Mahboob Ali for Petitioners.

M. R. Khalid Malik, Addl.A.-G.

Sardar M. Akram Khan Pitafi for Respondent No.7.

Muhammad Arshad, S.D.O. on behalf of Respondents Nos.1 to 5.

YLR 2007 LAHORE HIGH COURT LAHORE 1550 #

2007 Y L R 1550

[Lahore]

Before Jawwad S. Khawaja, J

ASHFAQ AHMAD---Petitioner

Versus

JUDGE, FAMILY COURT OKARA and another---Respondents

Writ Petition No.1300 of 2007, decided on 14th February, 2007.

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

----S. 5, Sched. Ss.8 & 14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Suit for recovery of maintenance allowance and dower---Failure of defendant to file written statement---Closing of defendant's right to file written statement on his such failure---Validity---High Court, while exercising constitutional jurisdiction would not interfere in interlocutory orders and to proceedings in a pending trial---If suit was decided against defendant and he wanted to file an appeal, then it would be open to him to assail impugned order in his appeal---Appellate jurisdiction being wider in scope than constitutional jurisdiction provided an adequate remedy to defendant---High Court dismissed constitutional petition in circumstances.

Saleem Anwar Khan for Petitioner.

YLR 2007 LAHORE HIGH COURT LAHORE 1551 #

2007 Y L R 1551

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD SALEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No3514-B of 2006, decided on 14th December, 2006.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of----Prosecution witness who had lastly seen the accused in the company of the deceased had claimed to have gone to other city thereafter---Accused was also involved in the case on the basis of a joint extra judicial confession---Question as to why the said-three witnesses remained silent for two months, would be decided at the time of trial---Nothing incriminating had been recovered from the accused during investigation, nor any solid proof could be collected by the Inspector S.H.O. against him, which was verified by the D.S.P. ---Name of accused was also ordered to be placed in Column No.2 of the challan at one point of time---Claim of prosecution that the accused in connivance with his brother co-accused had committed the murder of the deceased to obtain the benefits of his insurance policy, would be thrashed at the trial---Benefit of doubt could be given to the accused even at bail stage---Prosecution case was based against accused only on circumstantial evidence which required further inquiry and he was entitled to bail as a matter of right---Commencement of trial could not debar the accused from getting post-arrest bail when his case had become one of further inquiry---Accused was admitted to bail accordingly.

Abdus Saleem v. The State 1998 SCMR 1578; Muhammad Ashiq v. Asif Zia alias Bhola 2005 MLD 435; Habib Ullah and others v. The State 2004 PCr.LJ 528; 2002 PCr.LJ 602; 2000 PCr.LJ 1828; PLD 1989 SC 585; PLD 1989 Lah. 233 and 1987 MLD 1608 ref.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail---Benefit of doubt---Principle---Benefit of doubt can be given to accused even at bail stage.

----S. 497(2)--- Bail---Case of further inquiry---Principle---When case of accused is shown to be one of further inquiry, he becomes entitled to bail as a matter of right.

Abdus Saleem v. The State 1998 SCMR 1578; Muhammad Ashiq v. Asif Zia alias Bhola 2005 MLD 435; Habib Ullah and others v. The State 2004 PCr.LJ 528; 2002 PCr.LJ 602 and 2000 PCr.LJ 1828 ref.

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

---S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail---Case of further inquiry---Commencement of trial no bar to grant of bail---When case of an accused becomes that of further inquiry, start of trial cannot debar him from getting post-arrest bail.

PLD 1989 SC 585; PLD 1989 Lah.233 and 1987 MLD 1608 ref.

Ch. Shakir Ali for Petitioner. Qaisar Butt for the Complainant.

Mumtaz Hassan for the State with Muhammad Nawaz, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1554 #

2007 Y L R 1554

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and Sh. Javaid Sarfraz, JJ

Y.K. LEE---Petitioner

Versus

DIG SARGODHA and 4 others---Respondents

Writ Petition No.704 of 2007, decided on 12th February, 2007.

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

----Ss.19(3) & 7---Criminal procedure code (V of 1898), S.190(c)---Penal Code (XLV of 1860), Ss.324/440/148/149---Constitution of Pakistan (1973), Art.199---Constitutional petition---Special Judge Anti-Terrorism Court on knowing about the case against the accused through a newspaper, while exercising his jurisdiction under S.19(3) of the Anti-Terrorism Act, 1997 read with S.190(c), Cr.P.C., summoned the record of the case and after going through the file directed the S.H.O. to apply section 7 of the Anti-Terrorism Act, 1997, in the F.I.R. forthwith and then to proceed for further investigation strictly on merits---Validity---Special Judge under S.19(3) of Anti-Terrorism Act, 1997 was competent to take cognizance in a matter falling within the ambit of the said Act directly, but the said provision was absolutely silent qua the authority of Trial Court to direct the Agency to conduct the investigation on particular lines---Courts were created or established for doing justice between the parties and not for the purpose of giving guidelines to the Agency to collect the data for proving certain charges against the accused person---Impugned order to the extent of directing the Investigating Officer to apply S.7 of the aforesaid Act forthwith and then to proceed for further investigation strictly on merits, was against the spirit of criminal jurisprudence and to such extent was neither justifiable nor sustainable---Case was consequently remanded to the Special Judge for fresh adjudication upon the matter with the observation that if the Court was satisfied about the attraction of the provisions of S.7 of the said Act, it after taking cognizance of the matter would proceed further as required under the law---Accused in that eventuality would be at liberty to move an application under S.23 of the said Act for transfer of the case, which would be decided on merits at the earliest by the Court---Constitutional petition was allowed accordingly.

Muhammad Nawaz Khan v. Noor Muhammad and others PLD 1967 Lah. 176 and Muhammad Haneef and another v. The State 1979 PCr.LJ 1078 ref.

(b) Words and-phrases----

Cognizance,- Connotation-Magistrate or a Court in the context of criminal. proceedings can be deemed to take cognizance of a case when it applies its judicial mind consciously to the facts placed before it and then decides to proceed with the matter in accordance with Criminal Procedure Code, 1898 with the ultimate object .of determining the guilt of the offender.

Muhammad Haneef and another v. The State 1979 PCr.LJ 1078 ref.

Nadeem ud Din Malik and Fauzi Zafar for Petitioner.

Malik Saeed Hassan for Respondent.

Dr. Badar-uz-Zaman Chattha for Respondent No.5.

Ms. Salma Malik A.A.-G.

YLR 2007 LAHORE HIGH COURT LAHORE 1557 #

2007 Y L R 1557

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD TARIQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3823-B of 2006, decided on 18th December, 2006.

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

----S. 497---Penal Code (XLV of 1860). Ss. 302/454/427/324/342/354/382/148/149/ 109/337-A(ii)/ 337-F(iii)/ 337-F(ii)---Bail, refusal of---Accused was specifically named in the F.I.R. with specific role of causing fire-arm injury to the deceased and he was the principal accused---During investigation accused, no doubt, was found innocent, but the Magistrate had refused to discharge him---Police opinion was not binding on the - Court especially when the same was not based on sound material---Eye-witnesses including the injured witnesses had consistently implicated the accused in the crime---Determination of distance between the deceased and the accused to belie medical evidence, determination of cause of death of the deceased and consideration of plea of alibi of accused, all required deeper appreciation of evidence, which was not permissible at bail stage---Swearing on Holy Qur'an during investigation was alien to criminal proceedings---Observations made by High Court while granting bail to co-accused were of no help to accused as said co-accused had not caused fatal fire-arm injury to the deceased---Trial in the case was about to commence---Bail was declined to accused in circumstances.

Muhammad Iqbal and 3 others v. The State 2004 YLR 20; .Muhammad Akram v. The State 2005 YLR 683; Sabir Hussain v. The State 2005 MLD 1756; Ghulam Yaseen v. Muhammad Nawaz and 2 others 1998 PCr.LJ 1634; Saifur Rehman v. The State and another 2006 PCr.LJ 1509; PLD 1990 SC 83 and 1990 ALD 639 ref.

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

----S. 156---Investigation in cognizable case---Taking oath on Holy Qur'an during investigation---Procedure of swearing on Holy Qur'an during investigation is alien to criminal proceedings.

PLD 1990 SC 83 ref.

---Ss. 497 & 498---Bail---Precedents---Facts of each case being always different from the other, bail applications are always decided keeping in view the facts of each case.

Muhammad Mehmood Ashraf Khan and Ch. Pervaiz Aftab for Petitioner.

Khan Dil Muhammad Khan Ali Zai for the Complainant.

Sh. Imtiaz for the State. Allah Ditta, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1560 #

2007 Y L R 1560

[Lahore]

Before Ijaz Ahmad Chaudhry and M.A. Shahid Siddiqui, JJ

EJAZ AHMAD alias JUGGI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.179-J and Murder Reference No.236 of 2002, heard on 22nd January, 2007.

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

----S. 302(b)---Appreciation of evidence---Eye-witnesses were related inter se and with the deceased closely---Previous enmity admittedly existed between the parties---Eye-witnesses, thus, were interested witnesses---Presence of eye-witnesses at the spot at the time of occurrence was not natural and they could also be termed as chance witnesses, who had failed to give any specific reason in their statements before the police or before the Court for their presence at the scene of incident---Said witnesses appeared to have been subsequently introduced to nominate the accused in the case for the murder of the deceased---Delay of 24 hours in conducting the post-mortem examination was very significant, which was consumed in preparing the police papers including inquest report wherein the story of F.I.R. was reproduced---Eye-witnesses, therefore, were not truthful witnesses, they had even contradicted medical evidence on very material aspects of the case---Presence of eye-witnesses on the spot being doubtful, they could not be relied upon without any independent corroboration, which was lacking in the case---No crime empty having been recovered from the spot, recovery of fire-arm from the accused was legally inconsequential---Motive alone could not be made basis for maintaining the conviction of accused without any other evidence---Accused was acquitted on benefit of doubt in circumstances.

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

----S. 302(b)---Appreciation of evidence---Chance witness---Credibility---Principle---Statement of a chance witness without any reasonable explanation regarding his presence at the spot is not worthy of reliance.

----S. 302(b)---Motive---Motive is always considered to be a double-edged weapon as if on the one hand there is motive to commit the murder of the deceased by the accused, on the other hand it can also be a reason for false implication of the accused on suspicion.

Masood Sadiq Mirza for Appellant at State Expense.

Ch. Muhammad Hussain Chhachar, Additional Prosecutor General for the State.

Mansoor-ur-Rehman Khan Afridi for the Complainant.

Date of hearing: 22nd January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1567 #

2007 Y L R 1567

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ASHRAF alias ACHHU---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.27-J of 2003 and Murder Reference No.126 of 2002, heard on 19th February, 2007.

Penal Code (XLV of 1860)---

----S. 302 (b)---Appreciation of evidence---Occurrence had taken place in broad-daylight and had been reported to the police promptly---Accused had not denied the occurrence, but had taken a specific plea of having caused the murder of the deceased under grave and sudden provocation---Details of the occurrence not mentioned in the F.I.R. or in the earlier statements of witnesses, but coming on record during cross-examination, could not be termed as contradictions---Presence of the complainant/father of deceased and other eye witness at the scene of occurrence was established, who had no grudge or ill-will against the accused so as to depose falsely against him---Ocular testimony was consistent, natural, coherent and confidence inspiring, which was also supported by medical evidence---Plea of grave and sudden provocation taken by accused for murder of deceased was not even suggested to him in his statement, nor he had discharged the onus by proving the same---Defence plea was neither spelled out from the circumstances of the case, nor any reasonable possibility of the same being true was available on record---Accused had taken the life of a twenty years old boy by causing repeated blows with a sharp edged 'weapon and no mitigating circumstances existed in his favour---Conviction and sentence of death of accused were affirmed accordingly.

Nadeem Siddiqui for Appellant.

Masood Sadiq Mirza for the State.

Date of hearing: 19th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1572 #

2007 Y L R 1572

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

TARIQ RAHSEED---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.6754 of 2006, decided on 26th February, 2007.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13, 13-A & 15(8)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Landlord and tenant, relationship of---Determination---Question of inheritance and factual controversies were involved in the petition---Factual controversies and disputed questions of facts, which could not be decided without recording of evidence, could not be interfered with by the High Court in exercise of its constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

Pervaiz Alam v. Pakistan Dairy Products (Pvt.) Limited Karachi and 2 others 2005 SCMR 1840; Aga Muzamil Khan through General Attorney and 8 others v. Consolidation Officer, Lahore and 62 others PLD 2005 Lahore 422 and Muhammad Hussain v. Cholistan Development Authority, Bahawalpur and others 2005 YLR 1126 rel.

Malik Iqbal Rasool for Petitioner.

Syed M. Ali Gilani for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 1576 #

2007 Y L R 1576

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

AURANGZEB alias KALA---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.529, 355 and Murder Reference No. 340 of 2002, heard on 15th February, 2007.

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

---Ss.302(b) & 459---Appreciation of evidence---Occurrence had taken place in the house of the deceased during the mid of a December night---Assailants could not be identified as they were wearing masks and their names were not mentioned in the F.I.R. ---Complainant for the first time in his supplementary statement introduced the motive and also the fact that he had identified the assailants as during scuffle their masks were displaced---Complainant had resorted to dishonest improvements before the trial Court in order to justify his supplementary statement---Purpose of supplementary statement mostly was either to fill-in the lacunas of the prosecution case or to add in the number of accused---Prosecution witnesses had failed to justify as to why on the fateful night they slept in the house of the deceased and did not sleep in their own houses---Complainant had also suppressed the fact in the F.I.R. that the deceased was living along with his wife and sons---Direct evidence, therefore, was not reliable at all---Medical evidence had supported the prosecution case only to the extent that deceased had lost his life due to fire-arm injuries, but did not lead to the assailants---Post-mortem examination of the deceased was conducted after more than twelve hours of reporting the matter to the police, which denoted that the assailants were not known to the prosecution witnesses---Recovery of pistols at the instance of accused was of no consequence in the absence of their tallying with the crime empties---Recoveries were not even proved by an independent evidence---Motive was nothing but an afterthought which was likely introduced on the advice of the Investigating Officer to strengthen the prosecution case, which was full of doubts---Accused were acquitted in circumstances.

Khalid Javed and another v. The State 2003 SCMR 1419 ref.

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

----S.161---Supplementary statement by the complainant---Purpose---Mostly the purpose of supplementary statement of the complainant is either to fill in the lacunas of the prosecution case or to add in the number of the accused.

----Ss.154, 156 & 161---Supplementary statement by the complainant---Value---Any statement or further statement of the first informant recorded during investigation by the police would neither be equated with F.I.R. nor read as part of the same and the value of the supplementary statement would be determined keeping in view the principles enunciated by the Superior Courts in this behalf.

Khalid Javed and another v. The State 2003 SCMR 1419 ref.

Nazeer Ahmad Ghazi for Appellant.

Ch. Muhammad Hussain Chhachhar, Addl. P.-G. for the State, Memo for the Complainant.

Date of hearing: 15th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1582 #

2007 Y L R 1582

[Lahore]

Before Hasnat Ahmad Khan, J

ZARGAM KHAN and 6 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4089-B of 2006, decided on 18th December, 2006.

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

----S. 498---Penal Code (XLV of 1860), Ss. 395/389/384/ 337-H(ii)/147/ 148/149---Pre-arrest bail---Case remanded---Neither the accused nor their counsel appeared before the Sessions Court on the date of confirmation of interim pre-arrest bail already granted to the accused---Sessions Court, however, dismissed the bail application on merits after 'hearing the prosecution side---Accused thereafter approached High Court for grant of pre-arrest bail---Pre-arrest bail application could not be decided on merits in absence of the accused---Appearance of accused in Court at the time of confirmation of their interim pre-arrest bail was mandatory and they were required under the law to appear in Court on each date of hearing till the decision of the main application---Decision of the pre-arrest bail application by the Sessions Court in absence of accused was violative of the law laid down by the Full Bench of Lahore High Court (PLD 1981 Lahore 599)---Order of Sessions Court dismissing the pre-arrest bail application of accused was consequently set aside with the direction to accused to appear before the said Court for decision of their bail application, for which four days protective bail was granted to them---Petition was disposed of accordingly.

Shabbir Ahmad v. The State PLD 1981 Lah. 599; Muhammad Azam v. The State PLD 1987 Lah. 456; Kalan Khan v. The State 1982 PCr.LJ 149 and PLD 1982 Lah. 214 ref.

(b) Words and phrases---

---- "Bail "---Connotation---Word "bait" means to release a person from the custody of police and deliver him into the hands of surety, who undertakes to produce him in the Court whenever required to do so.

----Ss. 497 &498---Bail after arrest and bail before arrest---Appearance of accused in Court---Necessity---While deciding after arrest bail application appearance of accused before the Court is not necessary as he being already in custody would be deemed to have been brought before the Court, but in case of pre-arrest bail while granting the same appearance of accused would be necessary, because while granting or confirming pre-arrest bail Court would be handing over the custody of accused to his surety.

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

----S. 498---Pre-arrest bail---Appearance of accused before Court mandatory---Appearance of accused in Court, in case of pre-arrest bail, at the time of confirmation of the same is mandatory and he is required to appear on each date of hearing till the decision of the main application---However, Court, if so chooses can give a direction to accused not to appear.

Shabbir Ahmad v. The State PLD 1981 Lah. 599 rel.

Ch. Pervaiz Aftab for Petitioners.

YLR 2007 LAHORE HIGH COURT LAHORE 1587 #

2007 Y L R 1587

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Hasnat Ahmad Khan, JJ

GHULAM YASIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.93 and Criminal Appeal No.121 and Murder Reference No.132 of 2002, heard on 1st February, 2007.

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

----Ss.302(b) & 460---Appreciation of evidence---Benefit of doubt---Occurrence had taken place during night---Accused were not named in F.I.R.---Complainant and, the deceased had no enmity with anybody as specifically mentioned in F.I.R., and at that particular time nobody was suspected murderer of the deceased---Daughter and widow of the deceased had subsequently implicated the accused in the case---All the three eye-witnesses had made dishonest improvements at the trial to harmonise their statements---Story put forward by the daughter and widow of the deceased was not plausible and did not appeal to reason---Five hours delay in lodging the F.I.R. coupled with the aforesaid infirmities in the prosecution case showed that F.I.R. was recorded after preliminary investigations---Alleged identification of the accused by the daughter and widow of deceased was highly dubious---Witness of "Wajtakkar" was not believable as neither he was mentioned in the F.I.R., nor he had reasonably explained his presence at night time at the relevant place; even his torch, the source of identification, was not taken into possession by the police---Motive for the occurrence was not proved by the prosecution---Recovered rifle and the crime empty having been sent to forensic Science Laboratory on one and the same date, positive report of the said Laboratory could not be believed, as chance of fabrication of such evidence could. not be ruled out---All fragments of prosecution evidence were found to be tainted---To err in acquittal was better than to err in conviction---Accused were given the benefit of doubt and acquitted accordingly.

2005 YL R 2220. ref.

(b) Administration of justice---

----Murder case---Principle---To err in acquittal is better than to err in conviction.

2005 YLR 2220. ref.

Ch. Pervaiz Aftab for Appellant.

Mian Bashir Ahmad Bhatti, Deputy Prosecutor General for the State.

Date of hearing: 1st February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1594 #

2007 Y L R 1594

[Lahore]

Before Mian Hamid Farooq and Iqbal Hameed-ur-Rehman, JJ

SARDAR MASIH---Appellant

Versus

ANWAR SHAHZAD---Respondent

R.F.A. No.24 of 2006, heard on 20h December, 2006.

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

----O. XXXVII, Rr.1 & 2---Where defendant appeared, leave to defend suit was granted, written statement categorically denying execution of pro note was filed and even issues had been framed by Trial Court it was incumbent upon Trial Court to have decided the case after providing opportunity to the parties to adduce evidence in support of their respective claims notwithstanding that defendant admitted the execution of pro note and receipt---If plaintiff had not led any evidence decree could not be passed in his favour.

Kamran Co. and others v. Messrs Modern Motors and another PLD 1990 SC 713 ref.

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

----O.XIII, R. 7(2)---Documents not formally brought on record---Effect---No decree could be passed on basis of such documents nor suit could be decreed or dismissed on basis of such documents.

Mst. Fatima Bibi v. Muhammad Rafique Ashraf and others 2004 SCMR 959 ref.

----O.XXI, R.11 & O.XXXVII, Rr.1, 2---Suit for recovery of amount on basis of promissory note was decreed by Trial Court directing such a person to pay the decretal amount who was neither a judgment-debtor nor a party to the suit, whereas no oral or written submission for execution of decree was made by decree holder---Effect---Such direction of Trial Court was not warranted by law.

(d) Administration of justice---

----A party proceeded against by court on basis of its alleged admission in absence of its counsel---Held, such party was denied the services of its counsel and it was condemned unheard.

Sh. Atif Munir for Appellant.

Ch. Abdul Ghani for Respondent.

Date of hearing: 20th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1608 #

2007 Y L R 1608

[Lahore]

Before Mian Hamid Farooq, J

GHULAM MUHAMMAD---Appellant

Versus

GHULAM ABBAS and 2 others-Respondents

F.A.O. No.56 of 1992, decided on 23rd July, 2001.

Arbitration Act (X of 1940)---

----Ss. 14, 30 & 26-A---Registration Act (XVI of 1908), S.49---Award made without intervention of the court is compulsorily registerable---Non-registration of such award---Effect---Award given without reasons---Interference with, by party's counsel---Validity---Award relating to immovable property could not be made rule of the court if not registered in view of S.49 . of Registration Act, 1908---Contention that objection regarding non-registration of award having not been taken earlier could not be raised in appeal against order had no force because first appeal from order_ was a continuation of proceedings of the suit and there was no bar against appellant to raise such legal objection in the first appeal---Misconduct on the part of arbitrators had been established as it was the matter of record that award in question had been prepared by respondents' counsel---Claim of respondents was accepted by arbitrators without giving reasons for such acceptance---Award being devoid of sufficient reasons was hit by provisions of section 26-A of Arbitration Act, 1940 and thus could not have been made rule of the Court---Award was set aside by High Court, in circumstances.

Mst. Farida Malik and others v. Dr. Khalida Malik and others 1998 SCMR 816 and Noor Nabuwwat v. Moulvi Muhammad Noor Ali Khan 1999 CLC 1685 ref.

Abdul Majid Khan and S.M. Rashid for Appellant.

Tariq Masud for Respondents.

Date of hearing: 20th July, 2001.

YLR 2007 LAHORE HIGH COURT LAHORE 1614 #

2007 Y L R 1614

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.685 and Murder Reference No.327 of 2002, heard on 13th February, 2007.

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

----S. 302(b)-Appreciation of evidence---Accused alone was attributed fatal shot caused to the deceased in the promptly lodged F.I.R. ---Eye-witnesses though related to the deceased had no previous enmity or ill-will for false implication of accused---Ocular testimony was natural, consistent and confidence inspiring and was fully supported by medical evidence---Even otherwise, in case of variation between ocular and medical evidence, the latter would not overweigh the coherent and trustworthy ocular evidence---Occurrence having taken place in broad daylight, identity of accused was not in question---No reason existed for a brother and uncle of the deceased to substitute the actual accused by an innocent person--Prosecution case stood proved by direct evidence supported by medical evidence and other circumstances of the case like lodging of F.I.R. promptly at police station and conducting of post-mortem examination of the deceased within 3/4 hours of the 'occurrence---Accused while armed with a gun reached the spot and took the life of an innocent person---No mitigating circumstance, thus, existed in his favour---Conviction and sentence of accused were upheld in circumstances.

Sarfraz alias Sappi and 2 others v. The State 2002 SCMR 1758; Muhammad Hanif v. The State PLD 1993 SC 895; Amrood Khan's case 2002 SCMR 1568 and Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

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

----S. 302(b)---Appreciation of evidence---Conflict in ocular and medical evidence---Effect---In case of variation between ocular and medical evidence, the latter does .not overweigh the coherent and trustworthy ocular evidence.

Sarfraz alias Sappi and 2 others v. The State 2002 SCMR 1758; Muhammad Hanif v. The State PLD 1993 SC 895 and Amrood Khan's case 2002 SCMR 1568 ref.

----S. 302(b)---Appreciation of evidence---Substitution---Substitution of the actual killer by an innocent person is a very rare phenomenon.

Zafar Iqbal Chohan for Appellant.

Muhammad Hussain Chachar, Additional Prosecutor-General for the State.

Date of hearing: 13th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1623 #

2007 Y L R 1623

[Lahore]

Before Muhammad Jehangir Arshad and Hasnat Ahmad Khan, JJ

NIAZ AHMED---Petitioner

Versus

SUPERINTENDENT, CENTRAL JAIL, BAHAWALPUR and 2 others---Respondents

Criminal Miscellaneous No.623-M of 2006 in Criminal Appeal No.398 of 1991, decided on 29th November, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 402-C---Penal Code (XLV of 1860), Ss.302(b) & 392/397/34---Accused despite having served out his entire period of sentence was not being released from jail---Validity---Trial Court had convicted the accused under S.302(b), P.P.C. and sentenced him to twenty five years' R.I.---Accused was also convicted under Ss. 392/397/34, P.P.C. and sentenced to undergo fourteen years' R.I.---All the sentences were directed to run concurrently---Convictions and sentences of accused remained intact upto the level of Supreme Court---Jail Authorities were wrong in considering the total. sentence of accused as thirty nine years by considering the sentences being consecutive---Maximum sentence of twenty five years should have been considered as one sentence and the sentence of fourteen years on second count would merge in the sentence of twenty five years---Effect of the Supreme Court judgment reported as PLD 2005 SC 163 being not retrospective, therefore, till 21-9-2004 date of the said judgment, all the legal remissions earned by the accused and added to his credit, if withdrawn, would be restored in his favour being a past and closed transaction---Jail Authorities were directed to recalculate the period of imprisonment actually undergone by the accused after considering his both the sentences as concurrent and adding the remissions he had earned till 21-9-2004---Thereafter, if the accused was found to have served out his entire sentence, he would be released in accordance with law---Petition was disposed of accordingly.

Haji Abdul Ali v. Haji Bismillah and 3 others PLD 2005 S.C. 163 and Muhammad Arif v. Superintendent Central Jail, Lahore and 2 others PLD 2006 Lah. 561 ref.

Kamran Bin Latif for Petitioner.

Muhammad Qasim Khan, A.A.-G. for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 1627 #

2007 Y L R 1627

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUZAMMAL HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.577 and Murder Reference No.300 of 2002, heard on 8th February, 2007.

Penal Code (XLV of 1860)---

---Ss. 302(b)/34, 324/34 & 337-D/34---Appreciation of evidence---Occurrence having lasted for a few minutes in the darkness of night, prosecution witnesses could not possibly have a close look at the faces of the assailants---No features of any assailant, therefore, had been mentioned in the F.I.R. or in the statements of witnesses---Description of the accused mentioned in F.I.R. being of general nature .could not be helpful in identification of accused even for the eye-witnesses including the complainant---Identification of accused in identification parade held after two years and ten months of the occurrence was almost impossible---Even otherwise, identification parade having been held without adopting the legal procedure and taking necessary precautions and having been manoeuvred by the Investigating Officer, could not be relied upon---Extrajudicial confession allegedly made by the accused jointly at the police station in the presence of police officer being inadmissible, had no evidentiary value, which obviously had been introduced by the dishonest police officer by way of padding and persuading a relative of the complainant to be a witness of the same---Medical evidence was of no consequence against the accused, from when no weapon was recovered during investigation---Prosecution case was replete with doubts---Accused was acquitted in circumstances.

A. H. Masood for Appellant on State expense.

Muhammad Hussain Chachar, A.P.-G. for the State.

Date of hearing: 8th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1631 #

2007 Y L R 1631

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and Hasnat Ahmad Khan, JJ

ASGHAR ALI---Appellant

Versus

THE STATE---Respondent

Murder Reference No.749 of 23001 and Criminal Appeal No.742 of 2001, heard on 9th January, 2007.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Eye-witnesses had made consistent statements corroborating each other--Inmates of the house of occurrence were natural witnesses whose presence at the scene of incident could not be doubted---No reason on the side of prosecution witnesses could be pointed out for false implication of accused---Motive for the occurrence was fully proved which had not been challenged seriously even by accused---Straight forward prosecution version was further strengthened by medical evidence, recovery of crime weapon and matching of the same with the crime empties secured from the spot---Accused had not denied the time and place of occurrence, but had raised his own plea of accidental firing of his licensed rifle, whereby the deceased lost his life---However, accused had neither opted to appear himself- in his defence under S.340(2), Cr.P.C. nor produced any evidence to discharge the burden of proving his specific plea which had shifted upon him---Defence version being devoid of force was rejected and prosecution version being more plausible and probable was accepted---Accused had caused multiple fire-arm injuries to the deceased as, he had married with a woman against his wishes-Conviction and death sentence of accused were affirmed in circumstances.

Yara v. The State 2005 SCMR 829; Feroze v. The State 2005 PSC (Crl.) 686; Elahi Bux v. The State 2005 SCMR 810 and 1998 SCMR 862 ref.

Muhammad Asif Alvi for Appellant.

Sh. Javed Akhtar for the Complainant.

Sana ullah Gujjar for the State.

Date of hearing: 9th January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1636 #

2007 Y L R 1636

[Lahore]

Before Jawwad S. Khawaja, J

Mst. ASIA LATIF---Petitioner

Versus

TARIQ MUHAMMAD KHAN and 8 others---Respondents

Civil Revision No.1520 of 2003, heard on 7th December, 2006.

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

----Ss. 41 & 54---Contract Act (IX of 1872), S.17---Transfer by ostensible owner on basis of sale deed procured by fraud---Validity---Subsequent transferee would still he entitled to protection of S.41 of Transfer of Property Act, 1882.

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

----S. 41---Enquiry regarding vendor's title---Sale between parties finalized through Property Dealer, who checked Jamabandi and sale deed reflecting 'vendor's name---Validity---Such evidence would be sufficient to show due diligence on the part of vendee and would satisfy requirement of S.41 of Transfer of Property Act, 1882.

----Ss. 41 & 54---Contract Act (IX of 1872), S.17---Transfer by ostensible owner on basis of sale deed procured by him by fraud through an impersonator, as original owner was dead at relevant time---Legal heirs of deceased owner neither obtained in their favour mutation of inheritance nor asserted proprietary and possessory rights in suit property for more than twenty years---Effect---Legal heirs through such conduct had enabled such ostensible owner to deal with suit property be owner and make representation that he was vested with title therein and entitled to convey same---Legal heirs by not getting their names brought on revenue record had induced innocent purchaser to purchase suit property---If ostensible owner had committed fraud and procured sale deed in his favour through an impersonator, then legal heirs would have had right against such ostensible owner and not against subsequent vendee, against whom there was no evidence that he had acted fraudulently or had knowledge that original sale deed in favour of ostensible owner was void---Legal heirs could not be allowed to defeat title of subsequent purchaser---Suit by legal heirs was dismissed in circumstances.

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

----S. 41---Vendor's title, search of---Purpose of due diligence and such search under S.41 of Transfer of Property Act, 1882, would be to discover defects, if any, in title of vendor.

Ghulam Abbas Zaidi for Petitioner.

Muhammad Ayyaz Butt for Respondents Nos. 1 to 4.

Date of hearing: 7th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1640 #

2007 Y L R 1640

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

SMITHKLINE BEECHAM PLC through Authorized Signatory and 2 others---Appellants

Versus

MASS PHARMA (PRIVATE) LIMITED through Chief Executive, Director, Company Secretary---Respondent

Regular First Appeal No.585 of 2006, heard on 15th February, 2007.

Specific Relief Act (I of 1877)---

----S. 54---Suit for permanent injunction---Plaintiff prayed for a decree for permanent injunction, restraining defendant from infringing and violating plaintiff's patents be passed---Defendant filed written statement contending that it neither had infringed patents of plaintiffs nor he would infringe in future---Plaintiff's counsel made statement that in the light of statement of counsel for defendant suit of appellant be decreed to the extent of prayer clause as prayed by it in the plaint---Trial Court dismissed suit for the reasons that in view of statement made on behalf of defendant, the cause of action had ceased to exist---Direction was issued to the defendant to remain bound by the statement made by his counsel---Decree sheet was accordingly drawn---Plaintiff had filed appeal against judgment and decree passed by the Trial Court---Counsel for defendant appeared and stated that he would be having no objection if the suit filed by plaintiff was decreed to the extent he stated in his statement---Counsel for plaintiff had further stated that he had already stated that in case his suit was decreed as prayed in the plaint, other reliefs would not be pressed by him---Appeal was partly allowed inasmuch as the suit filed by , plaintiff was decreed against defendant in the light of statement made by its counsel and as also the statement made by counsel for plaintiff---Relief would stand granted while other reliefs refused and suit dismissed to that extent.

Hassan Irfan Khan and Sajjad Asghar Khokhar for Appellants.

Waqar ul Hassan for Respondent.

Date of hearing: 15th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1643 #

2007 Y L R 1643

[Lahore]

Before Mian Hamid Farooq, J

ABDUL REHMAN and another-Petitioners

Versus

Mst. SALEEM BIBI---Respondent

Civil Revision No.802 of 2006, decided on 6th December, 2006.

Civil Procedure Code (V of 1908)---

----O. XLI, R.27---Production of additional evidence---Suit for pre-emption having been dismissed by the Trial Court, plaintiff had filed appeal against judgment and decree passed by the Trial Court---During pendency of appeal, plaintiff filed application seeking permission to produce copy of inheritance mutation in additional evidence, which was . allowed by the Appellate Court-Defendant filed revision against such order alleging that application of plaintiff was illegally allowed as same would amount to fill up the lacunas in the case---Plaintiff had failed to, give any cogent reason entitling her to produce document in question in additional evidence---No explanation was forthcoming .either from plaintiff's application or from available record as to why said document was not produced before the lower forums---Document sought to be produced in additional evidence, was not relied upon by plaintiff before the Trial Court---Alleged "inadvertence", was no ground to allow a litigant to lead additional evidence and an unsuccessful party was not to be granted opportunity to fill up weaker parts of its case---Appellate Court while allowing application of plaintiff had completely misdirected itself and impugned order was passed, in complete oblivion of the facts of the case and law on the subject---Impugned order whereby application of plaintiff for permission to lead additional evidence, was allowed, was set aside in revision.

Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849; Shaikh Ghous Bakhsh through legal heirs v. K.S. Muhammad Abdul Naeem and PLD 1976 Kar. 169; Muhammad Qasim and others v. Muhammad Hussain and others PLD 2001 Lah.9; Zar Wali Shah v. Yousaf All Shah and 9 others 1992 SCMR 1778; Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811; Ghulam Muhammad and another v. Muhammad Aslam and others PLD 1993 SC 336; Muhammad Yousaf v. Mst. Maqsooda Anjum 2004 SCMR 1049 and Shtamand and others v. Zahid Shah and others 2005 SCMR 348 rel.

Fazil Muhammad for Petitioners.

Malik Javed Akhtar Wains for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 1645 #

2007 Y L R 1645

[Lahore]

Before Jawwad S. Khawaja, J

GHULAM AKBAR---Petitioner

Versus

MUHAMMAD RAMZAN and another---Respondents

Civil Revision No.814 of 2002, heard on 2nd February, 2007.

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

----S. 13---Suit for pre-emption decreed by Trial Court---Plaintiff was non-suited by Appellate Court merely on presumption that plaintiff and witnesses had colluded with the object of defrauding the defendants and that defendants would not have purchased the suit-land if plaintiff had a dominant position in area where the suit-land was located---Finding of Appellate Court that plaintiff would have the knowledge of transaction as the mutation of sale was effected in an open meeting, was also an assumption based on conjecture---Witnesses had consistently deposed that Talb-i-Muwathibat was made at the Dera of plaintiff---Mere fact that they did not mention Killa number of Square number where the Dera was located was of no consequence particularly when witnesses were not cross-examined on such factual issue---Performance of Talb-i-Muwathibat was proved by witnesses whose statements had not been undermined in cross-examination---Appellate finding having been based on presumptions and not substantiated by the evidence on record was set aside---Judgment of Trial Court was restored by High Court.

Mian Shah Abbas Iqbal for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1647 #

2007 Y L R 1647

[Lahore]

Before Syed Hamid Ali Shah, J

MUHAMMAD AKBAR and 3 others---Petitioners

Versus

ABDUL GHAFOOR and 8 others---Respondents

Civil Revisions Nos.1493, 494 and 1495 of 2005, decided on 30th November, 2006.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession---Allotment of property in question in favour of predecessor of respondent by Settlement Authorities vide order dated 25-9-1975---Predecessor of defendant challenged such allotment through constitutional petition which was dismissed---Plaintiffs filed suit for' possession against defendants and claimed compensation at rate of Rs.100 per month---Defence set up by defendants was that property in question had already been allotted to their predecessor by Deputy Settlement Commissioner in the year 1961, on the basis, of P.T.O., without any encumbrance and that the rights, if any, of respondents/plaintiffs in disputed property arose under the mortgage which had since been extinguished by virtue of S.3 of Displaced Persons Compensation and Rehabilitation Act, 1958---Trial Court, after considering record, decreed the suit and decree was affirmed in appeal---Validity---Property in dispute as reflected in written statement did bear its number---Contention raised by petitioners/defendants that property subject matter of suit was different from the property which was being claimed by defendants, had no force as nothing was on record to prove that numbers of property were two distinct properties---Questions raised in the petitions were already determined in three civil revisions wherein it was held that cloud on the title of predecessor-in-interest of respondents/ plaintiffs was, removed through order of Deputy Settlement Commissioner which was upheld by High Court in constitutional petition and maintained by the Supreme Court---Allotment in favour of respondent's predecessor had attained finality, when constitutional petition was dismissed wherein order of Deputy Settlement Commissioner was' upheld---Respondents/ plaintiffs soon after the dismissal of constitutional petition filed suit for .possession which was, within the period of limitation---In absence of any misreading and non-reading of evidence or illegality or infirmity, concurrent findings of courts below granting decree of possession to respondents was not open to any exception in revisional jurisdiction.

Ch. Sir Muhammad Zafrullah Khan and 3 others v. The Custodian of Evacuee Property and 5 others PLD 1964 SC 865 and Khurshid Anwar and 25 others v. Muhammad Aslam and 2 others 2001 MLD 757 ref.

Qadir Zaman Shah Tamuri for Petitioners.

Jarri Ullah Khan for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 1657 #

2007 Y L R 1657

[Lahore]

Before Maulvi Anwarul Haq, J

SABIR AYYAZ and 6 others---Petitioners

Versus

GUL RUKH SAMINA and 2 others---Respondents

Writ Petitions Nos.3038 and 3039 of 2006, decided on 31st January, 2007.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Complaints under section 3 of Illegal Dispossession Act, 2005---Possession of suit-land was taken over and delivered to respondents as an interim relief---Petitioners appeared and charge was framed---Court, after considering evidence on record, proceeded to dismiss the complaints---Petitioners were acquitted and their acquittal was not challenged by respondents---Court, thereafter refused to restore the possession to petitioners from whom it was taken---Validity---Record revealed that interim order was passed at a point of time when petitioners had yet to put in appearance---Charge was framed on 11-9-2006 whereas impugned interim order had been passed on 15-10-2005---Trial commences when the charge has been framed---Section 7 of Illegal Dispossession Act, 2005 authorizes a Court to pass interim order during the trial, of course, a stage after commencement of trial---Trial having not commenced on 15-10-2005 court had no jurisdiction to pass interim order which was liable to be set aside on such sole ground alone---Refusal of court to deliver back the possession to petitioners was not only illegal but patently unjust---Court having finally disposed of matter was bound under the law to restore the parties to the original position---Police concerned therefore was directed by High Court to restore the possession of land in question to petitioners.

(b) Administration of justice---

----Act of court is not to cause prejudice to any party.

Khalid Mehmood Mughal for Petitioners. .

Azid Nafees for Respondents.

Date of hearing: 31st January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1659 #

2007 Y L R 1659

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD YASIN---Petitioner

Versus

PAKISTAN RAILWAYS through Chairman Railways, Lahore and 2 others---Respondents

Writ Petitions Nos.6532 and 6534 of 2006, decided on 21st December, 2006.

West Pakistan Pure Food Ordinance (VII of 1960)---

----Ss.23 & 23-A---West Pakistan Pure Food Rules, 1960, R.39---Constitution of Pakistan (1973), Art.199---Vending Licence for installation of Stall at Railway Station---Licence Agreement containing condition for its termination without notice in event of unsatisfactory working of licensee or breach of any clause thereof---Termination of licence by Railway Administration without giving show-cause to licensee for violation of West Pakistan Pure Foods Rules, 1965---Validity---Termination of licencee without notice was violative of principles of natural justice---Issuance of notice and affording opportunity of hearing would be deemed an integral part of every action---Such condition of Licence Agreement for being against principles of natural justice was struck down by High Court---Samples of food found to be substandard by Laboratory Test from Government Analyst would not be sufficient to hold that licensee was guilty of commission of offence in absence of any specific findings by competent Court to such effect---Impugned order suffered from jurisdictional defect as such findings could only be recorded by Court and not by any authority---High Court declared impugned order to be without lawful authority and of no legal effect with direction to Railway Administration to restore forthwith licence of petitioner and not to cancel contract in future without issuing notice and providing opportunity of hearing to contractors.

Federation of Pakistan v. Public at Large PLD 1987 SC.304 rel.

Syed Zia Haider for Petitioner.

Rao Muhammad Iqbal for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 1662 #

2007 Y L R 1662

[Lahore]

Before Tariq Shamim, J

ZAHID MALIK---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6265-B of 2006, decided on 17th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.302---Interim pre-arrest bail, confirmation of---Deceased was a maid servant in the house of brother of accused and during investigation, it transpired that actual culprit of murder of deceased was a person who was under arrest---Only allegation against accused was that of abetment without there being material to substantiate same---Accused had been involved on a supplementary statement made by complainant after a lapse of about 8 days which could not be relied upon as such delay had created doubts about the authenticity of prosecution case---Even otherwise no provision existed under the law regarding recording of supplementary statement as it amounted to filling in lacunas in the prosecution case---Accused was declared innocent by S.P. Investigation who observed that accused were not known---Even ' in the subsequent investigation conducted by Inspector (Investigation) it was found that accused was involved only to the extent of conspiracy/abetment---Opinion of-the police though was not binding on the court, but if it was based on some material, it would carry persuasive value and could not be lightly brushed aside---Investigation was complete and accused was no more required by the police---Sending of accused to jail at such stage, in circumstances, would not serve any .useful purpose---Prima facie no direct evidence was on the record to connect accused with the commission of offence alleged against him---Ad interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Mubarak Ali v. The State 2003 PCr.LJ 986 ref.

Aazar Latif Khan for Petitioner.

Muhammad Azam for the Sate with Shahnawaz S.H.O./Inspector.

YLR 2007 LAHORE HIGH COURT LAHORE 1664 #

2007 Y L R 1664

[Lahore]

Before Abdul Shakoor Paracha and Mian Hamid Farooq, JJ

H./Dr. MASHOOD ASLAM DAR---Appellant

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Health, Islamabad and others---Respondents

I.C.A. No.68 of 2004, decided on 10th May, 2006.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Limitation Act (IX of 1908), S.5---Intra-Court appeal---Delay, condonation of--Sufficient cause---Appeal was barred by time, even if time consumed for obtaining the copy of' impugned judgment was excluded while computing the period of limitation for filing appeal---Only ground taken in. application for condonation of delay was that appellant having good prima facie case on merits, limitation should not be hurdle in his way---Such could hardly be termed and taken as "sufficient cause" for condonation of delay under S.5 of Limitation Act, 1908---Appellant having failed to make out "sufficient cause" for condonation of delay, his application for condonation of delay, was dismissed---Appeal could not proceed further same having been filed beyond the period of limitation prescribed under the law.

Muhammad Tanveer Chaudhry for Appellant.

YLR 2007 LAHORE HIGH COURT LAHORE 1665 #

2007 Y L R 1665

[Lahore]

Before Tariq Shamim, J

MUHAMMAD NASEER and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.147-H of 2006, decided on 29th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Petitioners had sought recovery of their two sisters, one aged ten years and other aged twenty one years from the custody of their real maternal aunt---Petition filed by petitioners was dismissed by the Trial Court on the ground that alleged detenues on being produced before the court had stated that they were living with their maternal aunt happily and safely since long and that they had no intention to live with the petitioners, their real brothers on account of their cruel behaviour---Effect---Alleged detenues were living happily with their maternal aunt and feeling safe and secure in her company---Minor girl aged ten years was in a growing age and she would require advice and guidance in future from her elder sister---Welfare of the minor girl would require that she should not be separated from her elder sister in whose company she had been living after demise of her real mother who could provide her security and guidance in future---Both girls had categorically stated that they would not like to live in the company of their brothers on account of their cruel behaviour---Minor girl who was growing up to form an independent opinion, in her statement before the Trial Court had conveyed her desire to continue to live with her real aunt in the company of her elder sister---Since both girls were living with their real aunt since long, at such- belated stage, insistence of petitioners to obtain their custody, would smack of ulterior motives of petitioners and it would not be in the interest of minor girl to be separated from her real sister or be dislodged from the house of her real maternal aunt where she was feeling secure and comfortable.

Malik Javed Akhtar Wains for Petitioners.

YLR 2007 LAHORE HIGH COURT LAHORE 1671 #

2007 Y L R 1671

[Lahore]

Before Mian Saqib Nisar and Syed Zahid Hussain, JJ

MUHAMMAD IMRAN and 5 others---Petitioners

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through Chairman---Respondent

Writ Petition No.4781 of 2005, decided on 17th November, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Counsel for respondent Authority had stated that British Broadcasting Corporation had communicated to the Authority that the B.B, C. agreement with petitioner had come to an end because of force majeure events and that same had been communicated to the petitioner as well---Since agreement between B.B.C. and petitioner had ceased to exist and such position remained uncontroverted constitutional petition had become infructuous as petitioner had lost locus standi to maintain same---Petition 'having lost its efficacy, same was dismissed as having become infructuous, with an option to petitioner to seek revival of petition through an application, if his agreement with B.B.C. had not been rescinded.

Raza Kazim for Petitioners.

Dr. Danishwar Malik, Deputy Attorney-General for Pakistan.

Muhammad Azam Zia for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 1672 #

2007 Y L R 1672

[Lahore]

Before Tariq Shamim, J

MUHAMMAD ASLAM and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1514-B of 2006, decided on 27th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-H(ii), 506, 148 & 149---Bail, grant of---Delay of seven days in lodging F.I.R.--false involvement of accused could not be ruled out, particularly when there was litigation pending between the parties regarding "Ehata" in question where occurrence had taken place---Section 337-H(ii), P.P.C. was a bailable offence, whereas provisions of S.506, P.P.C. were not, prima facie, attracted to the case of accused---Offences against accused were not punishable with death, transportation for life or with ten years---No empty had been recovered from the spot; which had further made the prosecution case doubtful as according to F.I.R., extensive aerial firing was made by accused---No recovery had been effected from accused and co-accused had already been granted bail by the Trial Court---In view of rule of consistency, accused were also entitled to the concession of bail as the role assigned to co-accused was identical to one assigned to accused---Accused were behind the bars since 30-3-2006 and apparently no progress had been made in the trial---Tentative assessment of the evidence on the record had revealed that prima facie no sufficient evidence was on record to connect accused with the commission of alleged offences---Accused were admitted to bail, in circumstances.

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

Tahir Mehmood and Muhammad Khalid Ashraf Khan for Petitioners.

Ahmad Raza for the Complainant.

Abdul Hameed Khokhar for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 1674 #

2007 Y L R 1674

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

MUHAMMAD HAYAT and 20 others---Petitioners

Versus

PROVINCE OF PUNJAB through Collector, Sargodha and 12 others---Respondents

R.A. No.29 of 2003 in Civil Revision No.2021 of 2003, heard on 18th December, 2006.

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

----S. 114 & O.XLVII & R.1---Review application---Suit according to counsel for parties was decreed according to agreement of exchange and that decree was affirmed by appellate Court---Reference was made to' report Roznamcha-Waqiati, whereas it was agreed view of the parties that the said report did not reflect the true state of affairs---Both counsel had stated that the agreement of exchange, was the true agreement and both the parties would take steps to get the same implemented in Revenue Record---Review application was allowed in view of the statements of both counsel for the parties and it was directed that exchange as entered into between the parties as stated by both counsel, would be implemented in the Revenue Record and both or any of the parties could take proceedings accordingly.

Ziaullah Khan Niazi for Petitioners.

Mian Muhammad Ashraf for Respondents.

2007 Y L R 1681

[Lahore]

Before Mian Saqib Nisar, J

Mst. SULTAN JAHAN---Petitioner

Versus

CANTONMENT BOARD, LAHORE CANTT., through Executive Officer

and 2 others---Respondents

Writ Petition No.9344 of 2006, heard on 14th November, 2006.

Cantonments Act (II of 1924)---

----S. 60---Punjab Local Government Ordinance (VI of 1979), Ss.137, 138 & Second Sched., Part III, Item No.5 [as omitted by Punjab Local Government (Amendment for Abolition of Certain Taxes) Ordinance (XXIX of 1999) with effect from 29-6-1999]---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of immovable property in favour of petitioner vide sale deed dated 10-2-2002---Levy of tax by Cantonment Board---Petitioner contended that on the date of sale such tax was not leviable for the reason that it had been abolished by the Finance Act 1999-2000 in compliance of which Government of Punjab had also issued Ordinance XXIX dated 29-6-1999 whereby said tax was deleted from Second Schedule inserted under sections 137-138 of Punjab Local Government Ordinance, 1979---Petitioner further contended that provisions of S. 60 of the Cantonments Act, 1924 clarified that if any tax is not leviable in the municipal area, the same was not chargeable in Cantonment area---Levy and charge of tax on property being an illegal action of Cantonment Board, Board was therefore, directed by High Court to refund the tax amount to petitioner.

Mst. Nargis Moeen and another v. Government of Pakistan and others PLD 2003 Lah. 730 rel.

Dr. M. Mohyuddin Qazi for Petitioner.

Muhammad Rashid Ahmad for Respondents.

Date of hearing: 14th November, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1686 #

2007 Y L R 1686

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

Mst. SALAMAN---Petitioner

Versus

MUHAMMAD HASSAN and others---Respondents

Civil Revision No.1654 of 1996, heard on 14th February, 2007.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 2 (1) (c) & 90---Oral sale by 'lady vendor---Proof---Plaintiffs sought declaration to the effect that they were owner in possession of suit-land on basis of oral sale made in 1979 by the lady vendor---Plaintiffs contended that sale-deed dated 21-12-1980 executed by special attorney of lady vendor in favour of defendants regarding same land was the result of fraud---Lady vendor, on the other hand, also filed a suit pleading that she had not sold her land to anyone and that plaintiffs were in possession of suit-land as her tenants---Both suits were consolidated---Suit filed by plaintiffs was dismissed while that of lady vendor was decreed by Trial Court---Appellate Court, after appraisal of entire material available on record reversed the finding of Trial Court---Validity---Copy of Rapt Roznamcha Waqiati was the most important evidence produced by plaintiffs as Patwari Halqa who recorded it appeared and stated that he had obtained signatures of witnesses on Roznamcha and that entry of mutation was not made due to restriction in those days---Presumption of correctness was attached to the entries in Roznamcha Waqiati hence said document was rightly believed by Appellate Court---Plaintiff's witness, who had been cultivating suit-land for about 8/9 years as tenant of lady vendor was another important witness who deposed that since four years he had been paying the share of produce to plaintiffs as he was instructed for the same--Remaining evidence adduced by plaintiffs proved the fact that lady had sold her land to plaintiffs for the' consideration-Statements of plaintiff's witnesses were convincing and confidence-inspiring and minor discrepancies in such statements, recorded after lapse of some years, did not matter---On the other hand lady vendor failed to produce any worthwhile evidence in support of her case---Appellate judgment was well reasoned, no illegality, infirmity, misreading or non-reading of evidence was pointed out---Revision petition was therefore dismissed.

Saheb Khan v. Muhammad Pannah PLD 1994 SC 162 and Haji Elahi Bukhsh v. Noor Muhammad and others PLD 1985 SC 41 ref.

Mian Ghulam Rasool for Petitioner.

S.M. Tayyab for Respondents.

Date of hearing: 14th February, 2007.

JUDEGMENT

SYED SAKHI HUSSAIN BOKHARI, J.----This revision petition is directed against the judgment dated 7-12-1995 passed by learned Additional District Judge Bhalwal District Sargodha whereby appeal brought by respondents Nos.1 and 2 against the judgment and decree dated 30-11-1991 passed by learned Civil Judge, Bhalwal was accepted and suit for declaration brought by them was decreed in their favour.

Relevant facts for the disposal of this revision petition are that Muhammad Hassan and Qaim Din (respondents Nos.1 and 2) filed suit or declaration against the petitioner and respondents Nos.3 and 4 and stated that the Mst. Salaman (petitioner) was owner of suit-land (measuring 10 Kanals and 13 Marlas bearing Khewat No.20 Khatuni No.40 situated in village Dewanpur, Tehsil Bhalwal) and she sold the same to them for a consideration of Rs.16,000 and also delivered possession. The plaintiffs/respondents further stated that they are in possession of the suit-land through their tenant (Lal Khan son of Allah Ditta). He handed over possession to the (respondents/plaintiffs) after Rabi 1982 crop. The plaintiffs maintained that petitioner/defendant is closely related to them, therefore, at that time sale mutation was not sanctioned. On 1-4-1982 defendant No.3 (Qadir Bukhsh) attempted to get possession from them and he disclosed that 'Mst. Salaman had sold suit-land to him through special attorney, Qasim Ali (defendant No.2) vide registered sale-deed 906 dated 21-12-1980. The plaintiffs asserted that sale-deed dated 21-12-1980 is illegal, based on fraud and ineffective qua their rights because they had purchased suit-land prior to 21-12-1980. Also that Mst. Salaman was not owner of suit-land hence she could not appoint defendant No.2 as special attorney. The petitioner mentioned in written statement that she had not sold suit-land to plaintiffs and she had not received sale price from them. She had not appointed defendant No.2 as special attorney. Mst. Salaman also filed suit for declaration against the respondents/ plaintiffs to the effect that she is owner of suit-land and respondents/plaintiffs have no concern with the same. Also that special power of attorney and registered sale-deed No.906 dated 21-12-1980 executed by Qasim Ali in favour of Qadar Bukhsh are illegal, based on fraud and liable to be set aside. Learned trial Court consolidated the suits, recorded evidence and dismissed the suit brought by respondents Nos.1 and 2 (Muhammad Hassan and Qaim Din) whereas suit brought by Mst. Salaman (petitioner) against the respondents was decreed vide judgment dated 30-11-1991. Muhammad Hassan and Qaim Din filed appeal thereagainst which was accepted vide judgment dated 7-12-1995 passed by learned Additional District Judge, Bhawal. Hence this revision petition.
I have heard the arguments and perused the record.
As mentioned above the case of petitioner is that she is owner of suit-land and she had never transferred the same in favour of respondents. However, the case of Muhammad Hassan and Qaim Din (respondents Nos.1 and 2) is that they had purchased the suit-land from petitioner for a consideration of Rs.16,000 and report No.179 dated 5-1-1979 was recorded in 'Roznamcha Waqiati' Patwari (daily diary register) and they are in possession of the suit-land on the basis of said sale. The case of petitioner is that Muhammad Hassan and Qaim Din (respondents/plaintiffs) were in possession of suit-land as her tenants. However, the case of respondents is that at the time of sale, Lal Khan (P.W.3) was in possession of suit-land as tenant and after sale petitioner directed him to pay share of produce to respondents/plaintiffs. Lal Khan appeared as P.W.3 and stated that he had been cultivating the suit-land for 8/9 years as tenant of Mst. Salaman petitioner. Later on Mst. Salaman told him that she had sold suit-land to respondents hence he should pay share of produce to them (respondents). He had been paying share of produce to the plaintiffs. Thereafter he handed over the possession to respondents. So it is clear that P,W.3 has fully supported the case of respondents P.W.1, Zafar Ali stated that 9 years back, Mst. Salaman sold suit-land to plaintiffs/respondents and received sale price in his presence and that since then they are in possession of the suit-land. P.W.2, Abdul Rasheed also made similar statement. Muhammad Mumtaz Khan 'Patwari Halqa' appeared as P.W.5 and stated that report No.179 dated 5-1-1979 (Exh.P.5) was recorded by him. According to this report petitioner had sold suit-land to respondents. As such he has also supported the case of respondents/plaintiffs. The statements of P.Ws. are convincing and confidence-inspiring. However Mst. Salaman has failed to produce any worthwhile evidence in support of her case. She while appearing as D.W.1 stated that she had not transferred suit-land in favour of plaintiffs and that she had handed over the possession to plaintiffs/respondents as tenants. However as stated earlier Lal Khan has contradicted her statement. Even otherwise according to copy of 'Khasra gardawari' (Exh.P4) at the relevant time Lal Khan was in possession of suit-land as tenant and later on respondents occupied the same. So statement of Mst. Salaman cannot be believed. Even otherwise as mentioned earlier she has failed to produce any worthwhile evidence in support of her case. So it is clear from the material available on record that petitioner had sold suit-land to respondents. As such learned Additional District Judge has rightly accepted the appeal brought by respondents. The judgment dated 7-12-1995 shows that learned Additional District Judge has decided the appeal brought by respondents after appraisal of entire material available on record. Paras Nos.5 to 7 of the said judgment reads as under:-
"Firstly, I would take up Issue No.1, which speaks regarding the ownership in possession of the appellants/plaintiffs. In order to prove this issue, five witnesses have been produced by the appellants, which includes the statement of Zafar Ali (P.W.1), Abdul Rashid (P.W.2) Lal Khan (P.W.3) and statement of one of the appellant namely Qaim Din as well as statement of the Patwari namely Muhammad Mumtaz who appeared in additional evidence as P.W.5. Learned trial Court has decided this issue against the appellant and it appears that the learned Judge, took into consideration, some minor discrepancies occurred in the statement of P.Ws. According to law, laid down in case Saheb Khan v. Muhammad Pannah (PLD 1994 SC 162) "plaintiffs, could not have been non-suited on minor contradictions in the statement when such statements were recorded after lapse of some years." The learned trial Court did not give any weight to the oral as well as the documentary evidence adduced by the appellants and gave much weight to the effect that Mst. Salaman, is a woman fold and Paradanashin lady. The document Exh.P.5, which is copy of Rapt Roznamcha, has been totally ignored, which is the most important document in this case and has been proved through the testimony of Muhammad Mumtaz Khan Patwari (P.W.5), who recorded the same and according to his statement, Rapt No.179 dated 5-1-1979, is in his hand and its copy is Exh.P.5, as referred above. He was thoroughly cross-examined by the opponent counsel but his cross-examination made the case more strengthen then it was before the production of additional evidence. He stated that he had received the summons through the Court and in compliance thereof, he has brought the record from the Patwari Halqa because now he has been transferred from there and is posted at Bhabra, whereas, during the days of transaction, between Mst. Salaman and the appellants, Muhammad Hassan etc., he was posted as Patwari Halqa at Beer Baran, where the entries in Roznamcha, regarding the sale of dispute, was made vide Rapt No.179, dated 5-1-1979, which is in his hand. He further deposed that Mst. Salaman, was not presently known to him, however, her husband Jahangir, was known to him who had accompanied her along with Muhammad Hussain Lambardar. He further deposed that he had obtained the signature, of the witnesses on Roznamcha and entry of mutation was not made due to restriction in those days. In this context, case Haji Elahi Bukhsh v. Noor Muhammad and others (PLD 1985 SC 41), may be referred wherein it has been held that statement of Patwari, who recorded the reports and proved admissions of vendor and vendee should be given weight regarding the transaction. It is further held that presumption of correctness is attached to the entries in "Roznamcha Waqiati" the Courts should believe it because document is prepared in discharge of his officials duties at the time when no dispute over the property had arisen.
The remaining evidence produced by the appellants would also show that each of the witnesses on their behalf deposed in accordance with the pleadings and proved the fact that Rs.16,000 were given by the appellants to Mst. Salaman and the possession of the land was delivered by her. The testimony of Zafar Ali, and Abdul Rashid, P.W.1 and P.W.2, respectively, inspire confidence and despite thorough cross-examination regarding the material facts, no material contradiction has come on record in order to disbelieve the facts that the transaction has not been effected between the parties.
The other important witness in this case is Lal Khan, who appeared in witness-box as P.W.3. He is the tenant of the land since long and remained under the tenancy of Mst. Salaman as well. He deposed that she herself had come to her after sale of the land and asked him that in the future, he should give the share to the appellants, because the land in question had already been sold out to them. He further deposed that since four years, he had been paying the share to the appellants as he was instructed for the same, Qaeem Din, appellant No.2, fully supported his case by deposing that about nine years before (his statement was recorded on 12-11-1987), Mst. Salaman, had alienated the land in question through oral sale while receiving the amount of Rs.16,000 and had informed the tenant regarding the said facts and thereafter, she never received the share out of the land. This fact has been admitted by Mst. Salaman respondent herself during her statement made before the Court as D.W.1 by saying that she gave the land to the appellants being tenants. In my opinion, the findings of learned trial Court, are not in accordance with law and facts, of the case and Issue No.1,-has been wrongly decided against the appellants. In view of my above discussion, I hold that the appellants are real owners in possession of the land and decided Issue No.1, in their favour while reversing the findings of learned trial Court".

YLR 2007 LAHORE HIGH COURT LAHORE 1690 #

2007 Y L R 1690

[Lahore]

Before Jawwad S. Khawaja, J

PROVINCE OF PUNJAB through District Controller, Okara and 3 others---Petitioners

Versus

Mst. KHURSHED BEGUM through Legal Heirs---Respondent

Civil Revision No.205 of 2002, decided on 10th October, 2006.

Specific Relief Act (I of 1877)---

---S. 8---Civil Procedure Code (V of 1908), S.115---Suit for possession---

Limitation---Trial Court for valid reason dismissed suit on the ground that it was barred by limitation---Appellate Court without giving any finding on the question of limitation, decreed suit simply on the ground that plaintiffs had been able to establish their ownership in the suit land---Counsel for defendants had rightly argued that Appellate Court had failed to address the rationale of the Trial Court which had resulted in the dismissal of the suit--Counsel for plaintiffs had contended that no issue in relation to limitation having been framed by the Trial Court, plaintiffs were not called upon to lead evidence on the same---validity---Contention was misconceived as issue was framed by the Trial Court in that respect---Plaintiffs could not prove that defendants had forcibly taken possession of disputed area four years prior to filing of the suit---No Revenue functionary, however was produced by plaintiffs as a witness in the case--Impugned appellate judgment and decree being result of illegality in the exercise of court's jurisdiction, same was set aside with the result, that decree of the Trial Court stood restored.

Muhammad Nawaz Bajwa for Petitioners.

Mian Hameed-ud-Din Qureshi for Respondent No.2.

Other respondents ex parte.

Date of hearing: 10th October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1692 #

2007 Y L R 1692

[Lahore]

Before Maulvi Anwarul Haq, J

HABIB ULLAH and others---Petitioners

Versus

TAJ DIN alias TAJ and others---Respondents

Civil Revision No.261 of 2003, heard on 15th February, 2007.

(a) Punjab Acquisition of Land (Housing) Act (VIII of 1973)---

----Ss. 4, 6, 7 & 12---Acquisition of land---Procedure and proof--- Punjab Acquisition of Land (Housing) Act, 1973 ordained that after issuance of a notification under section 4, a further notice was to be given by Collector stating intention of Government to take possession of land and inviting claim for compensation; thereafter an inquiry was to be made by Collector under section 7 and then he had to make an award---Under section 12 of the Act Collector had to intimate the Government about his award and upon its acceptance by the Government he had to take possession within 15 days of said award---In the present case there was no evidence of any notice, inquiry, making of an award thereunder or any evidence of taking of possession in terms of S.12 of the Punjab Acquisition of Land (Housing) Act, 1973---Petitioners relied upon a notification which merely expressed intention of Government to acquire suit-land, however, no further step was shown to have been taken in this regard---No evidence of any acquisition of land whether lawful or otherwise being available on record, petition was, dismissed.

(b) Punjab Acquisition of Land (Housing) (Repeal) Act (XII of 1985)---

----Ss.2 & 3---Land Acquisition Act (I of 1894), Preamble---Punjab Acquisition of Land (Housing) Act, 1973 having been repealed vide section 2 of the Repealing Act, 1985, S. 3 of the Repealing Act provided that the cases in which award had not been announced, the matter was to be dealt with in terms of the Land Acquisition Act, 1894.

Muhammad Yasin Chaudhry for Petitioners.

Mian Muhammad Ismail Thaheem for Respondents.

Date of hearing: 15th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1694 #

2007 Y L R 1694

[Lahore]

Before Jawwad S. Khawaja, J

FAIZ AHMAD and 7 others---Petitioners

Versus

GHULAM HAIDER and 2 others---Respondents

Civil Revision No.788 of 2006, decided on 9th October. 2006.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Trial Court dismissed suit on the ground that pre-emptors had failed to prove Talb-e-Ishhad--Trial Court while coming to said conclusion had noted that date appearing on notices of Talb-e-Ishhad was 7-3-1996 while receipts issued by the Post-Office were dated, 20-3-1996---Acknowledgement due receipts were not produced by the pre-emptors which could have clarified any discrepancy in that matter---Appellate Court, however allowed appeal against judgment of the Trial Court---Validity---Contention of counsel for petitioners/vendees, firstly was that Appellate Court had not even discussed the aspects of Talb-e-Ishhad which had prevailed with the Trial Court; secondly, that in view of discrepant dates on the notices of Talb-e-Ishhad and the postal receipts and also on account of failure of pre-emptors to bring on record the acknowledgement receipts, finding of the Trial Court was proper---Counsel for pre-emptors had not been able to controvert said contentions---Notices were not sent by pre-emptors to all eight vendees---Such fact 'alone was sufficient to non-suit preemptors---Appellate Court below, in circumstances had misread evidence while holding that pre-emptors had successfully proved performance of Talbs---Impugned Appellate judgment and decree being not legally maintainable, were set aside---Decree of the Trial Court stood restored in circumstances.

Ch. Nisar Ahmad Dhullon for Petitioners.

M. Mahboob Rasool Awan for Respondents.

Date of hearing: 9th October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1696 #

2007 Y L R 1696

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD NAZIR KHAN---Petitioner

Versus

AHMAD and 2 others---Respondents

Civil Revision No.852 of 2002, heard on 27th February, 2007.

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

----S. 106---Lease for a certain term--Resumption of land without notice to allottee---Lessee's entitlement to get proprietary rights of land on basis of notification issued by Revenue Authority---Revenue Authority, after expiry of fixed term of tenancy, without notice to quit, allotted land in favour of some other person---Validity---In absence of mandatory notice to lessee for resumption of land from him, allotment of said land to some other person was illegal.

(b) Scheme for Rehabilitation of Refugees from Jammu and Kashmir---

----Land not included in the Schedule to the Scheme for Rehabilitation of Jammu and Kashmir Refugees---Allotment of such land by Revenue Authorities in favour of refugee from Jammu and Kashmir was without jurisdiction.

----S. 36---Bar of jurisdiction of civil court---Applicability---Civil court has no jurisdiction to entertain matters/disputes over which Revenue hierarchy has jurisdiction to decide---Where Revenue Authorities act beyond the provisions of law and without jurisdiction, bar of jurisdiction of civil court contained in S.36 Colonization of Government Lands (Punjab), Act, 1912, does not apply.

Khalid Ikram Khatana for Petitioner.

Hafiz Khalil Ahmad for Respondents.

Date of hearing: 27th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1699 #

2007 Y L R 1699

[Lahore]

Before Tariq Shamim, J

MUHAMMAD AMJAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6593-B of 2006, decided on 18th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-F(iii), 337-L(ii), 337-F(v), 452 & 34---Bail, grant of---Further inquiry---Two investigations in the case were conducted, one, by Sub-Inspector and other by Superintendent of Police (Investigation) and in both the Investigations, accused and his co-accused were declared innocent---Opinion of the Investigating Officer, though was not binding on the court, but, if same was based on tangible material, as in the present case, it could not be lightly brushed aside and had to be considered---Record had revealed that opinion of Investigating Officer, was that accused and his co-accused were not present at the place of occurrence and that there was possibility that complainant received injuries on account of fall---Other two co-accused having already been granted bail, in view of rule of consistency, accused was also entitled to the same concession---Offences mentioned in the F.I.R. were punishable upto 5 years' imprisonment which did not fall within the prohibitory clause of S.497, Cr. P. C. ---Grant of bail, in such-like cases was a rule and refusal was an exception---Investigation of case was complete, challan had been submitted in the court and accused who was behind the bars for the last about 4 months was no more required for any further investigation---Tentative assessment of the evidence on the record revealed that the case of accused was one of further inquiry as presently enough evidence was not available on record to connect him with the commission of offence alleged against him---Accused was admitted to bail, in circumstances.

Ch. Muhammad Aslam Bajwa for Petitioner.

Iqbal Hussain for the State with Zafar Iqbal, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1700 #

2007 Y L R 1700

[Lahore]

Before Syed Asghar Haider, J

GHULAM MUHAMMAD and 3 others---Petitioners

Versus

Mst. MARYAM BATOOL and 32 others---Respondents

Civil Revision No.2368 of 2001, decided on 2nd March, 2007.

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

----O. XXXII, R.7 & S.12(2)---Compromise by next friend---Recording of compromise without leave of the court---Application under S.12(2), C.P.C., by plaintiffs for setting aside the decree passed pursuant to said compromise was allowed---Validity---Provisions of O.XXXII, R.7 C.P.C. clearly explains that no next friend or guardian shall, without leave of court, expressly recorded in the proceedings, enter into an agreement or compromise on behalf of the minor, thus proceedings to the contrary cannot sustain---In the present case no express leave was obtained by the court nor was it so recorded, in the stated proceedings---Compromise, therefore, was not in accordance with mandatory provisions of O. XXXII, R.7, C.P.C.---Contention that non-adherence to the provisions of O.XXXII, R.7, C.P.C. was a mere procedural deviation and not fatal to the proceedings had no force---Parties as well as court were obliged to adhere to the procedure prescribed because any departure in this context can compromise vital interests of minors---Adherence to procedure is absolute and unqualified, the rigor is so strict, that not only parties are required to follow it but court itself is required to oversee compliance---Procedure ordained having not been adhered to, compromise and decree were rightly set aside.

Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197; Safdar Ali and others v. The State and another PLD 1991 SC 202; Abdul Aziz and 6 others v. The Member, Board of Revenue and 15 others 1998 SCMR 1078; Dilmir v. Ghulam Muhammad and 2 others PLD 2002 SC 403; Government of Pakistan, Ministry of Defence, Rawalpindi v. Muhammad Bashir PLD 2005 Lah. 74 and Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 distinguished.

Taj Din and another v. Mst. Mehr Mai and 7 others 1997 SCMR 134; Tassadaq Hussain and another v. Afzal Mumtaz and 2 others 2001 MLD 740; Hafiz Muhammad Islam v. Muhammad Bashir 2003 CLC 1792; Communication and Works Department through Secretary v. Messrs Pavital/PIVATO Joint Venture and 2 others 2003 CLC 1798; Syed Muhammad Anwar, Advocate v. Sheikh Abdul Haq 1985 SCMR 1228; Bashir Ahmad v. Ahmad-ul-Haq Siddiqui 1985 SCMR 1232 and Smt. Vidayabai and others v. Moorajmal 1980 SCMR 267 ref.

(b) Administration of justice---

----Where law required a particular thing to be done in a particular manner, it had to be done in that manner.

Malik Noor Muhammad Awan for Petitioners.

Masood Ashraf Sh. for Respondent No.8.

Syed Zahid Hussain Khan for all remaining Respondents.

Date of hearing: 8th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1704 #

2007 Y L R 1704

[Lahore]

Before Sayed Zahid Hussain, J

MUHAMMAD MANSHA and 7 others---Petitioners

Versus

MUHAMMAD YAQOOB---Respondent

Civil Revision No.2614 of 2001, heard on 19th December, 2006.

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

----S.13---Pre-emption---Legal requirements of Talbs---Provisions of S.13, Punjab Pre-emption Act, 1991 which make it incumbent upon pre-emptor to perform Talb-i-Muwathibat and Talb-i-Ishhad before institution of suit (Talb-i-Khusumat), lays lot of emphasis that the moment, pre-emptor acquires knowledge about transaction of sale, he should immediately come forward 'and assert his right by making Talb-i-Muwathibat which is then followed by a notice of Talb-i-Ishhad---Said notice is required to be attested by two truthful witnesses---Witnesses are then supposed to appear before court in support of the assertions of pre-emptor---For this purpose necessary particulars as to where and from whom the pre-emptor acquired knowledge of transaction, the date and timing thereof and particulars about the persons present there are required to be stated in the notice of Talb-i-Ishhad, the plaint and then to be proved before court by producing positive and convincing evidence.

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

----S.13---Pre-emption suit---Non-mentioning in plaint of necessary particulars---Effect---Plaintiff filed suit for pre-emption but plaint was silent about necessary particulars as to when, where and from whom pre-emptor acquired knowledge of transaction---Evidence led by plaintiff was fraught with contradictions and inconsistencies which was not reliable to return finding in favour of plaintiff---Trial Court was therefore fully justified to dismiss suit but Appellate Court reversed said finding without realizing importance of pre-conditions of such a suit i.e. the performance of Talbs---Issue regarding performance of Talbs had either to be decided in favour of plaintiff or against him---View taken by Appellate Court that said issue could not have been answered in favour of defendant was not sustainable hence set aside---Judgment of Trial Court was restored by High Court.

Muhammad Siddique v. Muhammad Sharif and others 2005 SCMR 1231; Attiq-ur-Rehman through (Real Father) and another v. Muhammad Amin PLD 2006 SC 309 and Muhammad Yousuf v. Muhammad Rafique and others PLD 2006 Lah. 39 ref.

Ch. Muhammad Ashraf Sheikhupuri for Petitioners.

Respondent proceeded ex parte.

Date of hearing: 19th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1709 #

2007 Y L R 1709

[Lahore]

Before Muhammad Muzammal Khan, J

TARIQ MEHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6824-B of 2006, decided on 19th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, confirmation of-Accused had placed on record 9 affidavits of different respectables of the area deposing that the dispute was between the parties regarding supply of defective rice regarding which accused had issued an advance cheque of Rs.3,94,095---Accused had also produced copies of his daily register showing that complainant had been dealing with him regarding sale/purchase of agricultural produce; and accused paid Rs. 2,00,000 to complainant---All that material made the dispute that of civil nature, besides making the case of accused that of further inquiry---Tentatively criminal prosecution had been initiated just to pressurize accused to bring him to the terms of the choice of the complainant---Accused undertook to pay balance amount of Rs. 1,49,095 in 2 equal instalments within a period of 2 months-Accused belonged to a business community and there was no chance of his abscondence or tampering with prosecution evidence---Since accused had not denied execution of cheque in question, his person was not needed for investigation purposes---Offence charged was not covered by prohibitory clause of S.497, Cr.P.C. and its punishment was alternative---Accused would face the sentence, if ultimately convicted by the Trial Court---Bail, already granted to accused, was confirmed, accordingly.

Muhammad Zubair Khalid for Petitioner.

Shahzad Hassan for the State along with Amjad, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1711 #

2007 Y L R 1711

[Lahore]

Before Sh. Javed Sarfraz, J

MUSHTAQ ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8088-B of 2006, decided on 18th October, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 103---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Bail, grant of---Counsel for accused had contended that provisions of S.103, Cr.P.C. had been violated as no private witness had been associated despite recovery was allegedly made at busy place---Contention was repelled as provisions of S.103, Cr.P.C. were not applicable in such-like cases---Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 entailed a maximum sentence of two years, which was thus a bailable offence, while Art.3 of said Order did not fall within the prohibitory clause of S.497, Cr.P.C.---Investigation in the case was complete and accused was no more required by the police for any purpose---Sample was sent to the Chemical Examiner for analysis, but report having not been received back, it could not be said as to whether material recovered from accused was liquor or not---Accused was admitted to bail, in circumstances.

Zafar Iqbal Chchan for Petitioner.

Miss Nasim Noor for the State with Nasir Mehmood., A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1714 #

2007 Y L R 1714

[Lahore]

Before Tariq Shamim, J

Syed SAFDAR ABBAS and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1114-B of 2006, decided on 14th June, 2006.

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

----S. 498---Penal Code (XLV of 1860), Ss.324 & 337-F(vi)---Bail before arrest, refusal of---Accused while armed with .30 bore pistol fired a shot at injured which went through his leg and fractured it---Ocular account was fully supported by medical evidence---Provisions of S.324, P.P.C., in circumstances, was fully .attracted to the case of accused---Contention of accused that he having not repeated the fire, his intention to commit murder was not present, was misconceived as in view of the locale of the injury and extent of damage caused, the intention to kill could be safely inferred---Weapon of offence had yet to be recovered by the police---Since offence under S.324, P.P.C. fell within the prohibitory clause of S.497, Cr. P. C., accused was not entitled to the extraordinary concession of pre-arrest bail---Bail application to the extent of accused was dismissed and ad interim pre-arrest bail granted to him was withdrawn.

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

----S. 498---Penal Code (XLV of 1860), Ss.324 & 337-F(vi)---Bail before arrest, confirmation of---Co-accused though was stated to be present at the place of occurrence, but the only overt act attributed to him was that of firing at prosecution witnesses and since he had not caused any injury to any prosecution witness, provisions of S.324, P.P.C. would not be attracted to his case---Longstanding enmity existed between the parties on account of pending litigation, false involvement of co-accused thus could not be ruled out---Ad interim pre-arrest bail granted to co-accused, was confirmed, in circumstances.

Ch. Muhammad Saleem Kharal for Petitioners.

Pir Masood-ul-Hassan Chishti for the Complainant.

Sheikh Arshad Ali for the State with Anwar Shakir, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1719 #

2007 Y L R 1719

[Lahore]

Before Ijaz Ahmad Chaudhry and Mian Muhammad Najam-uz-Zaman, JJ

IJRAR HUSSAIN alias CHIN---Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.357-J and Murder Reference No.24-T of 2004, decided on 26th July, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-A(i), 337-F(i), (iii) & 460---Appreciation of evidence---Case of two versions---Version of accused was not only repellent to common sense, but was also not understandable as to why the kith and kin of deceased, while leaving the real culprits would implicate accused in the case---Defence plea was also silent with regard to the injury received by prosecution witness during occurrence---Dimension and location of injuries on the person of prosecution witness, had revealed that same could not be caused with friendly hands and duration of those injuries also tallied with the time of occurrence---Time, place of occurrence and weapon used during occurrence, were admitted facts---Accused also never opted to make any statement under S.340(2), Cr. P. C. nor produced his friend in the defence who statedly was accompanying him when occurrence took place---Defence plea of accused was nothing, but an afterthought---Accused was apprehended at the spot and crime weapon (pistol) was recovered from him---During spot inspection, Investigating Agency also recovered some empties which were sent to the office of Forensic Science Laboratory and report from said office had revealed that weapon recovered at the instance of accused had matched with said empties---Both complainant and prosecution witness had narrated circumstances under which accused and his co-accused while trespassing into the house, had committed offence---Presence of both said witnesses being the inmates of the. house at the relevant time, was very natural---Stamp of injuries on their persons was another fact to establish their presence at the relevant time---No evidence was on record to show that said witnesses had any malice or grouse against accused to falsely implicate him---Evidence of said eye-witnesses inspired confidence, rang true and found ample support and corroboration from the medical evidence as well as recovery of crime weapon at the instance of accused coupled with the report from office of Forensic Science Laboratory---Prosecution, in circumstances had succeeded in proving its case to the hilt---Death sentence awarded to accused by the Trial Court was confirmed and murder reference, was answered in affirmative.

Mian Abdul Qayyum Anjum for Appellant.

Salman Safdar, Special Prosecutor NAB for Respondent.

2007 Y L R 1752

[Lahore]

Before Jawwad S. Khawaja

MUHAMMAD DIN---Appellant

Versus

MAHBOOB AHMAD and 4 others---Respondents

Regular Second Appeal No.59 of 2006, heard on 23rd January, 2007.

Specific Relief Act (I of 1877)---

----S.12---Agreement to sell--Proof---Plaintiffs sought specific performance of agreement to sell allegedly executed by defendant through his attorney---Plaintiffs claimed that entire sale consideration had been paid to defendant at the time of execution of agreement---Execution of disputed agreement and power of attorney was admitted by defendant however defence set up by defendant was that he had merely intended J to give suit-land on lease to plaintiffs for a period of four years and had executed an agreement believing the same to be a Patta Mama---Perusal of record revealed that defendant being illiterate had thumb-marked the power of attorney in the proceedings before Sub-Registrar---Said power of attorney was relied upon by courts below as a corroborative of execution of the agreement---One of marginal witnesses of agreement who had been declared hostile and afterwards appeared as, defendant witness contradicted himself in material particulars hence rightly' disbelieved by courts below---Contention that plaintiffs failed to prove the payment of sale consideration had no force becaase scribe of document appeared as witness and deposed that defendant had acknowledged receipt of the money---Plaintiffs had proved the execution of agreement by producing witnesses whose statements had not been undermined in cross-examination---Defendant failed to show the existence of any of the grounds mentioned in S.100, C.P.C. in support of his stance---Appeal was dismissed.

Azmatullah Chaudhry for Appellant.

Ch. Muzaffar Ali Khan for Respondents.

Date of hearing: 23rd January, 2007.

2007 Y L R 1762

[Lahore]

Before Syed Asghar Haider, J

SANAULLAH---Petitioner

Versus

Mst. INAYAT BIBI---Respondent

Civil Revision No.52 of 2007, heard on 30th March, 2007.

(a) Malice---

----Meaning---Malice in common parlance, means ill-will against a person but in its legal sense, it means wrongful act done intentionally without just cause or excuse---Malice is the state of mind manifested by an intent to commit an unlawful, act and a deliberate intention to commit the act.

Stroud's Judicial Dictionary and Webster Dictionary ref.

(b) Malicious prosecution---

----Suit for Damages---Cancellation of F.I.R.---Case under Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was registered against plaintiff and he was arrested---Allegation against the plaintiff was found to be false during investigation thus the F.I.R. was cancelled---Plaintiff filed suit for recovery of damages against the complainant on the ground that on the basis of false accusation he remained in confinement, suffered mental agony and monetary lose---Trial Court and Appellate-Court concurrently dismissed the suit and appeal filed by plaintiff---Validity---Defendant/complainant during her evidence before Trial Court averred a specific role to plaintiff, which was later on found false and he was exonerated, therefore, malice was evident from the contents of the F.I.R.--Such fact was further affirmed by plaintiff during his evidence---All vital and significant evidence was concurrently not considered by the Court below---Both the Court below failed to note the amount of agony and trauma the plaintiff suffered---Plaintiff's right to unrestricted movement and liberty was the most precious right an ,individual had---Plaintiff was incarcerated and kept in confinement for no fault of his, such fact alone entitled him to compensation---Both the Courts below ignored all material evidence in such context thus there was misreading of evidence and thereby both the courts failed to exercise jurisdiction vested in them---High Court, in exercise of revisional jurisdiction, set aside and concurrent judgment and decrees passed by two courts below and decreed the suit in favour of plaintiff---Revision was allowed in circumstances---Civil Procedure Code (V of 1908), S.115.

Sardar Muhammad Ramzan for Petitioner.

Ijaz Ahmed Khan for Respondent.

Date of hearing: 30th March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1764 #

2007 Y L R 1764

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD HASSAN HAQQANI and another---Petitioners

Versus

ELECTION TRIBUNAL GUJRANWALA/DISTRICT AND SESSIONS JUDGE, HAFIZABAD and 3 others---Respondents

Writ Petition No.10414 of 2006, decided on 2nd April, 2007.

(a) Punjab Local Government Election Rules, 2005---

----Rr. 65 & 72---Civil Procedure Code (V of 1908), O. VII, R.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Rejection of Election petition--Summary rejection of petition was sought under O. VII, R.11, C.P. C. on ground that petitioner No.1 being not a matriculate could not assail the election of returned candidates---Election objections to nomination papers of petitioner had admittedly been filed during election and same were rejected by Returning Officer---Appeal was also dismissed by District Returning Officer---Law provided that for maintaining an Election petition, one had to be a 'candidate' only---Petitioner was a 'candidate' within the meaning of Local Government Elections Rules, 2005 and he could validly maintain election petition challenging the result of election in dispute---Provisions of O.VII, R.11, C.P.C. could be invoked only if the election petition had not disclosed any cause of action or same had been barred by law but none of these eventualities existed in the present case to non-suit the petitioners summarily---Even none of the violations mentioned in Rule 72 of the Punjab Local Government Elections Rules, 2005 were committed during trial of election petition---Election Tribunal, by accepting application under O. VII, R.11, C.P.C. thus, had exceeded its jurisdiction.

(b) Punjab Local Government Elections Rules, 2005---

---Rr. 2(iv), 2(v), 2(xxi) & 2(xxvi)---"Candidate ", "Contesting candidate ", "Returned candidate" and "validly nominated candidate "---Meanings---Said words have been used and defined in clauses (iv), (v), (xxi) and (xxvi) of Rule 2 of the Punjab Local Government Elections Rules, 2005 respectively---'Candidate' is a 'person nominated for election of a Member, a Nazim or Naib Nazim of any Council---`Contesting candidate' means a candidate who has been validly nominated for election of a Member of any council or Nazim/Naib Nazim of District, Tehsil, Town or Union Council and has not withdrawn his candidature on or before the withdrawal date---'Returned candidate' is a candidate who has been declared elected for any Union Council---Similarly 'validly nominated candidate' is a candidate whose nomination papers have been accepted under Punjab Local Government Elections Rules of 2005.

----S. 16---Joint candidacy and elections---Scope---Joint candidature comes to an end after notification of election result and functions/duties of both offices of Union Nazim and Union Naib Nazim are conducted separately and none of them was answerable for omissions/commissions of the other.

Ch. Maqbool Ahmad and others v. Malik Falak Sher Farooqa A.D.J./Election Tribunal and others PLD 2003 Lah. 138 ref.

M. Asghar Khan for Petitioner.

Ch. Fayyaz Ahmad for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 1770 #

2007 Y L R 1770

[Lahore]

Before Sh. Hakim Ali, J

QASIM ALI---Petitioner

Versus

SHER MUHAMMAD---Respondent

Civil Revision No.102-D of 1993/BWP, heard on 8th March, 2007.

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

----S.42---Transfer of Property Act (IV of 1882), S.54---West Pakistan Land Revenue Act (XVII of 1967), S.42---Declaration of title---Mutation of sale---Burden to prove--Non-production of revenue officer as witness---Effect---Plaintiff assailed mutation of sale sanctioned in favour of defendant on the ground of its being based upon fraud---Trial Court dismissed the suit filed by plaintiff but Appellate Court allowed the appeal and decreed the suit---Validity---To prove sale transaction having been made through mutation, it was for the defendant to prove fact of sale---Mere incorporation of entries in next Jamabandi could not prove its genuineness nor grant of any benefit could absolve the defendant from proving sale transaction independently, which was denied by plaintiff at the very outset---Essential ingredients of sale transaction and payment of price of land were not proved on record by defendant---Burden of proof could not be placed upon the shoulder of plaintiff for proof of sale transaction, which was alleged and asserted by defendant---Party who asserted the transaction had to prove it himself--Omission to produce Tehsildar, who had attested the mutation and Patwari who had entered the mutation was to affect adversely the case of defendant---Sale transaction having not been proved, High Court declined to take any exception to judgment and decree passed by Lower Appellate Court.

Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890; Hyder through Legal Heirs v. Raja and 5 others 2000 YLR 1490; Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338; Gharib Shah and others v. Zarmar Gul PLD 1984 SC 188 and Bakhtiar and 3 others v. Member III, Board of Revenue, Balochistan, Quetta and 20 others PLD 1984 Quetta 158 ref.

Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Naja and 2 others v. Shahmand and 4 others PLD1985 Lah. 607; Abdul Majeed and 6. others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Muhammad Azam and others v. Muhammad Yar and others 1988 CLC 2388 and Hakim Khan v. Nazeer Ahmad Lughmani and others 1990 MLD 89 rel.

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

----S.39---Mutation not a proof of title---Mutation itself does not confer any right or 'title in property in dispute---Mutation is sanctioned for fiscal purposes only---Person who claims sale in his favour has to prove sale transaction independently in accordance with legal evidence brought on record of the case.

----S. 42---Mutation, sanctioning of---Principles---Mutation not sanctioned in village where suit-land is situated, is violative of the provision of S.42 of West Pakistan Land Revenue Act, 1967---Assistant Collector, under S.42 of West Pakistan Land Revenue Act, 1967, has to conduct inquiry in common assembly in the estate where land is located and to pass order after vendor has been identified by two respectable persons of the union council concerned.

Ijaz Ahmad Ansari for Petitioner. .

Muhammad Mahmud Bhatti, for Respondent.

Date of hearing: 8th March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1775 #

2007 Y L R 1775

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD ASIQ and 7 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9593-B of 2005, decided on 17th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.379, 448, 452, 148 & 149---Pre-arrest bail, refusal of---All accused were named in F.I.R. and were shown armed with fire-arms of different nature---Accused resorted to indiscriminate firing and stole different things including cash amount---During investigation all accused were found guilty and connected with the occurrence---Six co-accused by the same Investigating Officer having been declared innocent, no ulterior motive or mala fide could be attributed to said Investigating Officer or other police officers---Accused persons stood named in F.I.R. and an act of criminal role was assigned to them---Recovery of certain stolen items had also been effected---Statements of prosecution witnesses under S.161, Cr.P.C., also provided strength to the statement of the complainant---Case being not fit for granting extraordinary concession of pre-arrest bail, application in this behalf was dismissed.

M. Aurang Zeb Daha for Petitioners.

Rehan Yousaf for the State.

Zafar Iqbal Chohan for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 1777 #

2007 Y L R 1777

[Lahore]

Before Tariq Shamim, J

MANZOOR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6428-B of 2006, decided on 22nd August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i) (ii), 337-F(i), 34 & 109---Pre-arrest bail, confirmation of---Delay of six months in lodging. of F.I.R., having not been explained, there was a good possibility that accused was falsely involved in the case as complainant had ample time for consultation---Civil litigation being pending between the parties, false involvement of accused on account of mala fides of complainant could not be ruled out---Investigating Officer during investigation found that neither accused was armed with any weapon nor he inflicted any injury on complainant, though he was present at the spot---Vicarious liability of accused could only be determined at the trial after recording of evidence and not at bail stage---Investigation having revealed that accused was not armed with any weapon, question of recovery of any weapon of offence from accused did not arise---Eye-witness account was in conflict with medical evidence---Offences against accused did not fall within the prohibitory clause of S.497, Cr.P.C.-Investigation was complete, challan had been submitted in the court and accused was not required for any investigation or for recovery of any weapon of offence---Sending accused to jail, would not serve any useful purpose in circumstances---Ad interim pre-arrest bail granted to accused, was confirmed, accordingly.

Tariq Bashir's case PLD 1995 SC 34 ref.

Ch. Naveed Akhtar Bhatti for Petitioner.

Ch. Naeem Masood, Asstt. A.-G. for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 1779 #

2007 Y L R 1779

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

Sh. SALEEM AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5616-B of 2006, decided on 26th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 468 & 471---Emigration Ordinance (XVIII of 1979), Ss.17 & 27(VIII)---Bail, grant of---Accused in support of his plea that he was permanent resident of United Kingdom and was also employed there, had placed on record photo-copies of the debit cards issued in his name by the banks in United Kingdom and his N.H.B. Medical Card etc.---Said documents prima facie were sufficient to show that accused had settled in the foreign country and was on temporary visit to Pakistan---Ingredients of S.17 of Emigration Ordinance, 1979, would not be attracted against accused by virtue of S.27(viii) Emigration Ordinance, 1979---Sections 420 & 471, P.P.C. were bailable offences, whereas no evidence was on record to show that accused himself had forged the documents in question---Offence under Ss.468/471, P.P.C. also did not fall within the prohibitory clause of S.497, Cr.P.C.-Accused was admitted to bail, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Raja Abdul Rehman for Petitioner.

Muhammad Hussain Chhachhar, Standing Counsel, F.I.A.

Sheikh Mumtaz, Inspector.

YLR 2007 LAHORE HIGH COURT LAHORE 1785 #

2007 Y L R 1785

[Lahore]

Before Tariq Shamim, J

IJAZ ALI and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6346-B of 2006, decided on 18th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498--Penal Code (XLV of 1860), S.324---Bail before arrest, refusal of---.F.I.R. having been lodged with promptitude, no time was left for complainant for consultation---Accused, in circumstances could not have been falsely involved in the case, particularly as the occurrence was a day time occurrence and same had been witnessed by two Advocates, who had got their statements recorded under S.161, Cr. P. C. implicating accused with the commission of offence---Accused were nominated in the F.I.R. and specific role of firing at complainant had been ascribed to them, which was supported by the recovery of five empties of .30 bore pistol from the spot on the date of occurrence---Car in which complainant was riding at the time of occurrence, was also taken into possession by the police---Accused failed to appear before the Court, on the date when this application for confirmation of bail was fixed---Such conduct of accused had further disentitled them to grant of extraordinary concession of pre-arrest bail---No mala fide had been alleged by accused against complainant or police for their false involvement in the case---Opinion of the police, was not binding on the court, particularly in the case which was not based on any tangible material---Prima facie the offence under S.324, P.P.C. was attracted to the case of accused which was punishable with a sentence of 10 years, which was hit by prohibitory clause of S.497, Cr.P.C.---Accused having failed to make out a case for grant of extraordinary concession of pre-arrest bail, petition for bail was dismissed.

Ch. Shahid Pervaiz Kahloon for Petitioners.

Sh. Jamal-ud-Din for the Complainant.

Liaqat Ali Sial for the State with Aslam, S.-I..

YLR 2007 LAHORE HIGH COURT LAHORE 1787 #

2007 Y L R 1787

[Lahore]

Before Asif Saeed Khan Khosa, J

RASHID MEHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.600-B of 2006, decided on 13th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 452, 148 & 149---Bail, grant of---Further inquiry---Accused had not caused any injury to any person during alleged occurrence and role attributed to him the F.I.R. was in respect of indulging in ineffective firing---Allegations levelled against accused in the F.I.R., were couched in generalized and collective terms and no specific attribution had been made to accused therein---Pistol though allegedly had been recovered from the possession of accused during investigation of the case, but nothing was available on record to connect recovered pistol with alleged offences---After completion of investigation, challan had already been submitted---Continued custody of accused in jail was not likely to serve any beneficial purpose---Case against accused calling for further inquiry into his guilt, accused was admitted to bail in circumstances.

Zafar Iqbal Chohan for Petitioner.

Ishfaque Ahmad Chaudhry for the State with Niaz Ahmad, A.S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 1791 #

2007 Y L R 1791

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD IQBAL KHAN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8149-B of 2005, decided on 23rd January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.420, 467, 468 & 471---Bail, grant of---Further inquiry---Vehicle in question had initially been registered in the name of deceased husband of complainant---Record had also revealed that apart from complainant deceased had also another wife---Contention of accused that since he had been driving car in question as a driver during lifetime of deceased husband of complainant and after his death both wives of deceased had authorized him to get said car transferred in his name as a step towards distribution of estate of deceased, was a claim which could not be summarily brushed aside---Even otherwise apart from S.467, P.P.C., offence with which accused was charged with, did not attract prohibitory clause of S.497(1), Cr. P. C. --- Applicability of S.467, P.P.C., in circumstances called for further probe--Accused were in custody by the last more than five months and the trig' had not commenced---Accused were admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioners.

Maqbool Ahmed Qureshi for the State with Sami Ullah Khan, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1796 #

2007 Y L R 1796

[Lahore]

Before Muhammad Muzammal Khan, J

KHALID SAJJAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7062-B of 2006, decided on 25th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Bail before arrest, refusal of---Accused could not substantiate his submissions of investment of any amount by complainant for trading in the Stock. Exchange or re-payment by him of the amounts given by complainant---No documentary proof was available with accused that he had issued the cheques in question, in advance to complainant---Counsel for accused attempted to argue that complainant owed an amount of Rs. 20,00,000 and he had already filed a suit for its recovery against complainant, but pendency of suit would not give a licence to accused to issue fake cheques of considerable huge amount of Rs. 41,00,000, one after the other---All cheques by accused were dishonoured which had in it element of deliberate cheating---Prosecution had collected sufficient incriminating evidence in form of statements of prosecution witnesses under S.161, Cr. P. C., besides documentary evidence in form of Bank Memos.---Accused had not joined police investigation, despite direction in that behalf---Accused had been named and assigned specific role in F.I.R. and was prima facie connected with the offence charged---No case for confirmation of bail before arrest, having been made out interim bail before arrest granted to accused, was recalled.

Ms. Rabbiya Bajwa for Petitioner.

Atar Mehmood for the Complainant.

Shoaib Zafar for the Sate along with M. Majeed, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1805 #

2007 Y L R 1805

[Lahore]

Before Sh. Javaid Sarfraz, J

Mst. RAZIA BIBI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9188 of 2006, decided on 11th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497 [as amended by Criminal Law Amendment Ordinance (XXXV of 2006)]---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Bail, grant of---Accused who was a woman, was accused of offence under S.10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which, in the light of Criminal Law Amendment Ordinance, 2006, would be treated as bailable relating to accused as the offence against her did not relate to terrorism, financial corruption and murder---Grant of bail, in bailable offences, was a right of accused and not a grace from the court---Accused having made out case for grant of bail, she was admitted to bail.

Zafar Iqbal Chohan for Petitioner.

Ijaz Ahmad Bajwa for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 1810 #

2007 Y L R 1810

[Lahore]

Before Tariq Shamim, J

SHAHID AZIZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6426-B of 2006, decided on 21st August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Bail before arrest, confirmation of---Delay of one month in lodging F.I.R., having not been explained, false involvement of accused in the case could not be ruled out---Business dispute between the parties having not been denied, it could not be said that cheque in question was given by accused for payment of loan or fulfilment of obligation which was a condition precedent for attracting provisions of S.489-F, P.P.C.-Accused had denied having signed the cheque in question which was affirmed by the report of Forensic Science Laboratory---No recovery had to be effected from accused as the cheque in question had already been taken into possession by the police during investigation---Report of the Bank Manager also supported the stand taken by accused that he had neither issued cheque in favour of complainant nor signed the same---Bank Manager in his report had submitted that signature on the cheque did not tally with the signatures on the signature card of the said account---Offence under S.489-F, P.P.C. being punishable with a maximum sentence of 3 years, same did not fall within the prohibitory clause of S.497, Cr.P.C.---Since 'investigation was complete, sending accused behind the bars at this stage would not serve any useful purpose---Accused having made out a case for the grant of pre-arrest bail, ad interim pre-arrest bail already granted to him was confirmed.

Ali Murtaza v. The State 2005 PCr.LJ 1773; Safdar Hussain v. The State 2005 YLR 1607 and Subedar Fazal Hussain v. Qazi Muhammad Basher and 12 others PLD 1989 SC (AJ&K) 89 ref.

Muhammad Ghani for Petitioner.

Aftab Rahim for the Complainant.

S.D. Qureshi for the State with Abdul Ghafoor, S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 1820 #

2007 Y L R 1820

[Lahore]

Before Khawaja Muhammad Sharif, J

GHAZALA IKRAM---Petitioner

Versus

MUHAMMAD AKRAM ALI and another---Respondents

Criminal Miscellaneous No.7541-BC of 2006, decided on 16th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Bail, cancellation of---Accused was allowed bail before arrest by the High Court with the condition that in case report of handwriting expert would come against him complainant would be at liberty to file an application ° for cancellation of bail against him---Not only the report of handwriting expert was against the accused, but allegations levelled by him against two Inspectors of F.I.A., were also found to be false---Director (Technical) F.I.A. who had held detailed inquiry had given detailed reasons in that regard---Case for cancellation of bail having been made out against accused, bail granting order passed in his favour was recalled and he was directed to be taken into custody.

1988 PCr.LJ 2033; 1993 PCr.LJ 1208; 1996 MLD 1362; 1997 MLD 2097; 1988 SCMR 1129 and 1999 PCr.LJ 142 rel.

Sardar Akbar Ali Dogar for Petitioner.

Hussain Aziz Bhatti for Respondent No.1.

Ms. Raheela Raees for the State.

Muhammad Aslam Zar, Standing Counsel, F.I.A. and Jahangir S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 1841 #

2007 Y L R 1841

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

JAVED AKHTAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.232-J of 2001 and Murder Reference No.422 of 2001, decided on 6th July, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 336---Appreciation of evidence---Occurrence had taken place in broad daylight and F.I.R. in the case had been lodged with reasonable promptitude, wherein accused had specifically been nominated as the principal perpetrator who had murdered deceased and had launched murderous assault on others by firing at them successively and effectively---Ocular account of incident was provided before the Trial Court by the complainant and other prosecution witness---Both said eye-witnesses were very closely related to deceased and injured victim and they were natural witnesses as occurrence had taken place in the compound of their house---Prosecution witness had a stamp of injuries on her person so as to vouchsafe her presence at the spot at the relevant time---Both said eye-witnesses . had made consistent statements before the Trial Court regarding the main occurrence and involvement of accused in the same---Statements made by said eye-witnesses in respect of main incident had not only inspired confidence, but same had also impressed the court with their straightforwardness and forthrightness---During the investigation, six crime empties had been secured from the place of occurrence and a pistol of .30 bore had also been recovered from the possession of accused---Forensic Science Laboratory showed that all the six crime empties had matched with the pistol recovered from the possession of accused---Ocular account, in circumstances, had received sufficient corroboration from said recoveries---Medical evidence brought Ion record had also provided ample support to the ocular account, inasmuch as the date and time of occurrence, weapon used and the locale of injuries stated by the eye-witnesses, had all been confirmed by medical evidence---Deficiency in prosecution case with regard to motive, was not sufficient to shake or weaken case of prosecution, which stood amply proved through consistent and natural ocular account corroborated by the recoveries and supported by medical evidence---Accused in his statement recorded under S.342, Cr.P.C. had maintained that given up prosecution witness had committed relevant murders and murderous assault, but it was a mere verbal assertion as no independent evidence had been produced by accused in that respect---Said version had rightly been discarded by the Trial Court---Prosecution, in circumstances had succeeded in establishing the guilt of accused---Accused who was proved to be a desperate person, deserved no sympathy in the matter of sentence of death awarded to accused by the Trial Court---Normal wages of a crime of murder was death and in the circumstances of the case, accused deserved no less---Conviction and sentences recorded against accused by the Trial Court, were upheld and maintained and murder reference was answered in the affirmative and sentences of death passed against accused, were confirmed.?

Sheikh Muhammad Ishaque Zia for Appellant.

Tehsin Irfan (in Criminal Appeal No.232-J of 2001) for the State.

M. Saleem Shad (in Murder Reference No.422 of 2001) for the State.

Altaf Hussain Qureshi Hashmi for the Complainant.

Date of hearing: 6th July, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1846 #

2007 Y L R 1846

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

THE STATE and another---Appellants

Versus

AHTASHAAM NABI and others---Respondents

Criminal Appeal No.208-J, Criminal Revision No.374 and Murder Reference No.408 of 2001, decided on 3rd July, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---F.I.R. was got lodged with promptitude in which name of. accused who had fired at deceased along with co-accused, was duly mentioned---Said F.I.R. which was registered as claimed by prosecution immediately after incident, could be used as corroborative piece of evidence to ocular account---Both eye-witnesses, though were closely related inter se and with deceased, but mere close relationship of eye-witnesses with each other and with deceased was not a ground to term them as interested witnesses, when they had no previous enmity or ill-will with accused to falsely implicate him in the case---Both eye-witnesses were independent and natural witnesses as they were residents of the same village---Presence of eye-witnesses at the spot at the time of occurrence had been sufficiently explained---Incident was a daylight occurrence which had taken place at the path/thoroughfare surrounded by the land owned by different persons---Presence of the people at the relevant time near the place of incident and witnessing the same was possible---Said incident could not have gone un-noticed and accused must have been identified in the daylight---Both eye-witnesses remained consistent on material points regarding the time, place of occurrence and manner in which occurrence had taken place---Presence of prosecution witnesses at the spot was further supported by registration of F.I.R. with promptitude and conducting of post-mortem examination without delay---Eyewitnesses were subjected to lengthy cross-examination, but defence could not shatter their confidence---Statements of both eye-witnesses were., worthy of reliance as they had no motive to falsely implicate them in the case---Ocular account had been proved beyond any shadow of doubt having been given by independent and natural witnesses who had no previous ill-will or grudge against accused---Ocular account was fully supported by medical evidence---Use of .12 bore gun and firing at deceased was even admitted by accused---Recovery of gun from accused was inconsequential as no empty had been recovered from the spot and it could not be said that same weapon had been used in the occurrence---Acquittal of co-accused was also not sufficient to create any dent in the prosecution version. as said co-accused had not been attributed any injury to deceased and he was only alleged to have raised Lalkara at the time of incident---Prosecution having succeeded in proving case against accused beyond any shadow of doubt, conviction of accused recorded by the Trial Court under 5.302(b), P.P.C. against accused, was maintained---Complainant had made improvement regarding motive and it was not claimed by complainant in F.I.R. that he was present at the time of incident---Both parties were not inimical to each other previously and occurrence had taken place as a result of some other occurrence---Possibility of firing by accused upon deceased due to family honour could not be ruled out---Case, in circumstances was fit to exercise discretion by awarding lesser punishment to accused---Death sentence awarded to accused by the Trial Court was not confirmed and Murder Reference was replied in negative.

Sultan Khan v. Sher Khan and others PLD 1991 SC 520 ref.

Syed Zahid Hussain Bukhari for Appellants.

Malik Muhammad Suleman Awan (in Murder Reference No.408 of 2001) for the State.

Badar Munir Malik (in Criminal Appeal No.208-J of 2001) for the State.

Ch .Nazir Ahmad (in Criminal Revision No.374 of 2001) for the State.

Date of hearing: 3rd July, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1867 #

2007 Y L R 1867

[Lahore]

Before Asif Saeed Khan Khosa and Hasnat Ahmad Khan, JJ

ABDUL BASIT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1 of 2002, heard on 22nd February, 2007.

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

----S. 9(c)---Appreciation of evidence---Accused had led to recovery of charas weighing 17 kilograms and opium weighing 15 kilograms, which had been proved by witnesses having no ill-will or bitterness against him---Samples of the recovered substance were found to be of charas and opium---Trial Court after obtaining and preparing samples of charas had destroyed the remaining charas and a certificate in this regard was placed on record, which having been issued by the Court was a sufficient proof of taking of the sample of charas---Third proviso of S.516-A, Cr.P.C. provided that the samples obtained through the process given in the second proviso of the said section, would be deemed to be whole of the property in an inquiry or proceedings in relation to such offences--Before destroying the properties mentioned in second proviso of the said section, no notice was required to be issued to the accused---Even otherwise, accused had not at any stage claimed that quantity of the recovered substance had wrongly been mentioned or that the recovered material was not charas or opium, and therefore, he could not be held to have been prejudiced in any manner by the destruction of the contraband material by the Court, which was fully competent .to do so---Accused, thus, was liable to be convicted and sentenced on the basis of whole contraband substance recovered at his instance and the same were maintained accordingly.

Ijaz ur Rehman v. The State 2005 YLR 16 distinguished.

Ch. Muhammad Akram for Appellant.

Bashir Ahmad Bhatti, D.P.G. for the State.

Date of hearing: 22nd February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1871 #

2007 Y L R 1871

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

THE STATE---Appellant

Versus

MUHAMMAD SHAREEF---Respondent

Criminal Appeal No.237-J of 2001 and Murder Reference No.449 of 2001, decided on 4th July, 2004.

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

----Ss.302(b) & 337-F(i)---Appreciation of evidence---Presence of complainant at the scene of occurrence being doubtful, his statement was not relied upon---Other eye-witness being resident of the house of occurrence was a natural witness and her presence at the spot was further stamped by the injuries received by her during the incident---Said witness had no enmity, grudge or ill-will against the accused to falsely implicate him in the case---Quality of evidence and not its quantity had to be seen by the Courts for recording conviction in criminal cases---Statement of the said solitary witness being of unimpeachable character inspired confidence without being corroborated by any other independent evidence, which had sufficiently explained the time, place and manner of occurrence---Mistaken identity of accused was impossible due to close relationship between the parties---Medical evidence was not in conflict with ocular testimony---Recovery of hatchet from the accused found to be stained with human blood had also served as a corroborative piece of evidence---Accused had caused number of injuries not only to the deceased, but also to the said eye-witness, which had proved him to be a desperate person---No mitigating circumstance was available calling for reduction in sentence of accused---Conviction and sentence of death of accused were affirmed in circumstances.

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

----Ss.302(b) & 337-F(i)---Appreciation of evidence---Principles---Quality of evidence and not the quantity of evidence has to be seen by the Courts for recording conviction in criminal cases.

Ijaz Ahmad Chadhar for Appellant.

Saleem Shad for the State (in Murder Reference No.449 of 2001).

Mrs. Tahseen Irfan for the State (in Criminal Appeal No.337-J of 2001).

Date of hearing: 4th July, 2006.

JUDGMNET

IJAZ AHMAD CHAUDHRY, J.--We through this consolidated judgment, intend to dispose of Murder Reference No.449 of 2001 sent by the learned trial Court seeking confirmation of death sentence awarded to Muhammad Shareef convict-accused and Criminal Appeal No.237-J of 2001, filed by Muhammad Shareef appellant together as both these matters have arisen from the same judgment dated 19-7-2001 delivered by the learned Additional Sessions Judge, Kasur whereby Muhammad Sharif accused-appellant has been convicted under section 302(b), P.P.C. and sentenced to death as Tazir for committing Qatal-e-Amd of Mst. Anwar Bibi deceased. Muhammad Shareef accused-appellant was also directed to pay Rs.50,000 to the heirs of the deceased by way of compensation under section 544-A, Cr:P.C. or in default of payment thereof to further undergo six months' S.-I. Muhammad Shareef appellant was further convicted under section 337-F(i), P.P.C. and sentenced to one years' R.I. along with direction to pay "Daman" in the sum of Rs.10,000 to Mst. Gulnaz Bibi alias Baby injured (P.W.1) or in default of payment thereof to undergo one months' S.-I.

Concisely the facts of the prosecution case set up in the F.I.R. (Exh.P.A.1) got lodged by Muhammad Shafique complainant (P.W.2) are that'he was resident of Chak No.7 Goher, Police Station Saddar, Pattoki, and cultivator by profession. On 11-11-1997 at 8-00 p.m., he along with Muhammad Saleem son of Hakim Ali proceeded to the house of his sister namely; Mst. Anwar Bibi deceased while boarding over a tractor-trolley and they slept in the 'Baithak' of his sister along with Muhammad Saleem and Jameel Ahmad alias Mithu the maternal nephew of the complainant, while the sister of the complainant slept in the other room along with her children. At about 3-00 a.m. Mst. Gulnaz Bibi alias Baby the maternal niece of the complainant raised hue and cry which attracted the complainant, Muhammad Saleem and Jameel Ahmed P.Ws. to the spot and the witnessed that Muhammad Shareef alias Kuki appellant was inflicting hatchet blows upon his sister Mst. Anwar Bibi deceased which landed on her neck and head and when Mst. Gulnaz Bibi tried to save her mother by catching hold of the hatchet of Shareef appellant, she also sustained injuries on her right arm and left side of her neck at the hands of the appellant, who fled away by hoisting the hatchet. Mst. Anwar Bibi sister of the succumbed to the injuries at the spot. The occurrence was witnessed by the complainant, Saleem and Jameel P.Ws.
The motive behind the occurrence was alleged to be that Jameel Ahmad son of the deceased had been married with the daughter of Shareef appellant but she was divorced by Jameel Ahmed and as such the sister of the complainant was murdered by Shareef appellant. Leaving the dead body of Mst. Anwar Bibi deceased under the guard of Muhammad Jameel alias Mithu, the complainant proceeded to report the matter to the police but he met Nazir Ahmad Khan, S.-I. (P.W.10), near the Railway Crossing Landa and made statement (Exh.P.A.) before him in respect of the president incident of 7-50 a.m. on 12-11-1997, on the basis of which formal F.I.R. No.350 (Exh.P.A./1) was subsequently drafted by Muhammad Hussain, H.C. (P.W.8) at Police Station Saddar, Pattoki at 8-20 a.m. on 12-11-1997 in respect of offence under section 302, P.P.C.
The investigation of the case was conducted by Nazir Ahmad Khan (P.W.10), and during the investigation, the dead body of the deceased was inspected, injury statement and inquest, reports were prepared, statements of the witnesses under section 161, Cr.P.C. were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site-plan of the. place of occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, a formal site-plan of the place of occurrence was got prepared, the appellant was arrested on 21-11-1997, recovery of hatchet (P.1) from the appellants' possession was effected and after completion of the investigation report under section 173, Cr.P.C. was submitted in the Court.
The learned trial Court after supplying copies of the documents required under section 265-C, Cr.P.C,, to the appellant framed the charged against him on 7-9-1999, under sections 302/337-A(i)/ 337-F(i), P.P.C. to which he pleaded not guilty and claimed to be tried.
The prosecution in order to prove the guilt of the appellant produced as many as ten witnesses. The ocular account of the incident in question was furnished by Muhammad Shafique complainant (P.W.2) and Mst. Gulnaz alias Baby injured (P.W.1) was also deposed about the motive while the medical evidence was provided through the statements of Dr. Afzal Bashir (P.W.6) and Lady Dr. Rukhshinda Ahsan (P.W.9). The investigation of this case was conducted by Nazir Ahmad Khan, S.-I. (P.W.10), who had stated about the various steps taken by him during the investigation of this case. The other witnesses are of ` formal nature. .
In his statement recorded under section 342; C.P.C. the appellant had denied the allegations levelled against him by the prosecution and professed his innocence. However, to a question that "Why the P.Ws. have deposed against you and why this case has been registered against you? Muhammad Shareef appellant replied in the following terms:--

"The P.Ws. are inter se related with the complainant as well as deceased. The P.Ws. have deposed against me falsely. The real facts of the case are that at the time of occurrence, I was present at Lahore in the house of my real sister. I was involved in this case due to the reason that niece of the complainant namely: Gulnaz and who is real daughter of my late brother and illicit relations with Kheli Arain and I informed the complainant about this fact and asked him to forbid Gulnaz from her illicit relations but the complainant felt it ill and abused me and threatened me of the dire consequences. In fact, some unknown persons had committed the murder of Mst. Anwar Bibi, (deceased) in the darkness of the night. I am innocent."

However, he had not opted to make statement under section 340(2), Cr.P.C. nor the produced by evidence in his defence.

The learned trial Court, after hearing the arguments of the learned counsel for the parties, had passed the impugned judgment of conviction and-sentence against the appellant as detailed in para. 1 ante. Hence, both these matter before this Court.
The learned counsel for the appellant contends that Mst. Gulnaz alias Baby (P.W.1) was not injured and some fictitious woman had been produced before the doctor for her medical examination from which is evident that Dr. Afzal Bashir (P.W.6) did not get affixed her thumb-impressions on the Medico-Legal Report (Exh.P.E.) that it has been admitted by P.W.6. Dr. Afzal Bashir, that Mst. Gulnaz alias Baby was in full senses; that her medical examination had been conducted at 12-45 p.m. on 12-11-1997 while the occurrence in the present case had taken place at 3-00 a.m.; that the complainant of the present case namely Muhammad Shafique (P.W.2) was resident of Chak No.8 while the occurrence had taken place at Chak No.7 and as such he was a chance witness who had not given any reason for his being present at the fateful time at the place of occurrence; that the post-mortem examination in the present case had been conducted by Lady Dr. Rukhshanda Ahsan (P.W.9), on 12-12-1997 at 2-00 p.m. and the probable time which elapsed between the death and post-mortem examination had been described as 6/8 hours; that on the other hand, the case of the prosecution is that the occurrence had taken place at 3-00 a.m. °and post-mortem examination had been conducted after about 24 hours; that the medical evidence was in contradiction with the ocular account and there were two bruises as per injuries Nos.5 and 6 found by Lady Dr. Rukhshanda Ahsan (P.W.9) and the said injuries had not been explained by the ocular account that the recovery of hatchet was also effected through the close relatives of the deceased; that the eye-witnesses had not seen the occurrence and they were the chance witnesses; that the eye-witnesses had made false statements, who were not present at the spot and that the ocular account was not worthy of reliance being a concocted story. It has, thus, been canvassed by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond any reasonable doubt entitling him to acquittal by the Court.
On the contrary, the learned counsel for the State have vehemently opposed the appeal on the ground that Mst. Gulnaz alias Baby (P.W.1) though was real daughter of the deceased, yet she was also niece of the appellant; that heinous offence had been committed by the appellant; that the F.I.R., was got registered with promptitude; that no doubt both the eye-witnesses were close relative of the deceased but they had no motive to falsely. implicate the appellant in the present case by letting off the real culprit; that both the eye-witnesses and sufficiently explained their presence at the spot at the time of occurrence; that the eye-witnesses remained consistent on material points regarding the time, place of occurrence and the manner in which the occurrence had taken place; that the medical evidence also supported the prosecution version; that recovery of hatchet had also been effected from the appellant and that the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt, whose appeal may be dismissed.
We have heard the learned counsel for the parties and perused the record with due care and caution.
The occurrence in the presence case had taken place on 12-11-1997 at 3-00 a.m. in the house of Mst. Anwar Bibi deceased who was widow of Muhammad Hanif, brother of the appellant. She was residing in the house/place of occurrence with the other family members. The matter was reported to the police the same morning at 8-20 a.m. in which Muhammad Shafique complainant (P.W.2) claimed that on 11-11-1997 at 8-00 p.m. he along with Muhammad Saleem injured resident of Street Wakeelanwali opposite Raja Centre, Railway Road, Kasur' had come from Pattoki on a tractor-trolley to the house of his sister Mst. Anwar Bibi deceased and slept there: At about 3-00 a.m. the appellant while armed with hatchet arrived there and caused injuries to the deceased and Mst. Gulnaz alias Baby injured (P.W.1) daughter of the deceased and brother's daughter of the appellant.
To prove the ocular account the prosecution had produced Muhammad Shafique complainant (P.W.2) and Mst. Gulnaz alias Baby injured (P.W.1). Muhammad Shafique complainant was not resident of the place of incident and he had not given any special reason for his being present in the house of the deceased at the time of incident. It is also not expected from the appellant that he would choose the time for commission of the offence in the presence of Muhammad Shafique complainant (P.W.2) and one Saleem Gujjar. So after perusal of the statement of Muhammad Shafique complainant (P.W.2) and while finding that there is delay in conducting the post-mortem examination, the presence of Muhammad Shafique complainant (P.W.2) at the spot is found doubtful and his statement cannot be relied upon.
As against it, we cannot discard the statement of Mst. Gulnaz alias Baby injured (P.W.1) who was resident of the place of incident and was a natural witness. She had no enmity, grudge or ill-will to falsely implicate the appellant in the present case. The motive of the incident was stated to be that daughter of Muhammad Shareef appellant was married to Muhammad Jameel brother of Mst. Gulnaz alias Baby and son of Mst. Anwar Bibi deceased and she was divorced. This was grudge behind the commission of the crime by the appellant. After perusal of statement of Mst. Gulnaz alias Baby it is found that nothing could be gained by the defence to shatter her statement and also to prove that she was not an independent witness. She was resident of the same house and during night time her presence in the house cannot be doubted. As such her presence at the spot stood established and she was a natural witness. Her presence at the spot is further stamped by the injuries received by her during the incident and Medical Officer on 12-11-1997 at 12-45 p.m. had examined her three injuries were observed by the doctor out of which Injury No.1 was kept under observation while Injuries Nos.2 and 3 were declared as Ghair Jaifah Damiah. Injuries Nos.1 and 2 were caused with blunt-edged weapon while Injury No.3 was caused with sharp-edged weapon.
As far as the contention of the learned counsel for the appellant that Mst. Gulnaz alias Baby was not produced before the Doctor, but somebody else was produced and report of the Medical Officer was got procured is concerned, we have noticed that Dr. Afzal Bashir, M.O. appeared in the Court as P.W.6 and he was subjected to lengthy cross-examination but no mala fide or ill-will was brought on his part to issue medical certificate of a fictitious woman. On the other hand, Mst. Gulnaz alias Baby injured (P.W.1) claimed that she had been injured during the incident and receiving of the injuries by her with its locale had already been reported to the police vide F.I.R. which was registered in the morning at 8-20 a.m. about 6 hours before her medical examination and she was brought before the doctor by her maternal uncle Muhammad Shafique complainant (P.W.2). In such circumstances, we find that Mst. Gulnaz alias Baby had received injuries during the incident and this fact has been supported by the medical evidence. Moreover, she had no enmity, grudge or ill-will to falsely implicate the appellant in the present case as if there would have been any motive to falsely implicate the appellant, she could have easily widen the net by involving the other family members of Muhammad Shareef appellant in the present case as she had received three injuries while her mother Mst. Anwar Bibi deceased had received six injuries in total out of which injuries Nos.1 to 4 were caused by sharp-edged weapon and it was very easy for the witnesses to involve the other family members in the present case as well. So it seems that the appellant who was the sole accused in the present case had been involved as he had participated in the occurrence and had caused injuries not only to the deceased but also to Mst. Gulnaz alias Baby injured (P.W.1). No doubt the deceased was the mother of P.W.1, but at the same time the appellant was also close relative of the deceased as well as Mst. Gulnaz alias Baby injured and there were no chances of substitution of the appellant by letting off the culprits if the appellant had not participated in the occurrence in the manner as narrated by the prosecution.
We have no hesitation in holding that Mst. Gulnaz alias Baby has made true statement against the appellant, which inspires confidence. It has been repeatedly held by this Court and the august Supreme Court of Pakistan that not' the quantity, but the quality of evidence has to be seen by the Courts for recording conviction in criminal cases. The solitary statement of the Mst. Gulnaz alias Baby injured (P.W.1) whose presence at the spot was not at all doubtful and she had no ill-will against the appellant is sufficient to bring home guilt to the appellant beyond any shadow of doubt even without being corroborated by some independent of evidence. There is nothing on the record to discard the statement of Mst. Gulnaz alias Baby injured (P.W.1) and to declare her as an interested witness. She had faced the test of cross-examination successfully and the defence had failed to gain anything out of it for false implication of the appellant by letting off the real culprit. P.W. had sufficiently explained the time, place and the manner in which the occurrence had taken place and there is nothing on the record to discard her evidence, who was a natural witness being resident of the same house. In the present case the prosecution has stood on its own legs and there was no question of misidentity of the appellant being close relationship between the parties and P.W. had also come across the appellant closely for the rescue of her mother when she (P.W.1) also received the injuries. We do not find the medial evidence in conflict with the ocular account only for the reason the Injury No.1 of Mst. Gulnaz alias Baby (P.W.1) and injuries Nos.5 and 6 sustained by the deceased were with blunt weapon while the rest of the injuries were caused with sharp-edged weapon as the, appellant was the sole accused, who was alleged to have caused all the Injuries with hatchet, which from one side is a sharp-edged and the other edge is blunt. The possibility of causing injuries by the appellant from both the sides of the hatchet cannot be ruled out. So the prosecution' has been able to prove the ocular account by the prosecution of independent and o natural witness, whose° evidence- is of unimpeachable character having could not be shattered during the, course of investigation.
So far as the recovery of hatchet (P.1). from the appellant's possession is concerned, it is noticed that the prosecution examined P.W.3 besides the Investigating Officer, but the defence failed to show any mala fide on the part of the P.Ws. to depose falsely against the appellant and plant recovery of hatchet, which according to the report of the Serologist was found to be stained with human blood. As such the recovery of hatchet from the appellant's possession is a corroborative piece of evidence.

YLR 2007 LAHORE HIGH COURT LAHORE 1877 #

2007 Y L R 1877

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD MANSHA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6585-B of 2006, decided on 19th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, refusal of---One of deceased received eight injuries, while other received 16 injuries with fire-arm on their persons--F.I.R. showed that accused along with other accused, while armed with Kalashnikov, caused injuries on the persons of two deceased---Kalashnikov was recovered from accused from the place of occurrence during the investigation---Large number of different crime empties had shown the number of accused 'persons and the firing made by them---Said crime empties along with Kalashnikov and other fire-arms recovered from co-accused were sent to Fire-arm Expert for comparison---Accused was also found guilty by the police during the course of investigation and he had been placed in Column No.3 of the challan---Offence alleged against accused fell within the ambit of S.497(1), Cr.P. C.---No case for grant of bail having been made out, bail was refused to accused.

1998 SCMR 454;' 2002 PCr.LJ 791; 1996 SCMR 931; PLD 1989- SC 585 and 1999 SCMR 1271 rel.

Mrs. Erum Sajjad Gul for Petitioner.

Miss Farina Butt along with Ghulam Shabbir, S.-I. with record for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 1879 #

2007 Y L R 1879

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD ASLAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8573/B of 2006, decided on 13th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 489-F---Bail, grant of---Further inquiry---Accused had taken defence that cheque in question was not issued by him; and his cheque book had been misplaced during the journey and in that regard he had got recorded a Rapat Roznamcha at police station concerned---Specimen signatures had been found to have different line quality, structure, formation, pressure, drawn appearance, connection, fluency, etc. to the specimen signatures on sheets---Challan of the case had been sent to the court---Investigating Officer had found accused innocent---Report of Forensic Science Laboratory and the opinion of the Investigating Officer showed that case of accused was covered within the ambit of further inquiry---Offence was not covered within the prohibition as contained in S.497, Cr. P. C. ---No likelihood of the early conclusion of the trial of the case existed---Accused was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Muhammad Bilal Kamboh for the Complainant.

Ch. Muhammad Ahad for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 1886 #

2007 Y L R 1886

[Lahore]

Before Ijaz Ahmad Chaudhry and Mian Muhammad Najam-uz-Zaman, JJ

MUHAMMAD NAWAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.202-J of 2005, decided on.28th June, 2006.

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

----Ss. 7(b), 7(h) & 7(g)---Penal Code (XLV of 1860), Ss.324, 353 & 427---West Pakistan Arms Ordinance (XX of 1965), S.13---Incomplete charge framed---Trial Court had framed the charges under Ss. 7(b), 7(h) and 7(g) of the Anti-Terrorism Act, 1997 and under S.13 of Pakistan Arms Ordinance, 1965, but had ignored the offences allegedly committed by the accused under Ss.324, 353 & 427, P.P.C.---Offences under the Penal Code and the Offences mentioned in Anti-Terrorism Act, 1997, were different offences and different charges had to be framed for the said offences---Trial Court had committed a glaring illegality in framing the incomplete charge---Impugned judgment being not sustainable was set aside and the case was remanded to the trial Court to frame fresh charges and therefore, to proceed with the matter.

Muhammad Amin v. The State 2002 SCMR 1017 and Muhammad Ali and others v. The State and others PLD 2004 Lah. 554 ref.

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

----Ss. 324/353/427---Anti-Terrorism Act (XXVII of 1997), S.7---Different offences--Different charges to be framed---Offences under the Penal Code and under Anti-Terrorism Act, 1997, are different offences and different charges are to be framed for the said offences.

Muhammad Amin v. The State 2002 SCMR 1017 and Muhammad Ali and others v. The State and others PLD 2004 Lah. 554 ref.

Sikandar Zulqarnain Saleem for Appellant.

Mrs. Sarwat Nawaz for the State.

Date of hearing: 28th June, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1888 #

2007 Y L R 1888

[Lahore]

Before Ijaz Ahmad Chaudhry, J

M. BILAL and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4441-B of 2006, decided on 5th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.457 & 380---Pre-arrest bail, refusal of---Bail before arrest was meant to protect the innocent citizens, if they were found to have been involved falsely, in the criminal of case with mala fide intention mid ulterior motive---In the present case no mala fide or ulterior motive was shown on the part of complainant to falsely implicate accused---Arguments advanced by counsel for accused touched upon the deeper merits of the case, whichcould not be considered at bail stage---Recovery was yet to be effected from the accused---Case was not fit for grant of pre-arrest bail to accused as it 'could hamper the investigation.

Malik Mehmood Ahmad Rehan for Petitioner.

YLR 2007 LAHORE HIGH COURT LAHORE 1890 #

2007 Y L R 1890

[Lahore]

Before Fazal-e-Miran Chauhan, J

AHMAD KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8403-B of 2006, decided on 23rd December, 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---Further inquiry---According to report of Chemical Examiner samples (swabs), were not found to be stained with semens---Besides that, report of Chemical Examiner, no other medical report was available on the file---Complainant's refusal to get herself medically examined by the lady Doctor and only the samples were taken from the vagina---Accused was under incarceration since his arrest, challan had been submitted in the court, but no progress had taken place---Even otherwise, accused was not found to be guilty of the commission of crime alleged against him by the Investigating Officer, who declared him to be innocent, which had made the case of accused of further inquiry within the purview of subsection (2) of S.497, Cr. P. C. ---Was yet to be determined whether complainant went to the house of accused and she was subjected to Zina-bil-Jabr by accused, such point could only be considered by the Trial Court after recording of evidence regarding guilt or innocence of accused---Accused was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

M. Aslam Malik for the State with Ayyub Khan, A.S.-I., Police Station, Kot Momin, District Sargodha with record.

YLR 2007 LAHORE HIGH COURT LAHORE 1891 #

2007 Y L R 1891

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

BANK OF PUNJAB through General Manager---Petitioner

Versus

TAJAMMAL HUSSAIN and 4 others---Respondents

Writ Petition No.15604 of 1998, decided on 19th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 249-A---Penal Code (XLV of 1860), Ss. 409/420/468/471/477-A/109---Prevention of Corruption Act (II of 1947), S.5(2)---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Accused/respondents having filed applications under S.249-A, Cr. P. C. before the Judge, Special Court praying for acquittal and Federal Government in the Ministry of Law, Justice and Parliamentary Affairs had prayed for withdrawal of the case against accused persons, Judge Special Court proceeded to decide the applications of accused persons under S.249-A, Cr. P. C. in the light of material on record, vide the impugned judgment had acquitted the accused/respondents---Complainant/Bank filed constitutional petition seeking a declaration that the said judgment of acquittal was without lawful authority and was .illegal---Validity---Held, in glaring circumstances, apparent on the face of record, the Judge Special Court, could not be said to have acted without lawful authority while concluding that there was no chance of conviction of the respondents/accused in the case before him---Examination of the records of the proceedings before the Special Court, gave an impression that after registration of the case and probably as a result of the change of Government the tables had turned and it appeared that everyone connected with the prosecution including the complainant/Bank was head over heels to state that the accused/respondents were innocent which gave the impression that in the present case the prosecution/complainant and the accused/respondents ultimately became, what was, a case of hands in glove---Contents of the present constitutional petition and the submissions made by the petitioner/Bank also gave the impression that had one of the respondents not filed the suit for damages against the petitioner/Bank, the present constitutional petition would never have been filed---Mutuality of accord reached between the prosecutor and the accused did not at all cater for filing of a suit for damages by one of the respondents as a result thereof---No case for exercise of constitutional jurisdiction by the High Court, in circumstances, had been made out---Constitutional petition was dismissed in circumstances---High Court, however, directed that the Judge dealing with the civil suit for damages filed by one of the respondents, shall remain absolutely uninfluenced by any observation made by the Special Court in the impugned judgment or any observations occurring in the present judgment of High Court.

Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others PLD 1996 Lah.542; Syed Anwar Ali Shah v. Yar Muhammad and 3 others 1986 PCr.LJ 1278; Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.), Lahore PLD 1997 SC 275; The State v. Saleem Khan PLD 1985 Lah.345; Messrs Habib Bank Ltd. v. Presiding Officer, Special Court (Offences in Banks), Karachi and 2 others 1989 PCr.LJ 417 and Muhammad Sadiq v. Anver Majeed and another 1989 PCr.LJ 1223 ref.

M. Naeem Sahgal for Petitioner.

Sherjeel Adnan for Respondents Nos.1 to 4.

Date of hearing: 23rd March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1910 #

2007 Y L R 1910

[Lahore]

Before M. Bilal Khan, J

MUMR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5032-B of 2006, decided on 10th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2) ---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Penal Code (XLV of 1860), Ss.338-G & 109---Bail, grant of---Further inquiry---Role attributed to accused in F.I.R was not that of an accused person---Record had shown that at some later stage, accused had been relegated as an accused---Allegation against accused was that his son committed Zina and he had abetted said offence by concealing true facts---Whatsoever be the nature of allegations, fact remained that accused had not been arraigned as an accused, either by the complainant or by the victim---Alleged victim who had also been arraigned as an accused had been allowed bail---Case of accused being one Of further inquiry as contemplated in subsection (2) of S.497, Cr. P. C. , he was admitted to post-arrest bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Badar Munir Malik for the State along with Muhammad Rasheed A.S.-I., Police Station Saddar Gojra, District Toba Tek Singh with police file.

YLR 2007 LAHORE HIGH COURT LAHORE 1911 #

2007 Y L R 1911

[Lahore]

Before Khawaja Muhammad Sharif, J

ASHIQ HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5634-B of 2006, decided on 20th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302 & 109---Bail before arrest, grant of---Further inquiry---Name of accused though was mentioned in F.I.R., but neither date, time or place of abetment had been mentioned in F.I.R. nor names of witnesses of alleged abetment were mentioned in it---Statements of witnesses were alleged to have been recorded by the police after 12 days of occurrence---Accused, who was accused of abetment only, was not present at the spot---Nothing had to be recovered from accused---No useful purpose would be served by sending accused behind the bar, when his case was of further inquiry covered by subsection (2) to S.497, Cr.P.C.---Ad interim pre-arrest bail already granted to accused, was confirmed.

1997 SCMR 850; 1997 PLR 390 and 2002 SCMR 1299 rel.

Syed Afzal Haider Naqvi for Petitioner.

Ijaz Ahmed Bajwa for the State with Muhammad Hussain S.-I with record.

Anwar-ul-Haq Pannun for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 1912 #

2007 Y L R 1912

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD KHALIL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8933-B of 2006, heard on 20th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)---Bail, grant of---Accused was alleged to be holding the hands of victim, facilitating the co-accused to commit Zina with her, but accused had been declared innocent by the local police---No mark of violence was found on the body of the victim---Victim was medically examined and according to the report of Chemical Examiner, the swabs were not stained with semen---Accused as per school leaving certificate was of 12-1/2 years of age at the time of occurrence--Investigating Officer had stated that after recording statements of the residents of Mohallah that no occurrence had taken place, accused was declared innocent---Accused was admitted to bail, in circumstances.

Syed Iqbal Hussain Gillani for Petitioner.

Raja Akhtar Nawaz for the State with Aziz A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 1913 #

2007 Y L R 1913

[Lahore]

Before Mian, Muhammad Najum-uz-Zaman, J

NOOR SHAH---Petitioner

Versus

IFTIKHAR AHMAD and others-Respondents

Criminal Revision No.796 of 2005, decided on 1st February, 2006.

Penal Code (XLV of 1860)---

----Ss. 302 & 452/34---Appreciation of evidence---Determination of age of accused---During the trial of case, no application was filed by accused that he was juvenile at the time of alleged occurrence---Trial Court while declaring accused as juvenile, directed for submission of a separate challan to the extent of accused under Juvenile Justice System Ordinance, 2000---Legality of said order had been challenged by the complainant in revision---To determine the age of accused, under the order of High Court, report was obtained from the concerned Medical Board---Report of Medical Board had revealed that accused in its opinion was 22/24 years of age at the time of occurrence---Accused having been proved to be more than eighteen years on relevant date, impugned order qua sending the case of accused to Juvenile Court was set aside.

Naseem Ullah Niazi for Petitioner.

Muhammad Iftikhar vice M. Farooq Qureshi for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 1914 #

2007 Y L R 1914

[Lahore]

Before Khawaja Muhammad Sharif and M. A. Shahid Siddiqui, JJ

MUHAMMAD SHAHBAZ and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.2219 and 2165 of 2003, 132-J and 1073 of 2004, decided on 2nd June, 2005.

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

----Ss. 9(c) & 15---Appreciation of evidence---Charge-sheet contained date, time and recovery of 80 Kg Charas from a vehicle, which was intercepted by the raiding party--Place where vehicle had been intercepted had not been specified in the charge sheet---Charge framed by the Trial Court had clearly reflected that accused had been tried for carrying Charas weighing 80 Kg in the vehicle which constituted an offence under S.9(c) of Control of Narcotic Substances Act, 1997 and accused never objected to the nature of offence during the trial---Counsel for accused had not been able to show as to how and in what manner accused had been misled in their defence by the error in the charge---Valid charge had been framed against accused so as to warrant quashing of conviction as provided under S.232, Cr. P. C. ---Mere misdescription of few shops at the place of recovery, would not render recovery of 80 Kg of Charas from the vehicle doubtful in which accused were found travelling at the relevant time---Accused had not even suggested to prosecution witnesses as to why they had been falsely involved---In absence of any ill-will and bitterness on the part of prosecution witnesses, plea of false involvement and substitution for the real culprits urged by counsel for accused, could not be accepted---No reason was available to discard evidence of two prosecution witnesses regarding the recovery of alleged quantity of Charas from the possession of accused---Report of Chemical Examiner had clearly shown that three sealed packets received in the office were found to contain Charas---Not necessary for the Chemical Examiner to give any other detail---Prosecution had established its case against accused beyond reasonable doubt---Appeals filed by accused against their conviction and sentences were dismissed.

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

----S. 221---Framing of charge-sheet---Object---Object of the framing of charge-sheet at the commencement of trial was primarily to enable accused to know the exact nature of offence, which he had allegedly committed at the particular date and time.

S. M. Nazim (in Criminal Appeal No.2165 of 2003) for Appellants.

Zafar Iqbal Chohan (in Criminal Appeal No.1073 of 2004) for Appellants.

Mian Abdul Qaddus (in Criminal Appeal No.2219 of 2003) for Appellants.

S.D. Qurehsi (in Criminal Appeal No.132-J of 2004) for Appellants.

Muhammad Sharif for the State.

Date of hearing: 8th December, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 1920 #

2007 Y L R 1920

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Ijaz Ahmad Chaudhry, JJ

Syed IMTIAZ HUSSAIN SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.149-J of 2004 and Murder Reference No.31-T of 2003, decided on 7th March, 2006.

(Against this judgment notice issued by Supreme Court on 14-7-2006 in Cr.P. No.289-L of 2006 (Abdul Hamid v. Imtiaz Hussain Shah and The State) and Cr.P. 290-L of 2006 (Abdul Hamid v. Rafaqat Ali and the State).

Penal Code (XLV of 1860)---

----S. 302---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of, evidence---Sentence, reduction in---Complainant, who was real brother of deceased and other prosecution witness who was their nearest relative were residing at a distance of 1-1/2 Kilometers from the place of occurrence---Both said eye-witnesses were not present at the place of occurrence, and at the most they were chance witnesses---Both said witnesses had not explained their presence at the spot with any reasonable explanation at the time of occurrence---F.I.R. was not got lodged with promptitude---Claim of complainant that he had taken deceased to the hospital for medical examination on Rickshaw, stood belied---Investigating Officer did not conduct the investigation in an impartial manner as he did not join Investigating Officer in the investigation who had taken deceased to the hospital in injured condition despite the fact that he was the most important witness---Occurrence had not taken place in the manner narrated by the prosecution witnesses who were not present at the spot---Occurrence had taken place in the Bazar situated within the thickly populated area and number of persons could have witnessed the occurrence, but no independent witness was produced to support prosecution version---None of the persons/shop-keepers of surroundings shops at the place of occurrence had been cited as eye-witnesses by the prosecution and even their names were not shown in the F.I.R.---Both eye-witnesses who had relation with deceased, were introduced as eye-witnesses of occurrence despite the fact that they had failed to give reasonable explanation for their presence at the spot---Ocular account furnished by prosecution, in circumstances was not trustworthy---Remaining evidence produced by prosecution was not sufficient to connect accused with the commission of the crime---Prosecution had failed to give any sufficient evidence to prove motive set up by prosecution---Recovery of 'Chhuri' from accused could not be considered as corroboration to the ocular account, which had already been disbelieved---Conviction and sentence of accused under S.302(b), P.P.C. awarded to accused by the Trial Court was set aside and in the alternative he was convicted under S.302(c), P.P.C. taking into consideration his plea taken in the statement' under S.342, Cr. P. C. and he was sentenced to seven years' R.I.---Deceased having initiated occurrence according to the defence plea and was done to death as a result of provocation extended by him, heirs of deceased could not be held entitled to any compensation under S.544-A, Cr. P. C. ---Benefit of S.382-B, Cr. P. C. was extended to accused---Prosecution having failed to prove that occurrence was the result of any religious/sectarian terrorism through any independent piece of evidence, accused was acquitted of the charge under S.7 of Anti-Terrorism Act, 1997---Death sentence awarded to accused, was not confirmed and Murder Reference was replied in the negative.

Sultan Khan v. Sher Khan and others PLD 1991 SC 520 and PLD 1996 SC 274 ref.

Masood Sadiq Mirza and Ch. Ghulam Hussain, Special Prosecutor, ATA for the State.

Mubashar Latif Ahmad for the Complainant and appellant in Criminal Appeal No. 1982 of 2005.

Date of hearing: 7th March, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1940 #

2007 Y L R 1940

[Lahore]

Before Syed Shabbar Raza Rizvi, J

ZAHIDULLAH---Petitioner

Versus

SECRETARY MINES AND MINERALS, GOVERNMENT OF THE PUNJAB, LAHORE and 3 others---Respondents

Writ Petition No.11147 of 2006, decided on 10th April, 2007.

(a) Punjab Mining Concession- Rules, 2002---

----R. 235(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---'Acceptance of a bid after completion of auction proceedings---Effect---Auction for a Mining lease took place on 15-8-2006---Petitioner offered the highest bid of Rs.15 lacs and same was accepted by Auctioning Committee---One fourth auction money was deposited---Respondent was present at the time of auction in the auction hall and also signed on the terms and conditions of auction before start of auction yet he did not offer any bid during the auction---After the auction was over, respondent offered Rs.20 lacs vide application which was rejected by licensing authority having not been covered under the rules---Appeal was dismissed---Revision, however was allowed and a direction was issued for the re-auction---Validity---Rule 235(2) of Punjab Mining Concession Rules, 2002 which dealt with the revisional powers provided that said rule was only attracted to examine the validity and legality of any order or auction---None of the respondents in present case, had pointed out any invalidity or illegality in the auction proceedings, or any violation or disobedience of rules on behalf of the petitioner---Revision was accepted on ground that respondent had become indisposed therefore could not participate in the auction proceedings---Said ground was neither expressed before any relevant authority on the day auction was held nor it was raised before licensing authority or appellate authority---Such excuse, in circumstances, could not be treated as invalidity or illegality on account of the petitioner or licensing authority--Impugned order having passed in violation of law and rules, could not have been sustained hence set aide by High Court in exercise of its constitutional jurisdiction.

2003 CLD 153; 2001 CLC 1850; 2001 YLR 2741; 2001 YLR 1066 and PLD 2001 Lah. 426 ref.

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

----Art. 150---Faith and credit for public acts---Condition---Credibility, sanctity and authenticity is attached to the official functions if the same were performed with responsibility and commitments are fulfilled---To perform official functions, important thing is to act in accordance with law and rules, and once a transaction or act is performed accordingly it should end there---Such transactions cannot be re-opened again and again only on consideration of more .money---Injunctions of Islam as well as law, emphasis to honour the commitments and to follow whatever is agreed between the parties.

Abid Saqi for Petitioner.

Syed Ijaz Qutab for Respondent No.4.

Khurshid Anwar Bhinder, Addl. A.-G. for Respondent.

Muhammad Ayub, Deputy Director Mines & Minerals, Sargodha.

YLR 2007 LAHORE HIGH COURT LAHORE 1946 #

2007 Y L R 1946

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

LAND ACQUISITION COLLECTOR, WASA and. 2 others---Appellants

Versus

INAYAT ULLAH through Legal Representatives and 3 others---Respondents

R.F.As. Nos.456 and 457 of 2006, heard on 2nd April, 2007.

Land Acquisition Act (I of 1894)---

----S.54---Town Improvement Act (IV of 1922), Ss. 58, 59(a) & 60---Lahore Development Authority Act, (XXX of 1975), S.48(3) (ii)---Award of Tribunal not open to appeal---Acquisition of land initiated and conducted under provisions of Lahore Development Authority Act, 1975 read with provisions of Town Improvement Act, 1922--References filed by land-owners were decided by Tribunal constituted under Ss.58 & 60 of the Town Improvement Act, 1922---Appeals against decisions of Tribunal by agency for whose benefit the land was acquired---Competency---By virtue of S.48(3)(ii) of the Lahore Development Authority Act, 1975, notwithstanding the repeal of Town Improvement Act, 1922 vide S.48 of Lahore Development Authority Act, 1975, provision of Ss.58 to 60 of Town Improvement Act, 1922 continued to apply in respect of acquisition made under Land Acquisition Act, 1894---In-view of S.59(a) Town Improvement Act, 1922 an appeal provided under section 54 of Land Acquisition Act, 1894 was not available against the decision of Tribunal---Section 59(a) of the Town Improvement Act, 1922 provides that Tribunal shall (except for the purpose of S.54 of the Land Acquisition Act, 1894) be deemed to be the Court and President of Tribunal shall be deemed to be the Judge---Application of S.54 of Land Acquisition Act, 1894 which provides for an appeal against award and decree of the Referee Court stood absolutely excluded hence decisions of Tribunals, in the present case, were not open to appeal---Right of appeal has to be conferred by the statute in express terms and it does not exist otherwise---First appeals, accordingly were incompetent---Contention that two cases were consolidated but Tribunal had written separate judgments had no force as lands in question were located in different localities, compensations were assessed by Land Acquisition Collector differently, matters were, therefore, separately dealt with by Tribunal---No case for interference with impugned judgments was made out in circumstances.

Secretary of State v. Hindustan Co-operative Insurance Society Ltd. AIR 1931 PC 149; Mangat Rai and others v. Jullunder Improvement Trust and others AIR 1964 Punjab 455; Barmashel Oil Storage an Distributing Co. of India v. Municipal Committee, Jubbulpore AIR 1949 Nag 148 and Laxmanrao alias Baburao Shridharrao Deshmukh v. Collector of Nagpur District AIR 1945 Nag. 146 ref.

Nayyar Iqbal Ghaury for Appellants.

Ch. Mushtaq Masood for Respondents.

Date of hearing: 2nd April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1951 #

2007 Y L R 1951

[Lahore]

Before Muhammad Muzammal Khan, J

SHAFAAT ALI---Petitioner

Versus

THE STATE---Respondent

Crl. Miscellaneous No.5102-B of 2006,, decided on 10th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337A(ii) & 337-F(i)/34---Bail before arrest---Confirmation of---Bail though was opposed with the arguments that 'accused had been named in the F.I.R.. with attribution of specific role, but Investigating Officer had reported that accused was present at the place of occurrence, empty handed---Medico-legal Report showed that only injury attributed to accused was with fist blow on the left shoulder of complainant which invited offence under S.337-F(i), P.P.C. punishable with one year of sentence---Accused, besides being an old man, had already joined police investigation and according to Investigating Officer, his person was no more needed as nothing was to be recovered from him---Accused had no criminal history to his credit and he hailed from an ordinary agricultural family of the area---Offence charged was not covered by prohibitory clause of S.497, Cr.P.C. and in absence of any allegation of his abscondance or tampering with prosecution evidence, bail was not to be withheld as of punishment---Aggression by accused was yet to be determined at the time of trial, which had made case of accused that of further inquiry---Ad interim bail, granted to accused was confirmed; in' circumstances.

Ch. Muhammad Yasin for Petitioner.

Ms. Shamsa Kanwal, along with Hamed Ali, S.-I. for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 1952 #

2007 Y L R 1952

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL BASEER and others---Petitioners

Versus

MUHAMMAD HANIF and others---Respondents

Writ Petition No.19631 of 2001, heard on 2nd April, 2007.

(a) 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. --- Scope--- Compromise decree- --Application for setting aside by defendant---Contents of application filed under S.12(2), C.P.C. revealed that plaintiff lady filed a suit wherein she orally agreed to give alternate land to defendant in lieu of suit land---Defendant, on the basis of said oral agreement recorded his statement to the effect that he had no objection if suit was decreed against him---After the decree plaintiff lady refused to transfer the alternate land in favour of defendant---Such decree was challenged by defendant on grounds of fraud and misrepresentation---Oral evidence led by defendant in support of his allegation was duly rebutted by plaintiff and a case of fraud or misrepresentation had not been made out--- Trial Court correctly came to the conclusion that defendant, in circumstances, should file a suit for performance of alleged oral agreement as it was at the most a case of violation of a term of a compromise and section 12(2), C.P.C. did not cater for enforcement in case of breach of terms of compromise.

Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65 ref.

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

2)----Art. 199(2) (a)---Civil Procedure Code (V of 1908), S.115---Constitutional jurisdiction---Order passed in a revision can be set aside in exercise of constitutional jurisdiction if the same falls within the mischief of sub-Article 2(a) of Art.199 of the Constitution.

(b)High Court (Lahore) Rules and Orders---

(c)?????? (c)??????? (c)??????? (c)???????

----Vol. I, Chap.I, R.4---Disposal of suit during summer vacations---Validity---Under rule of Chap. I of Vol. I of High Court (Lahore) Rules and Orders, any civil suit or appeal may be legally heard with the consent of parties during the vacation or -on a holiday, if Presiding Officer thinks it expedient, for any reason, to keep the court open for the purpose.

Sh. Naveed Shehryar for Petitioners.

Malik Muhammad Akram Awan for Respondent.

Raja Ghulam Hassan for Respondents Nos.3, 5 and 6.

Nemo for others.

Date of hearing: 2nd April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1959 #

2007 Y L R 1959

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUHAMMAD MUSLIM---Appellant

Versus

SIRAJ DIN---Respondent

RSA No.122 of 1996, heard on 9th April, 2007.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.59---Civil Procedure Code (V of 1908), O.I, R.10(2)---Limitation Act (IX of 1908), Art.113---Suit for possession through agreement to sell---Suit was decreed but same was reversed in appeal---Validity---Agreement_ to sell was executed by one of the defendants---Appellate Court found that suit land was jointly owned by two brothers/defendants and as such under no circumstance one of them could dispose of such property when he was not legally authorized to sell the same hence agreement in question was not enforceable in law---Defendants had successfully proved that agreement had been revoked and earnest money was returned to plaintiff through a receipt in presence of witnesses---Execution of receipt being not disputed by plaintiff, would not require to be proved under Art.59 of Qanun-e-Shahadat, 1984---Plaintiff failed to establish that amount received by him through said receipt was different from the earnest money of suit land---Receipt although was executed during pendency of suit but at that time defendants had not been served with notices in suit hence no adverse presumption could be drawn against defendants---Written statement disclosed that one defendant had gifted suit land in favour of his daughter but she was never impleaded as a necessary party---Suit therefore, was bad for non joinder of parties---Plaint averred that disputed sale deed was to be executed on 30-6-1985---Period of limitation for filing a suit for specific performance was 3 years---Suit brought by plaintiff after 3 years i.e. on 24-9-1988 was barred by time---Appellate findings being well reasoned, no interference was called for in second appeal.

Khawar Mahmood for Appellant.

Muhammad Iqbal for Respondent.

Date of hearing: 9th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1971 #

2007 Y L R 1971

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ASHFAQ---Appellant

Versus

THE STATE---Respondent

Criminal Appear No.57-J of 2003, decided on 20th October, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence---Both complainant and prosecution witness, had maintained before the Trial Court that effective firing at deceased had been made by co-accused, whereas accused was only accompanying said co-accused---Accused and two co-accused were stated to have committed no overt act at all and had caused no injury to deceased or to anybody else---Trial Court had found it fit to rely upon the same eye-witnesses so as to convict and sentence accused who had admittedly never fired at deceased or at anybody else during the alleged occurrence---Same eye-witnesses had been disbelieved by the Trial Court to the extent of co-accused whose role in the alleged occurrence was identical to that of accused, but same eye-witnesses had somehow been relied upon by the Trial Court to the extent of accused---While convicting and sentencing accused, Trial Court had been heavily influenced by the opinions expressed by different police officers during the investigation of the case regarding involvement of accused in the alleged occurrence---Trial Court ought to have appreciated that opinion of a police officer regarding guilt or innocence of accused, was inadmissible in evidence being irrelevant and such opinion could not be made the sole basis of conviction of co-accused---Allowing appeal of accused, his ,conviction and sentence recorded by the Trial Court were set aside, accused was acquitted of the charge by extending him benefit of doubt and he was ordered to be released.

Asghar Ali for Appellant.

Ishfaque Ahmad Chaudhry for the State.

Date of hearing: 20th October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1976 #

2007 Y L R 1976

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Sh. Javaid Sarfraz, JJ

ALTAF KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.332-J and Criminal Revision No.487 of 2003, decided on 6th September, 2006.

Penal Code (XLV of 1860)---

----Ss. 342, 365, 452 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Appreciation of evidence---Only eye-witness of the occurrence was the victim who was complainant of the case---Quality and not the quantity of evidence was required to decide criminal matter and the unimpeachable evidence of a single witness could be relied upon to convict a person even on the charge of capital sentence---Complainant was a rich person and accused was employed by him as a driver of his car who with connivance of his co-accused, abducted complainant from his house and confined him in a room for several hours---Accused during said confinement, also allegedly committed sodomy upon complainant and prepared his nude pictures in order to blackmail him and to force him to sign certain documents qua the properly owned by the complainant as well as to pay a huge amount as ransom---Trial Court though had acquitted accused from charge under S.377, P.P.C. as medical report was not positive, but the fact that complainant was abducted by accused and was kept under illegal confinement for several hours stood established from' statement of complainant---Defence plea was that accused was involved in the case because he being car driver of complainant wanted to leave the job, whereas complainant never wanted him to do so---Said defence plea was repellant to common sense---Was not believable that a master would involve his driver in such a heinous offence only on the ground that he never wanted him to leave the job---During cross-examination not a single question, was put to the complainant to show that he had any animosity with accused for his false involvement in the case---Sole statement of complainant qua his abduction for ransom by accused and his co-accused, in the circumstances of the case, was sufficient to prove the charge against accused and there was no reason to doubt the credibility of the witness/ complainant who had no axe to grind of his own---Appeal against conviction and sentence awarded to accused by the Trial Court, were upheld in circumstances.

Allah Bakhsh v. Shammi and others PLD 1980 SC 225 rel.

Rana Muhammad Arshad Khan for Appellant.

Muhammad Shan Gul and Aamir Masood for the Complainant.

Mirza Abdullah Baig for the State.

Date of hearing: 6th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 1980 #

2007 Y L R 1980

[Lahore]

Before Fazal-e-Miran Chauhan, J

Syed ANWAR MEHMOOE SHAH---petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6332-B of Criminal Miscellaneous No.6332-B of 2006, decided on 21st November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Pre-arrest bail, refusal of---Accused, on the last date of hearing, undertook to compensate/pay alleged amount to complainant, but on the next date of hearing, he stated in the court that he was not in a position to make payment to complainant---Accused did not appear before the Trial Court after obtaining bail before arrest---Accused was found guilty during the investigation---One who would hoodwink the order of the court, was not entitled to any concession---Accused had deliberately disappeared from the Trial Court, which had shown his mala fide intention---Ad interim pre-arrest bail already granted to accused, was recalled.

Muhammad Kazim Khan for Petitioner.

Saleem Khan and Saeed S.-I.. with record for the State.

Javaid Iqbal Raja and Malik Zahid Hussain for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 1985 #

2007 Y L R 1985

[Lahore]

Before Khawaja Muhammad Sharif, J

AMIN alias SALEEM alias BILLU and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.652 and Criminal Revision No.493 of 2006, heard on 11th May, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation, of evidence---Benefit of doubt---Case was of two versions and if both the versions were put in juxtaposition, possibility of version of accused being true, could not be ruled out for the reason that one of accused had not exceeded the right of self-defence and participation of other accused in the occurrence was of doubtful nature---F.I.R. in the case was recorded after due deliberation and consultation---Medico legal report of one 'of accused persons, though was not exhibited by the defence, but same was available on record and according to said report the accused was brought to the hospital in injured position by his cousin on the day of occurrence and he was medically examined by the Doctor on the same day---Duration between injury of said accused and medical examination given by the Doctor also coincided with the time of occurrence---Said injuries on person of the accused were suppressed by prosecution; it could safely be ruled out in circumstances that complainant had not approached the Court or the police with clean hands---Non-production of medico-legal report of injured could be said to be negligence on the part of defence counsel---Glaring contradictions between ocular account and medical evidence, had shown that eye-witnesses were not present at the spot---Had the eye-witnesses been' present at the spot they must have taken deceased to the hospital and name of one of them must have been mentioned in the relevant Column of friend/relative of medical report---Complainant, while appearing before the Trial Court, had tried to bring his case in line .with medical evidence and in that regard had made dishonest improvements---No recovery was effected from two accused persons and hatchet allegedly recovered from third accused, was not stained with human blood---Rifle of deceased though was recovered from one of accused persons, but even in Column of the inquest report no time of information had been given as required under the law---Conviction and sentence recorded against accused by the Trial Court, were set aside granting benefit of doubt to them.

Muhammad Yaqub v. The State PLD 1969 Lah.548 rel.

Muhammad Afzal Siddiqui for Appellants.

Naseer-ud-Din Khan Nayyar for the State.

Sh. Najam-ul-Hassan for the Complainant.

Date of hearing: 11th May, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 1994 #

2007 Y L R 1994

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SABIR ALI alias KAKA through Superintendent, Central Jail, Lahore---Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.134-J of 2004, decided on 1st December, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Complainant had improved his previous statement in order to show that his father was also witness of last seen, which seemed to be dishonest improvement---Even otherwise name of accused was not mentioned in report made by complainant before the police, but he was introduced for the first time in the supplementary statement subsequently made after three and , half months of the incident---Matter was not reported to the police immediately, but was reported after recovery of dead-body of deceased---Such fact had shown that complainant and other prosecution witnesses were not present at the spot when deceased had left the house allegedly in the company of accused and co-accused and that story was concocted afterwards---Evidence of last seen, could not be believed to the extent of accused and was discarded---Witnesses of alleged extra judicial confession of accused were related inter se with the complainant closely---Both were not councillors or Lumbardars of the area and previously they also did not know accused before making statement and they failed to disclose parentage and place of residence of accused---Both said witnesses were not in a position to get pardon for accused from the heirs of deceased due to their influence---In the extra judicial confession allegedly, made by accused, details had not been disclosed by the witnesses---Evidence of alleged . extra judicial confession in such circumstances could not be relied upon---One empty though was shown to have been recovered from the spot, but there was no report about comparison of the same with the weapon allegedly recovered from accused---Report of Forensic Science Laboratory only disclosed that weapon was in working condition, which could not be used as corroborative piece of evidence---Other articles which were usually available in the market, were not stained with blood---No specific identification was available of those allegedly recovered articles---Said recovery thus was also useless---Evidence of prosecution witnesses regarding seeing accused along with his brother during night time near the place of recovery of deceased, was also not believable---Evidence of one of the prosecution witnesses also could not be used against accused as he was resident of other District---No motive had been attributed to accused in the F.I.R. ---Motive could not be proved and bald statement of .complainant at the trial could not be accepted---Prosecution having failed to bring home guilt of accused beyond tiny shadow of doubt, impugned judgment of conviction and sentence passed by the Trial Court against accused, was set aside and accused was acquitted of the charge, by extending him the benefit of doubt and he was released from the jail.

Abdul Majid Chishti and Ch. Sultan Mehmood for Appellants.

Maqbool Ahmad Qureshi for the State.

Date of hearing: 1st December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 2005 #

2007 Y L R 2005

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD AZAM and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.5615-B and 7259-B of 2006, decided on 26th September, 2006.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), Ss.420, 468 & 471---Bail, refusal of---Complainant purchased plot in question from one of the co-sharer of said property with specific boundary---Possession of the same was handed over and a boundary wall was raised/constructed by the complainant---Accused party being co-sharer, tried to sell same on the pretext that mutation recorded in the name of complainant on the basis of registered sale deed was set aside and same land was gifted to one of accused persons by his father who further sold same to other accused---In order to usurp the land of complainant, on the pretext of undivided Khata, a gift was created by accused without delivering possession, and on the basis of that, a document was prepared to transfer land to accused while doing so, accused escaped the sight of the registered sale-deed executed in favour of complainant---Mutation would hot confer any title and cancellation of mutation would not affect the title of the complainant--Accused had failed to make out a case for grant of bail---Accused tried to bribe S.H.O. to get possession of the .land and F.I.R. was recorded against him on the complaint of S.H.O.---All that had reflected on the mala fide and criminal intention of accused---Challan had been submitted in the Court and charge had been framed---No case for grant of bail was made out.

M. Nasim Kashmiri for Petitioner.

Ch. Ansar Ijaz for the Complainant.

Mian Makshoof Amjad and M. Aslam Malik with Mahboob Aslam, A.S.-I. with record for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 2009 #

2007 Y L R 2009

[Lahore]

Before Khawaja Muhammad Sharif, J

ASIF IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.1979 and 2018 of 2004 and Criminal Revision No.206 of 2005, heard on 11th May, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence---Case being of single accused, there was no question of substitution because substitution was a rare phenomenon---Accused had killed his father in his house---Complainant and femaleprosecution witness who were uncle and maternal aunt of accused, could not leave actual culprit and falsely implicate accused in the case because they were natural witnesses---Prosecution witness lived in the same house where occurrence had taken place while complainant lived in adjacent house---Presence of witness at the spot was fully proved---Ocular account was fully corroborated by medical evidence---Both complainant and prosecution witness being rustic villagers, one could not expect from them about the correct distance between accused and deceased---Prosecution, in circumstances had been successful in proving its case against accused beyond any shadow of doubt---Very lenient view having already been taken by the Trial Court by not awarding death sentence to accused, matter of awarding sentence could not be interfered with when matter related to year 2002 and five years had passed---Conviction of sentence awarded to accused by the Trial Court, were upheld, in circumstances.

Malik Muhammad Imitaz Mahel for Appellant.

Naseer-ud-Din Khan Nayyar for the State.

Ms. Tehseen Zaka Fatima for the Complainant.

Date of hearing: 11th May, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2013 #

2007 Y L R 2013

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

JAVAID ALI and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.151, 19, 108, 148 of 1999 and Murder Reference No.529 of 1999 and Criminal Revision No.321 of 1999 and Criminal Revision No.395 of 2005, decided on 19th February, 2007.

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

----Ss. 302, 379, 447 & 149---Appreciation of evidence---Incident was a case of promptly lodged F.I.R. and names of accused and the roles they played with the weapon of offence, were mentioned therein---No right of self-defence accrued to accused who took lives of four persons---Number of injuries on the persons of four deceased were more than 60 with fire-arm, sharp edged weapon and also with blunt weapon; and they coincided with the number of accused---Police, though had declared nine accused persons as innocent, but after recording evidence of seven prosecution witnesses, the Trial Court also summoned nine discharged accused---Court was not bound by the opinion of the Investigating Agencies, but they were to base the decision on the basis of evidence brought before them---Both eye-witnesses though were real brothers but they had no enmity or ill-will against accused, except some -litigation which was pending and ended in favour of complainant party---Both prosecution witnesses, had fully supported case of prosecution---Presence of one of said witnesses who had transported deceased in injured condition to hospital, at the spot could not be doubted---Ocular account furnished by said two prosecution witnesses could be believed---Conviction, in a murder case, could be based on the solitary statement of a witness if the court was satisfied that he was reliable---Occurrence was a case of unlawful assembly and accused in prosecution of their common object, committed murder of four persons in a brutal manner in order to get forcible possession of land which was handed over to complainant through the legal proceedings---Conviction and sentence recorded against three accused by the Trial Court vide impugned judgment, was maintained---Death sentence awarded to them was confirmed and Murder Reference to their extent was replied in the affirmative.

PLD 1960 SC 387; PLD 1977 SC 413; 1992 SCMR 96 and 2003 SCMR 884 ref.

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

----Ss.302, 379, 447 and 149---Rule of independent corroboration---Rule of independent corroboration, was not an absolute and mandatory rule to be applied in each case rather it was a rule of abundant caution which was applied in the case in which direct evidence was not of the standard which alone could be considered sufficient for conviction.

2003 SCMR 581 ref.

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

----Ss.302, 379, 447 & 149---Criminal Procedure Code (V of 1898), S. 417---Appeal against acquittal---Complainant/ appellant in the case had filed appeal against acquittal of 12 co-accused---Reasons given by the Trial Court for acquittal, were based on evidence on record and were neither perverse nor arbitrary and fanciful---No exception could be taken thereto---More than six years had passed from passing judgment of acquittal---Accused, after his acquittal by a court of competent jurisdiction, enjoyed double presumption of innocence in his favour; and court of appeal against acquittal, was to be very careful .in dislodging such presumption---No case against acquittal having been made out by appellant, appeal in that respect was dismissed.

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

----Ss. 302, 379, 447 & 149---Constitution of Pakistan (1973), Art.13---Enhancement of sentence---One of accused remained absconder and ultimately was arrested in 1991---Deceased in the case had received two injuries with hatchet on his forehead, one was given by said accused and other was given by. the accused who was sentenced to death by the Trial Court---Reason given by the Trial Court for awarding lesser sentence to said accused was that no recovery was effected from him, was ill-founded for the reason that said convict remained absconder for six years, so there was no question of recovery from him---Said convict/accused though had served more than 15 years incarceration, but despite that his sentence could be enhanced, because he himself was responsible for that long delay having remained, absconder---Had he not absconded and was arrested earlier like his co-accused, he would have been tried along with them and awarded same punishment, which was awarded to co-accused---No bar was on High Court under Art.13 of the Constitution to enhance sentence from imprisonment for life to death even after 15 years incarceration and that would not amount to double jeopardy---Role of said convict/accused was similar to that of co-accused who was sentenced to death by the Trial Court, which was maintained by High Court---On the rule of consistency also, apart from the said facts, sentence of said accused was enhanced from imprisonment for life to death.

?PLD 2006 SC 365 ref.

Sardar Muhammad Latif Khosa and Talib Haider Rizvi for Appellants.

S.M. Nazim for the Complainant.

?S.D. Qureshi for the State.

Dates of hearing: 12th, 13th, 14th, 15th and 19th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2028 #

2007 Y L R 2028

[Lahore]

Before Khawaja Muhammad Sharif, J

RIAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.1485 and 1484 of 1005, heard on 11th May, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)/34--- Appreciation of evidence---Complainant who was real mother of deceased, was not resident of the place of occurrence---Five- accused persons were named in F.I.R., out of said five accused, two were acquitted by the Trial Court while third one was at large and only two accused persons had been convicted and sentenced---Doctor who had conducted the post-mortem examination on the dead body of deceased, had mentioned three independent fire-arm injuries on different parts of body of deceased, whereas eye-witnesses had mentioned only one fire shot---If eye-witnesses were present, at the spot at relevant. time, they could not have mentioned only one fire shot---Complainant also had made dishonest improvement before the Trial Court---Two accused of abetment had been acquitted by the Trial Court on the same evidence---No corroborative and independent evidence was available against accused persons---Parties were inimical to each other---Conflict existed between ocular account and medical evidence---Eye-witnesses were not present at the spot at the time of occurrence---F.I.R. was lodged after due deliberation and consultation---No recovery was effected from accused and as two co-accused had been acquitted by the Trial Court on the same evidence, conviction and sentence recorded against the accused by the Trial Court, were set aside, they were acquitted and were released.

Arshad Qayyum for Appellant.

Naseer ud Din Khan Nayyar APG for the State.

Rana Nisar Ahmad Khan for the Complainant.

Date of hearing: 11th May, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2032 #

2007 Y L R 2032

[Lahore]

Before Khawaja Muhammad Sharif, J

SAJID HUSSAIN---Appellant

Versus

THE STATE-Respondent

Criminal Appeals Nos.1716 and 1622 of 2005, heard on 10th May, 2007.

Penal Code (XLV of 1860)---

----Ss. 302, 337-A(i) & 337-F(i) & (iii), L(ii)---Appreciation of evidence---Case was of two versions---Two injured accused were medically examined seven hours prior to medical examination of three prosecution witnesses---Prosecution had suppressed fire-arm injuries on the person of two injured accused---Trial Court had not believed story of abduction of deceased from his house to the tube-well of accused, which observation of the Trial Court, seemed to be correct---Only five empties taken from the spot had matched with the carbine of accused, while remaining ten crime empties never matched with the firearm of co-accused which would mean that other fires were shot by the complainant party which resulted into injuries on the persons of two accused---Possibility of version of accused given in reply to question in his statement under S.342, Cr.P.C., to be correct, could not be ruled out---Case in circumstances was not the one where it could be said that 'accused had exceeded his right of self-defence---Trial Court had not convicted other four accused under S.302(b), P.P.C. and prosecution and complainant had not filed any appeal against their acquittal under said provision---Accused having not exceeded his right of self-defence, appeal filed by him ' was accepted and conviction and sentence recorded against him by the Trial Court, were set aside---Other accused having already undergone one year and ten-months' sentence, conviction and sentence which they had already undergone by them, was treated to be sufficient to meet the ends of justice.

M.A. Zafar for Appellant.

Naseer ud Din Khan Nayyar APG for the State.

Date of hearing: 10th May, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2044 #

2007 Y L R 2044

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

MUHAMMAD ASIF and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1987 of 2001 and Murder Reference No.316 of 2002, heard on 17th January, 2007.

Penal Code (XLV of 1860)---

----Ss. 302, 364 & 201---Appreciation of evidence---Benefit of doubt---Incident was an un witnessed occurrence and prosecution case rested upon circumstantial evidence---Matter was not reported to the police till three long months of departure of deceased with accused---No independent evidence was available on record to show that accused and deceased were seen together before the death of deceased---Complainant also made dishonest improvement during his statement recorded before the Trial Court---No one from the village concerned was produced to prove that deceased was seen with accused persons before his death---No reliance, in circumstances, could be placed on the evidence of last seen of deceased in the company of accused---Three prosecution witnesses had stated about extra judicial confession of accused, but all three of them had given different versions---No reliance, in circumstances, could be placed on extra judicial confession of accused---Extra judicial confession, even otherwise, was a very weak type of evidence and could easily be procured through the help of a friend---Medical evidence, had not supported the prosecution case---Case was one of padding and concoction on the part of Investigating Officer---Recovery of string, Kassi and such-like other articles would be of no consequence as neither those were blood-stained nor were of any special make---Evidence of pointing out the place of occurrence, being inadmissible, could not be looked into---Motive set out in the F.I.R., was not proved through any independent evidence---Nothing was on record to show that accused was previously involved in any criminal case---Prosecution case being replete with doubts, benefit of doubt was granted to accused---Impugned judgment passed by the Trial Court against accused, was set aside, they were acquitted of all charges and were released.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 ref.

Anwar ul Haq Pannun along with Ch. Muhammad Abdus Saleem for Appellants.

Khalid Masood Chaudhry for the Complainant.

Mazhar Sher Awan, Additional Prosecutor General for the State.

Date of hearing: 17th January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2055 #

2007 Y L R 2055

[Lahore]

Before Iqbal Hameedur Rehman, J

MUJAHID HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.870-B of 2007, decided on 15th May, 2007.

Criminal Procedure Code (V of 1898)---

-----S. 497(2)-Penal Code (XLV of 1860), Ss.324, 411 & 459---Bail, grant of---Further enquiry---Accused was not named in the F.I.R., but was implicated subsequently on the supplementary statement of the complainant---Complainant through subsequent supplementary statements had time and again involved different sets of people to be his culprits, but later on had entered into compromise and got them discharged---Accused had also been implicated by the complainant through alleged evidence or extra judicial confession which was made against accused by two prosecution witnesses---Alleged extra judicial confession was a weak type of evidence and the Trial' Court had yet to determine, after recording evidence, whether said confession was admissible or not in that respect---Complainant had recorded F.I.R. against unknown persons in which accused was not named-Identification parade of accused was not held---Case of accused having become that of further enquiry, he was entitled to the concession of bail---Accused was admitted to bail, in circumstances.

Bashir Ahmad alias Bashira v. The State 2004 YLR 1046; Muhammad Suleman v. Riasa Ali and another 2002 SCMR 1304; Muhammad Kazim v. The State 2005 PCr.LJ 531; Atta Muhammad v. The State 2004 PCr.LJ 1431; Bashir Ahmad alias Bashira v. The State 2004 YLR 1046; Muhammad Suleman v. Riasat Ali and another 2002 SCMR 1304; Muhammad Kazim v. The State 2005 PCr.LJ 531 and Ata Muhammad v. The State 2004 PCr.LJ 1431 rel.

Sardar Zafar Ahmad Lund for Petitioner.

Zafar Mahmood Anjam for the State.

Abdul Aziz, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 2059 #

2007 Y L R 2059

[Lahore]

Before Tariq Shamim, J

QASIM ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1470 of 2004, heard on 26th April, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence---F.I.R. was lodged after dead body of deceased was discovered---Incident was an unseen occurrence and the entire prosecution case rested on circumstantial evidence---Motive for the occurrence was stated to be the demand of deceased for return of amount allegedly advanced by him to co-accused for purpose of sending him abroad for employment---Said motive which was concocted by the complainant, was rightly rejected by the Trial. Court--- Prosecution witnesses had admitted that they were residents of place which was 70/80 'miles away from the place of occurrence---Explanation provided for presence of said accused in the house of deceased on day of occurrence, was neither plausible nor proved on the record---Entire prosecution story to the extent .of motive having been disbelieved' by the Trial Court, serious doubt had been created about presence of witnesses at the place of occurrence on date of occurrence---Evidence of last seen furnished by prosecution witnesses, was neither credible nor reliable---Crime weapon Churri, was recovered at the instance of accused from an open field after more than three months of occurrence---Witnesses of said recovery were a police constable and Investigating Officer---Apart from other infirmities in the recovery proceedings, it was blatant disregard of the provisions of S.103, Cr.P.C.., which had made recovery of the weapon of offence highly doubtful and not worthy of any credence---Evidence of recovery, having corroborative value only, could not, by itself, prove the culpability of accused in the crime---Case of accused was at par with acquitted co-accused---Trial Court had failed to appreciate that there was no evidence on record, to suggest that accused had been attributed any specific role by the prosecution---Medical evidence in peculiar facts and circumstances of the case, was not of much importance as it could only corroborate eye-witness account which was conspicuously non-existent---Prosecution having failed to prove its case against accused beyond reasonable doubt, conviction and sentence awarded to him by the Trial Court, were se: aside and he was acquitted of all the charges and was released.

Ch. Muhammad Ashraf Kamboh for Appellant.

Ch. Amjad Hussain, Deputy Prosecutor General for the State.

Date of hearing: 26th April, 2007. ???????

2007 Y L R 2107

[Lahore]

Before Mian Hamid Farooq, J

Mehr RIAZ UL HAQ and another---Petitioners

Versus

ELECTION TRIBUNAL FOR DISTRICT SAHIWAL/DISTRICT

JUDGE, PAKPATTAN and 2 others---Respondents

Writ Petition No.419 of 2007, heard on 1st March, 2007.

Punjab Local Government Elections Rules, 2005---

----R. 65---Constitution of Pakistan (1973), Art.199---Constitutional petition---Illegal corrupt practices---Petitioners and 'respondents contested election for seats of Nazim and Naib-Nazim, petitioners were declared returned candidates and were notified as such---Respondents filed election petition against returned candidates, in which their election was challenged on allegation that they had committed corrupt practices in election---Election Tribunal accepted election petition filed by respondents and declared election of petitioners illegal and void and Election Commission was directed to hold fresh election--- validity ---Respondents by producing oral as well as documentary evidence, had fully proved that petitioners had committed corrupt practices in election---Documents produced- by respondents on record were admitted in evidence without any objection from the petitioners and same were exhibited---Petitioners could not produce any evidence to rebut overwhelming evidence produced by respondents---Election Tribunal after discussing and adverting to said oral as well as documentary evidence produced by parties had rightly appreciated evidence on record and decided the matter---Election Tribunal on basis of said evidence, had . rightly concluded that petitioners committed illegal and corrupt practices---High Court in exercise of its constitutional jurisdiction would not be called upon to reappraise evidence on record, more so, when misreading and non-reading of evidence had neither been alleged nor pointed out---Objection that Returning Officer was not summoned, had no force in view of voluminous documentary evidence on record---Impugned order was not devoid of reasons---Cogent reasons and finding rendered by Election Tribunal, could not be reversed, which were maintained.

Muhammad Ali Shah and another v. Election Tribunal Union Council, No.49, Narhal District Khanewal and 4 others, 2004 CLC 1922; Muhammad Iqbal Hussain and another v. Election Tribunal/Senior Civil Judge, Lodhran and 5 others 2007 CLC 134; Amjad Ali Meo and others v. Election Tribunal and others 2004 SCMR 1063 and Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCMR 1699 ref.

Malik Muhammad Tariq Rajwana for Petitioners.

Muhammad Ameer Bhatti for Respondents.

Date of hearing: 1st March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2126 #

2007 Y L R 2126

[Lahore]

Before M. Bilal Khan, J

Lt.-Col. (Retd.) NAJAM HAMEED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.88-Q of 2006, decided on 8th May, 2007.

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

----S. 561-A---Penal Code (XLV of 1860), Ss.499, S00, 501, 502 & 502-A---Inherent jurisdiction of High Court under S.561-A, Cr. P. C.---Scope---Quashing of proceedings in a private complaint--Court to which case was entrusted, recorded preliminary statement of complainant and summoned accused/petitioner by finding a prima facie case against him---Validity---Trial Court had recorded preliminary statement of complainant in great detail; had applied its independent judicial mind and had not only gone through the statement of complainant, but had also reviewed the documents which had been appended with the complaint---Statement of complainant and material which had been brought on record had -made out a prima facie case against accused/petitioner to face the trial--Inherent jurisdiction under S.561-A, Cr. P. C. was not an alternative jurisdiction or additional jurisdiction, but it was a jurisdiction preserved in the interest of justice to seek redress of grievances for which no other procedure was available---Such power could never be utilized so as to interrupt or divert ordinary course of criminal procedure---High Court was always reluctant to interfere in a case where a court of competent jurisdiction, after examining evidence adduced before it, would come to the conclusion that a prima facie case was made out---High Court, generally would be reluctant to quash proceedings where questions of fact were involved which could not be gone into by High Court without enabling the Trial Court to record evidence---No ground for interference by High Court having been found to be existing, petition for quashing proceedings was dismissed accordingly.

Abdul Karim and 5 others v. Abu Zafar Qureshi and 3 others PLD 2001 Kar. 115 rel.

Dilawar Hussain v. The State 1996 SCMR 839 and Muhammad Bux v. Sub-Divisional Magistrate, Sub-Division Math, District Badin and another PLD 1999 Kar. 366 ref.

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

----Ss.200 & 202---Private complaint---Preliminary enquiry---Language of S.202, Cr. P. C. provided that when a preliminary enquiry was conducted in private complaint, no particular number of witnesses were required to be produced during course of the inquiry and it was not the requirement of law that entire evidence should be produced during preliminary enquiry---All that was required, was the satisfaction of the Inquiry Magistrate or the court---If on the basis of the statement of the complainant alone the court was satisfied, that prima facie case was disclosed against accused named in the complaint, there, was no embargo against him in summoning such an accused.

Qadar Dad v. Sher Muhammad and another 1980 SCMR 843 and Abdul Karim and 5 others v. Abu Zafar Qureshi and 3 others PLD 2001 Kar. 115 ref.

Hafiz Abdul Rehman Ansari for Petitioner.

Muhammad Mazhar Sher Awan, Additional Prosecutor General, Punjab for the State.

Rana Waqas Lateef for Respondent No.2.

YLR 2007 LAHORE HIGH COURT LAHORE 2151 #

2007 YLR 2151

[Lahore]

Before Ijaz Ahmad Chaudhry, J

BABER SHAHZAD---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Revision No.179 of 2007, heard on 6th April, 2007.

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

----Ss. 302/392/393/411---Juvenile Justice System Ordinance (XXII of 2000), 5.7---Criminal Procedure 'Code (V of 1898), S.439---Age of accused---Determination of---Claim of accused for declaring him as juvenile rested only on Birth Certificate and School Leaving Certificate, which were found to have been prepared with an unexplained delay of more than 16 years after the alleged date of birth on the orders of Nazim and through underhand means---Accused, thus, had not come to the Court with clean hands---Admittedly accused had moved application for declaring him juvenile before the trial Court after nine months, of the occurrence and after two months of the framing of the charge, when the case was fixed for prosecution evidence---Age of accused in police record was mentioned as 21/22 years---Report of Medical Board revealed the age of accused between 19 to 22 years---Opinion of Medical Board would be seen in the context of the other evidence produced by the parties and it alone could not be taken as a conclusive proof of age of the accused---Juvenile Justice System Ordinance, 2000, being a special law accused claiming himself to be juvenile must have supplemented his claim with unimpeachable evidence and in absence of the same Courts would not stretch the law to favour the 'accused to save him from the extreme penalty provided by law for the offence by extending him the benefit of doubt---Accused had badly failed to prove himself to be juvenile at the time of occurrence---Complainant on the other hand had fully proved the birth entry of the accused which the accused had failed to rebut and which was also supported by the report of the Medical Board---Age of accused therefore, could be taken as declared by the Medical Board-Impugned order of Trial Court declaring the accused as juvenile was consequently set aside with the direction to trial Court to proceed with the trial against the accused treating him major---Revision petition was accepted accordingly.

Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and others PLD 2004 SC 758 rel.

2000 PCr.LJ 1985; 2001, YLR 3094; .2005 YLR 821; 2006 YLR 10 and 2006 PCr.LJ 211 ref.

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

----S. 7---Penal Code (XLV of 1860), Ss.302/392/393/411---Age of accused, determination of---Claim of minority at a belated stage---Effect---Claim of minority should be made at the earliest possible opportunity and preferably during the course of investigation, so that Investigating Officer could collect evidence in this connection for the assistance of the Court---Adverse inference' could be drawn where the concession in question was claimed after undue and enexplained delay.

Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and others PLD 2004 SC 758 ref.

----S. 7---Penal Code (XLV of 1860), Ss.302/392/393/411---Age of accused, determination of---Medical opinion---Scope---Opinion of Medical Board regarding age of accused should be seen in the context of the other evidence produced by the parties and it alone cannot be taken as a conclusive proof of age of the accused.

Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and others PLD 2004 SC 758 ref.

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

----S. 7---Penal Code (XLV of 1860), Ss.302/392/393/411---Age of accused, determination of---Onus on accused to prove his claim of being juvenile by. unimpeachable evidence---Juvenile Justice System Ordinance, 2000, being a special law, if the accused comes up with the plea to have a concession thereunder claiming himself to be juvenile, he must supplement his claim with the, evidence of

unimpeachable character, otherwise Courts cannot stretch the law to favour the accused to save him from the extreme penalty provided by law for the offence, by extending him benefit of doubt.

Abdul Razzaq Yunus for Petitioner.

Saeed Ashraf Waraich, Additional Prosecutor General for the State.

Pir S.A. Rashid for Respondent No.3.

Date of hearing: 6th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2160 #

2007 Y L R 2160

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

ASAD MEHMOOD CHEEMA and another---Appellants

Versus

SABIR HUSSAIN SHAH and others---Respondents

Intra Court Appeals Nos.452 and 453 of 2004, heard on 23rd April, 2007.

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

----S.3---Constitution of Pakistan (1973), Art.199---Intra-Court Appeals against judgment in constitutional petition under Art.199 of the Constitution---Scope---Forum---Order having been passed under Art.199 of the Constitution is appealable before two or more Judges of the same High Court.

Pakistan International Airlines v. Samina Masood and others PLD 2005 SC 831 rel.

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

----Art.199 --Punjab Prevention of Gambling Ordinance (VII of 1978), S.5---Alternate remedy---Where an alternate remedy is available to petitioner, constitutional petition is not maintainable without first exhausting such remedy---F.I.R. in the present case, was lodged against petitioner and his co-accused under section 5 of Punjab Prevention of Gambling Ordinance, 1978---Trial Magistrate after submission of challan had taken cognizance of the matter and co-accused had made confession---Petitioner had a remedy before Trial Court to seek his acquittal by filing a proper petition but he did not avail the same---Writ petition for quashment of F.I.R. was therefore, not maintainable in circumstances.

Nawazul Haq Chowhan v. The State 2003 SCMR 1597 rel.

Aftab Ahmed Bajwa for Appellants.

Syed Ijaz Qutab for Respondent No.1.

Tahir Mahmood Gondal, A.A.G. for the State.

Date of hearing: 23rd April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2161 #

2007 Y L R 2161

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

Mst. HUMAIRA ASIF---Petitioner

Versus

ADDITIONAL INSPECTOR-GENERAL OF POLICE (INVESTIGATION), LAHORE and others---Respondents

Writ Petition No.2371 of 2007, heard on 16th April, 2007.

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

----S.156--Penal Code (XLV of 1860), Ss. 302/201/365/392-Anti-Terrorism Act (XXVII of 1997), S. 7---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Investigation, transfer of---Senior Police Officials had conducted investigation in the case in a most transparent manner making painstaking efforts to uncover the true facts, which even had been appreciated by Supreme Court in a Human Rights case---Record had unequivocally disclosed that the husband of the petitioner and others were culpable for the murder of the Excise Inspector and the Head Constable---Contention that the investigation had not been conducted on merits and that the version of the accused was not considered during investigation, was illusory and remained unsubstantiated from the record---Assertion as to pendency of an application preferred by the petitioner, for the transfer of investigation was also not correct---Even otherwise, mere pendency of an application at such stage when the trial had commenced and partial prosecution evidence had been recorded by Trial Court, .was inconsequential---No prejudice had been caused to the accused in the investigation resulting in submission of report under S.173, Cr. P. C. ---Investigation conducted by the police did not suffer from any illegality, procedural or otherwise---Constitutional petition was dismissed accordingly.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 ref.

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

----Ss.156 & 173---Re-investigation after challan filed in Court---Permissibility---Where the report under S.173, Cr. P. C. had already reached the trial Court and where the trial had already commenced, changing the investigation or ordering further investigation in the matter would be an exercise unsustainable in law.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 ref.

M. Zubair Khalid Ch. and Sher Afghan Asadi for Petitioner.

Faisal Ali Qazi Asst. A.-G. and Akhtar Ali, S.I. with record for Respondents.

Date of hearing: 16th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2169 #

2007 Y L R 2169

[Lahore]

Before M. Bilal Khan, J

Miss KANWAL AKRAM---Petitioner

Versus

D.P.O., GUJRAT and 11 others---Respondents

Writ Petition No.13732 of 2006, decided on 9th April, 2007.

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

----S.302---Constitution of Pakistan (1973), Art.199---Constitutional petition--Registration of F.I.R,, refusal of---Dead body of the deceased had been disinterred on the application of the complainant petitioner alleging that her father had either been strangulated or had been ac/ministered poison---Doctor who carried out post-mortem examination of the dead-body opined that cause of death could not be ascertained, and on receipt of Chemical Examiner's report he made an endorsement on the post-mortem examination report that no poison was detected in the visceras sent to Chemical Examiner, hence the cause of death 'was cardio-pulmonary arrest---No useful purpose could, therefore, be served to order registration of a. criminal case against the accused in the presence of negative autopsy and negative Chemical. Examiner's report---Impugned gift deed executed by the general attorney, a suit for cancellation of the same had already been filed by the petitioner in Civil Court, where vires of the gift-deed would be thrashed out---Mere pendency of a civil suit however would not debar criminal action and petitioner could file a private complaint, if so advised---Impugned order of Sessions Court dismissing the application of the petitioner for registration of a criminal case against the accused, did not suffer from any jurisdictional error---Constitutional petition was dismissed accordingly.

(b) Administration of justice---

----Pendency of civil suit not to debar criminal action---Mere penency of a civil suit does not debar criminal action.

Mian Sarfraz-ul-Hassan for Petitioner.

Muhammad Mazhar Sher Awan Add. Prosecutor-General Punjab for the State.

Sh. Naveed Shahrayar for Respondents Nos.3, 7, 8, 10 and 11.

Muhammad Sharif S.I., P.S. City Kharian, District Gujrat with record.

YLR 2007 LAHORE HIGH COURT LAHORE 2172 #

2007 Y L R 2172

[Lahore]

Before Mian Hamid Farooq and Iqbal Hameed-ur-Rehman, JJ

MUHAMMAD NADEEM---Appellant

Versus

D.P.O. and others---Respondents

I.C.A No.107 of 2007, decided on 15th May, 2007.

Criminal Procedure Code (V of 1898)---

----S.22-A---Law Reforms Ordinance (XII of 1972), S.3 Registration of case---

Appellant had alleged that he gat booked and loaded cotton bales on vehicle driven by respondent; that he was informed that said cotton bales had been looted on account of dacoity---Appellant got suspicion about commission of alleged dacoity and suspected that respondent along with others had committed theft of said bales and got criminal case registered against respondent under S. 406, P. P. C. ---Respondent filed petition under S.22-A, Cr. P. C. before Justice of Peace seeking registration of criminal case regarding the occurrence of dacoity---Said petition was dismissed by Justice of Peace, but constitutional petition by respondent was accepted by High Court and D.P.O. concerned was directed to get the case registered on the complaint of respondent and ensure its fair and impartial investigation---Validity---High Court had taken into consideration the version of respondent in an independent perspective---Case of respondent was that a dacoity had taken place in which 10/12 persons were involved who came on an unnumbered truck and took respondent and his two helpers to a deserted place on gun point and looted the goods from the vehicle of respondent---Plea of the respondent was that his case was based on independent set of witnesses and accused persons-No bar in circumstances existed in registration of second F.I.R. by the respondent---High Court was right in giving direction for registration of a criminal case---Intra-Court appeal was dismissed..

Habibullah v. Political Assistant, Dera Ghazi Khan and others 2005 SCMR 951; Sajjad Ahmad v. S.H.O. Police Station Kunjah and another PLD 1993 Lah. 18; Mst. Anwar Begum v. S.H.O. P.S. Kalri West Karachi and 12 others PLD 2005 SC 297 and Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar.119 rel.

Muhammad Tariq Nadeem for Appellant.

YLR 2007 LAHORE HIGH COURT LAHORE 2176 #

2007 Y L R 2176

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL HALEEM---Appellant

Versus

MUHAMMAD TAHIR KHAN---Respondent

Regular Second Appeal No.176 of 2005, decided on 16th April, 2007.

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

----S.24(1)---Deposit of one third of pre-emption money after 30 days from date of filing of suit---Validity---Record revealed that suit was filed on 17-5-2000, which came up on the same day and Trial Court required the plaintiff to deposit 1/3rd of the sale price upto 15-6-2000---Admitted position was that the amount was deposited on 17-6-2000 and after this an application for extension of time was moved which was declined by Trial Court and plaint was rejected---Plea raised by pre-emptor that order for deposit of amount was made on 18-5-2000 and that he was under impression that amount was to be deposited within 30 days from the date of said order was falsified by this earlier application for extension of time which was not pressed---Order for deposit had been passed in accordance with the provision of S.24(1) of Punjab Pre-emption Act, 1991 and grounds urged for extension of time, were prima facie, incorrect---Suit was therefore, rightly dismissed in circumstances.

Mst. Mumlikat Begum v. Malik Nasrullah 2004 SCMR 1290; Ghulam Mustafa Khan v. Ashiq Hussain and others 2003 CLC 1661; Imran Ahmad and another v. The District Judge, Dera Ghazi Khan and 2 others 2003 CLC 1597 and Muhammad Ilyas and 4 others v. Munshi Khan 2003 CLC 1815 distinguished.

Noor Muhammad Khan Chandia for Appellant.

Nemo for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 2179 #

2007 Y L R 2179

[Lahore]

Before Muhammad Jehangir Arshad, J

GHULAM FAREED---Petitioner

Versus

DIVISIONAL CANAL OFFICER, WESTERN BAR CANAL DIVISION THINGI DISTRICT VEHARI and another---Respondents

Writ Petition No.494 of 2007, decided on 10th April, 2007.

(a) Canal and Drainage Act (VIII of 1873)---

----S.68-A [as amended by Canal and Drainage (Amendment) Act (XVII of 2006)]---Restoration of KHAAL without any notice and inquiry---Validity---Law provides that Sub-Divisional Canal Officer before passing an order for restoration of dismantled watercourse or internal KHAAL, was to hold an inquiry himself---In the present case Sub-Divisional Canal Officer did not hold the inquiry as required by S.68-A of Canal and Drainage Act, 1873---Order of restoration of KHAAL having been passed on basis of some inquiry allegedly conducted by the field staff could not be considered as valid and lawful hence was set aside---All the subsequent proceedings conducted being outcome of a void order, were also void and not sustainable---Sub-Divisional Canal Officer was directed by High Court to ensure fresh proceedings in terms of amended provisions of S.68-A of Canal and Drainage Act, 1873.

Ahmad Khan v. Member (Consolidation), Board of Revenue, Punjab Lahore and others PLD 1990 SC '1070 and Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104 rel.

(b) Administration of justice---

----When a thing is required to be done in a particular manner, it must be done in that way and not otherwise.

Raja Hamayun Sarfraz Khan and 'others v. Noor Muhammad 2007 SCMR 307 and Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 rel.

----Scope---Delegattee cannot further delegate its powers unless so allowed by law.

Shaukat Ali v. Government of Punjab through Secretary, Industries and Mineral Department and 8 others PLD 1992 Lah. 277 and Syed Anwar Ali Shah v. Fiayaz Ali Khan and others PLD 1962 (W.P.) Lah.483 ref.

(d) Void order---

----Subsequent proceedings conducted as a result of a void order, are also void and without lawful authority.

Iqbal Hussain Pahore Petitioner.

Ch. Muhammad Hussain Jahania for Respondents.

Muhammad Qasim Khan, A.A.-G. with Mirza Muhammad Ajmal, Divisional Canal Officer.

YLR 2007 LAHORE HIGH COURT LAHORE 2183 #

2007 Y L R 2183

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

LAHORE DEVELOPMENT AUTHORITY through Director-General and another---Appellants

Versus

Malik BASHIR AHMED, ADVOCATE and 3 others---Respondents

I.C.A. No.24 of 2006 in Writ Petition No.17115 of 2005, heard on 11th April, 2007.

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

----Ss.10 & 54---Constitution of Pakistan (1973), Art.23---Right to property--Imposing of condition under agreement to restrain owner of a property from alienating the property---Effect---Disputed plots were allotted by the Development Authority imposing a condition on its allottees that they could not sell the same for a period of 10 years from date of allotment---Allottees sold said plots before expiry of 10 years---Authority assailed such sale on ground that allottees could not sell the plots as per condition of allotment agreement---Validity---Transfer of Property Act, 1882 defines a 'sale' to be a transfer of ownership in exchange for a price paid or promised or part paid and part promised---Disputed plots, in the present case, were transferred for a price which had been admittedly paid by allottees to the Development Authority---Condition imposed by Authority restricting alienation was inherently void---Such a condition, even if imposed by parties out of their free will, was to be void by the statute i.e. S.10 of the Transfer of Property Act, 1882---Under Article 23 of the Constitution every citizen of the country has a right to hold and dispose of property in any part of the country---Such right is subject to the Constitution and any reasonable restraint "by law" in the public interest---Bar contained in agreement of allotment under instruction of Chief Minister was without lawful authority as instructions of Chief Minister were not "a law" within the meaning of Art.23 of the Constitution.

Sami ul Haq v. Dr. Maqbool Hussain Butt and others 2001 SCMR 1053 and Muhammad Shafi and 5 others v. Muhammad Sharif and 9 others 2003 YLR 482 ref.

Iftikhar Ahmad Mian for Appellants.

Kh. Saeed-uz-Zafar for Respondents.

Date of hearing: 11th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2185 #

2007 Y L R 2185

[Lahore]

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

NATIONAL HIGHWAY AUTHORITY through Chairman and another---Appellants

Versus

AZHAR AND COMPANY through Azhar-ul-Hassan Usman---Respondent

R.F.A. No.406 of 2005, decided on 9th April, 2007.

Civil Procedure Code (V of 1908)---

----S.24(3), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.42---Power to transfer cases---Suit for declaration with permanent injunction by a defaulting contractor---Trial Court while issuing status quo in the suit directed plaintiffs to deposit the instalments already due---Noncompliance of said direction led the order whereby interim injunction was refused to be extended---Appeal was filed before Additional District Judge who transferred the suit as well to his file and proceeded to decide the same on basis of some settlement between parties---Validity---Jurisdiction to transfer. cases under S.24, C.P.C. vests .with High Court or District Judge and not with Additional District Judge who could decide appeals but could not transfer suits---Additional District Judge, for the purposes of transfer of case, had been made subordinate to District Judge as per provisions of S.24(3), C.P.C. and was required to solicit transfer order from District Judge or High Court---Appellate Court, in the present case, could decide appeal by giving direction to Trial Court to decide suit on basis of settlement inter parties but such, course was not adopted which made entire exercise by Court of appeal, fishy---Held, a noval procedure of prizing a defaulting contractor was adopted by Court of appeal which could not be contributed on basis of any canon known for administration of justice---Appellate Court had no jurisdiction to constitute any committee for resolving the matter even under the relied settlement because such an exercise was to be undertaken by Trial Court cognizant of the suit---Finding of appellate Court having been without jurisdiction was not maintainable hence set aside and case was remanded to Appellate Court for decision afresh in accordance with law.

Begum Akhtar Akhlaque Hussain and another v. Saghir Ahmad and 12 others 1980 CLC 1892 ref.

Sardar M. Tariq Nadeem Balouch for Appellants.

Respondent already ex parte.

YLR 2007 LAHORE HIGH COURT LAHORE 2190 #

2007 Y L R 2190

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ZAHID NASEEM ADIL---Petitioner

Versus

MUHAMMAD SHAFI and 5 others---Respondents

Civil Revision No.1745 of 2005, decided on 2nd February, 2007.

Civil Procedure Code (V of 1908)---

----O. XXXIX, R. 2-B---Procedural law---Scope---Temporary injunction granted by Trial Court on 22-1-2000 had ceased to have effect on expiration of sir months, without having been extended by Court in terms of R. 2-B of O. XXXIX, C.P.C.---Transfer of suit land vide sale mutation after the expiry of temporary injunction was not a violation of the prohibitory order---Contention that period of six months mentioned in R.2-B of O.XXXIX, C.P.C. was substituted with the words "one year" was repelled for the simple reason that though procedural law could have been applied retrospectively but it could not inject life to the order which already stood vacated---Petitioner's stay order had ceased to exist on 22-7-2000 whereas the amendment relied upon was made on 20-10-2001---Said amendment was of no help to the case of petitioner in circumstances.

Samir Oosman and 2 others v. Rex Talkies (Pvt.) Ltd. and another PLD 1997 Kar. 579 and Syed Muhammad Shah Jahan Shah v. Fazal-ur-Rehman 1996 CLC 1572 rel.

Rana Rashid Akram Khan for Petitioner.

YLR 2007 LAHORE HIGH COURT LAHORE 2191 #

2007 Y L R 2191

[Lahore]

Before Maulvi Anwarul Haq, J

REHMAT ALI---Appellant

Versus

MUHAMMAD YOUSAF BAIG---Respondent

Regular Second Appeal No.140 of 2004, heard on 17th April, 2007.

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

----S.13---Right of pre-emption, exercise of---Evidence on file---Inference drawn by Courts---Defendant's right to claim incidental charges incurred by him on impugned sale---Plaint disclosed that plaintiff came to know about the disputed sale on 27-8-2000 and he immediately made the first Talb---Trial Court as well as Appellate Court dismissed the suit on the ground that plaintiff in his examination-in-chief stated the date of knowledge of sale was 27-9-2000 instead of 27-8-2000---Validiy---Held, from the evidence on record it was made out that the date 27-9-2000 was result of a slip of tongue or was wrongly recorded by trial Court---Case was that of misreading rather non-reading of evidence as upon reading of whole evidence the only conclusion that could have been arrived at was that plaintiff had stated 27-8-2000, particularly when it was suggested by plaintiff himself that he acquired knowledge of disputed sale in the month of August; 2000---No discrepancy existed in statements of witnesses---Notice of Talb-e-Ishhad had also been duly proved by attesting witnesses and delivery of notice also stood proved on record---Copy of sale-deed produced by defendant/vendee revealed-that stamp duty of Rs. 60,000 had been affixed thereon---Defendant, therefore, was entitled to payment of said charges and suit was decreed by High Court subject to deposit of total amount.

Haji Feroze Khan and others v. Amir Hussain through L.Rs. and others 2004 SCMR 1719 ref.

Nayyar Iqbal Ghauri for Appellant.

Muhammad Afzal Bhatti for Respondent.

Date of hearing: 17th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2195 #

2007 Y L R 2195

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD DIN and another-Appellants

Versus

BASHIR AHMAD NASIR and another---Respondents

Criminal Appeal No.2047 .of 2002 and Murder Reference No.133 of 2004, heard on 15th February, 2007.

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

----S. 302 (b)/34---Appreciation of evidence---Benefit of doubt---Case had twisted and wavering facts---F.I.R. got registered by the mother of the deceased about the occurrence was later on disowned by her and after more than three years of the incident another prosecution witness had filed a private complaint introducing a new story and increasing the number of accused---Trial was initiated in the private complaint---Complainant himself was not an eyewitness of the occurrence and his evidence having been based all on hearsay required no consideration---Enmity between the parties was admitted---Both the eye-witnesses including the aforesaid mother of the deceased being not the residents of the locality of occurrence were chance witnesses, but they had failed to plausibly explain their presence at the spot---Eyewitnesses had contradicted each other on material points---Eye-witnesses mentioned in the F.I.R. while appearing as Court witnesses had specifically stated that the occurrence in the case had been committed by four unknown assailants who could not be identified---Ocular evidence given in private complaint thus, did not inspire confidence---Even 'otherwise, more than three years delay in filing the private complaint having not been reasonably explained; the same could not be relied upon---Eye-witnesses having been disbelieved qua the acquitted co-accused who had been assigned a greater role of causing injuries to the deceased, could not be believed against the present accused in the absence of independent corroboration---Motive behind the occurrence was not proved---Recovery of crime weapon was doubtful---Accused were acquitted on benefit of doubt in circumstances.

Ghulam Sikandar and another v. Mamraz Khan and another PLD 1985 SC 11; Sarfraz alias Sappi and two others v. The State 2000 SCMR 1758 and Iftikhar Hussain and another v. The state 2004 SCMR 1185 ref.

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

----S.302(b)/34--- Appreciation of evidence---Principles---Eye-witnesses who are disbelieved against some accused persons attributed active and effective roles, cannot be believed against other accused persons unless they receive independent corroboration qua them.

Ghulam Sikandar and another v. Mamraz Khan and another PLD 1985 SC 11; Sarfraz alias Sappi and two others v. The State 2000 SCMR 1758 and Iftikhar Hussain and another v. The state PLJ 2004 SC 552 ref.

Syed Zahid Hussain Bokhari for Appellants.

Ch. Muhammad Hussain Chhachar, Addl. Prosecutor General for the State.

Date of hearing: 15th' February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2206 #

2007 Y L R 2206

[Lahore]

Before Muhammad Muzammal Khan, J

ABDUL SATTAR---Petitioner

Versus

ABDUL GHAFOOR through Legal Heirs---Respondents

Civil Revisions Nos.847 and 849 of 2006, heard on 10th April, 2007.

Civil Procedure Code (V of 1908)---

----O. XXVI, R.10(3)---High Court (Lahore) Rules and Orders, Vol.1, Part M(i)---Report of Local Commissioner prepared without actual measurements at the spot---Validity---Trial Court appointed Naib Tehsildar as Local Commissioner for demarcation of land of Khasra in question---Report of Local Commissioner on record revealed that though the Local Commissioner had reported to have undertaken some measurements at the spot but how and in what manner said exercise was taken, was not reflected in the report---Procedure/method to be followed by Revenue Officers had been prescribed by Authorities had also been incorporated in High Court (Lahore) Rules and Orders---Revenue Officer was, thus, legally obliged to first trace some permanent point like road, canal; well or some other permanent structure wherefrom he was supposed to undertake the measurements by erecting each of Khasra numbers intervening the place which was to be demarcated by him---Local Commissioner was also under obligation to counter check by bringing his measurements from other side of the Khasra number to be demarcated but no such exercise was undertaken or mentioned in the report---Local commissioner even did not consult revenue record and a site sketch of khasra in question was prepared by Patwari concerned without scale---Measurements done at the site and acts performed by local commissioner should have been mentioned in the report but report was absolutely silent about reasons for holding that suit shop was located in a certain part of Khasra which was to be demarcated---Held, such report was not worth reliance as it did not resolve the controversy inter parties---Concurrent decree having been based on said report was not sustainable, and was set aside by High Court.

Muhammad Bakhsh v. Nizam Din PLD 1978 Lah. 31 ref.

M.D. Chaudhry for Petitioner.

Mian Mahboob Alam Bhutta for Respondents.

Date of hearing: 10th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2212 #

2007 Y L R 2212

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

Mst. BILQUIS BEGUM and others---Appellants

Versus

KHALID HAMEED KHAN and others---Respondents

Regular First Appeal No.12 of 2005, heard on 4th April, 2007.

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

----S. 2(12)---"Mesne profits"---Meaning---Mesne profits of property mean those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom; together with interest on such profits---Profits due to improvements made by person in wrongful possession are excluded.

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

----S. 2(12)---Specific Relief Act (I of 1877), S.8---Decree in suit for possession---Claim of mesne profits---Entitlement---Decree-holder's right to claim compensation from judgment-debtor for use and occupation of property---Title of suit property, in earlier round of litigation had been conferred upon the decree-holder by Trial Court and such conferment of title was upheld by Supreme Court on 20-6-2003---Decree-holder claimed compensation from judgment-debtor for use and occupation of property from 20-6-2003---Judgment-debtors' plea that their possession was protected on account of stay orders granted by various courts in different rounds of litigation was repelled---Title of decree-holder having been established, he had become entitled to possession of property---Judgment-debtors' continuing possession over suit land after conferment of title upon decree-holder was wrongful within the meaning of S.2(12), C.P.C. ---Decree-holder held, was entitled to mesne profits.

Messrs R.C.D. Ball Bearing Limited v. Sindh Employees Social Security Institution, Karachi PLD 1991 SC 308 and Mst. Naseema Salahuddin and two others v. Mst. Daulat Fatima and four others PLD 2004 Lah. 103 ref.

Ijaz Feroze for Appellants.

Syed Muhammad Javed Rizvi for Respondent No.1.

Remaining respondents ex parte.

Date of hearing: 4th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2220 #

2007 Y L R 2220

[Lahore]

Before Syed Asghar Haider, J

AKHTAR HUSSAIN---Petitioner

Versus

MUHAMMAD ASLAM---Respondent

Civil Revision No.1591 of 2006, heard on 9th April, 2007.

Civil Procedure Code (V of 1908)---

----O. XLI, R.31---Judgment in appeal, requirements of---Plaintiff's suit for pre-emption was dismissed by trial Court---Plaintiff was also non-suited by Appellate Court relying on statement of witnesses whereas other material' evidence on this point was neither appraised nor discussed in appellate findings---Validity---Under O. XLI, R. 31, C.P.C., Appellate Court was required 'to determine points for adjudication and gave decision thereon with reasons---Record reflected that statements of witnesses and documentary evidence produced by plaintiff was not discussed in appellate judgment---Specific plea was raised in grounds of appeal pleading that copy of Register Roznamcha Waqiati submitted by defendant was not proved in accordance with law---Impugned judgment revealed that stated document was relied upon without deciding plaintiff's objection raised in this regard---Proper determination or decision on the touchstone of grounds (a), (b) & (c) as' enumerated in O.XLI, R.31, C.P. C. was not made out---Impugned judgment was, therefore, not tenable in law and amounted to non-exercise of proper jurisdiction as well as non-reading of evidence hence same was set aside---First Appellate Court was directed by High Court to hear the parties afresh and decide the case in accordance with requirements of O. XLI, R.31, C.P.C.

Ghulam Abbas v. Noor Hussain Shah 2007 CLC 12; Muhammad Afzal and 2 others v. Mst. Marrayam Bibi 2007 CLC 20; Altaf Hussain Shah and another v. Abdul Qadeer and 2 others 2004 YLR 824; Shoukat Hayat v. Liaquat Khan 2005 YLR 60: Noor Muhammad v. Abdul Ghani 2002 CLC 88; Lal Khan v. Bashir Ahmad 1989 CLC 140; Muhammad Younas v Shahid Naveed 1989 CLC 837 and Sattar Muhammad and 2 others v. Hussain and 3 others PLD 1988 Pesh.48 ref.

Rahmat Shah and 2 others v. Samar and another PLD 1971 Pesh. 205; Federation of Pakistan through Secretary Ministry of Law v. Zafar Awan Advocate PLD 1992 SC 72; Muhammad Ramzan v. Lal Khah 1995 SCMR 1510 and Khurshid Alam and another v. Al-Khair Gadoon Limited 2004 CLC 1266 distinguished.

Ch. Muhammad Masood Jehangir for Petitioner.

Muhammad Sharif Chohan for Respondent.

Date of hearing: 9th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2228 #

2007 Y L R 2228

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD HUSSAIN and others---Petitioners

Versus

MUKHTAR AHMAD and 2 others---Respondents

Civil Revision No.1093 of 2006, heard on 19th April, 2007.

(a) Registration Act (XVI of 1908)---

----S. 17---Specific Relief Act (I of 1877), S.42---Limitation Act (IX of 1908), Arts.113 & 120---Suit for declaration on basis of an unregistered agreement of exchange---Dismissal of suit and appeal---Validity---Agreement in question having not been registered under provisions of Registration Act, 1908 did not create any title, right or interest in the property agreed to be exchanged especially when said document was not reported to revenue officials---Parties to the agreement were real brothers but disputed agreement was never sought to be implemented in spite of the fact that deceased promisor lived for a period of five years after its alleged execution---Defendants having specifically denied execution of the agreement plaintiffs were obliged to prove not only the negotiations of exchange inter parties but also the transaction and due execution of agreement but they failed to discharge the said onus---Witnesses admitted that they were not present at the time of negotiations or execution of the agreement of exchange---Plaintiffs never opted to have thumb impressions of deceased promisor compared with his admitted thumb-impressions---Court itself examined impugned thumb-impressions and found the same to be dubious---Suit for declaration on basis of an agreement of exchange was also not maintainable in view of bar contained in section 42 of Specific Relief Act, 1877---Plaintiffs never opted to convert their suit from declaration to the one for specific performance---Agreement was statedly prepared on 13-10-1977 and the suit having been filed after the lapse of six years was hopelessly barred by time---Similarly suit for specific performance, if filed, was also barred by limitation---Interference was rightly declined by two Courts below--Mutation of suit-land was correctly sanctioned in favour of defendants---Held, plaintiffs had no locus standi to challenge the said mutation in circumstances.

(b) Registration Act (XVI of 1908)---

----S. 17---Agreement of exchange not registered under the provisions of Registration Act, 1908---Validity---Held, mere an agreement did not create any title, rights or interest in the proper agreed to be exchanged especially when such document was not reported to revenue officials nor any mutation of exchange was entered at any of the two places.

----S. 42---Suit for declaration on basis of an agreement of exchange is not maintainable in view of bar contained in section 42 of Specific Relief Act, 1877 as plaintiffs were in a position to seek further relief of specific performance.

Rai Muhammad Tufail' Khan Kharal for Petitioners.

Malik Riaz Khalid Awan for Respondents.

Date of hearing: 19th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2231 #

2007 Y L R 2231(2)

[Lahore]

Before Maulvi Anwarul Haq, J

AHMED DIN and others---Petitioners

Versus

Mst. FATIMA and others---Respondents

Civil Revisions Nos.2614 to 2618 of 1996, heard on 17th April, 2007.

(a) Punjab Tenancy Act (XVI of 1887)---

----Ss. 114(2) (c) & 115 [as amended by Punjab Tenancy (Validation and Extension of Period for Payment of Compensation) Ordinance (XXXI of 1969)]---Punjab Tenancy (Amendment) Rules, 1953---Zar-e-Malkana, period for deposit---Punjab Tenancy (Amendment) Rules, 1953, prescribing the period for deposit of Zar-e-Malkana to be two years from 16-3-1953 had been extended up to 1-12-1977 by an amendment introduced under Punjab Tenancy (Validation and Extension of Period for Payment of Compensation) Ordinance, 1969.

(b) Punjab Tenancy Act (XVI of 1887)---

----Ss. 114(2) (c) & 38---Special Relief Act (I of 1877), S.42---Plaintiff- sought declaration to the effect that defendants were not occupancy tenants---Defendants in their evidence claimed that they were occupancy tenants in suit land and after extinguishment of said tenancy they had obtained ownership rights by depositing of Zar-e-Malkana and that mutation had been correctly attested in their favour---Defendants' suit for possession of disputed land had been dismissed on ground that they, after extinguishment of occupancy tenancy, had not deposited Zar-e-Malkana within prescribed period---Validity---Deposit of Zar-e-Malkana was deposited within the statutory period---Land, in circumstances, came to vest in the occupancy tenants by virtue of S.114(2) (c) of the Punjab Tenancy Act, 1887---Contention that since defendants left the village it would be deemed that they had abandoned the tenancy was fallacious as it was not even the plea of plaintiffs' that they came to occupy the land because of failure of occupancy tenants for a whole year prior to their occupation of land or that they got any mutation of extinction of tenancy attested in their favour---Notwithstanding the fact that defendants had been in possession for several years, a case of legal abandonment was not made out.

Baz and others v. Yar Muhammad 1981 SCMR 569 ref.

Muhammad Jehangir Asif for Petitioners.

Nemo for Respondents.

Date of hearing: 17th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2236 #

2007 Y L R 2236

[Lahore]

Before Tariq Shamim, J

NAZIR AHMAD KHAN---Petitioner

Versus

TANVEER AHMAD and 3 others---Respondents

Writ Petition No.9595 of 2006, heard on 17th April, 2007.

(a) Illegal Dispossession Act (XI of 2005)---

----S. 3---Criminal Procedure Code (V of 1898), Ss. 22-A & 22-B---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Petitioner filed complaint under S.3 of Illegal Dispossession Act, 2005 which was dismissed by trial Court---Validity---Prima facie entries of Jamabandi and Khasra Girdawri relied upon by petitioner appeared to be false and incorrect---Report of Tehsildar revealed that father of respondents had been in possession of suit-land for the last 25/30 years---Even report submitted by S.H.O. on application filed by petitioner under Ss.22-A & 22-B, Cr.P. C. did not support the case of petitioner---Petitioner did not disclose the date on which he was allegedly dispossessed by respondents---Mere mentioning the date of alleged dispossession in an application filed under Ss.22-A & 22-B, Cr.P. C. which had no nexus with the complaint, did not absolve petitioner of his duty to mention the same in the private complaint---Petitioner failed to produce evidence to the effect that respondents had the credentials or antecedents of property grabbers/Qabza Groups land mafia (which was a sine qua non for the applicability of provisions of Illegal Dispossession Act, 2005)---Record showed that dispute between parties was a private dispute regarding which civil litigation was pending and matter essentially pertained to possession of property on basis of title---Complaint was rightly dismissed by trial, Court as provisions of Illegal Dispossession Act, 2005 were not attracted in circumstances.

(b) Illegal Dispossession Act (XI of 2005)---

----Preamble & S. 3---Scope and applicability of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005 was not designed to apply to ordinary cases relating to dispossession from immovable property where the aggrieved person had remedy available to him before the civil or the revenue Courts---Complaint under S.3 of the Illegal Dispossession Act, 2005 could be entertained by a Court of Session only if some material existed showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property or the complaint demonstrates an organized or calculated effort by some persons operating individually or in groups to grab by force or deceit property to which they had no lawful, ostensible or justifiable claim and the same must be in a manner so as to expose the person as a property grabber.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah.231 rel.

Ghulam Nabi Bhatti for Petitioner.

M. Abdullah Ch. and Shehbaz

Ahmed Dhillon, Asst. A.-G. for Respondents.

Date of hearing: 17th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2240 #

2007 Y L R 2240

[Lahore]

Before Maulvi Anwarul Haq, J

INAYAT and 9 others---Petitioners

Versus

MUHAMMAD YOUSAF and 5 others---Respondents

Civil Revision No.7 of 1999, heard on 25th April, 2007.

(a) Islamic Law---

----Inheritance---Muslim male died issueless---Deceased had two brothers who were also dead and were survived by three nephews i.e. N, L & S---N & L were sons of one brother and S was son of other brother of deceased---Inheritance mutation was attested by Settlement Authorities whereby 1/2 share was given to N & L predecessors of respondents while 1/2 was given to S predecessor of petitioners---Validity---Held, it stood proved on record that deceased was survived by three brother's sons and as such the said three persons under the Islamic Law were to get equal share in the estate of their paternal uncle who had admittedly died issueless---Contention raised by petitioners that mutation was attested in accordance with some custom had no force as no evidence was produced to the effect that deceased was governed by any custom in matter of inheritance---Appellate Court rightly found that respondents were entitled to 2/3rd whereas petitioners were entitled to 1/3rd share in the estate of deceased---Impugned mutation having been patently against the Muslim Personal Law as well as admitted facts of the case, had been competently set aside by appellate Court.

(b) West Pakistan Rehabilitation and Settlement Scheme, 1956---

----Para. 46---Inheritance mutation sanctioned by Settlement Authorities--Jurisdiction of civil Court---Scope---Mutation of inheritance having been attested patently against Muslim Personal Law affecting the rights of inheritance of the parties, civil Court had the jurisdiction to interfere.

Muhammad Siddiq and 2 others v. Muhammad Sharif and 2 others 1992 SCMR 2260 and Siraj Din through L.Rs. and 2 others v. Akbar Ali and others 2005 SCMR 921 ref.

----Inheritance---Limitation---No time of limitation in suit by co-owners/co-heirs seeking their rights of inheritance.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Mohsin Khan and 3 others v. Ahmad Ali and 2 other PLD 2004 Lah.1 ref.

Khan Muhammad Bajwa for Petitioners.

Ch. Pervez Iqbal Gondal and Ch. Shahid Saeed for Respondents.

Date of hearing: 25th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2245 #

2007 Y L R 2245

[Lahore]

Before Ijaz Ahmad Chaudhry, J

KHALID MEHMOOD---Petitioner

Versus

TALHA MAHMOOD (Minor) and 3 others---Respondents

Writ Petition No.1625 of 2007, heard on 26th April, 2007.

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

----Art. 199---Constitutional petition---Concurrent findings of fact---Concurrent findings of fact arrived at by both the Courts below after well appreciation of evidence on record, cannot be interfered with by High Court in writ jurisdiction.

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

----S. 5 & Sched. ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Grant of maintenance allowance to minors with annual automatic enhancement at the rate of 10 per cent---Fixed annual increase in maintenance allowance was challenged by father---Validity---Minors were students of 10th and 8th classes respectively and were studying in school, their expenses would increase day by day with promotion in the next classes---Being a father petitioner was responsible to maintain minors in all their needs, wherever they lived till the age of their majority---Keeping in mind the rate of inflation in country and viewing the increase of demands of minor with the passage of time as they would go to the higher classes, trial Court rightly ordered for annual 10% increase in the maintenance allowance---Held, fixed annual increase in maintenance allowance would save minors from knock at the door o Court again and again for grant o additional maintenance allowance, which was not easy task and thereby they would waste their time and money.

Ijaz Ahmad through Attorney v Judge, Family Court and 5 others 200. CLC 1913 and Adnan Afzal v. Capt. She Afzal PLD 1969 SC 187 ref.

Rana Nasrullah Khan for Petitioner.

Muhammad Iqbal Mohal for Respondents Nos.l and 2.

Date of hearing: 26th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2249 #

2007 Y L R 2249

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. MUBASHRA RIAZ---Petitioner

Versus

Mst. ALIA SHAHZADI and 4 others---Respondents

Revision Petition No.476 of 2007, heard on 26th April, 2007.

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

----O.XVII, R.3, O.XXII, R.3(2) & 5.115---Suit cannot be dismissed or decreed under O.XVII, R.3, C.P.C.---Plaintiff lady died during pendency of suit---Copy of death certificate and the list of legal representatives was produced on record thereafter Trial Court issued a direction for filing the amended plaint which was necessary for further progress of the suit---Presiding Officer, on the date fixed for the purpose, was absent and case was adjourned by his office---Amended plaint was not filed on the adjourned date whereupon Trial Court dismissed the suit under O.XVII, R.3, C.P.C.---Appeal was dismissed on ground of limitation---Validity---Admittedly plaintiff lady had died during pendency of suit--Court in such a case had to proceed within the terms of O.XXII, R.3(2), C.P.C.---Once the list of legal representatives was on record, it was the duty of Court to have issued notices to the legal representatives of deceased plaintiff but this was not done, instead suit was dismissed under O.XVII, R,3, C.P.C.---Dismissal or decretal of a suit under O.XVII, R.3, C.P.C. was not provided, under the said provisions of law, if conditions mentioned therein existed the Court had to proceed to decide the suit forthwith---Case was adjourned only for the reason that Presiding Officer was absent and not at the request of any of the parties hence suit could not have been proceeded under O.XVII, R.3, C.P.C.---Dismissal of suit was, wholly without lawful authority---Plea raised by plaintiff's grand-daughter that she was not aware of passing of the impugned order and acquired knowledge at the later point of time was absolutely plausible in circumstances---Manners in which suit was dismissed by Trial Court itself constituted a sufficient cause ,for condonation of delay---Impugned orders and decrees had attracted mischief of 5.115, C.P.C., revision accordingly was allowed.

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

----O. XXII, R.3(2)---Where the plaintiff is dead, the suit cannot he dismissed in default.

Amjad Pervaiz Chaudhry for Petitioner.

Ch. Muhammad Maqsood Ahmad for Respondent No.1.

Nemo for others.

Date of hearing: 26th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2255 #

2007 Y L R 2255

[Lahore]

Before Muhammad Muzammal Khan, J

SHANA and 4 others---Petitioners

Versus

MEMBER, BOARD OF REVENUE, PUNJAB and 12 others---Respondents

Writ Petition No.9079 of 2006, decided on 26th April, 2007.

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

Ss. 161 & 162---Qanun-e-Shahadat (10 of 1984), Art.114---Constitution of Pakistan (1973), Art.199---Constitutional petition---Concealment of facts---Estoppel, principle of---Respondents filed application for partition of joint land---Petitioners consented to such partition whereupon Tehsildar/Assistant Collector approved the mode of partition proposed by parties and accepted said application vide an order---Later on petitioners, feeling dissatisfied with Naqsha Taqseem filed appeal against the said order of Tehsildar/Assistant Collector---Appeal was dismissed by District Collector-Petitioner, thereafter, by concealment of dismissal of their earlier appeal filed another appeal before Collector/D.O. (R)---Competency of subsequent appeal---Held, under provisions of section 161, West Pakistan Land Revenue Act, 1967, Collector/D.O. (R) could have examined the legality or otherwise of the order passed by Tehsildar/Assistant Collector only once hence subsequent appeal filed by petitioners through concealments of facts was not competent---Limitation .for challenging the order passed in earlier appeal had also lapsed and order in question having not been further challenged, had attained finality---Courts working in revenue hierarchy correctly declined interference in circumstances---No case for interference in constitutional jurisdiction of the High Court was thus made out.

Fakhar-uz-Zaman Tarar for Petitioners.

Ms. Sumera Afzal, Original Counsel and Mohsin Raza Gondal for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2257 #

2007 Y L R 2257

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

ALLAH DITTA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.622 and M.R. No.278 of 2002, heard on 6th February, 2007.

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

---Ss. 302 (b) & 302(c)---Appreciation of evidence---Sentence, reduction in---Delay of 7/8 hours in recording the statement of the complainant after the occurrence was not explained---Delayed post-mortem of the deceased was sufficient to draw an inference that F.I.R. was not registered at the given time---Such F.I.R. could not be used as a corroborative piece of evidence---Complainant was the solitary eye-witness to furnish ocular account of occurrence---Two other eye-witnesses had been given up by the prosecution as having been won over---Occurrence appeared to be an unwitnessed one, but the police had subsequently concocted ,a story after calling the close relatives of the deceased---Presence of complainant at the scene of occurrence was not established and he had not given a trite statement in the Court---Motive was not proved due to divergent statements made by complainant---Despite the place of recovery being a thickly populated area, nobody from that locality was joined in the recovery proceedings and recovery of "Chhuri" as stated by the witnesses was not believable---Prosecution, thus, had failed to prove the case of Qatl-e-Anzd against the accused---Defence plea taken by accused of having killed his wife under grave and sudden provocation was borne out,from the record as the dead-body was ,found lying naked at the spot and the vaginal swabs of the dead body were found stained with semen---Prosecution version having been disbelieved, defence version had to be believed or rejected in toto---Cases covered by Exceptions to old 5.300, P.P.C. read with old S.304, P.P.C. were intended to be dealt with under new S.302(c), P.P.C.---Conviction of accused under 5.302(6), P.P.C. was consequently altered to S.302(c),' P.P.C. and his sentence of death was reduced to ten years R.I. in circumstances---Compensation to the legal heirs of the deceased was disallowed as the deceased being not Mosoom-ud-dam had herself provoked the accused while indulging in the indecent act.

Sultan Khan v. Sher Khan and others PLD 1991 SC 520 and Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 ref.

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

----S. 302---Criminal Procedure Code (V of 1898), S.342---Appreciation of evidence---Defence plea taken by accused---Principles---Where prosecution version is disbelieved and conviction has to be based on the sole defence plea taken by accused in his statement under S.342, Cr.P.C., the same has to be believed or rejected in toto and not in piecemeal to suit the prosecution version.

Sultan Khan v. Sher Khan and others PLD 1991 SC 520 ref.

----Ss. 302(c), 300 (old) & 304 (old)---Cases covered by Exceptions to old S.300, P.P.C. to be dealt with under S.302(c), P.P.C.---Cases covered by the Exceptions to old 5.300, P.P.C. read with S.304, P.P.C. are intended to be dealt with under cl. (c) of new S.302, P.P.C.

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

Sikandar Zulqarnain Saleemi for Appellant.

Ch. Muhammad Hussain Chachhar, Addl.P.-G. for the State.

Date of hearing: 6th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2270 #

2007 Y L R 2270

[Lahore]

Before Muhammad Farrukh Mahmud and ljaz Ahmad Chaudhry, JJ

ASIF WASEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.437-J and Murder Reference No.863 of 2001, heard on 7th February, 2007.

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

----Ss. 302, 324 & 449---Appreciation of evidence---Accused neither was nam in F.I.R. nor prosecution witnesses had named him in their statements recorded under S.161, Cr. P. C. ---All the witnesses ,for the first time named accused when their statements were recorded before the Trial Court---Injuries were also attributed to absconder and other co-accused who was acquitted---No identification parade was ever held to establish identity of accused---All prosecution witnesses had given different versions regarding the role of accused---Due to some misunderstanding all the prosecution witnesses had substituted accused for co-accused, who was also tried---Role assigned to co-accused was ascribed to accused---Statements of eye-witnesses against accused being worthy of no credence, their evidence qua accused was rejected in circumstances---Confessional statement recorded by the Magistrate, was retracted by accused during trial---No reliance could be placed upon such judicial confession---Recovery of pistol was not effected during investigation of the case---No empty was recovered from the spot and no witness from public was associated with the recovery proceedings---No evidence was available against accused in respect of motive---Prosecution case, in circumstances was replete with doubts---Judgment passed by the Trial Court was set aside to the extent of accused, he was acquitted of all charges and was released.

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

----Arts. 37 & 41L-Penal Code (XLV of 1860), Ss. 302, 324 & 449---Criminal Procedure Code (V of 1898), S.164---Confession in criminal proceedings---Confession made by accused was irrelevant in criminal proceedings, if making of the confession appeared to the court to have been caused by inducement, threat or promise having reference to the charge against accused---Confession would only be relevant when impression caused by any such inducement, threat or promise had been fully removed in the opinion of the Court---Before recording the confession, Magistrate was duty-bound to ensure that the confession was made voluntarily and accused making confession was not tortured; was not under any coercion; and was not under the treat of his being handed over to the police after recording of his statement.

Miss Tasneem Amin for Appellant.

Ch. Muhammad Hussain Chhachhar, Additional Prosecutor General for the State.

Date of hearing: 7th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2276 #

2007 Y L R 2276

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMD IDREES RABBANI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.426 and Murder Reference No.393 of 2002, heard on 1st February, 2007.

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

----Ss. 295-C & 295-A---Appreciation of evidence---F.I.R. was got recorded after a delay of one day after consultation of 15 persons---No body had seen the accused writing the incriminating pamphlets--Report of the Handwriting Expert alone was not sufficient to hold the accused as scribe of the said pamphlets---Prosecution had failed to prove on record as to when, where and in whose presence accused had prepared the documents said to contain derogatory remarks---Witnesses appearing against the accused admittedly belonged to different Sect---Prosecution witnesses had contradicted each other regarding the manner of handing over the pamphlets to them and then handing over the same by them to the police---None of the documents had been taken into possession from the accused---Prosecutions' witnesses were inimical towards accused due to differences of views between them about different teachings of Islamic according to their Sect---No independent evidence was brought on record to show that accused was fond of making debates and preaching his views frequently to other and thus injured their feelings---Prosecution witnesses themselves had allegedly opened the matter with the accused about his belief, but accused never came behind them to make them believe about his belief-Different Sects having different thoughts existed among Muslim, hut they could not he said to have injured the feelings of others---Retracted judicial confession of accused was not capable of being made a basis for his conviction, as the same was not recorded with due care and caution and he was left to remain throughout with the police---Accused while appearing in Court had denied the allegations and. prosecution was unable to prove the saute against him beyond any shadow of doubt---Accused was acquitted accordingly.

(b) Criminal trial---

----Benefit of doubt---Where evidence creates doubt about the truthfulness of the prosecution story, its benefit has to he given to the accused without any reservation.

Mian Abdul Qayyum Anjum for Appellant at state expense.

Ch. Muhammad Hussain Chachhar, Additional Prosecutor General for the State.

Date of hearing: 1st February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2283 #

2007 Y L R 2283

[Lahore]

Before Muhammad Muzammal Khan, J

ALTAF HUSSAIN SHAH and 31 others---Petitioners

Versus

INSPECTOR EXPLOSIVES and 4 others---Respondents

Writ Petitions Nos.8567, 7417 and 13706 of 2006, 2397, 2398, 2993 and 3128 of 2007, decided on 12th April, 2007.

Petroleum Rules, 1937--

---R. 3(b), Art.4 of Sched. (---Constitution of Pakistan (1973), Art. 199--- Constitutional petition---Hoarding of petroleum products---Non-dangerous petroleum and high speed diesel-Licences under Forms "J" and "K "---Distinction---Petitioners were involved in the business of storage/sale of petroleum products under licences issued in Form "J" by concerned District Authorities---Grievance of petitioners was that District Authorities had restrained them from selling "High Speed Diesel Oil "---Contention of authorities was . that petitioners were violating terms/ conditions of their licences and were selling dangerous petroleum products including "High Speed Diesel Oil "---Plea raised by petitioners' was that 'High Speed Diesel' was not a dangerous petroleum as its flash point was 130 degrees Fahrenheit---Validity---Prominent distinction between the two licences was that licences for hoarding of non-dangerous petroleum were being issued by District Authorities and High Speed Diesel Oil was to he stored under licence/sanction of Chief Inspector Explosives, who had been defined by R.3(b) of Petroleum Rules, 1937 as Chief Inspector of Explosives of Pakistan---Rules were framed to prescribe different categories of petroleum products and storage/sale of those under distinct licenses to ensure safety of public life and property---Petitioners were doing their business in shops/rooms, without proper secured tanks and pumps/dispensers etc.---Permitting petitioners to keep petroleum items beyond their licenses would create dangerous condition in the society---1f petitioners were not violating terms/conditions of their licences, they could not be proceeded against---1f the petitioners were found to have acted in violation of their licences by storage/sale of high speed diesel oil or petrol, the letters issued by District Authorities could not he adjudged on the basis of any canon known for administration of justice---Authorities .had acted within the .frame work of their authority axed by Petroleum Rules, 1937, thus High Court declined to rescue the petitioners who had themselves admitted that they were hoarding/selling high speed diesel oil meant for motor conveyance---High Court refused to interfere in the matter under its constitutional jurisdiction.

Muhammad Hussain Awan (in W.Ps. Nos. 8567 and 7414 of 2006) for Petitioners.

Shahid Mehmood Khilji (in W.Ps. Nos.2397 and 2398 of 2007) for Petitioners.

Asad Munir, D.A.-G.

M. Aslam Zar, Standing Counsel.

Ashfaque, Inspector of Explosives.

YLR 2007 LAHORE HIGH COURT LAHORE 2296 #

2007 Y L R 2296

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ILYAS and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.336 and 516 of 2002 and Murder Reference No.248 of 2002, heard on 31st January, 2007.

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

----Ss. 302(b)/34---Appreciation of evidence---Post-mortem examination of dead bodies was conducted on the next day of the occurrence---Such delayed post-mortem examination had cast doubt on the prosecution story about the registration of F.I.R. with promptitude---Possibility of registration of F.I.R. after consultation and deliberation while making preliminary investigation, could not be ruled out---Such an F.I.R. could not be used as corroborative piece of evidence to the ocular account---All three witnesses were closely related inter se and with the deceased---Previous enmity between the parties also existed and eye-witnesses could be termed as interested witnesses, whose statements could not be believed, unless those were corroborated by some independent piece of evidence on the record---Possibility of consultation and deliberation before getting registered the case, could not be ruled out-- Three eye-witnesses who were closely related inter se and with deceased, were not found truthful---Incident had taken place in a thickly populated area, where number of houses were situated, but none of the persons from 'said houses had come out and witnessed the incident- 'Medical evidence did not fully support ocular account---Eyewitnesses appeared to be tutored and they had not spoken the whole truth--Independent witnesses had not been produced before the police during investigation to support the prosecution story---F.I.R. was not got registered with promptitude and the story of prosecution, had been concocted to implicate all the family members of accused---Ocular account furnished by alleged eye-witnesses was not worthy of reliance and same could not be relied upon for recording conviction and sentence in a case entailing capital sentence---Empties though had allegedly been recovered from the spot, but the kind of the weapons of the empties were neither mentioned in the recovery memo. nor in the inspection note---House .from where pistol had allegedly been recovered was not exclusively in possession of accused as other family members were also residing there---Recovery had been witnessed by the police officials only and respectables .from the vicinity were not joined in recovery proceedings---Empties were not sent after one month to office of Forensic Science Laboratory---Positive report of Forensic. Science Laboratory, in circumstances was not worthy of reliance and it did not provide any corroboration to the prosecution story---Defence plea raised by accused was neither in conformity with the medical evidence nor was borne out from the circumstances---Both parties had not come up with the true version of the occurrence---Case, however appeared to be a case of target killing in which son and father were killed at two different places while making reckless ,firing at them---Accused could not prove that he had acted in exercise of his self-defence---Incident was a broad daylight occurrence in thickly populated area and it could not have gone unwitnessed---Circumstances of the case and medical evidence, had frilly established that it was a case of intentional murders committed by accused in a brutal manner---Previous enmity existed between parties---In the absence of any mitigating circumstance, conviction and sentence awarded to accused by the Trial Court was maintained.

Syed Ali Beopri's case PLD 1962 SC 502 ref.

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

----Ss. 302 (b)/34---Appreciation of evidence---Benefit of doubt---Prosecution story had been disbelieved and no circumstances were on record to suggest that co-accused had participated in the occurrence---Impugned conviction and sentence of co-accused recorded by the Trial Court through the impugned judgment, was set aside and he was acquitted by extending him benefit of doubt and he was ordered to be released---Murder reference to the extent of 'co-accused was replied in the negative and death sentence awarded to him by the Trial Court, was not confirmed, but to the extent of accused Murder Reference was replied in . the affirmative and death sentence on two counts awarded to accused by the Trial Court, was confirmed.

Munir Ahmad Bhatti for Appellants (inCriminal Appeal No.336 of 2002).

Rana Muhammad Arshad Khan for Appellants (in Criminal Appeal No.516 of 2002) .

Ch. Muhammad Hussain Chhachar, Additional Prosecutor General on behalf of the State.

Date of . hearing: 31st January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2307 #

2007 Y L R 2307

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. BADAMI and 9 others---Appellants

Versus

Mst. BUDHEE and 2 others---Respondents

Regular Second Appeal No.141 of 1987, decided on 1st March, 2007.

Islamic Law----

----Inheritance---Proof---Deceased being issueless left behind a widow---Collaterals of deceased produced Pedigree Table in . evidence---Widow in witness-box simply expressed ignorance---Held: widow would inherit 1/4th share, while residue 3/4th share would go to collaterals of deceased.

Dr. Abdul Basit for Appellants.

Muhammad Atif Amin for Respondents.

Date of hearing: 12th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2311 #

2007 Y L R 2311

[Lahore]

Before Syed Hamid Ali Shah, J

SHAFAQAT ALI---Petitioner

Versus

Malik MUHAMMAD ISMAIL and another---Respondents

Civil Revision No.686 of 2002, decided on 28th February, 2007.

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

----Ss.12 & 39---Transfer of Property Act (IV of 1882), S.41---Civil Procedure Code (V of 1908), O.VH, Rr.1(g), 7 & 8---Specific performance of agreement of sale, suit for---Plea of bona fide purchaser---Relief of cancellation of registered sale- deed in favour of subsequent purchaser not claimed in prayer clause, but urged in body of plaint---Validity---Execution of agreement and receipt of sale price by vendor from plaintiff stood established---Relationship between subsequent purchaser and vendor was of real uncle and nephew, while brother of subsequent purchaser was married to daughter of vendor---Presence of subsequent purchaser during earlier sale in favour of plaintiff was established on record---Vendor and subsequent purchaser were close relatives and lived in a small locality, thus, transaction in his uncle's house in favour of plaintiff could not remain hidden---Subsequent purchaser, could not claim protection of bona fide purchaser---Sale in favour of subsequent purchase being fraudulent and aimed at to defeat rights of plaintiff arising out of a valid contract of sale would be nullified---Suit was decreed while registered sale-deed in ,favour of subsequent purchaser was cancelled in circumstances.

Salah-ud-Din and 2 others v. Frontier Sugar Mills and Distillery Ltd. and 10 others PLD 1975 SC 244 rel.

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

----O.VII, Rr.1(g), 7 & 9---Relief not claimed in plaint---Effect---Court would be competent to grant relief, even if not prayed for, when party was found entitled thereto---Court itself could mould relief according to circumstances of case.

Salah-ud-Din and 2 others v. Frontier Sugar Mills and Distillery Ltd. and 10 others PLD 1975 SC 244 rel.

Saleem Khan Chaichi for Petitioner.

Ch. Muzaffar Ali Bhatti for Respondent No.1.

Date of hearing: 11th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 2314 #

2007 Y L R 2314

[Lahore]

Before Sh. Azmat Saeed, J

PUNJAB PROVINCE through Secretary to the Government of the Punjab, Food Department and another---Petitioners

Versus

Sheikh ZIA-UD-DIN and another--Respondents

Civil Revisions Nos.914-D and 915-D of 2006, heard on 4th June, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Displaced Persons (Compensation and Rehabilitation) Act, (XXVIII of 1958), Ss.4 & 30---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Suit for declaration---Evacuee property---Allotment order passed in favour of defendant challenged by plaintiff in suit---Trial Court dismissed suit after finding allotment order as valid---Appellate Court dismissed plaintiff's appeal while observing that plaintiff was tenant under defendant, who could seek his eviction by invoking provisions of West Pakistan Urban Rent Restriction Ordinance, 1959---Validity---Chief Settlement Commissioner had passed allotment order pursuant to a remand order of Supreme Court---Validity of allotment order was examined by High Court in constitutional jurisdiction and finally by Supreme Court and was found to be valid---Plaintiff had never applied for transfer of suit property---Plaintiff had knowledge of allotment order and had acknowledged defendant as his landlord---Plaintiff by operation of law had become tenant of' defendant---Impugned judgments and decree were based on cogent evidence and correct appreciation of law and facts---High Court dismissed revision petition.

Ghulam Ahmad, Tariq M. Iqbal and M.R. Khalid Malik, Addl. A.-G. for Petitioners.

Respondent No.1 in person.

Ch. Anwar-ul-Haq for Respondent No.2.

Date of hearing: 4th June, 2007:

YLR 2007 LAHORE HIGH COURT LAHORE 2317 #

2007 Y L R 2317

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD AZAM and another---Petitioners

Versus

THE STATE---Respondent

Criminal Appeal No.169-J and Murder Reference No.336 and Criminal Revision No. 598 of 2002, heard on 13th February, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 337-A(i), (ii)---Appreciation of evidence---F.LR. in the case was got recorded with promptitude, and such an F.I.R. could be used as a corroborative piece of evidence to the ocular account---Post-mortem of dead body of deceased was conducted without any delay---All said facts had shown that incident had taken place at the given time---Complainant and other prosecution witness though were real brothers of deceased, but mere relationship inter se and with the deceased, was not sufficient to term them as interested witnesses as there was no previous, enmity between the parties and there was no motive to falsely implicate accused in the case---Incident was a daylight occurrence and parties were known to each other previously which had eliminated the possibility of misidentity of accused who had actually participated in the incident---Both said eye-witnesses remained consistent on the material points regarding the time, place of incident and the manner in which incident had taken place including the role ascribed to both accused during the incident---Complainant had given plausible explanation for being present at the spot---Presence of complainant at the spot was substantiated by the prompt registration of F.LR., which had eliminated the possibility of concocting false story---Presence of other eye-witness at the spot had also been fully established as he had received eight injuries on his person duly observed by the Doctor when he was medically examined by him---Presence of said prosecution witness at the spot had been admitted by the defence---Statements of said eye-witnesses were worthy of reliance being confidence inspiring--Case of accused person was distinguishable from the case of acquitted co-accused as during investigation said co-accused was found empty handed and Trial Court had acquitted him as an abundant caution---Weapon of offence had been recovered from accused---Motive of occurrence, however remained shrouded in mystery---Reports of Chemical Examiner and that of Serologist, had shown that weapon of offence/Chhurri was stained with human blood---Recovery of Chhurri from accused had provided sufficient corroboration to the ocular account--- Medical evidence had fully supported ocular account regarding the time of incident and causing the injuries by both accused on deceased and prosecution witness---Defence plea raised by accused being afterthought and concocted, could not be considered---Both accused had admitted their presence at the spot and participation in the occurrence, but in a different manner---Occurrence was not unwitnessed, hut was a broad daylight one---Prosecution had been able to prove case against accused beyond any shadow of doubt-- Conviction of accused under S.302(b), P.P.C. in circumstances, was maintained Accused had been attributed fatal injury on vital part of body of deceased---No sufficient ground existed for lesser sentence to accused---Accused had rightly been convicted and sentenced in circumstances.

Sultan Khan v. Sher Khan and others PLD 1991 SC 520 and Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

Hafiz Khalil Ahmad and Gohar Razaq Awan for Appellants.

Rana Liaqat Ali Khan for the Complainant and Petitioner (in Criminal Revision No.598 of 2002).

Ch. Muhammad Hussain Chachhar, Additional PG for the State.

Date of hearing: 13th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2327 #

2007 Y L R 2327

[Lahore]

Before Sh. Azmat Saeed, J

Haji MUHAMMAD SULEMAN KHAN and 7 others---Petitioners

Versus

AHMAD NOOR---Respondent

Civil Revision No.495 of 2006, decided on 10th April, 2007.

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

----O.I, R.9---Qanun-e-Shahadat (10 of 1984), Arts.117 & 118---Suit for possession on basis of title---Burden of proof---Misjoinder of necessary parties---Effect--Plaintiffs claimed that property in dispute was owned by them by way of inheritance and same had been given to defendant since 30 years free of charge or rent---Onus was on plaintiffs to prove that the title to the suit-land vests in them but they failed to discharge said burden---Statement of one of the plaintiffs disclosed that some co-owners in the disputed property were not impleaded as a party in the original suit---Absence of all co-owners in a suit for possession based on title was fatal to the suit---Case of plaintiffs was also not very credible---Different plea was adopted in a criminal complaint filed by one of plaintiffs against defendant wherein it was alleged that defendant had, in fact, encroached upon the suit-land; in given circumstances appeal of defendant was rightly accepted by appellate Court.

Inayat Ullah Khan Niazi for Petitioners.

Ghulam Hussain Malik for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 2328 #

2007 Y L R 2328

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD SIDDIQUE and others---Petitioners

Versus

KHUDA BAKHSH and others---Respondents

Civil Revisions Nos.1217 and 1185 of 2005, heard on 7th March, 2007.

Civil Procedure Code (V of 1908)---

----O.XLI, Rr.4 & 33---Filing of appeal without impleading necessary parties---Effect---Suit-land was owned by deceased who was survived by two sons and two daughters---Mutation of inheritance was attested in favour of sons excluding the daughters of deceased---Plaintiffs/ successors of one of the daughters of deceased challenged mutation in question through a declaratory , suit which was decreed--,Petitioners/successors of other daughter of deceased who were beneficiaries of decree passed by trial Court and were also defendants in said declaratory suit were not impleaded as party in appeal---Yalidity---Order XLI, R.4, C.P. C. provided that anyone of the plaintiffs or the defendants having common cause would file an appeal but in such an appeal the other co-defendants or co-plaintiffs were necessarily required to he impleaded as a parry---If anyone of them was not so impleaded the appeal would become incompetent---Rule 33 of O.XLI C.P. C. in such circumstances would also not be of much help---Decree was indivisible and petitioners being legal representatives of other daughter of deceased were necessary parties, it was therefore, necessary for respondents/ defendants to array all necessary parties in the appeal filed by them but this was not done---Omission of defendants to implead co-defendants as appellants or respondents in their appeal rendered the appeal incompetent---Remand order passed by appellate Court was not legally sustainable hence was set aside by High Court.

Shoaib Ahmad Farkidi v. UBL, R.F.A. No.244 of 2006 ref.

Ch. Muhammad Jamil Zahid for Petitioners.

Ch. Muhammad Khan for Respondents Nos. 1 to 4, 9 and 10.

Ch. Bashir Ahmad for Respondent No.5.

Ch. M. Nasrullah Warriach for Respondents Nos.11-A, 12-A to 12-D and I3-A to 13-D.

Remaining Respondents ex paste.

Date of hearing: 7th March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2331 #

2007 Y L R 2331

[Lahore]

Before Jawwad S. Khawaja, J

SARDAR MASIH and another---Petitioners

Versus

MIR'BAZ and others---Respondents

Civil Revision No.2053 of 2006, heard on 6th February, 2007.

Civil Procedure Code (V of 1908)---

----S.11---Res judicata---Suit for permanent injunction to restrain defendants from interfering in suit property---Plea set up by defendants was that the earlier dismissal of plaintiffs' suit for permanent injunction qua the same property had constituted res judicata---Record revealed that in earlier round of litigation plaintiffs' suit for permanent injunction was dismissed but no finding was recorded by Courts to the effect that plaintiffs were illegal occupants of suitland---Fresh cause of action had accrued in' the present case, in favour of plaintiffs as a result of defendants' threat to dispossess plaintiffs from suit property hence it could not be said that judgments and decrees in previous suit would operate as res judicate in the present case.

Ali Akbar Bhindar for Petitioners.

Ch. Manzoor Hussain Basra for Respondents Nos.1 and 8.

Respondents Nos. 9 to 10 Ex parte.

Date of hearing: 6th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2333 #

2007 Y L R 2333

[Lahore]

Before Mian Saqib Nisar, J

ABDUL GRAFORD CHAUDHRY---Appellant

Versus

MASOOD AKHT'AR---Respondent

Regular Second Appeal No.65 of 2005, heard on 12th April, 2007.

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

---S.12---Specific performance of contract---Nature---Such relief being equitable relief, conduct of party claiming. such relief would he most relevant and expedient.

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

---S.12---Suit for specific performance of agreement of sale---Failure of plaintiff to pay sale price within time stipulated in agreement---Cheque issued by plaintiff after stipulated date was dishonoured for lack of sufficient funds---Statement of plaintiff was in contradiction of contents of plaint and agreement---Deposit of amount in Court by plaintiff on direction of Court after institution of suit would not prove his bona fide, readiness and willingness to perform his part of agreement---Conduct of party claiming equitable relief of specific performance would be most relevant' and expedient---Failure of plaintiff to abide by terms and conditions of agreement would disentitle him to grant of such relief---Principles.

---Art.119---Factual plea---Burden of proof---Primarily person asserting such plea would have to prove the same.

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

---O. X111, R.4---Qanun-e-Shahadat (10 of 1984), Arts. 76 & 77---Copy of objections exhibited in evidence without summoning original from concerned party---Validity---Such secondary evidence would be inadmissible under law.

Muhammad Shahzad Shaukat for Appellant.

Muhammad Ashraf Shagufta for Respondent.

Date of hearing: 12th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2355 #

2007 Y L R 2355

[Lahore]

Before M. A. Shahid Siddiqui and Hasnat Ahmad Khan, JJ

ZAHID HUSSAIN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.51, 58 and M.R. No.11 of 2002, decided on 8th May, 2007.

Penal Code (XLV of 1860)---

----S. 302 (b) /34---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---F.I.R. was registered at the police station within a short span of time of 1-1/2 hours, which had eliminated the possibility of any deliberation or investigation prior to registration of the same---Ocular account of prosecution version provided by prosecution witnesses, was fully corroborated by medical evidence---Both accused were apprehended at the spot while in injured condition---Investigating Officer had recovered pistols from accused , persons and two crime empties were also recovered from the spot and three other empties were also recovered from the spot---Report of Forensic Science Laboratory was to the effect that said empties had matched with pistols of accused persons---Site plan could not contradict prosecution version and there was no inconsistency between medical evidence and ocular evidence---One of accused persons was apprehended at the spot and .30 bore pistol had been recovered .from him and crime empties .fired .from said pistol were also recovered from the spot, which had shown that said accused had actively participated in the occurrence---Though no witness was associated ,from the public despite place of occurrence was a public place, but due to lack of civic sense usually people have no courage to become 'witness against a crime nor do they want to indulge themselves in the activities resulting in perplexities of investigation/trials etc.---Evidence of the police was as worthy of reliance as of, any other independent witness---Prosecution had proved its case to its hilt and counsel ,for accused had not been able to create a dent in the same---Conviction awarded to accused by the Trial Court was maintained--.-Accused were not entitled to any leniency as they had caused the death of a public servant just .for the reason that while performing his official duty, deceased had tried to apprehend accused who at the relevant time were duly armed and were preparing to commit some crime---One of accused was preiiously involved in a case of keeping hand-grenade, while other was previously involved in seven cases including dacoity, robbery etc.---Accu'sed, in pursuance of their common intention had caused murder of an innocent police official who was on official duty at the relevant time---Such gruesome act of accused person amounted to Fasad-fil-Arz and they were not entitled to any leniency---Death sentence awarded to accused by the Trial Court, was confirmed, in circumstances.

Maulvi Sultan Alam and Atta Ullah Tareen for Appellants.

Ch. Hafcez-ur-Rehman for the Complainant.

Bashir Ahmad Bhatti, D.P.-G. for the State

Dates of hearing: 23rd, 24th and 25th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2363 #

2007 Y L R 2363

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ALAM, LAMBARDAR and 2 others---Petitioners

Versus

MUHAMMAD TANVEER and 2 others---Respondent's

Civil Revision No.559 of 2007, heard on 16th May, 2007.

Easements Act (V of 1882)---

----Ss. 4 & 12-Public passage left by all owners of village and in possession of Union Council and shown in record of riglits. as "chair Mumkin Raasta "---Effect---No one could claim his own exclusive right or title or interest in such passage/land.

Idrees Ahmad Sheikh for Petitioners.

Respondents Ex parte.

Date of hearing: 16th May, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2365 #

2007 Y L R 2365

[Lahore]

Before Syed Haniid All Shah, J

Mst. DILSHAD AKHTAR through Special Attorney---Petitioner

Versus

Haji Malik AZEEM MAHMOOD . and others---Respondents

Civil Revision No.701 of 2006, decided on 2nd April, 2007.

Civil Procedure Code (V of 1908)---

---O. 11, R. 2---Bar of 0.11, R.2, C.P.C. imposition of---Scope---Such bar could he imposed, where plaintiff had knowledge of facts and narrated same in plaint, but had not claimed relief to that extent---Facts not in the knowledge of plaintiff, .if omitted, would not attract such bar---Question, whether facts omitted were in plaintiff's knowledge at the time of filing of suit, could be determined only after framing specific issue and recording evidence thereon---Principles.

Qalandar Din and 4 others v. Rasul Khan 1991 SCMR 525; Mian Muhammad Igbal v. Mir Mukhtar Hussain and others" '1996 SCMR 1047; Crescent Jute Products Limited v.' Federation of Pakistan through Secretary, Ministry of Industries, Islamabad and 2 others 1989 ALD 466 and Mrs. Irene Wahab v. Lahore Diocesan Trust Association 2002 SCMR 300 ref.

Sh. Manzoor Ahmad for Petitioner.

Tasawar Hussain Qureshi for Respondent No.l.

Nemo for others Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2372 #

2007 Y L R 2372

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. BASHIR AKHTAR and another---Appellants

Versus

HAFEEZ AHMAD alias ABDUL HAFEEZ and another---Respondents

R.S.A. No.23 of 2007, heard on '25th April, 2007.

Specific Relief Act (I of 1877)---

----S. 8---Suit for recovery of possession---Plaintiff claimed possession of house from ex-wife alleging her to be licensee---Plea of ex-wife was that house had been given to her in lieu of dower-Proof-Ex-wife deposed that after two years f marriage, she shifted to suit house, which was given to her 16 years ago in lieu of dower---Witness examined by ex-wife neither had participated in her marriage with plaintiff nor had knowledge about fixation of any dower at the time of marriage nor could he state date, month or year in which house was given to her in lieu of dower---Dower of ex-wife was recorded in Nikahnama as 8 Tolas gold and Rs.20, 000---Held: ex-wife had failed to prove her claim---Suit filed by plaintiff was decreed in circumstances.

Syed Farooq Hassan Naqvi for Appellants.

Tasawar Hussain Qureshi for Respondents.

Date of hearing: 25th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2375 #

2007 Y L R 2375

[Lahore]

Before Syed Hamid Ali Shah, J

AMJAD ALI and others---Petitioners

Versus

ABDUL HAMEED and another---Respondents

Civil Revision No.342 of 2002 and C.M. No.12643 of 2006, decided on 30th March, 2007.

Civil Procedure Code (V of 1908)---

---O. XL1, R. 27---Remand of case to trial Court after framing of new issues by Appellate Court---Validity---Trial Court neither had framed issues in accordance with law nor had given finding in detail with regard to crucial issue involved in suit---Trial Court had not determined valuable rights of parties in view of whole evidence on record, but had picked and chosen evidence in piecemeal---Appellate Court after .framing issues had adopted right course of remanding case to trial Court to enable parties to adduce evidence on basis of newly framed issues:-Remand order not suffering from misreading and non-reading of evidence or wrong assumption of law, High Court dismissed revision petition.

Ch. Muhammad Jahangir Wahla for Petitioners.

Ch. Riaz Ahmad Katana for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2382 #

2007 Y L R 2382

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. MARYAM BIBI and 3 others---Petitioners

Versus

NOOR AHMAD and another-Respondents

Civil Revision No.724-D of 2002, heard on 12th April, 2007.

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

----Arts.117 & 120---Gift.--Onus to prove---Plaintiff denied having made gift of her land in favour of defendant, whereas defendant asserted that valid gift was made in his favour---Effect---Burden to prove such issue was correctly placed upon defendant to prove a valid gift in his favour by plaintiff.

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

----S. 42---Gift---Proof---Motive---Declaration of title=--Limitation---Co-sharer---Plaintiff was co-sharer in suit land with defendant and assailed mutation of gift attested in favour of defendant---Trial Court though had found that gift was not made by plaintiff but dismissed the suit on the ground of limitation---Judgment and decree passed by Trial Court was set aside by Appellate Court and suit was decreed in favour of plaintiff---Validity---No evidence was available' of actual making of gift regarding which mutation was got attested. and that plaintiff did appear before Revenue Officer at the time of attestation of mutation of gift---Plaintiff had a son and no reason was available on record as to why she proceeded to gift away her entire land to defendant, who was her brother-in-law, when she had a son of her own and husband---Plaintiff was the owner of suit land and it had been found that gift was never made---Defendant was a co-sharer of plaintiff lady who was not residing in village in question and defendant was looking after her land---.Plaintiff was deemed to be in possession of each and every inch of suit land---Suit was not barred by time---High Court declined to interfere with the judgment and decree passed by Appellate Court---Revision was dismissed in circumstances.

Mian Tabassam Ali for Petitioners.

Malik Muhammad Akram Khan Awan for Respondents.

Date of hearing: 12th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2394 #

2007 Y L R 2394

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

ALAM JAN alias iLAM JAN and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.422 of 2002, Criminal Revision No.443 and Murder Reference No.266 of 2002, heard on 7th February, 2007.

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

----Ss. 302(b)/34---Appreciation of evidence---No inordinate delay took place in conducting of the post-mortem by the Doctor and nothing was found on record to suggest that F.I. R. had not been registered with promptitude---Both eye-witnesses were related inter se and with deceased closely and previous enmity existed between the parties---Incident however, had taken place in front of the house of prosecution witnesses---Presence of both the eye-witnesses at the spot was quite natural--Interested witness, could also be relied upon, if he was found to have spoken the truth and his evidence was corroborated by some independent piece of evidence---Taking place of the incident at the place mentioned by prosecution witnesses had been found correct---Eight other co-accused who were acquitted, had not been attributed any injury to any of deceased and no other person was injured in the incident from the side of complainant---Accused had inflicted specific injuries to deceased and their case according to the Trial Court was distinguishable .from the case of acquitted accused---No contradiction was found in the medical evidence and ocular account regarding participation of two accused perwns---Occurrence had taken place in broad daylight at a place where other people were also present and occurrence could not go unwitnessed---Substitution of main accused was a rare phenomena---Defence plea was also found doubtful---Medical evidence had fully supported involvement of said two accused who had been attributed fatal injuries to deceased persons---Injury attributed to one of said two irccused on she person of deceased was sufficient to cause death---Recovery of weapons and empties were inconsequential as said weapons and empties were not sent to Office of Forensic Science Laboratory and it had not been proved that same weapons had been used by accused during the incident---Prosecution, in circumstances, had been able to prove case against two out of four accused persons beyond any shadow of doubt and the Trial Court had rightly convicted them under 5.302 (h), P.P.C. which was maintained---Firing, during the occurrence, had been made at large scale and both deceased had received injuries on the front of chest and on the right eyebrow respectively---Both accused persons had intention to commit murder of both deceased and even if the incident had taken place at the spur of moment, they were not entitled to any discretionary relief by way of conversion of their death sentence to imprisonment, for life as the normal punishment in the murder case was death, which had rightly been imposed upon said two accused by the Trial Court---Appeal to the extent of said two accused, was dismissed.

Feroze Khan's case 1991 SCMR 2220 ref.

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

----Ss. 302(6) & 34---Appreciation of evidence=--Benefit of doubt---Case of remaining two co-accused had been ,found doubtful---Case of said two co-accused, was not distinguishable ,from some of the other co-accused who had already been acquitted by the Trial Court as said co-accused had not been attributed injuries to the deceased---Medical evidence did not fully support ocular version to the extent of said two co-accused and contradiction was found between medical evidence and ocular evidence, which had created doubt regarding their participation in the occurrence---Said two co-accused were acquitted from the charges by extending them benefit of doubt and conviction and sentence recorded against them by the Trial Court, were set aside and they were set at liberty---Appeal was partly allowed to the extent of said two accused in above terms.

Sardar Khurram Latif Khan Khosa for Appellants.

Ch. Muhammad Hussain Chachar, Additional Prosecutor General (in Murder Reference No.266 and in Criminal Revision No.443 of 2002) for the State.

Malik Saeed Hassan (in Criminal Appeal No.422 of 2002) for the Complainant.

Malik Saeed Hassan (in Criminal Revision No.443 of 2002) for the Complainant.

Date of hearing: 7th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2405 #

2007 Y L R 2405

[Lahore]

Before Jawwad S. Khawaja, J

Mst. INAYAT BIBI and 14 others---Petitioners

Versus

MUHAMMAD BOOTA and others---Respondents

Civil Revision No.980 of 2000, heard on 22nd February, 2007.

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

----S. 42---Title---Proof---Plaintiffs were not able. to produce any document or other evidence to prove that they were owners of suit land---Effect---Plaintiffs were not entitled to declaration sought by them on the ground of ownership of the land.

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

----S. 42---Limitation Act (IX of 1908), S.28---Declaration of title---Plea of adverse possession---Proof---Preconditions---Owner of property not identified---Plaintiffs claimed title over suit property on the basis of adverse possession---Both the Courts below concurrently decreed the suit and appeal in favour of plaintiffs---Validity---Plea of adverse possession (before it was declared violative of Islamic injunctions) was primarily meant to provide a defence against a suit.for possession filed by a legal owner---Title of legal owner was not extinguished on account of adverse . possession---Plaintiffs, in order to prove their title on the basis of adverse possession, were supposed firstly to identify the lawful owner of suit property and then to show that their possession , was openly hostile and adverse to such legal owner---Plaintiffs, in their suit, had neither identified the lawful owner nor claimed that they themselves were in actual physical possession of disputed land---Plaint expressly stipulated that land, being claimed by plaintiffs was open land---Any claim of exclusive possession of such land, particularly when the land was not walled off but was being utilized for a communal purpose, must be considered with a lot of skepticism---Such claim should not be accepted except where there was uncontrovertible proof in its support---If there was no identifiable owner in whom title of suit property was vested, it must be held in the circumstances that the property vested in entire community and was available for communal use---Such conclusion found support from testimony of witnesses produced by both sides, who had confirmed that suit land was, in fact being used for a communal purpose viz. a bus stand---Both the courts below had not taken note of the circumstances of the case and had proceeded on erroneous premises and also on a 'misreading of evidence---Neither plaintiffs nor defendants had any title in or exclusive right to the suit land---Judgments and decrees passed by both the courts below, though concurrent, were not legally sustainable and were set aside---Resultantly suit filed by plaintiffs was dismissed---Revision was allowed accordingly.

Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 rel.

----Res universitatis---Applicability---It was established from the record and had also been held by two Courts below that neither plaintiffs nor defendants had been able to establish title in suit land---Such determination being correct was not questioned by either party, before High Court---On the . contrary there was overwhelming evidence and unanimous testimony of witnesses examined by both sides th suit land was being used since long as a bus stand---Effect---Neither party could lay any claim to suit property because they did not have title to the same and property was available to community as a whole and could not be appropriated by either party---Such property was akin to res universitatis.

Malik Amjad Pervez for Petitioners.

Mian Muhammad Kashif for Respondents Nos.1 to 10..

Date of hearing: 22nd February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2409 #

2007 Y L R 2409

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD NAWAZ alias PAPPU and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.375 and Murder Reference No.400 of 2002, heard on 6th March, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 34---Appreciation of evidence---Post-mortem examination had been conducted on next day of occurrence---Doctor had explained that he had conducted post-mortem examination on dead body of deceased within 10/15 minutes after receiving the police papers, which would mean that papers were presented with inordinate delay, which had cast serious doubt about the registration of F.I.R. with promptitude---Possibility could not be ruled out that the time had been consumed in concocting the prosecution story, which resulted in late submission of Police papers before the Doctors---Names of accused were also not mentioned in the F.I.R. which had been recorded on the written application moved by the comp inant---F.I.R., in circumstances couldot be used as a corroborative piece of evidence to the ocular account---Mother of deceased, who appeared as prosecution witness, had not witnessed occurrence and her whole evidence was based on hearsay---Evidence produced by prosecution was, not sufficient to prove ocular account and bring home guilt to account beyond any shadow of doubt---Other prosecution witness had made improvements while appearing in the court .for the involvement of accused in the case---Case was, in fact the one of no evidence, but Trial Court had committed material illegality while recording conviction and capital sentence of death against accused, when the court had simultaneously acquitted four co-accused with the same role---Motive remained unproved---Medical evidence though had shown that deceased as well as complainant had sustained fire-arm injuries during the occurrence, but that in no way was sufficient to prove that said injuries had been caused by accused when ocular account had already been disbelieved by the court---No independent person from the locality was joined in the recovery proceedings of empties to attest the same---No plausible explanation was available for delayed transmission of crime empties to the office of Forensic Science Laboratory---Inquest report showed that availability of four crime empties at the spot near dead body had not shown in the relevant Column thereof---Possibility of fabricating the evidence to procure a positive report could not be ruled out in such facts and circumstances---No importance could be given to the positive report of Forensic Science Laboratory to reach at the' guilt of accused---Prosecution had failed to bring home guilt to both accused through any sufficient evidence, even their case was on better footing than those already acquitted co-accused---Impugned judgment of conviction and sentence were set aside and accused was acquitted of the charges and were released.

Malik Saeed Hassan for Appellants.

Naeem Tariq Sanghera, D.P.-G. for the State.

Date of hearing: 6th March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2420 #

2007 Y L R 2420

[Lahore]

Before Khawaja Muhammad Sharif and Ijaz Ahmad Chaudhry, JJ

ABDUL GHAFOOR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.235 of 2000 and Murder Reference No.525 of 2000, heard on 19th March, 2007.

Penal Code (XLV of 1860)---

----Ss.302(b) & 324---Appreciation of evidence---Occurrence had been promptly reported to the police---Crime empties secured from the spot had matched with the. carbine recovered from the accused---Parties being closely related to each other, misidentity of accused during the broad-daylight occurrence was out of question---Statements of two eye-witnesses had gone' .unchallenged---Third eye-witness who had received injuries during the occurrence had also supported fully the prosecution case---Defence plea was nothing more than an improbable and unnatural story created to make the case of two versions, which was neither proved on record nor borne out from prosecution evidence---Accused had acted in a brutal manner by killing the two deceased and injuring a prosecution witness by firing and no mitigating circumstance was available in his favour-- Convictions and sentences of accused were upheld in circumstances.

Ahmad Yar and another v. The State PLD 1997 Lah.110; Yara v. The State 2005 SCMR 829 and Kameer v. The State PLD 1982 FSC 21 ref. .

Dr. Z. Babar Awan for Appellant.

Ch. Muhammad Tahir, Addl. P.-G. for the State.

Muhammad Arshad Tabraiz for the Complainant.

Date of hearing: 19th March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2427 #

2007 Y L R 2427

[Lahore]

Before Jawwad S. Khawaja, J

ZAFAR IQBAL---Appellant

Versus

GHULAM MUHAMMAD through Legal Heirs and others---Respondent

Regular Second Appeal No.23 of 2002, heard on 19th January, 2007.

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

----Art.72---Documents pleaded in defence not produced on record---Effect---Suit shop was mortgaged by general attorney in favour of respondent and appellant on 26-1-1961 for a period of fifty years---After 16 years from the mortgage, power of attorney was revoked by mortgagor---Respondents filed a suit against mortgagor seeking specific performance of agreement to sell, of disputed shop allegedly executed' by attorney before revocation of power of attorney---Consent decree was obtained by respondents on 24-6-1977, thereafter, mortgagor filed suits against appellant and respondents pleading that mortgaged deeds, agreement to sell in question and consent decree all were based on fraud---Contentions raised by appellant were that mortgagor had himself agreed vide agreement to make some correction in the impugned sale-deed and he had executed another power of attorney in favour of appellant's brother---Said two documents relied upon by appellant were not produced on record---In absence of such documents real situation of the case could not have been ascertained---Even alleged second attorney of mortgagor was not produced as witness and no explanation was available on record for such material omission---Courts below were justified in circumstances in holding that pleas set up by appellant were false---Record did not show that mortgagor had consented to the decree dated 24-6-1972 same was, therefore, rightly set aside by Courts below.

Tariq Ahmad Khan for Appellant.

Sh. Naveed Shaharyar and Mian Zulfiqar Ali for Respondents.

Date of hearing: 19th January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2430 #

2007 Y L R 2430

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD YAR---Petitioner

Versus

MUHAMMAD TARIQ MAHMOOD---Respondent

Civil Revision No.2601 of 2005, decides on 5th March, 2007.

Civil Procedure Code (V of 1908)---

----O.XXXVII, R.3 & O.IX, R.13---Recovery suit based on pro note---Application for leave to defend suit was dismissed fo'r limitation and plaintiff was directed to produce original pro note on 24-5-2004---Civil revision against such dismissal was admitted for regular hearing by High Court and through a civil miscellaneous application moved by defendant further proceedings in the suit were stayed---Original pro note was produced before Trial Court and suit was decreed ex parte on 24-5-2004---Application for setting aside ex parte decree was dismissed---Validity---Application for leave to defend suit was clearly time barred and no explanation was given for delay---Application being not supported by an affidavit was rightly dismissed by Trial Court---Record revealed that impugned decree was not an ex partee decree as the application for leave to defend was dismissed on 1-4-2004 and suit was adjourned for 24-5-2004 only because Trial Court wanted to satisfy itself by examining the original pro note; same was produced and suit was accordingly dismissed, thus no case of ex parte decree was made out in circumstances---Application for leave to defend did not disclose a plausible defence, therefore, Trial Court was justified in disallowing the same.

Zahid Hussain Khan for Petitioner.

Mumtaz. Ahmad Mangat for Respondent.

Date of hearing: 5th March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2432 #

2007 Y L R 2432

[Lahore]

Before Jawwad S. Khawaja, J

LAHORE DEVELOPMENT

AUTHORITY through Director-General and another---Petitioners

Versus

FAIZ MUHAMMAD KHAN through Special Attorney and others---Respondents

Civil Revision No.1937 of 2001, decided on 20th February, 2007.

Specific Relief Act (I of 1877)---

----Ss.42 & 55---Suit for declaration and mandatory injunction---Plaintiff's prayer, inter alia, was to declare him lawful owner of suit plot, which Development Authority had no power to allocate to another person without deciding first his application pending before Authority---Trial Court decreed suit with direction to the Authority to grant adjustment to plaintiff in respect of plot on payment of development and other charges, which decree was upheld by Appellate Court---Validity---Plaintiff's application containing similar relief claimed in suit was pending before Development Authority when he filed suit---Authority had yet to decide, whether or not plaintiff was entitled to adjustment---Plaintiff had not prayed for an order directing Authority to adjust suit plot---Relief granted to plaintiff was. beyond his prayer in plaint, which could not, be granted---High Court modified impugned decrees to the effect that plaintiff was not presently entitled to adjustment of plot owned by the Authority---Authority would decide application of plaintiff in accordance with its regulations.

Mian Muzaffar Hussain for Petitioners.

Ex parte for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2434 #

2007 Y L R 2434

[Lahore]

Before Umar Ata Bandial, J

ABDUL KARIM and another---Petitioners

Versus

ELECTION TRIBUNAL and 7 others---Respondents

Writ Petition No.5233 of 2006, decided on 12th June, 2006.

Punjab Local Government Elections Ordinance (V of 2000)---

Ss. 14(3) & 16---Punjab Local Government Elections Rules, 2005, Rr. 77 & 78---Constitution of Pakistan (1973), Art.199---Constitutional petition---Nazim and Naib Nazim, election of---Join candidacy---Disqualification of one of the returned candidates for lacking required educational qualification---Effect---Eltl-6n Tribunal declared election of returned candidates to he void and declared runner-up panel to he successful---Validity---Choice of electors had been upset by disqualification of returned candidates, while runner-up panel had instead been given such seats by judicial decreer--Election Tribunal, while granting such relief had omitted to give findings as to electors having thrown away their votes in election---Omission of Election Tribunal to consider such essential condition being a grave error in exercise of its jurisdiction, would go to the root of the matter---High Court declared impugned order to be illegal and void, resultantly Election Tribunal would cause Election Commission of Pakistan to take necessary steps to hold a fresh election for such seats.

Sh. Amjad Aziz v. Haroon Akhtar Khan and others 2004 SCMR 1484 and Qazi Aziz ul Haq v. District Judge and others 2006 CLC 805 ref.

Mian Ahmad Saeed v. Election Tribunal 2003 SCMR 1611 and Sh. Amjad Aziz v, Haroon Akhtar Khan and others 2004 SCMR 1484 rel.

Khalid Mian for Petitioners.

Zahid Hussain Khan for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2438 #

2007 Y L R 2438

[Lahore]

Before Sh. Azmat Saeed and Umar Ata Bandial, JJ

MUHAMMAD SALEEM and 6 others---Appellants

Versus

WAPDA through Chairman and 4 others---Respondents

Regular First Appeal No.191 of 2005, heard on 26th April, 2007.

Tort---

----Damages, suit for---Compensation for damages caused by removal of electricity ureter by officials of WAPDA---Earlier suit for declaration and injunction decreed against WAPDA by Trial Court was partially modified by Appellate. Court--Dismissal of suit for damages by .Trial Court--=Validity---Such earlier judgments/ decrees had a direct nexus and profound legal effect on suit .for damages---Such effect would include question of maintainability of suit .for damages as well as question of res judicata---Trial Court had not taken into account of such earlier judgments/decrees---Real matter in controversy between parties had escaped adjudication---High Court set aside impugned judgment/decree and remanded base to Trial Court .for its decision afresh.

Dr. A. Basit for Appellants.

Mian Muhammad Javaid for Respondents.

Date of hearing: 26th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2440 #

2007Y L R 2440

[Lahore]

Before Muhammad Sair Ali, J

Mst. SALAMAN ---Petitioner

Versus

BASHIR AHMAD and another---Respondents

Civil Revision No.1047 of 2002, heard on 23rd April, 2007.

(a) Registration Act (XVI of 1908)---

----Ss.17 & 49---Civil Procedure Code (V of 1908), O, XIII, R. 4---Document compulsorily registerable, but not registered---Effect---Such document would be inadmissible in evidence and could not he relied upon for conferring rights and interest on parties, even if same was allowed to be produced and exhibited in evidence---Principles.

(b) Islamic Law---

----Gift---Wife claimed land to have been gifted to her by husband during his lifetime through unregistered gift deed-Proof--Petition Writer had not entered in relevant register issuance of stamp paper and execution of gift deed by donor---Donor died niter 2/3 years of the alleged gift deed---Neither donor nor donee had made efforts to get gift deed incorporated in revenue record---Had gift been made by donor in favour of his wife and possession transferred thereunder, then he in his life time would have ensured incorporation of gift in mutation register---Such unregistered gift deed could not be relied upon for vesting rights on donee---Donee being widow would be entitled to her share in estate of deceased in accordance with Islamic Law---Suit filed by wife was dismissed in circumstances.

Ziaullah Khan Niazi for Petitioner.

Maqsood Lashar for Respondent No.l.

Respondent No.2 Ex parte.

Date of hearing: 23rd April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2442 #

2007 Y L R 2442

[Lahore]

Before Syed Hamid All Shah, J

MUHAMMAD NAZIR alias Nazir Ahmad and others---Petitioners

Versus

ALLAH RAKHI and others---Respondents

Civil Revisions Nos.404 and 405 of 2005, decided on 30th March, 2007.

Specific Relief Act (1 of 1877)---

----S.42 ,Qanun-e-Shahadal (10 of 1984), Arts.72 & 79---Suit for declaration---Oral gift and registered sale-deed-Proof--Concurrent findings of fact by the Courts below---Plaintiffs claimed that suit property was orally gifted in their favour, which was subsequently acknowledged by deed---Defendant claimed her ownership on the basis of registered sale-deed executed in her favour by the owner---Both the Courts below concurrently dismissed the suit and appeal filed by plaintiffs---Validity---Courts below had given clue weight to a registered document, which was adduced in evidence in accordance with law through cogent evidence of its executantsand attesting witnesses---Both the Courts below after thoroughly appraising the evidence of parties reached conclusion concurrently that consideration of gift was not proved, gift by alleged donor had been denied and plaintiffs failed to prove the gift--Concurrent findings of two Courts below on the issues were devoid of any legal infirmity hence did not call ,for any interference---Revision was dismissed in circumstances.

Mst. Maryam Mirza v. M.M. Kazi and 2 others 1988 MLD 1651; Mst. Khairul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25; Muhammad Ilyas and others v. Muhammad Shari/ and others 2001 CLC 1194; Syed Muhammad Saleem v. Ashfaq Ahmad Khan and another 1989 CLC 1883 and Zafar Mirza v. Mst. Naushina Amir Ali PLD 1993 Kar. 775 distinguished.

Talib H. Rizvi for Petitioners.

Javed Iqbal Bhatti for Respondent No.1.

YLR 2007 LAHORE HIGH COURT LAHORE 2447 #

2007 Y L R 2447

[Lahore]

Before Muhammad Akhtar Shabbir, J

NAZAR MUHAMMAD---Appellant

Versus

MUHAMMAD BASHIR and others---Respondents

Regular Second Appeal No.30 of 1998, decided on 19th February, 2007.

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

----S. 13--- Pre-emption suit---Talb-i-Muwathihat and Talb-i-Ishhad, performance of---Proof--Statement of pre-emplor's witness on point of "knowledge of sale "and. "Talb-i-Ishhad" were contradictory---Record failed to prove that preemptor in first meeting had declared his intention to pre-empt suit-land---Suit was dismissed in circumstances:

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

----S. 13---Pre-emnption suit---Talib-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khusumat, performance of---Necessity---Pre-emptor in order to succeed in pre-emption suit must establish performance of such Talbs in accordance with law---Where any of such three Talbs was missing, then pre-emptor would not be entitled for pre-emption decree-Mode of performing Talib-i-Muwathihat stated.

Mst. Shamim Akhtar v. Kh. Maqsoo Ahmed and 3 others 1998 SCMR 2227 and Said Kamal case PLD 1986 SC 360 fol.

Munawar Hussain Bhatti for Appellants.

G.H. Khan for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2450 #

2007 Y L R 2450

[Lahore]

Before Sh. Azmat Saeed, J

ATTA-UR-REHMAN---Petitioner

Versus

FAZAL AHMED and 2 others---Respondent

Civil Revision No.1063 of 2002 and C.M. No.98-C of 2007, decided on 16th April, 2007.

Specific Relief Act (I of 1877)---

----S.42---Bankers' Books Evidence Act (XVIII of 1891), Ss.2(8) & 4---Qanun-e-Shahadat (10 of 1984), Arts. 72 & 79---Declaration of title---Benami transaction---Statement of accounts---Proof---Plaintiff and defendant were real brothers---Plaintiff claimed title over suit property on the ground that it was purchased from the funds provided by. their father----Defendant resisted the suit on the plea that he purchased the property in his own name against registered sale-deed---Plaintiff relied upon a letter allegedly written by Authorities and a statement of accounts issued by bank in. respect of an account of the father of parties, to prove that the funds for purchase of land were actually paid by their father---Both the Courts below concurrently dismissed the suit filed by plaintiff---Validity---Statement of accounts was not certified in terms of Bankers' Books Evidence Act, 1891, as no certificate was appended with or upon the statement---Author of statement of accounts also not entered the witness box to prove the statement---Neither the record nor any employee of Bank concerned was produced in evidence---Letter relied upon by plaintiff did not bear signatures of any person and author of the letter also not entered witness box to prove the same---Record of authorities was never summoned to prove the issuance of letter---Such statement of accounts and letter were rightly not relied upon by two Courts below---Concurrent findings of fact that property in dispute vested in defendant was sufficiently supported by documentary evidence--Ingredients of Benami transaction were not proved on record---Neither there was any misreading or non-reading of evidence nor any material irregularity in the exercise of jurisdiction warranting interference by High Court in its revisional jurisdiction---Revision was dismissed in circumstances.

Fazal Mahmood for Applicant.

Shamim Iqbal But for Respondent No.l.

Malik Zafar Iqbal Awan, Addl. A.-G., Punjab for Respondents Nos.2 and 3.

YLR 2007 LAHORE HIGH COURT LAHORE 2453 #

2007 Y L R 2453

[Lahore]

Before Jawwad S. Khawaja, J

SALAMAT ALI and others---Petitioners

Versus

KHAIR-UD-DIN and others---Respondents

Civil Revision No.2531 of 2006, heard on 20th February, 2007.

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

----Ss.42 & 54---Limitation Act (IX of 1908), Art.120---Civil Procedure Code (V of 1908), O. VII, R.11(d)---Suit for declaration and, permanent injunction---Mutation of inheritance challenged after thirty-one (31) years---Rejection of plaint for suit being time barred---Validity---Plaintiff thirty years ago had challenged such mutation before revenue ,forums, but without success, thus, had knowledge thereof-Plaintiff had not challenged subsequent sales made by defendant and reflected in revenue record---Plaintiff through his own acts of commissions and omissions had enabled defendant to deal with suit-land as ostensible owner---Plaintiff could not be allowed to impugn title having been enjoyed for continuous 31 years by subsequent purchasers-Plaintiff was not entitled to relief of declaration and permanent injunction for same being in discretion of Court---Rejection of plaint in such circumstances was justified.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 distinguished.

S.M. Shafi Ahmad Zaidi v. Malik Hassain Ali Khan (Mom) 2002 SCMR 338 rel.

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

----0. VII, R.11---Rejection of plaint---Principles---General statement of law is that while rejecting plaint, only its contents would be seen---Such rule would not be applied mechanically and particularly where resort thereto would be inequitable and would work injustice on a party i.e. defendant.

----0. VII, Rr. 7 & 8---Discretionary relief asked .for---Plaintiff not ruthful in material particulars---Effect---Plaintiff would not he granted any concession including such relief.

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

--Ss.42 & 54---Declaration and permanent injunction, relief of---Nature---Such relief being in discretion of Court could be denied in appropriate cases.

M.A. Ghaffar-ul-Haq for Petitioner.

Mian Javed Iqbal for Respondents.

Date of hearing: 20th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2456 #

2007 Y L R 2456

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD MUKHTAR and 4 others---Petitioners

Versus

Mst. ZUBAIDA and 2 others---Respondents

Civil Revision No.379 of 2003, heard on 12th April, 2007.

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

----S.18---Suits Valuation Act (VII of1887), S.8---Civil Procedure Code (V of 1908), O.XLI, R.25---Appellate Court---Pecuniary jurisdiction---Determination---Value of the suit---Plaintiffs valued their suit at Rs.200 but affixed a sum of Rs.15,000 as court-fee-Trial Court decreed the suit in favour of plaintiffs--Appellate Court, in exercise of power under O.XLI, R.25, C.P. C., remanded the case to Trial Court for determination of value of the suit only---Trial Court fixed the value of the suit as Rs.2 million and returned the file to Appellate Court---Objection raised by plaintiffs was that at the time of remand, Appellate Court had no pecuniary jurisdiction in the matter and appeal should have been returned to defendant---Objection raised by plaintiffs was overruled by Appellate Court---Validity---Plaintiffs had valued the suit at Rs.200 for the purposes of jurisdiction---Trial Court did not resolve the question of jurisdictional value in the first instance and simply .stated that since Rs.15,000 court fee had been paid, the matter was over---Matter was ultimately determined after remand, by which time pecuniary jurisdiction of Appellate Court, where in fact appeal was pending, was enhanced to Rs.2.5 million---High Court found it an exercise in futility to direct Appellate Court to return the appeal to be again entrusted to it for decision on merits---Revision .was dismissed in circumstances.

Shamim Abbas Bukhari for Petitioners.

Muhammad Faisal Malik for Respondent No.1.

Nemo for the remaining Respondents.

Date of hearing: 12th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2459 #

2007 Y L R 2459

[Lahore]

Before Sh. Azmat Saeed, J

GHULAM FATIMA---Petitioner

Versus

MUHAMMAD SHAFI and 2 others---Respondents

Civil Revisions Nos.815 of 2005, decided on 13th April, 2007.

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

----Ss. 14, 17 & 20---Arbitration agreement---Petitioner claimed that after filing of the suit, the matter was resolved by arbitration between the parties, therefore, award should be made rule of the Court---Respondents denied having referred the matter to arbitration---Trial Court allowed the application and made the award as rule of the Court---Appellate Court allowed the appeal and set aside the judgment and decree passed by Trial Court---Validity---Any alleged arbitration or award in respect of subject-matter of a suit without intervention or consent of Court seized of the matter, was ineffective---High Court declined to take any exception to the finding of Appellate Court that award relied upon by petitioner was of no legal effect hence could not be made rule of the Court---Judgment passed by Appellate Court was in consonance with law---No material irregularity existed in exercise of jurisdiction warranting interference by High Court in exercise of its revisional jurisdiction---Revision was dismissed in circumstances.

Haji Anwar Ali and others v. Bashir Ahmed 2002 MLD 1175 and PLD 1962 (W.P.) 95 fol.

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

--S.11 & O. VII, R.11---Res judicata, principle of---Applicability---Rejection of plaint does not amount to res judicta and does not preclude filing of fresh suit after removal of legal defect culminating in rejection of plaint.

Hafiz Khalil Ahmed for Petitioner.

Sh. Naveed Shehryar for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2462 #

2007 Y L R 2462

[Lahore]

Before Syed Zahid Hussain, J

PAKISTAN TELECOMMUNICATION COMPANY LTD. through General- Manager---Appellant

Versus

Mian ILAM DIN AND SONS through Proprietor---Respondent

Regular Second Appeal No.22 of 2005, heard on 8th March, 2007.

Civil Procedure Code (V of 1908)---

----O. XLI, R.27---Application for production of additional evidence---Not necessary that such application should be decided separately and not along with main appeal.

Inamul Islam Khan for Appellant.

A. Karim Malik for Respondent.

Date of hearing: 8th March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2465 #

2007 Y L k 2465

[Lahore]

Before Khawaja Muhammad Sharif, J

Ch. MUHAMMAD KHAN---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE and others---Respondents

Writ Petition No.3861 of 2007 and 17962 of 2005, decided on 4th May, 2007.

Criminal Procedure Code (V of 1898)---

----5.156 --Police Order (22 of 2002), Art.18(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition-Change of investigation---Order of High Court passed in previous constitutional petition had been complied with by Ex. Inspector General of Punjab who had domain over whole police hierarchy in the. Province--Investigation had been entrusted to Senior Superintendent of Police who had completed the same in December, 2006 and found the present petitioner guilty in the case---Letter dated 7-3-2007 by Additional 1.-G. (Investigation) to Inspector-General of Police was not needed to be issued when the investigation of the case had already been changed by the competent Board under' Article 18(6) of the Police Order, 2002 and entrusted to SSP Punjab Crime and same was even completed in December, 2006---Question whether the aforesaid letter was wrong or correct or manouvred one, could not be dilated upon---Coaccused of the petitioner had challenged the aforesaid order of High Court passed in previous constitutional petition directing change of investigation in Supreme Court, but, his petition had been dismissed---Contention that the said order had not been complied with in letter and spirit as required under Article 18(6) of Police Order, 2002, had no substance---Constitutional petition was dismissed accordingly.

Azam Nazeer Tarar for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.-G. along with Saleem Sikandar AIG (Legal) and Ch. Qamar uz Zaman SSP (Investigation).

Atir Mahmood for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 2467 #

2007 Y L R 2467

[Lahore]

Before Syed Humid Ali Shah, J

ATA ULLAH---Petitioner

Versus

ALI MUHAMMAD---Respondent

Civil Revision No.1389 of 2006, decided on 19th March, 2007.

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

---S. 13---Pre-emption suit---Talbs, performance of---Proof---Pre-emptor's witnesses must corroborate each other with regard to performance of Talbs with specific reference to date, time and place of performance of Talbs---Mere residence of witnesses in another village and minor non-corroboration amongst witnesses as to when they reached village of pre-emptor or where they stayed or how long was their stay in such village would not be material to dislodge right of pre-emption---Witness appearing in witness box after considerable time would not be expected to remember minute details---Principles.

Mere residence of the witnesses in another village or their non-corroboration as to when they reached the village or where they stayed or how long was their stay in the village of the plaintiff is not material to dislodged the right of pre-emption. Minor non-corroboration amongst the witnesses in this regard is not material. Corroboration of the witnesses must be with regard to performance of Talbs with specific reference to date, time and place of performance of Talbs. The statement of witness is to be taken as a whole and not in piecemeal with special reference to the performance of Talbs. The witness who appears in the witness box after lapse of considerable time cannot memorize every minute detail and it is not expected from such witness to remember each and every details.

Ghulam Farid Sanotra for Petitioner.

Sh. Tariq Mahmood for Respondent.

Date of hearing: 13th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2471 #

2007 Y L R 2471

[Lahore]

Before Moulvi Anwarul Haq, J

SARDAR MUHAMMAD---Petitioner

Versus

BASHIR AHMAD and 3 others---Respondents

Civil Revision No.2165 of 2002 and C.Ms. Nos. 210 and 211 of 2007, decided on 15th March, 2007.

Civil Procedure Code (V of 1908)---

----Ss.12(2), 115 & O.XXI, R.102---Transfer of Property Act (IV of 1882), Ss.41 & 52---Revision petition, pendency of---Non-appearance of petitioner---High Court showing its inclination not to' dismiss revision for non-prosecution decided same after hearing counsel for respondent and considering points involved admitted to hearing---Application under S.12(2), C.P.C. by purchaser of suit-land during pendency of revision for setting aside judgment of High Court pleading same to have been obtained by collusion---Validity---No question of any collusion in entire proceedings before High Court was involved---Applicant had a right to file objection under O.XXI, R.102, C.P.C. embodying rule of lis pendens with reference to right to file objections---High Court dismissed application in circumstances.

Fazal Karim through Legal Heirs and others v. Muhammad Afzal through Legal Heirs and others PLD 2003 SC 818 and Muhammad Nawaz ' Khan v. Muhammad Khan and 2 others 2002 IM 2003 distinguished.

Manzoor Hussain Basra for Petitioner.

YLR 2007 LAHORE HIGH COURT LAHORE 2472 #

2007 Y L R 2472

[Lahore]

Before Sh. Hakim Ali, J

ASLAM and another---Petitioners

Versus

ABDUL SATTAR---Respondent

Civil Revision No.1057 of 2002, heard on 22nd May, 2007.

Civil Procedure Code (V of 1908)---

----O.XIV, Rr.1 & 3---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement of sale---Plaintiff's plea was that widowed vendor had died leaving no issue behind her; and defendant claiming himself to be her legal heirs was denying execution of agreement by her---Denial of -plaintiff's plea by defendant---Non-framing of issue regarding such plea---Suit decreed by Trial Court was upheld by Appellate Court---Validity---Material fact was raised by plaintiff in plaint denying relationship of defendant with deceased vendor, which fact was also denied by defendant in written statement---Duty of trial Court was to frame issue with regard to relationship and then to proceed on merits of case---Failure of Trial Court to frame a material issue going to root of the case required demand of case---High Court accepted revision petition and remanded case to Trial Court to frame proper issue in. accordance with pleadings of parties and allow them to produce evidence.

Syed Muhammad Kalim Ahmad Khurshid for Petitioners.

Shafqat Mahmood for Respondent.

Date of hearing: 22nd May, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2474 #

2007 Y L R 2474

[Lahore]

Before Syed Asghar Haider, J

Mst. KAUSAR PARVEEN---Petitioner

Versus

MUHAMMAD IQBAL---Respondent

Civil Revision No.85 of 2007, decided on 15th May, 2007.

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

----Ss.30(a) & 31---Pre-emption suit---Sale through registered deed dated 7-7-2000---Filing of suit on 12-2-2005---Plaintiff alleged to have gained knowledge of sale on 14-12-2004---Validity---Section 30(d) of Punjab Pre-emption Act, 1991 would come into play only when provisions of S.30(a) (b) (c) thereof were not applicable---Suit-land sold through registered deed was covered by S.30(a) of Punjab Pre-emption Act, 1991, thus, period for its ,filing was four months from registration of saledeed---Provisions of Ss.30 and 31 of the Act, would be read together---Plaint neither referred to S.31 of the Act, nor did suggest that copy of sale-deed was not affixed as required by law---Plaintiff, thus, could not plead non-adherence to provision of S.31 of Punjab Pre-emption Act, 1991-7-Suit was dismissed for. being barred by .limitation.

Mian Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499 ref.

Mian Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499; Khushi Muhammad v. Abdul Shakoor 1987 SCMR 1473; Khuda Yar and 4 others v. Resaldar Malik Nawaz Khan and 2

others PLD 1987 Lah. 127; Ashiq Hussan and another v. Ashiq Ali 1972 SCMR 50 and Muhammad Ibrahim and 2 others v. Asrar Ahmad Khan and others PLD 2006 Lah. 582 distinguished.

Rao Jalal-ud-Din Khan for Petitioner.

Muhammad Afzal Cheema for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 2479 #

2007 Y L R 2479

[Lahore]

Before Maulvi Anwarul Haq, J

VANGUARD BOOK (PVT.) LIMITED through Chief Executive---Appellant

Versus

Mrs. FARRUKH RIFAT and 2 others---Respondents

Regular Second Appeal No.71 of 2005, heard on 1st March, 2007.

Specific Relief Act (I of 1877)---

----Ss.12 & 35---Civil Procedure Code (V of 1908), Ss.47, 100 & 104 (f)---Second appeal---Maintainability--Execution of decree---Execution of \decree for specific performance of agreement to sell---Dispute between plaintiff and defendant with regard to release of profits accrued on balance consideration amount deposited by plaintiff in court---Executing Court released the profits to defendant, which order was maintained by Appellate Court---Plaintiff challenged said order in second appeal---Plea raised by plaintiff was that due to dishonest defence taken by defendant, litigation prolonged between the parties, hence defendant was not entitled to the profits---Validity---Order passed by Executing Court was appealable under 5.104 (f), G.P.C. having been passed in terms of S.47, C.P.C.-Amount of profits was payable to defendant upon transfer of property to plaintiff---Conversely in case of setting aside of judgment and decree passed by Trial Court or in case decree was rescinded in terms of S.35 of Specific Relief Act, 1877, the amount was to be paid to plaintiff and in both the eventualities, the profits on the amount deposited were payable to the party entitled to withdraw the amount---Plaintiff under any law or principle was not entitled to the amount and consequently profits accruing thereon after transfer of property in favour of plaintiff in execution of decree---Second appeal was dismissed in circumstances.

Subramania Mudali v. Semalai Goundan AIR 1934 Madras 97 distinguished.

Salman Akram Raja for Appellant.

Khalil Ahmad Khan for Respondents.

Date of hearing: 1st March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2482 #

2007 YLR 2482

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD RAMZAN SHAKIR---Petitioner

Versus

MUHAMMAD MUSHTAQ---Respondent

Civil Revision No.402 of 2007, decided on 23rd May, 2007.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2 & 3---Limitation Act (IX of 1908), Art.159---Suit for recovery of amount on basis of cheque---Application for leave to appear and defend suit---Limitation--Trial Court issued summons to defendant, but same could not be served--- Later on defendant, appeared before the Trial Court, but filed application .for leave to appear and defend suit 11 days after his appearance in the court---Trial Court dismissed said application being barred by time---Validity---Defendant though could not he served, but he later on appeared voluntarily before the Trial Court and filed application for leave to appear and defend suit 11 days after his appearance, whereas under Art.159 of Limitation Act, 1908 period of 10 days had been provided for filing application for leave to appear and defend suit when summonses were served and it could not be perceived that if summons could not be served, and defendant appeared before the court, period of limitation would never start---Period of limitation would run from the date, when defendant appeared before the Trial Court---Trial Court, in circumstances had rightly found that defendant came to know about institution of suit on date he appeared in the court and application filed after expiry of prescribed period of 10 days was barred by time under Art.159 of Limitation Act, 1908---Trial Court did not commit any illegality or material irregularity in dismissing application of defendant for leave to appear and defend suit being barred by time---Revision against impugned order was dismissed.

Mansoor Textile Mills Limited, Shorkot through Syed Jamaat Ali Sh Managing Director and another v. Jan Akhtar Naseeb, Textile Consultant, Faisalabad 2001 CLC 1065; Khurshid Alam v. Al-Khair Gadoon Limited through Legal Director 2003 YLR 2583 and Taj Ali Khan v. Haji Muhammad Ali 2003 YLR 1130 rel.

Hafiz Muhammad Naveed Akhtar for Petitioner.

YLR 2007 LAHORE HIGH COURT LAHORE 2488 #

2007 Y L R 2488

[Lahore]

Before Maulvi Anwarul Haq, J

SHAFI MUHAMMAD and 17 others---Petitioners

Versus

NAZIR AHMED and 15 others---Respondents

Civil Revision No.1122 of 2001, heard on 13th February, 2007.

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----Ss. 2-A, 3, 4 & 5---Termination of limited estate---Effect---Matter would be taken back to point of time when last male owner died and his estate would be distributed accordingly.

Taki Ahmad Khan for Petitioners.

Malik Muhammad Hussain Awan for Respondents.

Date of hearing: 13th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2490 #

2007 Y L R 2490

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ZAIN UL ABID DIN and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.1902 of 2006, heard on 1st June, 2007.

Penal Code (XLV.of 1860)---

----Ss. 302(b), 309, 310, & 148---Criminal Procedure Code (V of 1898), 5.345---Appreciation of evidence---Compromise---During pendency of appeal by accused against conviction and sentences, a compromise was arrived at between accused and legal heirs of deceased---Sessions Judge to whom matter was referred for holding inquiry regarding authenticity and voluntariness of acclaimed compromise arrived at between parties, submitted his report to the effect that all major legal heirs of deceased, except one brother of deceased, who was abroad, had recorded their statements to the effect that they had effected compromise with both the accused persons and had pardoned them in the name of Almighty Allah and that they had no objection to their acquittal---Regarding minor heirs of both the deceased, it had been pointed out that their due share in the Diyat amount had been invested while purchasing Defence Savings Certificates in their names under the orders of Sessions Judge and same had been received by their mother respectively---High Court, in view of statement of Sessions Judge with regard to compromise was satisfied that compromise had been effected with accused by legal heirs of deceased voluntarily and without any coercion---Interest of the minor legal heirs of deceased had also been protected by purchasing Defence Savings Certificates in their names equal to their shares in diyat amount---Brother of deceased actually was not traceable and it was not the case that he had not forgiven the accused persons---When all other legal heirs of deceased had compromised the offence with accused, in the interest of justice, to keep the peace between the parties, share of said brother of deceased in diyat-amount, was deposited by purchasing of Defence Savings Certificates---Main offence under 5.302(6), P.P.C. with which accused had been convicted and sentenced, was compounded, necessary permission required under S.345, Cr.P.C. for effecting compromise, was granted and accused were acquitted of the charge under S.302(b), P.P.C.-Since parties had effected compromise in the main offence under 5.302(6), P.P.C. sentence of accused under 5.148, P.P.C, was reduced to the period already undergone by them, which would meet the ends of justice.

Shiraz Faiz Bhatti and Tahir Farooq Ch. for Appellants.

Saeed Ashraf Waraich, Addl. P.-G. for the State.

Muhammad Irfan Malik for the Complainant.

Date of hearing: 1st June, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2493 #

2007 Y L R 2493

[Lahore]

Before Maulvi Anwarul Haq, J

JHANDA and 3 others---Petitioners

Versus

Maulvi MUKHTAR AHMAD and another---Respondents

Civil Revision No.699 of 2001, heard on 4th May, 2007.

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

----S. 54---Qanun-e-Shahadat (10 of 1984), Art.1I9---Sale through registered deed---Vendee pleading a valid sale for consideration and execution/registration of sale-deed in his favour---Burden of proof---Burden would lie on vendee to prove such affirmative assertion.

Aamir Nawaz Bhatti for Petitioners.

Ch. Bashir Ahmad for Respondents.

Date of hearing: 4th May, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2496 #

2007 Y L R 2496

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD IMRAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.61 of 2005, heard on 18th May, 2007.

Penal Code (XLV of 1860)

302(b)-Appreciation of evidence---Benefit of doubt---Incident was an unwitnessed occurrence---Medical evidence did not advance case of prosecution in any way---Motive, which- could have been a strong piece of evidence against accused, had been disbelieved by the Trial Court and said finding of the Trial Court was well founded---Hatchet allegedly recovered which was not blood-stained, did not connect accused with alleged crime---Coaccused had been acquitted on the basis of same evidence, by the Trial Court---Strong corroboration was required to connect accused with alleged crime, but apart from evidence of extra judicial confession, no corroboration was forthcoming against accused---Conviction on capital charge could not be based on extra judicial confession as evidence of extra judicial confession was always treated to be a weak type of evidence---Prosecution had failed to prove case against accused beyond shadow of doubt---Accused was acquitted of the charge, giving him benefit of doubt.

Ahmad Raza for Appellant.

Nadir Manzoor Dugal, D.P.-G. for the State.

Date of hearing: 18th May, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2500 #

2007 Y L R 2500

[Lahore]

Before Jawwad S. Khawaja, J

LIAQAT ALI and 24 others---Appellants

Versus

Sufi MUHAMMAD YOUSAF and 11 others---Respondents

Regular Second Appeal No.13 of 2006, heard on 7th February, 2007.

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

----Arts. 17(2) (a) & 79---Non-examinaai an of one attesting witness of agreement, executed in year 1979---Such witness stated bit scribe of agreement of have died---Held, reasonable explanation existed on record for non-production of such witness.

Malik Nasir Ahmed Awan and Ch. Muhammad Sarwar Sindhu for Appellants.

M. Saleem Khan Chichi for Respondents.

Date of hearing: 7th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2502 #

2007 Y L R 2502

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD SAJJAD and another---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos.779, 1018, Criminal Revision No.588 and Murder Reference No.822 of 2002, heard on 12th June, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence--F.I.R. having not been recorded with promptitude, possibility of recording sane after preliminary investigation could not be ruled out---No corroboration in circumstances could be sought from the said F.7.R. to the ocular account---Both eye-witnesses were closely related inter se and with deceased---No doubt mere close relationship of eye-witnesses inter se and with deceased was not sufficient to discard their evidence, but in the present case since previous enmity existed between the parties, their statements needed corroboration from some independent evidence on the record, which was lacking in the case---Recovery of weapon of offence was not effected from accused and even no empty was collected from the spot after the occurrence---Enmity existed between the parties due to previous incident, both eye-witnesses thus could be termed as interested witnesses---Complainant being also not found a truthful witness, possibility of his making false statement against accused due to enmity, could not be ruled out---Prosecution witness who was resident of place which was situated 40/50 miles away from place of occurrence, was chance witness as he failed to give sufficient reason for his presence at the spot at the time of occurrence---Place of occurrence was surrounded by the houses and bungalows according to prosecution witnesses, but none of residents of the locality had been joined in the investigation nor had been produced as a witness---Place of occurrence was at a short distance .from the residences of S.S.P. and Deputy Commissioner where police guards were available at all times but none had chased accused and no independent witness had been produced during investigation to support ocular account---Incident was night occurrence and identity of assailants was doubtful---No doubt in the F.I.R. source of light was disclosed that a tube light was on in the street, but the said 'version was not supported by Draftsman who prepared the site-plan---Motive alone howsoever strong was not sufficient to hold that with all improbabilities accused with acquitted accused had committed the crime and it could not corroborate ocular account---Medical evidence could only support ocular account that injuries were received by deceased with firearm, but it could not identify that accused or acquitted accused had caused said injuries---Prosecution having not been able 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 he was acquitted and released extending him benefit, of doubt.

Ata Muhammad's case 1995 SCMR 599 and Niaz alias Niazoo and another v. The State 1993 SCMR 1966 ref.

Dr. Khalid Ranjha for Appellant.

Sheikh Naveed Sheharyar for the Complainant as well as for Appellant in Criminal Appeal No.1018 of 2002 and for Petitioner in Criminal Revision No.588 of 2002.

Ch. Muhammad Aslam Sindhu, Addl. P.-G. for the State.

Date of hearing: 12th June, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2515 #

2007 Y L R 2515

[Lahore]

Before Maulvi Anwarul Haq, J

REGIONAL MANAGER, UTILITY STORE CORPORATION OF PAKISTAN (PVT.) LTD. and, another---Appellants

Versus

EMMAD FARID---Respondent

Regular Second Appeal No.46 of 2005, heard on 19th February, 2007.

Civil Procedure Code (V of 1908)---

----S. 96 & O. XLI, R. 1(1)---Limitation Act (IX of 1908), S.5---Appeal---Delay, condonation of---Certified copies of judgment/decree accompanying appeal were applied for and supplied after expiry of prescribed period of limitation---Filing of appeal two days after obtaining such copies---Application for condonation of delay raising grounds that impugned judgment/decree was passed in absence of appellant's counsel; that appellant was not informed by his counsel; and that appellant came to know about decree three days ago, when respondent sought its execution---Validity---Counsel having obtained certified copies of judgment/decree had never been engaged by appellant, rather he had been acting before trial Court under instructions of appellant's counsel---Trial Court, after hearing arguments of parties' counsel had announced judgment on a date fixed in their presence---Failure of counsel to inform appellant about decision of case was not sufficient for condonation of delay---Appeal was dismissed as barred by time.

Ghulam Rasool and others v. Ahmad Yar and others 2006 SCMR 1458 rel.

Ashiq Hussain Shah v. Province of Punjab through Collector District, Attock and 6 others 2003 SCMR 1840 distinguished.

Abdul Sadiq Chaudhry for Appellants.

Abrar Hassan for Respondent.

Date of hearing: 19th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2518 #

2007 Y L R 2518

[Lahore]

Before Muhammad Muzammal Khan and Syed Asghar Haider, JJ

IZHAR MUBARAK---Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.1716 of 2004, decided on 23rd May, 2007.

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

----S. 9(c)---Appreciation of evidence---Recovery of 60 Kgs. Poast in front of shop of accused was proved to the hilt by two prosecution witnesses, besides, the statement of another prosecution witness, had also rendered substantial corroboration to the statements of said prosecution witnesses---Chemical Examiner in his report had observed that it contained broken pieces of poppy heads, straw and dust---All the four packets sent to Chemical Examiner, were reported to contain narcotic material and his report was positive---In presence of statements of prosecution witnesses and report of Chemical Examiner, deposition of Investigating Officer of the recovered contraband materials as " tumma ", was of no legal value as he was not an expert--Accused did not cross-examine any of prosecution witnesses that recovery effected from him was that of "tumma "---Accused did not even suggest that aspect of the matter to any of witnesses; including prosecution witness whose statement stood rejected by an expert i.e. Chemical Examiner---Recovery memo. and complaint, duly proved by the prosecution witnesses, had left no room to hold that accused was not in active possession of recovered contraband, as he was caught by the police the moment he unloaded four bags in front of his shop---Since the Trial Court had examined the 'Poast' recovered from accused, its non-exhibiting, was of no significance and would not result in vitiating the registration of case or trial, held in accordance with law---No material contradiction existed between statements of prosecution witnesses, and minor discrepancies pointed out by counsel for accused, had no reflexes on prosecution case as their statements were recorded after lapse of more than a year from the date of occurrence---Documents produced in defence were not enough to displace the proved case of prosecution of huge quantity of narcotic material---Scan of record and Impugned judgment had revealed that accused was correctly convicted and sentenced for the offence charged without committing any error of law/facts--Impugned judgment passed by the Trial Court, was maintained.

Khair-ul-Rehman and others v.

The State and others-PLD 2005 Lah. 440 ref.

Aftab Ahmed Bajwa for Appellant.

Rana Bakhtiar Ali D.P.-G. for the State.

Date of hearing: 10th May, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2523 #

2007 Y L R 2523

[Lahore]

Before Syed Hamid Ali Shah, J

Sufi ABDUL RAHIM---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary and others---Respondents

Writ Petition No.169 of 1999, heard on 16th March, 2006.

(a) Evacuee Trust Property (Management and Disposal) Act (XIII of 1975)---

----Ss. 8 & 10(1)---Property known as "Thakar Dawara ---Such property declared by Chairman Evacuee Trust Property Board to he evacuee trust property---Validity-- Transfer of such property against verified ,' claim would be valid only if P.T.D. was issued prior to .nine 1968---Such property sold in auction by Settlement Department could not be validated under S.10 of Evacuee Trust Property (Management and Disposal) Act, 1975 in absence of P.T.D.

Qazi Akbar Jan v. Chairman, District Evacuee Trust Committee, Peshawar and other 1991 SCMR 2206 and Maryam Bee and 2 othes v. Islamic Republic of Pakistan and other PLD 1990 Kar.427 ref.

(b) Evacuee Trust Properly (Management and Disposal) Act (XIII of 1975)---

----S 17---Chairman Evacuee Trust Property Board would be bound by direction of Secretary.

Zahid Hussain Khan for Petitioner.

Qamar-uz-Zaman for Respondents Nos.l to 3.

Irshad?? Ahmad Qureshi for Respondents Nos.4 to 11.

Date of hearing: 16th March, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 2525 #

2007 Y L R 2525

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD HUSSAIN and others---Appellants

Versus

THE STATE---Respondent -

Criminal Appeals Nos.70 and 140 of 2006, heard on 4th May, 2007.

Penal Code (XLV of 1860)----

----S. 302(b)-Appreciation of evidence---Case of three versions and accused were not nominated in F.I.R.---Accused were involved on the basis of a statement made by father of deceased during investigation who just on the basis of suspicion had involved accused in the case---No direct evidence had come on record during the trial against accused---Only ocular evidence which had been produced against accused was in the shape of statement of two prosecution witnesses---Both said witnesses had candidly conceded that they were not eye-witnesses---Accused could not be convicted on the basis of such evidence---Trial Court had convicted accused just on the basis of opinion of the police according to which accused had been found guilty---Opinion of the police being not admissible in evidence, accused could he convicted on that basis in absence of any other evidence---Only piece of evidence which remained in the field' was in the shape of recovery of "Chhuri" at the instance of accused---In absence of any direct evidence, accused could not be convicted on the basis of recovery of a "Chhuri" especially when same was not blood-stained and had been recovered after more than nine months of the occurrence---Witnesses of recovery had candidly admitted that said "Chhuri" was of common nature---Case being of no evidence and prosecution having failed to prove case against accused, accused were acquitted of the charge and were set at liberty in circumstances.

Liaqat Ali Khan, Irshad Hussain Jafree and Javed Jafree for Appellants.

Rao Aatif Nawan for the State.

Date of hearing: 4th May, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2529 #

2007 Y L R 2529

[Lahore]

Before Sh. Hakim Ali, J

GHULAM MUSTAFA---Petitioner

Versus

DIVISIONAL CANAL OFFICER, HAFIZABAD and another---Respondents

Revision Petition No.435 of 2007, decided on 25th May, 2007.

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

----S.115---Revision---Documents upon which petitioner would rely must be produced along with revision.

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

----S.115---Revision---Copy of order challenged in suit not filed along with revision---Copies of orders filed along with revision were neither referred nor challenged in plaint---Validity---Reference to such orders at stage of revision could not be permitted---Revision was incompetent due to such facts and was dismissed accordingly.

2007 Y L R 2547

[Lahore]

Before Maulvi Anwarul Haq, .I

ZEESHAN AZIZ---Petitioner

Versus

Syed NAYAB ALI SHAH---Respondent

Civil Revision No.2156 of 2006, heard on 13th December, 2006.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of pro note---Application for leave to defend suit---Limitation---Application for leave to defend suit was allowed by the Trial Court despite it was barred by time as it was filed beyond time period of ten days prescribed by law and no prayer was made by defendant for condonation of delay---Validity---In absence of any cause shown for delay in filing of application, same was bound to be dismissed by the Trial Court under S.3 of .Limitation Act, 1908---Impugned order was set aside and suit for recovery of amount was decreed accordingly.

Shafiq Ahmad Bhutta for Petitioner.

Jamshed Tariq on behalf of Shahid Maqbool for Respondent;

Date of hearing: 13th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 2548 #

2007 Y L R 2548

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD NAWAZ (Original name Rab Nawaz) and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3522-B of 2007, decided on 30th May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.380 & 506---Interim pre-arrest bail, confirmation of---Accused were real maternal uncles of complainant and parties were involved in, civil litigation about the estate left by father of accused---Criminal prosecution of accused without eye-witnesses or derails of articles, allegedly removed, appeared to be tainted with ulterior motives---Offences charged, though were remotely attracted, but those were not covered by prohibitory clause of 5.497 Cr.P.C.---Accused hailed from respectable family and their arrest in a case like the one, would expose them to disrespect in the eyes of their relatives and public at large---Accused having made out a case for confirmation of bail granted to them, interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Malik Muhammad Akram Khan Alvan for Petitioners.

Hafiz Khalil Ahmad and Gohar Razzaq for the Complainant.

Azhar Javed Rana DPG with Ghulam Jilani D.S.P.

YLR 2007 LAHORE HIGH COURT LAHORE 2550 #

2007 Y L R 2550

[Lahore]

Before Jawwad S. Khawaja, J

Syed ALI RAZA and others---Petitioners

Versus

MUHAMMAD AKHTAR and others---Respondents

Civil Revision No.1041 of 2006, heard on 16th January, 2007.

Specific Relief Act (IV of 1877)---

----Ss.12 & 22---Civil Procedure Code (V of 1908), O. VII; R.11---Suit for specific performance of agreement---Rejection of plaint---Trial Court rejected plaint but Appellate Court set aside said order and remanded case to the Trial Court holding that plaintiff should have been allowed an opportunity to affix court-fee-Conduct of plaintiff had been unequitable and unfair as first suit filed by him was valued at Rs.8,00,000 whereas in second suit, without any explanation, he valued the same at Rs.20,000---Application filed by plaintiff seeking permission to affix court-fee on the plaint in the earlier suit did not disclose any valid reason for his failure to furnish requisite court fee within the time allowed by the Trial Court---Mere fact that plaintiff was out of station could not be a justification for his failure to comply with order of the Trial Court to furnish requisite court fee within time allowed in that respect---Plaintiff had sought specific performance of agreement to sell and relief sought by him was discretionary and could rightly be denied to plaintiff in circumstances set out in S.22 of Specific Relief Act, 1877-Case presented the most appropriate. circumstances in which specific relief should be denied to the plaintiff---Impugned order was set aside and as a consequence order of the Trial Court rejecting plaint was restored.

Rana Nasrullah Khan for Petitioners.

Ghulam Farid Sanotra for Respondents.

Date of hearing: 16th January, 2007.

2007 Y L R 2559

[Lahore]

Before Fazal-e-Miran Chauhan, J

IFTIKHAR SADIQ and others---Applicants

Versus

P.P.O. and others---Respondents

Writ Petition No.4191 and C.Ms. Nos. 1180 to 1182 of 2007, decided on 1st June, 2007.

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

----S. 4(b)-Investigation---Meaning and scope---Investigation, was the other name of collection of evidence in respect of crime---Duty of Investigating Officer was not only to set up the case of complainant party with such evidence as could enable the court to record conviction, but also to bring out the truth---Police Officer was duty bound to investigate the matter, honestly, fairly and justly, so that the truth could be brought toe surface---Such investigation should not be one-sided or tainted with malice---Investigation would not and could not mean that by hook or by crook material only against the accused had to be gathered---Investigation also would mean Mat where a suspicion arose with regard to guilt of the accused then it would become the duty of investigating agency to probe all avenues with a view to reach the truth--Investigating Officer would be independent, impartial and above board and would acquire confidence of both the parties---Complainant or the accused, if not satisfied with the investigation conducted by the Investigation staff, could apply for change of investigation to Head of Investigation who would refer the matter to the Board headed by an officer, not below the rank of Senior Superintendent of the Police and two Superintendents of the Police, one being incharge of such investigation--After seeking recommendation of the Board, Head of investigation would record reasons for change of such investigation.

(b) Police Order (22 of 2002)---

----Art. 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for recalling order---By filing application, it had been prayed that order passed in constitutional petition be recalled as same was procured by practicing fraud---Applicant had failed to show any illegality or irregularity in the order---Even otherwise nothing was concealed from the court as it was purely a question of interpretation of Article 18 and its sub-Article of Police Order, 2002 and was purely a question of law---Applicant still had remedy of exercising her right under second proviso of sub-Article (2) of Art.18 of Police Order, 2002---Applicant having failed to make out a case, application being totally misconceived, was dismissed.

Qazi Muhammad Arshad Bhatti for Applicants.

Faisal Ali Qazi Asst.A.-G. for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2562 #

2007 Y L R 2562

[Lahore]

Before Maulvi Anwarul Haq, J

SULTAN MUHAMMAD SALAHUDDIN KHAN and another---Petitioners

Versus

TOWN COMMITTEE, ISA KHEL through Chairman and others---Respondents

Civil Revisions Nos.1746 and 1754 of 2001, heard on 5th April, 2007.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Civil Procedure Code (V of 1908), S.115---Declaration of title and recovery of possession---Misreading and non-reading of evidence---Non-assailing of finding on main issue---Plaintiffs claimed to be owners of suit-land and had also sought recovery of possession---Demarcation report regarding suit-land also came gender question during trial---Trial Court holding plaintiffs to be owners of suit-land decreed the suit in their favour---Findings regarding ownership of suit-land were not questioned in appeal and Appellate Court allowed the appeal only on the basis of demarcation report---Validity---Finding of Trial Court regarding ownership of plaintiffs was not even questioned before High Court by defendants, which findings were fully supported by evidence on record---Appellate Court acted without jurisdiction while passing judgment and decree in favour of defendants---Demarcation report was not at all relevant in view of the pleadings of defendants---Defendants claimed title in suit-land which was admittedly in their possession in pleadings by adverse possession and in the course of evidence by means of gift which pleas were not proved on record---High Court in exercise of revisional jurisdiction, set aside the judgment and decree passed by Appellate Court and decreed the suit in favour of plaintiffs---Revision ,was allowed accordingly.

Raja Irshadul Haq Kiani for Petitioners. .

Amir Abdullah Khan Niazi for private Respondents.

Ghulam Murtaza, Chief Officer, Town Committee, Isa Khel.

Date of hearing: 5th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2566 #

2007 Y L R 2566

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

SHER ZAMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.689 and Murder Reference No.325 of 2002, heard on 28th February, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---F.I.R. in the case though had been got lodged with promptitude, but it did not provide any corroboration to the ocular account regarding involvement of accused as he was not named therein---Accused was introduced as an accused in the case afterwards during the investigation---Both the prosecution witnesses were related inter se and with deceased closely---Witnesses had no previous enmity with accused and could not be termed as .interested witnesses, but that alone was not sufficient to believe that they had spoken the whole truth---Statements of said prosecution witnesses and dying declaration of deceased did not disclose the name of accused as the real culprit who had committed the offence---Case was registered against unknown person, and description given by witnesses in their statements under S.161, Cr. P. C. was not conspicuous to identify accused---Possibility could not be ruled out that accused had been involved in the case due to suspicion---Said two prosecution witnesses were found to be untruthful witnesses---Facts had shown that they had made tutored statements who had even tried to conceal the factum of arrest of accused by the police in order to show that they had seen accused only at the time of identification parade and not before that---Ocular account and the identification parade were not worthy of reliance and presence of both eye-witnesses at the place of occurrence seemed to be doubtful---Possibility could not be ruled out that occurrence had not taken place in the manner narrated by prosecution witnesses, but deceased was alone at the time of having been assaulted by some unknown culprits at the place not situated near the house of prosecution witnesses, otherwise' he must have been first taken to the hospital by prosecution witnesses who were his close relatives---An other prosecution witness who was got declared hostile by the prosecution, was also close relative of deceased and the other witnesses---Every possibility existed that such evidence was created to falsely implicate accused in an untraceable case merely on suspicion---Recovery of knife was useless as said knife was not stained with blood---Contradictions were noticed in the statements of the recovery witnesses regarding the minute details of the proceedings of recovery---Recovery proceedings showed that not a single person from the locality had been joined by the Investigating Officer though the place of recovery was surrounded by the houses---Recovery which had been effected in violation of S.103, Cr. P. C., could not be relied upon---No motive was ascribed by the prosecution, to commit murder of deceased by accused---Prosecution having not been able to prove case against accused beyond any shadow of doubt, impugned judgment of conviction and sentence passed against accused by the Trial Court, was set aside, he was acquitted of the charge by extending him the benefit of doubt and was set at liberty.?

Aziz Ahmad Malik for Appellant.

Ch. Muhammad Hussain Chachhar A.P.-G. for the State.

Date of hearing: 28th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2573 #

2007 Y L R 2573

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASIF---Appellant

Versus

MUHAMMAD SHAHZAD---Respondent

S.A.O. No.79 of 2006, decided on 29th March, 2007.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(6)---Ejectment petition---Failure to file written statement, defence struck off---Validity---Record of proceedings which took place before the Rent Controller revealed that not a single reason was forthcoming as to why the written statement was not filed despite dozens of opportunities .were provided particularly when the appellant was put on notice by Rent Controller for last opportunity---Appellant managed to prolong the proceedings in ejectment petition for about 18 months without filing written reply---No question of law did arise in the appeal, same was accordingly dismissed in limine.

M. Iqbal for Appellant.

Khalid Ahmad Khan for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 2575 #

2007 Y L R 2575

[Lahore]

Before Hasnat Ahmad Khan, J

RASAB ALI and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.10154-B of 2006, decided on 4th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 379, 148 & 149---Pre-arrest bail, refusal of---Accused were specifically named in F.I.R, and all of them in furtherance of their common intention and object had allegedly attacked complainant party and during the occurrence injured lady was caused various fire-arm injuries on different parts of her body---Contents of F.I.R. had revealed that occurrence had taken place in a broad daylight---F.I.R. was lodged promptly---Recovery of shells of bullets and cartridges from the spot, prima facie supported prosecution version---Plea of alibi could not be given much weight at bail stage as such plea would require deeper appreciation, which was not permissible while deciding bail application and that too a pre-arrest bail application---Accused had caused repeated fire-arm injuries on the body of injured who had survived due to her luck---Other two accused were also specifically named in the F.I.R.---Accused, prima facie were fully responsible for acts and deeds committed by the main co-accused/accomplice---All the eye-witnesses, including injured prosecution witnesses had pointed their accusing fingers towards them---Counsel for accused had failed to point out the mala fides of the police for registration of the case---Without establishing mala fides of the police and the complainant and the fact that were in cahoots with the complainant, relief of pre-arrest bail, which was extraordinary relief, could not to be granted to accused---Recovery of weapons of offence from accused was yet to be effected by the police---Grant of pre-arrest bail was likely to hamper .the investigation---Accused having failed to make out a case of pre-arrest bail, their bail application was dismissed.

Murad Khan v. Fazal Subhan PLD 1983 SC 82; Zia-ul-Hassan v. The State PLD 1984 SC 192 and Masood Ahmad alias Muhammad Masood v. The State 2006 SCMR 933 ref.

Malik Israr Elahi for Petitioners.

Ch. Amjad Hussain, Deputy Prosecutor-General with Mubashar A.S.-I.

Mehboob Rasul Awan for the Complainant.

2007 Y L R 2584

[Lahore]

Before Hasnat Ahmad Khan, J

YASIR and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3043-B of 2007, decided on 1st June, 2007.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 386---Bail, grant of---Further-inquiry---No date of occurrence had been mentioned in the F.I.R.---While demanding ransom amount as alleged by complainant, no reason or background whatsoever, for doing so had been mentioned by complainant---On the one hand according to the complainant some incognito persons were making demands of ransom while concealing their identity, but while receiving the amount accused had made no efforts to conceal their identity, or muffle their faces---Allegation of that kind, would certainly be needing further inquiry by the Trial Court---Allegedly demanded ransom money was not taken into possession by investigator and investigator had also failed to take into possession the Sims of the mobile phones from which incognito persons had made a demand of ransom from the complainant---Case of further inquiry within the ambit of S.497(2), Cr. P. C., in circumstances, had been made out in favour of accused.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 386---Bail---Bail could not be refused to accused only on the ground of start of the trial, especially when case of accused had become that of further inquiry---Case of grant of bail having been made out in favour of accused, they were admitted to bail.

Muhammad Ismail v. Muhammad Rafiq PLD 1989 SC 585; Muhammad Ali alias Mama v. State 2004 MLD 1518; Muhammad Salim v. State PLD 1989 Lah. 233 and Munir v. State 2002 MLD 712 ref.

M.D. Tahir for Petitioners.

Muhammad Arif Goraya for the Complainant.

Ch. Amjad Hussain, DPG with. Muhammad Arshad, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 2586 #

2007 Y L R 2586

[Lahore]

Before Muhammad Sair Ali, J

Raja SHAKEEL MEHDI through Legal Heirs---Appellant

Versus

Mst. GHAZALA FARHAT---Respondent

Regular Second Appeal No.152 of 2004, heard on 26th February, 2007.

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

----S. 13---Pre-emption suit---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Non-mentioning in plaint date, time and place of meeting in which pre-emptor acquired knowledge of sale and exercised right to Talb-i-Muwathibat---Names of witnesses to information of sale and performance of Talb-i-Muwathibat by pre-emptor not specified in plaint---Effect---Pre-emptor's pleadings lacked in setting up basic and fundamental facts to establish and prove timely performance of Talbs as required under S.13 of Punjab Pre-emption Act; 1991---Facts not pleaded in plaint could not be proved---Evidence led upon un-pleaded facts would be excluded from consideration and could not become basis of judgment---Suit was dismissed in circumstances.

Fazal Din through L.Rs. v. Muhammad Anayat through L.Rs. 2007 SCMR 1; Haji Muhammad Saleem v. Khuda Bukhsh PLD 2003 SC 315; Fazal Subhan v. Sahib Jamala PLD 2005 SC 977; Akber Ali Khan v. Mukamil Shah and others 2005 SCMR 431; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410 rel.

(b) Pleadings---

----Facts not pleaded in plaint could not be proved in evidence---Evidence led upon unpleaded facts would be excluded from consideration and could not become basis of judgment---Principles.

Mian Zafar Iqbal Kalunari for Appellants.

Noor Muhammad Khan Chandio for Respondent.

Date of hearing: 26th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2589 #

2007 Y L R 2589

[Lahore]

Before Hasnat Ahmad Khan, J

CHHUTTA KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3503-B of 2006, decided on 26th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365---Bail, refusal of---Accused had actively participated in the occurrence---Deceased was brutally murdered by causing piercing injuries on his both eyes---Story of the occurrence as narrated by the complainant, was shocking---Prosecution case was getting full support from the statements of the eye-witnesses recorded under S.161, Cr. P. C.---Trial had already started and five out of 11 prosecution witnesses had already been examined---Would not be proper at such stage, to return findings touching the merits of the case as same was likely to prejudice the case of either of the parties at trial---Scope of further inquiry was not made out in favour of accused---Bail application was dismissed, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 and Allah Ditta and others v. The State 1990 SCMR 307 rel.

Ch. Muhammad Ashfaq Khan for Petitioner.

Sh. Imtiaz Ahmad for the State with Ghulam Hashim, S.-I. with record.

Makhdoom Mashooq Hussain Shah for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 2591 #

2007 Y L R 2591

[Lahore]

Before Syed Hamid Ali Shah, J

MUHAMMAD IQBAL---Petitioner

Versus

IJAZ AHMED and another---Respondents

Civil Revision No.1605 of 2006, decided on 12th April, 2007.

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

----Ss. 9, 10, O. VII, Rr.10 & 11---Court not having jurisdiction to entertain suit---Effect---Proper course available to Court in such case would, be either to return plaint for its presentation to Court of competent jurisdiction or to reject plaint.

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

----S.39---Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), Ss.8, 10 & 14---Civil Procedure Code (V of 1908), S.9---Sale of evacuee trust property by Chairman, Evacuee Trust Properties Board---Suit for cancellation of sale-deed executed by Board in favour of defendant---Plaintiffs' claim was that suit property being in possession of their father was offered to him for sale by Board, but he died before its transfer, and Board without offering same for sale to plaintiffs (legal heirs) transferred same to defendant---Held, Chairman of Board could entertain and decide such dispute between the parties---Jurisdiction of civil Court was barred---Plaint in such suit was rejected in circumstances.

Evacuee Trust Property Board v. Mst. Zakia Begum and others 1992 SCMR 1313 rel.

Kh. Z.H. Tahir for Petitioner.

Nemo for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2593 #

2007 Y L R 2593

[Lahore]

Before Sardar Muhammad Aslam, J

AHMAD through L.Rs.---Petitioner

Versus

Haji SAEED AHMED---Respondent

Civil Revision No.652 of 1997, heard on 6th March, 2007.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement of sale---Plaintiff's plea was that defendant executed agreement on 14-12-1987 after receiving money, which he needed for depositing in Court in respect of pre-emption suit decreed in his favour---Defendant denying. execution of agreement alleged that he had given golden ornaments to plaintiff as security for repayment of such money---Suit decreed by Trial Court was upheld by Appellate Court in appeal---validity---Last date for deposit of decretal amount in pre-emption suit was 2-12-1987, while agreement of sale was executed on 14-12-1987---Such fact showed that defendant had deposited amount before emergence of agreement---Entire fabric built on agreement that amount was paid to defendant on the date when agreement was written stood negated---Evidence available on record was deficient to determine real controversy as to whether defendant had secured amount by mortgaging ornaments or received same as safe consideration of suit-land---High Court set aside impugned judgments/decrees and remanded case to Trial Court for its decision afresh after granting permission to both parties to produce further evidence in support of their pleadings.

Mehr Ahmad Bakhsh Bharwana for Petitioner.

Khalid Ikram Khatana for Respondent.

Date of hearing: 6th March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2596 #

2007 Y L R 2596

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD ASGHAR and others---Petitioners

Versus

MUHAMMAD LATIF and others---Respondents

Civil Revisions Nos.779 and 1912 of 2002, heard on 2nd March, 2007.

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

----S. 13---Pre-emption suit---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Failure of pre-emption to plead in plaint date, time and place of meeting in which he acquired knowledge of sale and performed Talb-i-Muwathibat---Names of witnesses to information of sale and performance of Talb-i-Muwathibat by pre-emptor not specified in plaint---Validity---Pre-emptor's pleadings were blank, vague and unsubstantiated, thus, lacked in setting up basic and fundamental facts to establish and prove timely performance of Talbs as required under S.13 of Punjab Pre-emption Act, 1991---Facts not pleaded in plaint could not be proved---Evidence, led upon un-pleaded facts would be excluded from consideration and could not become basis of judgment---Suit was dismissed in circumstances.

Fazal Din through L.Rs. v. Muhammad Anayat through L.Rs. 2007 SCMR 1; Haji Muhammad Saleem v. Khuda Bukhsh PLD 2003 SC 315; Fazal Subhan v. Sahib Jamala PLD 2005 SC 977; Akber Ali Khan v. Mukamil Shah and others 2005 SCMR 431; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; and Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410 rel.

(b) Pleadings----

----Facts not pleaded in plaint could not be proved in evidence---Evidence led upon unpleaded facts would be excluded from consideration and could not become basis of judgment---Principles.

Nisar Ahmad Baig for Petitioners.

Nemo for Respondents.

Date of hearing: 2nd March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2598 #

2007 Y L R 2598

[Lahore]

Before Jawwad S. Khawaja, J

QALANDAR HUSSAIN and another---Petitioners

Versus

PROVINCE OF PUNJAB through District Officer (Revenue)/Collector and others---Respondents

Civil Revision No.2034 of 2006, heard on 15th February, 2007.

Canal and Drainage Act (VIII of 1873)---

----Ss.68 & 68-A---Specific Relief Act (I of 1877), Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Claim for irrigation supplies at 75 % intensity---Sanctioning of warabandi at such intensity by Authority after hearing both parties---Challenge to order of warabandi in suit---Granting of interim injunction by Trial Court

restraining authority from implementing such order---Validity---Intensity of irrigation supply to plaintiff was stated to be 60% in order of authority passed in year 1998---Authority while passing order in year 1998 had not taken into consideration original order of year 1959, which was taken note of while passing order impugned in suit---High Court set aside impugned order and dismissed application for temporary injunction filed by plaintiff.

Rehmat Wazir and others v. Sher Afzal and others 2005 SCMR 668 fol.

Miss Najma Parveen for Petitioners.

Muhammad Nawaz Noraiz Bajwa, A.A.G. with Tallat Mehmood, S.D.O., Sargodha for Respondents.

Zia Ullah Khan Niazi for Respondents Nos.4 to 11.

Date of hearing: 15th. February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2600 #

2007 Y L R 2600

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SHER and another---Petitioners

Versus

PROVINCE OF THE PUNJAB through District Collector, Bhakkar and 3 others---Respondents

Civil Revision No.179 of 2003, heard on 28th February, 2007.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXVI, R.9 & S.115---Suit for declaration and injunction---Land sold to plaintiff under "Katchi Abadi Scheme" by authority---Notice by authority to plaintiff for dispossessing him from Government land encroached upon---Suit to challenge such notice---Report of Local Commission (an Advocate appointed by Court) that there was no encroachment---Suit decreed by Trial Court was dismissed by Appellate Court---Validity---Appellate Court. had said nothing about such report, but had observed that an Advocate should not have been appointed, rather a Revenue Officer or some Officer of Department should have been appointed as Local Commissioner to conduct demarcation---Appellate Court after having expressed its dissatisfaction with proceedings of Local Commissioner ought to have appointed a Local Commissioner---Impugned judgment had decided nothing, thus, same squarely fell within mischief of S.115, C.P.C. ---High Court set aside impugned order with direction to Appellate Court to decide appeal afresh after appointing a Revenue Officer preferably a local Tehsildar to conduct demarcation proceedings.

Mian Shah Abbas for Petitioners.

Aamir Rehman, A.A.-G. for Respondents Nos.1 to 3.

Malik Shafqat Rasool Gorchha for Respondent No.4.

Date of hearing: 28th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2602 #

2007 Y L R 2602

[Lahore]

Before Jawwad S. Khawaja, J

GHULAM RASOOL and another---Petitioners

Versus

MULAZIM HUSSAIN and others---Respondents

Civil Revision No.714 of 2002, heard on 14th February, 2007.

Civil Procedure Code (V of 1908)---

----O.XIII, R.4 & O.XL, R.33---Qanun-e-Shahadat (10 of 1984), Art.74---Appeal--- Sale-deed not produced in evidence, but its un-exhibited copy was lying on record---Appellate Court based its judgment on such copy---Such judgment was not legally sustainable, thus, was set aside, by the High Court.

Qazi Khurshid Alam for Petitioners.

Ch. Nisar Ahmad Dhillon for Respondents.

Respondents Nos.11 and 12: Ex parte.

Date of hearing: 14th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2603 #

2007 Y L R 2603

[Lahore]

Before Maulvi Anwarul Haq, J

ZAREENA BEGUM---Petitioner

Versus

HAQ NAWAZ---Respondent

Civil Revision No.1245 of 2003, heard on 14th. February, 2007.

Specific Relief Act (I of 1877)---

----S.42---Contract Act (IX of 1872), S.11---Suit for declaration---Mutation of sale alleged by plaintiff to have been got attested during her minority by defendant-brother, thus, such sale was void as against her---Proof---Suit mutation was attested on 25-8-1980, when plaintiff claimed to be of 12 years of age---School Leaving Certificate produced in evidence showed that date of birth of plaintiff was 12-1-1968---Nikah of plaintiff was performed on 28-7-1989 and her age in Nikahnama was recorded as 18 years---No evidence of a valid sale for consideration or attestation of a valid mutation was produced by defendant---Plaintiff was minor when suit mutation was entered/attested on 25-8-1980---Suit was decreed in circumstances.

Sh. Naveed Shaharyar for Petitioner.

Respondent: Ex parte.

Date of hearing: 14th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2606 #

2007 Y L R 2606

[Lahore]

Before Jawwad S. Khawaja, J

REHMAT ALI and others---Petitioners

Versus

Mst. NAWAB BIBI and others---Respondents

Civil Revision No.253 of 2006, heard on 6th April, 2006.

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

----Art.64---Relationship with deceased claimed by plaintiff to be that of his daughter--Proof---Record Keeper of National Registration Office on basis of official record deposed that plaintiff was daughter of deceased---Private witness produced by plaintiff had special means of knowledge regarding her such relationship with deceased---Plaintiff on being asked by Court to name the sons of deceased, and she gave the names of all his six sons in sequence, which statement was not disputed by defendant present in Court---High Court dismissed revision petition fled against decree passed in favour of plaintiff by Court below concurrently.

Muhammad Hanif for Petitioners.

Zahid Hussain Khan for Respondents.

Date of hearing: 6th April, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 2607 #

2007 Y L R 2607

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD NAZIR---Petitioner

Versus

IMTIAZ AHMAD and 3 others-Respondents

Civil Revision No.2372 of 2006, heard on 19th February, 2007.

Specific Relief Act (I of 1877)---

----S.8---Punjab Conferment of Proprietary Rights on Non-Proprietors in Abadi Deh Act (I of 1995), S.3---Suit for possession of land in Shamilat Deh---Plaintiff alleged defendant to he his licensee---Defendant's plea was that he had built house on suit-land, thus, its title had come to vest in him by virtue of S.3 of Punjab Conferment of Proprietary Rights on Non-Proprietors in Abadi Deh Act, 1995---Validity---Factum of defendant to be licensee would not mean that Ire could not claim title on basis of S.3 of Punjab Conferment of Property Rights on Non-Proprietors in Abadi Deh Act, 1995---Suit was dismissed in circumstances.

Malik Abdul Aziz Kandwal for Petitioner.

Zafar Iqbal Chohan for Respondents.

Date of hearing: 19th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2610 #

2007 Y L R 2610

[Lahore]

Before Muhammad Muzammal Khan and Syed Asghar Haider, JJ

Malik MUHAMMAD EHSAN and another---Appellants

Versus

Malik MUHAMMAD SURKHURO and 7 others---Respondents

I.C.A. No.76 of 2007 in Writ Petition No.10567 of 2006, decided on 31st May, 2007.

(a) Punjab Local Government Elections Rules, 2005---

----Rr. 67(3), 71(4) & 72(a)---Civil Procedure Code (V of 1908), S.139 & O. VI, R.15(1)(a)---Oaths Act (X of 1873), S.6---Constitution of Pakistan (1973), Art. 199----Constitutional petition---Non-attestation of verification of election petition and its annexure on oath before Oath Commissioner---Election Tribunal allowing petitioner to get such verification attested on oath as ordained by law---Validity---Verification of election petitioner on oath and its attestation by a person authorized to administer .oath was mandatory, thus, its trop-compliance would entail penalty---High Court declared impugned order to be without lawful authority and illegal.

Mian Muhammad Iqbal and another v. Election Tribunal for District Okara/District Judge, Kasur and 5 others 2006 CLC 1426 and Abdul Nasir and another v. Election Tribunal, Toba Tek Singh and others 2004 SCMR 602 ref.

Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 fol.

(b) Punjab Local Government Elections Rules, 2005---

----Rr.67(3) & 72(a)---Representation of the People Act (LXXXV of 1976), Ss.55(3) & 63(a)---Election petition and its annexure, verification of---Provisions of Rr.67(3) & 72 (a) of Punjab Local Government Elections Rules, 2005 and Ss.55(3) & 63 (a) of Representation of the People Act, 1976 being pari materia, would be interpreted in a harmonious manner.

Dr. M. Mohy-ud-Din Qazi for Appellants.

Malik Noor Muhammad Awan for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2614 #

2007 Y L R 2614

[Lahore]

Before Asif Saeed Khan Khosa, J

ALLAH DITTA---Petitioner

Versus

THE STATE---Respondent

Crl. Miscellaneous No.384/B of 2007, decided on 27th February, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324, 337-A(ii) & 34---Bail, grant of---Further inquiry---Parties were closely related to each other and they also lived in close proximity to each other---F.I.R. had shown that apparently at the time of alleged occurrence, it was complainant party which was aggrieved of some previous conduct of accused party and it was complainant party which had gone towards accused party for lodging a protest immediately preceding the main occurrence---F.I.R. had further shown that upon a verbal altercation between the parties, the situation on that account had deteriorated and had taken an ugly turn resulting in the occurrence in which three persons belonging to the complainant party and two persons belonging to accused parry had sustained injuries on different parts of their bodies---Two persons getting injured from the side of accused party were the father and uncle of accused---Cross-version of same incident had beers lodged by accused parry and on completion of investigation, local, police had found both parties to be fully involved in aggression against each other and parties had been challaned---Question as to which party was in fact aggressor, was a question which required further probe---All other accused from both the sides had already been enlarged on bail---Accused had already spent about five months in jail and no progress had been made in the trial after framing of charge against them---Concession of bail ought not to be withheld by way of premature punishment---Case against accused calling for further inquiry into his guilt, he was admitted to bail.

Shoaib Mehmood Butt v. Iftikharul-Haq and 3 others 1996 SCMR 1845 and Ali Akbar Shah v. Banaras and others 1990 SCMR 1097 rel.

Syed Shahbaz Ali Rizvi for Petitioner.

Mian Bashir Ahmad Bhatti, Deputy Prosecutor-General for the State.

Ghulam Murtaza Malik for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 2617 #

2007 Y L R 2617

[Lahore]

Before Muhammad Akhtar Shabbir, J

NISAR AHMED SIDDIQUI---Petitioner

Versus

MUHAMMAD ASHRAF ABBASI and 4 others---Respondents

Writ Petition No.574 of 2005 decided on 31st January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 145---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dispute concerning property likely to cause breach of peace--- Proceedings under S.145, Cr. P. C., could not be compromised nor could be submitted to arbitration---All that could be done, would be that there could he an agreement as to mode of taking evidence as regarded to the actual possession on the date of the preliminary order either through a commission or by arbitration---Question as to who was in actual possession, would riot be delegated even by consent of the parties---Provisions of S.145(5), Cr. P. C., provided that nothing in that section would preclude arty party, so required to attend or any other person interested, from showing that no such dispute existed---In such case Magistrate would cancel his said order and all further proceedings thereon would be stayed, but subject to such cancellation, order of Magistrate under subsection (1) of S.145, Cr. P. C. would be final---Magistrate in the present case had directed the delivery of possession in favour of one party/petitioner, which was in violation of S.145(5), Cr. P.C.---Parties had made statements before the Court assuring that no dispute was in existence as they had compromised; in such circumstances, Magistrate was only competent to discharge the proceedings, but he could not pass any order with regard to the delivery of possession under sub-clause (6) of S.145, Cr. P. C. and he was not competent to proceed beyond they scope of sub-clause (5) of S. 145, Cr. P. C. as Magistrate had not recorded any evidence with regard to the. possession of the parties--Dispute with regard to breach of peace at the place, in question having ceased to exist, Magistrate should have stayed the proceedings from going any further---Magistrate was not competent to proceed further in the matter, handing over possession of the property in dispute, beyond the scope of S.145(5), Cr. P. C. and Appellate Court was not competent to remand the case---Impugned order, on that score alone, could be declared to have been passed illegally---Position of the site as before passing of impugned order was to be" deemed to have been restored.

Gangadhar v. Balkrishna and others AIR 1929 Nagpur 285 rel.

AIR 1923 Allahabad 77 ref.

Dr. Babar Awan for Petitioner.

Malik Waheed Anjum for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2621 #

2007 Y L R 2621

[Lahore]

Before Fazal-e-Miran Chauhan, J

KHAN MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1865-B of 2005, decided on 13th October, 2005.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 324, 109, 148 & 149---Bail, grant of---Further inquiry--Only one shot was attributed to accused, whereas the police had recovered two empties from the place of occurrence---Empties sent to Forensic Science Laboratory, however did not match the gun alleged to have been recovered from accused---Case against accused being of further inquiry, he was admitted to paid.

Syed Jaffar Bukhari for Petitioner.

Abdul Ghaffar Sial for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 2625 #

2007 Y L R 2625

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

MUHAMMAD FAROOQ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.440/B of 2007, decided on 8th March, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.337---Bail, grant of--- Further inquiry---Medical evidence was not corroborative with ocular account---Chemical Examiner's report had also not been obtained---Investigating Officer had declared accused innocent---Accused was behind the bars for the last three months---Case of accused being of further inquiry, he was allowed bail.

Sardar Muhammad Akram Khan Pitafi for Petitioner.

Rao Atif Nawaz for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 2627 #

2007 Y L R 2627

[Lahore]

Before Hasnat Ahmad Khan, J

NASEEM AKHTAR alias AKBARI BEGUM and another---Appellants

Versus

THE STATE ---Respondent

Criminal Appeals Nos.757, 753 754 of 2004 and Criminal Revision No.42 of 2005, heard on 4th May, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b), 337-A(iv), 337-A(i), 337-F(i) & 337-F(ii)---Appreciation of evidence---Case of two versions, one advanced by prosecution in State case filed against accused and other in complaint case filed by accused against prosecution side---Court, in circumstances had to see as to which of the two versions was more probable---Parties were closely related inter se---Complainant had alleged in the F.I.R. that deceased had been dragged into the house of accused, while accused in his complaint-case had averred that deceased and others had come to the house of accused party and attacked them---Place of occurrence being house of accused was admitted by .both the parties---Time of occurrence was also admitted and both. the parties had admitted that, bone of contention leading to the occurrence was the house which was in possession of accused at the time of occurrence---Motive was also admitted---Site-plant had shown that deceased had received injuries not near the main entrance of the house of accused, but near the residential room situated inside the house---Such fact, prima facie, had shown that story of dragging deceased into the house by accused etc. was not appealing to reasons---Had ,it been so, deceased would have been murdered near the entrance of the house and if he had been dragged upto the residential room, there might have been some kind of injuries of dragging like scratches etc, but to such injury was found on the body of deceased during autopsy---Evidence ort record had shown that all persons belonging to complainant side including deceased and injured. prosecution witness, had criminal bent of mind---Son of injured prosecution witness was involved in criminal cases---Said .background of complainant parry had clearly shown that they were -not persons having good antecedents and in the backdrop of their character possibility of attacking the house of accused for taking its forcible possession, could not be ruled out---Case of prosecution was even otherwise based upon some material and dishonest improvements---Defence version of acting in self-defence appeared to be more plausible and probable than that of prosecution--Alleged recovery of. gun was made from an open place. situated near cluster of trees contiguous to grave-yard, which had shown that same was not recovered from a .place which was. in exclusive possession of accused---In view of said inconsistency the report of Forensic Science Laboratory had lost its importance---Plea of self-defence even if was not specifically taken by accused, same could be gleaned from evidence and circumstances of the case---Benefit of self-defence was to be given to accused---Once a right of self-defence accrued, it could not be measured in golden scales---Accused did not exceed the right of self-defence---Accused, were acquitted of the charges.

Mashal Khan v. The State PLD 1988 SC 25; Khalid Zaman v. The State 1992 PCr.LJ 2289; Ghulam Hussain v. The State PLD 1972 Lah.153; Waryam and 3 others v. The State PLD 1975 Lah. 153; Shahid Mumtaz and others v. The State 1996 PCr.LJ 1722; Noor Khan v. The State 1996 PCr.LJ 790; Gullan and others v. The State 1982 SCMR 1239; Muhammad Dilber alias Muhammad Boota and 2 others v. The State 2002 SCMR 1425 and Farid v. The State PLD 2002 SC 553 ref.

Ch. Faqir Muhammad for Appellants.

Muhammad Ansar Khan Sherwani for the Complainant.

Rao Aatif Nawaz for the State.

Date of hearing: 4th May, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2647 #

2007 Y L R 2647

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASHRAF and 2 others---Petitioners

Versus

MUHAMMAD MALIK and 2 others---Respondents

Civil Revision No.232 of 2006, heard on 18th June, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration to the effect that suit-land was owned by plaintiffs and they had appointed defendant as their attorney to pursue several cases going on about the suit-Land---Allegation of the plaintiffs was that defendant had got executed a registered power-of-attorney and on basis of said power-of-attorney, he had transferred suit-land to his son-in-law---Plaintiffs had insisted that defendant was never conferred any power to alienate land in dispute---Trial Court dismissed writ, but on filing appeal against judgment of the Trial Court, Appellate Court decreed the suit---Validity---Defendant was an attorney of plaintiffs simply to pursue cases, but Ire an the basis , of said power-of-attorney proceeded to gift away suit-land to Iris son if-law---There was not even an allegation that plaintiffs ever intended to gift land to son-in-law of the defendants/attorney or that they made a declaration of gift and transferred possession thereunder or that plaintiffs had ever directed defendant to gift away suit-land to Iris son-in-law---Appellate, Court, in circumstances had rightly decreed suit---Revision against judgment and decree of Appellate Court having no force was dismissed.

Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 ref.

Malik Noor Muhammad Awan for Petitioners.

Hafiz Khalil Ahmad for Respondents.

Date of hearing: 18th June, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2650 #

2007 Y L R 2650

[Lahore]

Before Maulvi Anwarul Haq, J

TASLEEM KHAN---Petitioner

Versus

ALLAH YAR and others---Respondents

Civil Revision No.2330 of 1996, heard on 7th May, 2007.

Islamic Law---

----Inheritance---Both Courts below had concurrently found that petitioner was the son of deceased owner of land in question and consequently was entitled to inherit estate of deceased in equal shares along with his other brothers---Once it had been found that petitioner was a co-sharer in the estate of his deceased father, he would be deemed to be in joint possession of said joint estate---Two of the brothers of petitioner, in fact, had acknowledged the right of petitioner to inherit the land and they effected the transfer of land to the extent of his share---Concurrent findings of two courts below based on evidence on record, could not be recalled in circumstances.

Sh. Abdul Aziz for Petitioner.

Muhammad Sharif Khokhar for Respondents.

Date of hearing: 7th May, 2007.

2007 Y L R 2658

[Lahore]

Before Mian Hamid Farooq, J

GHULAM HAIDER---Petitioner

Versus

NAEEM ABBAS, RENT CONTROLLER, LAHORE and 11 others---Respondents

Writ Petition No.3551 of 2002, decided on 27th March, 2002.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.13(2)(i)(ii), (3)(ii)(a), 13(6) & 1---Constitution of Pakistan (1973), Art.199-- Constitutional petition---Maintainability---Tentative rent order---Petitioner/tenant had called in question tentative rent order passed by Rent Controller, whereby petitioner was directed to deposit arrears of rent as well as future monthly rent of shop in question---Respondents/landlords sought ejectment of petitioner from shop in question on the grounds of default in payment of rent, personal need and addition and alteration in the shop---Tentative rent order passed by Rent Controller under S.13.(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, was challenged on the ground that Rent Controller had directed petitioner to deposit arrears of rent beyond the period of three years which was not permissible under the law and impugned order was without jurisdiction which was amenable to constitutional -jurisdiction of -High Court---Rent Controller had calculated period from date of institution. of ejectment application and had ordered for deposit of rent precisely for the period of three years---Rent Controller was empowered to pass order under S.13 (6) of West Pakistan Urban Rent Restriction Ordinance, 1959 directing a tenantto deposit arrears of rent for three years commencing from the date of institution of ejectment petition---Rent Controller, in circumstances did not commit any Illegality in passing impugned order---No exception, in circumstances, could Abe taken by petitioner as impugned order was perfectly, justified under the law not amenable to constitutional jurisdiction of the High Court---Impugned order was of an interim and interlocutory nature, which was non-appealable under proviso to S.15 of West Pakistan Urban Rent Restriction Ordinance, 1959---Petitioner had an adequate remedy available to him of challenging impugned order in appeal, which petitioner could be against final order passed in ejectment petition tf it would go against petitioner---Constitutional petition which .was incompetent, -not maintainable and devoid of merit, was dismissed.

Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and others 1996 SCMR 1165 ref:

Abdul Latif for Petitioner.

Tanveer Akhtar for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2660 #

2007 Y L R 2660

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD SHAHID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.270-M of 2007, heard on 27th March, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A, 550 & 561-A---Quashing of order---Petition for---Custody/Superdari of vehicle---Petitioner, in his petition under S.561-A, Cr. P. C. had called in question orders of courts below whereby Iris application for custody- of vehicle in question was dismissed---Vehicle in question was. neither stolen property nor same was involved in any criminal case---Only question was about the chassis number of vehicle in question, which was alleged to had been "cut and weld ", which was a matter needing further probe---Petitioner, prima facie, appeared to be a bona fide purchaser of the vehicle in question and the Excise Department had also transferred vehicle in his name---No other person had claimed the vehicle in question for the time being---Retention of vehicle in question in police possession for an indefinite period would mean nothing, but complete decay, deterioration and damage thereto which could not be allowed under any provision of law---Petition was accepted with direction that vehicle in question be handed over to petitioner on Superdari, accordingly.

Mahboob Khan v. The State 2003 YLR 791 rel.

Syed Hassam Qadir Shah for Petitioner.

Ch. Iftikhar .Ahmed, Assistant Director Public Prosecutor for the State.

Date of hearing: 7th March, 2007.

2007 Y L R 2670

[Lahore]

Before Sh. Javaid Sarfraz, J

MUHAMMAD SARFRAZ alias RIAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3019-B of 2006, decided on 3rd-July 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Pre-arrest bail, refusal of---Accused was duly nominated in the F.LR.---Allegation against accused was that he along with co-accused had committed Zina-bil-Jabr with victim girl---Medical report had shown that victim was subjected to zina---Accused, earlier was found involved in such like cases and be was convicted---Accused had committed same offence again, which 'was a heinous crime---Prima facie, accused appeared to be involved in the-case and mala fide on the part of prosecution had not been established by accused---Grounds for grant of pre-arrest bail were different from those of after arrest---Offence against accused fell within the prohibitory clause of S.497, Cr. P. C. ---No case for pre-arrest bail having been made out by accused, he did not deserve any discretionary relief from High Court.

Nemo for Petitioner.

Ch. Muhammad Saeed Iqbal Gujjar for the Complainant.

Muhammad Akram Minhas for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 2675 #

2007 Y L R 2675

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD JAFAR and others---Petitioners

Versus

Haji ZAKRTA BALUCH and another---Respondents

Civil Revision No.2668 of 2001, heard on 12th April, 2007.

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

----O.XIV, R.1---Qanun-e-Shahadat (10 of 1984), Arts.117, 120 & 130---Framing of issues---Onus to prove, fixing of --Scope--- ` Leading evidence---Procedure---Issues determine nature of onus and right of a parry to open evidence---Where onus to prove issue is on plaintiff he has right to begin---Where facts alleged by plaintiff are admitted by defendant or if otherwise the Trial Court places harden of issue on defendant, the defendant has the right to produce evidence first.

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

------O.XVIII, R.16---Evidence, recording out

of turn---Principles---On application and for reasons, like leaving court jurisdiction or "other sufficient cause" a witness (or a party) can seek and court on recording reasons of its satisfaction thereto, can allow recording of out of turn statement.

Mst. Rafia main Khawaja v. Messrs Orthopaedic and Medical Institute (Pvt.) Ltd. and another 1989 CLC 1138 rel.

----S.12---Civil Procedure Code (V of 1908), O.XVIII, R.16---Qanun-e-Shahadat (10 of 1984), Art.130---Evidence, recording out of turn---Production of evidence--- Order---Conceding statement---Opportunity of cross-examination---During recording of evidence of plaintiff, one of the defendants made conceding statement and on the basis of such statement, suit was dismissed---Judgment and decree passed by Trial Court was set aside by Appellate Court and the stilt was decreed in favour of plaintiff---Validity---Order of Trial Court and recording out of turn statement of defendant were acts beyond the scope of O.XVIII, R.16 C.P. C. ---Such order of Trial Court was a non-speaking order recording no reason or the cause to deviate from the normal and routine course of trial and same was patent mistrial of the suit--Trial Court on recording out of/ turn .statement of defendant tinder oath, did not give opportunity of cross-examination to any of the parties---Defendants had a vested right to cross-examine the defendant who made conceding statement---In absence of opportunity of cross-examination, conceding statement of the defendant had no evidentiary value and could be excluded from the record---Statement of the defendant could not have been read as evidence nor could it be dealt with on merits by arty of the subordinate courts---Trial Court could not have rejected the statement on its merits and Appellate Court was riot competent to consider and treat the same as admission' of the defendant in favour of plaintiff---Judgments and decrees passed by both the courts below were set aside and case was remanded to Trial Court for decision afresh---Revision was allowed accordingly.

Muhammad Hussain Awan for Petitioner.

Mian Mehmood Ahmad for Respondent No.1.

Ch. Zameer Bilal for Respondent No.2.

Date of hearing: 12th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2683 #

2007 Y L R 2683

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

ATIF ALI SHAHZAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3706-B of 2006, decided on 1st December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina. (Enforcement of Hudood) Ordinance (V/l of 1979), Ss.10(2) & 11---Bail, refusal of---Accused had committed a very heinous offence with a minor girl whom the complainant an her parents had engaged for tuition---Accused had not any lost the trust of fire complainant, but and completely destroyed the life of a minor girl by committing Zinabil-Jabr---Victim girl and fully implicated accused in that heinous offence by making statements under Ss.161, mid 164, Cr. P. C. ---Delay of 4/5 days in lodging of the F.I.R. in such cases was not fatal to the prosecution case as the people naturally avoid rushing to the police station in the ,first instance, because of the family honour; and usually make attempts to recover their victim---Offence against accused fell within the prohibitory clause of S. 497, Cr. P. C. ---Accused had been fully involved in a heinous offence, which was not only the offence against victim, but also against the society and such like people did not deserve to be granted bail in exercise of the discretionary powers under S.497, Cr. P. C. --Challan had also been submitted in the court and case had keen fried for evidence---Bail petition was dismissed, in circumstances.

Akhtar Ali v. The State 2004 PCr.LJ 1841 rel.

Peer Muhammad Asif Rafi for Petitioner.

Malik Muhammad Mumtaz for the Complainant.

2007 Y L R 2689

[Lahore]

Before Fazal-a-Miran Chauhan, J

MUHAMMAD KHALIL---Appellant

Versus

SHABINA SHEHZADI and 5 others---Respondents

Regular Second Appeal. Case No.9 of 2000, decided on 14th June, 2007.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Civil Procedure Code (V of 1908), O. VIII, R.1---Agreement to sell---Proof-'-Pleadings---Evidentiary value---Non-appearance of defendant in Court to support written statement---Effect---Suit filed by plaintiff was concurrently dismissed by both the Courts below---Plea raised by plaintiff was that defendant in her written statement admitted execution of agreement in favour of plaintiff---Validity---Conceding written statement had no binding force under the law as defendant did not appear in Court to admit contents of written .statement---Plaintiff also failed to prove execution of agreement to sell by producing two marginal witnesses---Defendant. having not appeared to support her version in written statement, the same could not be treated as an evidence in the case---Plaintiff failed to prove on record that agreement to sell was executed by defendant in his favour and it had created any right, title or interest in him- for specific performance of which the suit led by him could be decreed---High Court declined to .interfere with concurrent findings of fact by the Courts below---Second .appeal was dismissed in circumstances.

Jehangir Pheroz-show Dubash and another V. Hoshang Homi Broacha and 2 others PLD 1972 Kar. 74; Haji Abdullah and 10 others v. Yahya Bakhtiar PLD 2001 SC 158; Atiq-ur-Rehman through (real father) and another v. Muhammad Amin PLD 2006 SC 309 and Mst. Khair-ul-Nisa and 6 others v: 'Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 ref.

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

----Ss. 12 do 27(b)---Transfer of Property Act (IV of 1882), S.41---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Civil Procedure Code (V of 1908), S.I00---Specific performance of agreement to sell---Bona fide purchaser for consideration without notice---Onus to prove---Shifting of onus---Defendant entered in witness box and deposed that he had no knowledge of previous agreement executed in favour of plaintiff---Both the Courts below concurrently dismissed the suit and appeal filed by plaintiff---Validity---When party on whom ,burden of proof was placed, entered into witness box and deposed that he had no knowledge of a fact, the burden of proof shifted on the other parry to prove otherwise---After recording statement of defendant that he had no knowledge of previous agreement to sell, the onus shifted to plaintiff to show that defendant had knowledge of prior agreement executed between plaintiff and the seller---Plaintiff failed to discharge onus by not producing any evidence to show that defendant had knowledge of prior agreement to .sell and was not bona fide purchaser without notice--Plaintiff also failed to prove that defendant was not protected by S.41 of Transfer of Property. Act, 1882, and S.27 of Specific Relief Act, 1877---Issues were rightly decided by both the Courts below against plaintiff---Second appeal was dismissed in circumstances.

----S.17---Arbitration without intervention of Court---Award not made rule of Court---Evidentiary value---Any award made without intervention of Court has no legal existence nor it is capable of holding any right, title or interest to any party unless made rule of Court---Award not made rule of the Court is inadmissible in evidence---Award becomes decree only when the same is presented before Court of law and is made rule of the Court after inviting objections on the' same by the Court---Any award not made rule of the Court cannot operate to create any right, title or interest for the purpose---Such award has no binding force and is of no legal effect and cannot be produced in evidence and if produced has no evidentiary value.

Wali Muhammad and others v. Mt. Pano and others AIR 1960 Pat. 128; Sia Kishori Kuer and others v. Bhairvi Nandan Sinha and another AIR 1953 Pat. 42; Lachhuman Singh v. Makar Singh and others AIR 1954 Pat. 27 and Rameshwar Sahu v. Emperor AIR 1928 Pat. 253 rel.

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

----S.100---Second appeal---Scope---Second .appeal does .not lie on question of fact---High Court is bound by .findings on question of fact arrived at by both the Courts below---Findings of fact of both the Courts below, which are supported by evidence on record, such findings cannot be questioned and interfered with while exercising power under S.100, C. P. C. in second appeal.

Zafar Iqbal for Appellant.

Malik Noor Muhammad Awan and A.G. Tariq for Respondents.

Date of hearing: 9th May, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2698 #

2007 Y L R 2698

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

NASEER AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1015 of 2002 and Murder Reference No.516 of 2002, decided on 28th March, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)--Appreciation of evidence---No body had seen the occurrence---Statement of one prosecution witness about having seen the accused carrying blood-stained Bughda in an open place just after the murder of the deceased was. not.-supported by the other witness---Even otherwise, according to prosecution said Bughda, weapon' of offence, had been recovered on the pointation of accused one" day before the grant of remand of accused to the police by the Magistrate for recovery of the same---Recovery of weapon of offence, thus, was brushed aside---Both the aforesaid witnesses were also the .witnesses of the conspiracy allegedly hatched by the widow of the deceased and the accused for the murder of the deceased, but only .one witness had supported the prosecution in this respect also---Presence of the said witnesses at 3 a.m. in front of the house of the deceased was highly improbable and it could not be expected from a same person that he would conspire about the murder in an open place. so loudly that a passer-by could hear the conversation---Conviction of accused could not be based for a capital offence on the solitary statement of a witness which was neither convincing nor plausible---Accused was acquitted accordingly.

Aftab Ahrnad Bajwa and Rana Muhammad Arshad Khan for Appellant.

Ijaz Ahmad Chadhar for the Complainant.

Abdul Qayyum Anjum for State (in Murder Reference No.516 of 2002).

Mrs. Tehsin Irfan for the State (in Criminal Appeal No.1014 of 2002).

Date of hearing: 28th March, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 2702 #

2007 Y L R 2702

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD AZAM---Appellant

Versus

MUHAMMAD AZAM SAROYA and 4others-Respondents

Writ Petition No.18627 of 2005, decided on filth October, 2006.

Civil Procedure Code (V of 1908)---

----O.IX, R.7---Constitution of Pakistan. (1973), Art.199---Constitutional petition---Setting aside of ex parte proceedings---Requirements---Ex parte proceedings can be set aside if the litigant is successful in .showing good cause for his absence-- Defendant having failed to establish good sufficient reasons for, his non-appearance, ex paste proceedings against him could not be set aside---Trial court and revisional Court had concurrently passed their findings on the factual controversy---High Court would not interfere in exercise of constitutional jurisdiction in the concurrent findings of courts below.

Mst. Salma Begum v. Mst. Sardaran Bibi PLD 1995 SC 406; Dumas Coal Company v. Akbar Khan 1987 SCMR 1821 and Shafiq-ur-Rehman v. Muhammad Ashraf and others 1990 CLC 1806 ref.

Sh. Suhail Shakoor, Advocate for the Petitioner.

Respondent No.3 in person.

Mr. Muhammad Anwar Akhtar for Respondents Nos. 4 & 5;

YLR 2007 LAHORE HIGH COURT LAHORE 2704 #

2007 Y L R 2704

[Lahore]

Before Asif Saeed Khan Khosa, J

ASIM alias KALOO and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.449-B of 2007, decided on 2nd April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Occurrence had taken place during night and according to F.I.R. alleged murder had remained unwitnessed--Both accused had not been nominated in the F.I.R. in any capacity whatsoever, but their names had surfaced in the case for the first time after three .days of the alleged occurrence, through an application submitted by the complainant before the local police---Accused though had been introduced by the complainant as co-culprits of accused nominated in the F.I.R., but in said application no reason had been disclosed by the complainant as to how he had come to know regarding involvement of accused in the alleged murder along with their nominated co-accused---Ng identification test parade had been held in the case so as to facilitate eye-witnesses to identify accused as culprits who had statedly been seen by said eye-witnesses committing alleged murder along with their co-accused---Only piece of evidence available against accused on the record was the last-seen evidence provided by a prosecution witness who had made his first statement before Investigating Officer after more than three months of the alleged occurrence---Case .against accused called for further inquiry into his guilt---Accused, in circumstances was to be admitted to bail as of right and not by way of grace or concession---Accused was admitted to bail, in circumstances:

Ibrahim v. Hayat Gul and others 1985 SCMR 382 ref.

Aftab Ahmed Bajwa for Petitioners.

Muhammad Siddique, Deputy Prosecutor-General for the State with Asif Iqbal, S.I. with record.

Faisal Mehmood Khan for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 2706 #

2007 Y L R 2706

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD SADIQ---Petitioner

Versus

MUHAMMAD YOUSAF and 4others---Respondents

Civil Revision No. 1982 of 2006, heard on 6th March, 2007.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Plaintiff and defendants were brothers and sisters inter se---Plaint averred that disputed property was purchased by parties jointly but sale-deed was not executed instead a power of attorney was taken in the name of defendant who was the eldest in the family---Declaration was sought to the effect that sale of disputed property by defendant in favour of his wife was based on fraud---Defence set up by defendant was that his wife had purchased suit property out of her own resources and sale-deed was executed in her favour under the instructions of principal original owner of property---No explanation was given as to why in presence of a willing vendor and willing purchaser a direct sale-deed was not executed in favour of lady by original owner---Stand of defendant was belied by witness---Even wife of defendant did not enter witness box either to confirm purchase of suit. property or to depose about her financial resources out of which she purchased property in question---Medical report relied upon by defendant for non-appearance of lady had not been proved--Sixty years possession of plaintiff over suit property was not disputed---Allegation that plaintiff had forcibly taken possession of suit shop was neither pleaded in written statement nor defendant satisfied to this effect when he appeared as witness---Courts below had not examined such material aspects of case and proceeded simply on ground that plaintiff had failed to prove his assertion that lady was merely a benami owner of suit property---Impugned judgments and decrees being not legally sustainable, were set aside.

Ch. Ghulam Mustafa Shahzad for Petitioner.

Riaz Ahmad for Respondents Nos.1, 4 and 5.

Ch. Muhammad Imtiaz Bajwa for Respondents Nos.2 and 3.

Date of hearing: 6th March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2709 #

2007 Y L R 2709

[Lahore]

Before Ijaz Ahmad Chaudhry and M.A. Shahid Siddiqui, JJ

SULTAN AHMAD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1923 of 2001, Criminal Revision No. 888 of 2001, and Murder Reference No.834 of 2001, heard on 16th January, 2007.

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

----S. 302(b)/34---Appreciation of evidence---Promptly lodged F.I.R. contained the name of the accused with the specific role of causing fire-arm injuries on the chest and other parts of the body of the deceased---Eye-witnesses though related to the deceased had no enmity with the accused, who were residents of the same locality and their presence at the scene of occurrence was not doubtful---Incident having taken place in broad-daylight between parties related to each other, misidentify of accused was out of question---Ocular account inspired confidence which. was sufficient to connect the accused with the offence without being. corroborated by any other evidence---Medical evidence had supported the ocular version---Motive was proved against accused---Crime empties secured from .the spot had matched with the gun recovered from the accused---Non-mentioning of crime empties in inquest report could not belie the recovery as lapses on the part of Investigating Officer could not be used to contradict the prosecution evidence of unimpeachable character---Accused had made repeated fire shots at the deceased hitting on different parts of his body---No mitigating circumstance for awarding lesser sentence was available in favour of accused---Conviction and sentence of death of accused were affirmed in circumstances.

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

----S.302(b)/34---Appreciation of evidence--Related witnesses--- Principles---Relationship of eye-witnesses inter se and with the deceased is not sufficient to discard their evidence or to term. them as interested witnesses, unless previous enmity between the parties is proved on record.

----S.302(b)/34---Appreciation of evidence---Recovery of crime empties not mentioned in inquest report---Lapses of Investigating Officer could not be used to contradict prosecution evidence---Non-mentioning of crime empties in the inquest report does not make the .recovery of the same doubtful---Lapses on the part of Investigating Officer cannot be used to contradict the prosecution evidence of unimpeachable character.

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

------S.302(b)/34---Appreciation of evidence-Accused was not named in F.I. R. ---Prosecution witnesses in their supplementary statements had stated that the unknown person mentioned in their statements under Ss.154 & 161, Cr: P. C. was actually the present accused---Description of accused was not given. in the said statements by the witnesses---Identification parade had been conducted after 2-1 /2 months of the occurrence---Recovery of the gun from the accused was in violation of 5.103, Cr. P. C. ---Crime empties collected from the spot were not sent along with the weapon recovered from the accused the Forensic Science Laboratory, report of which-was only to the effect that. the weapon was in working condition---Said weapon was not established to have been used during the incident---Accused was given benefit of doubt and acquitted in circumstances.

Zahid Hussain Khan for Appellants.

Syed Imdad Hussain Hamdani for the Complainant.

Maqbool Ahmad Qureshi, Badar Munir Malik and Abdul Majeed Chishti for the State (in Murder Reference No.834, Criminal Appeal 1923 .and Criminal Revision 888 of 2001).

Date of hearing: 16th .January, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2717 #

2007 Y L R 2717

[Lahore]

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

Mian MAQBOOL AHMAD through his Legal Heirs---Appellants

Versus

Malik MUHAMMAD IJAZ---Respondent

R.F.A. No. 515 of 2005, decided on 10th April, 2007.

Civil Procedure Code (V of 1908)---

----O.IX, R.13, O.XXXVII, Rr.2 & 3---Ex parte decree against legal representatives of deceased defendant in a recovery suit based on promissory note---Application for setting aside ex parte decree was accepted by Trial Court subject to furnishing bank security or cash deposit of the amount equal to suit money---Validity---Record revealed that leave to appeal/defend the suit was originally granted at the behest of deceased defendant subject to furnishing of surety bond and he had complied the order in this behalf---Appellants stepped into the shoes of their predecessor and could not be required to furnish bank security or cash deposit by reviewing the. earlier accomplished order of furnishing surety bond by the original defendant was harsh that appellants who were not the executants of the promissory note/receipt and had not consumed the alleged advanced amount were burdened with the liability of cash deposit of the suit amount whereas original defendant was granted leave to defend suit subject to furnishing a surety bond in suit amount only---High Court, in circumstances, allowed the application for setting, aside ex parte decree as already had been allowed by Trial Court but without any condition---Appeal was accepted accordingly.

Hafiz Khalil Ahmad for Appellants.

Muhammad Irfan Malik for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 2720 #

2007 Y L R 2720

[Lahore]

Before Khawaja Muhammad Sharif, J

SHERAZ QAMAR alias TIPU---Petitioner

Versus

THE STATE---Respondents

Criminal Miscellaneous No.2617-B of 2005, decided on 25th April, 2005.

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

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further enquiry---F.I.R. revealed that accused who was present at the spot, caugh hold of deceased and later on two co-accused also caught hold of deceased and other co-accused caused single injury on the person of . deceased---Seven accused were named in F.I.R.---Accused along with other co-accused, had been placed in the ,Column No.2 of the challan---No injury 'was attributed to accused---Case of accused being of further inquiry, he was admitted to bail.

M.A. Zafar for Petitioner.

Naseem Sabir for the State.

Farid Ahmad, S.I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 2721 #

2007 Y L R 2721

[Lahore]

Before Muhammad Akhtar Shabbir, J

SOHAIL HAMEED BUTT---Appellant

Versus

NAEEM AHMED RANA and another---Respondents

F.A.O. No.149 of 2004, decided on 20th March, 2007.

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

----O. XXXIX Rr.1 & 2---Specific Relief Act (I of 1877), Ss.8 & 12---Transfer of Property Act (IV of 1882), S.52---Suit for possession/specific performance of agreement to sell with the averments that date of performance of agreement to sell had been extended by defendant and that plaintiff was ready to perform his part of contract---Plaintiff also fled an application under O.XXXIX Rr.1 & 2, C.P.C. to restrain defendant from alienating the suit property which was dismissed by Trial Court--Validity---Lipendens, doctrine of---Applicability---Extension of time was disputed by defendant---Issues as to whether tune was of the essence of contract and date of performance was extended by defendant or not, were to be determined by trial Court---Fact that plaintiff approached defendant for performance of Ills part of contract was not established nor he issued any notice to defendant Housing Authority that he was ready and willing to do the needful---Unless an agreement to sell is established or adjudicated upon by a Court of competentjurisdiction in favour of plaintiff; it gives no title or right' to plaintiff---Defendant being the owner of property, had every right to dispose of leis property if plaintiff failed to perform the agreement to sell---Out of total consideration amount of Rs. 1,35,00,000 only Rs.10,00,000 was paid as earnest money---Held, on basis of this meagre amount plaintiff was not entitled for grant of injunction----Law leans in favour of person who is in possession of property in dispute---In the present case possession of property had not been delivered by defendant, thus, no balance of convenience leans in favour of plaintiff---In case defendant transfer suit property to subsequent vendee during pendency of the lis, doctrine of lis pendence would carne into play to safeguard the rights of plaintiff.

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

----O. XXXIX Rr.1 & 2---Temporary injunction, grant of---Essentials---Litigant entitled for grant of injunction has to establish three requirements of law i. e. prima facie case; balance of convenience and irreparable loss---If any of three requirements is missing the litigant/plaintiff is not entitled to grant of temporary injunction.

A.W. Butt for Appellant.

Muhammad Saleem Chaudhry-I, for Respondent No.1.

YLR 2007 LAHORE HIGH COURT LAHORE 2723 #

2007 Y L R 2723

[Lahore]

Before Sh. Javaid Sarfraz, J

SULTAN AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5665-B of 2006, decided on 5th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Offence against accused being punishable with imprisonment of three years, did not fall within the prohibitory clause of S.497, Cr. P: C. ---Bail should be granted to accused a~ a rule, while refusal would be an exception ---Challan had also been sent to the court, but no progress had been made in the case and it would take a long time before the trial was concluded and till then remaining of accused behind the bars, would amount to punishment, which was not permissible under the law---Bail was allowed to accused, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

M. A. Zafar for Petitioner.

Malik Sahib Khan Awan for the State with Mehr Ali Chaudhry, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 2729 #

2007 Y L R 2729

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD SAFDAR and 5 others---Petitioners

Verses

Mirza EHSAN ULLAH BAIL---Respondent

Civil Revisions Nos.2500 and 2499 of 2005, beard on 20th June, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Transfer of Property Act (IV of 1882), S.54---Declaration of title---Oral sale---Proof---Plaintiffs claimed that suit property was purchased by their father vide- an oral sale---No detail of sale i.e. time, date or place or names of witnesses in whose presence it was effected was mentioned by plaintiffs---Even witnesses of plaintiffs had riot detailed the necessary ingredients of sale---Trial Court and Appellate Court dismissed the suit and appeal respectively---Validity---In absence of any documentary evidence a sale through oral means could only be established through unimpeachable and definite exactitude of all minor details which were missing---Plaintiffs had failed to establish their case---High Court declined to interfere with concurrent judgments and decrees passed by two courts below---- Revision- was dismissed its circumstances.

Malik Amjad Pervaiz for Petitioners.

M. Farooq Qureshi Chishti for Respondent.

Date of nearing: 20th June, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2731 #

2007 Y L R 2731

[Lahore]

Before Khawaja Muhammad Sharif, J

AMJAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1420 of 2003, heard on 10th February, 2005.

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

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Case against accused rested only on evidence of last seen and evidence of recoveries---Accused having no motive to kill the deceased, could not join hands with the acquitted accused---Prosecution witness despite being closely related to the complainant had not informed him for a very long time about having seen the deceased in the company of accused, nor did he plausibly explain the said lapse on his part and thus, he could not be relied upon---Hatchet and knife recovered from the accused were neither blood-stained, nor the same were sent to Chemical Examiner or 'the Serologist for Expert opinion---Occurrence was unseen and no tangible evidence had come on record against the accused---Two co-accused having already been acquitted by trial Court on the evidence available on record, same evidence could not be used for conviction of accused without independent corroboration, which was lacking in the case---Prosecution had failed to discharge its duty to prove the case against accused beyond reasonable doubt, benefit of which hart to go to accused---Accused were acquitted in circumstances.

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

----S. 302 (b)---Appreciation of evidence---Principles---Acquittal and conviction on the same evidence---Where on the basis of same evidence some accused have been acquitted, Then the testimony of the same witnesses for conviction of other accused must be corroborated by some independent evidence.

----S. 302(b)---Appreciation of evidence---Last seen evidence---Nature---Evidence of last seen is a weak type of evidence and conviction cannot be based on such evidence.

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

----S. 302(6)---Burden of proof---Prosecution has to prove its case and it cannot derive benefits from evidence produced or pleas taken by defence, even if the same were not proved during the trial.

Ch. Saeed Ashraf Warraich for Appellants.

Maqbool Ahmad Qureshi for the State.

Ch. Muhammad Lehrasap Khan Gondal for the Complainant.

Date of hearing: 10th February, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 2735 #

2007 Y L R 2735

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD YOUSUF and 2others---Petitioners

Versus

MUHAMMAD ALAM USMANI and others---Respondents

Civil Revision No.370 of 2003, decided on 29th June, 2007.

Specific Relief Act (I of 1877)---

----S.42---Transfer of Property Act (IV of 1882), S.41---Civil Procedure Code (V of 1908), O.XIV, R,1---Declaration of title---Transfer by ostensible owner---Issues nut framed correctly---Effect---Suit filed by plaintiff was decreed in his favour and appeal filed by defendants was dismissed by Appellate Court---Defendants raised the pleas that. they were bona fide purchasers for consideration under S.41 of Transfer of Property Act, 1882, and issues were net properly framed---Validity---Defendants were required to be careful in ascertaining the correct title of their vendor but they did not examine the title nor consulted the record vis-a-vis, the .general power of attorney---Defendants failed to inquire from the plaintiff, in this behalf before entering into sale---Suit land had been sold to the last owner for a consideration of Rs. 2, 20, 000 and within six months was sold to defendants , for a total sum of Rs. 8, 25,000---Such sale to 'defendants rendered proof that, they were not bona .fide purchasers for consideration and were fully ativare of the defective title of seller---Defendants could not claim better title than that possessed by their vendor---Defendants failed to point out as to what issues were required to be framed arising out of the controversy---Even if some issues ,were not correctly framed or happily worded, when evidence -had come ort record on the controversy no prejudice was caused to defendants---Defendants failed to point out any misreading or non-reading of evidence---Concurrent findings of fact by the courts below, did not call for interference---Revision was dismissed in circumstances.

Fida Muhammad v. Pir Muhammad Khan deceased through legal heirs and others PLD 1985 SC 341; Mst. Shumal Begum v. Mst. Guhar Begum and 3 others 1994 SCMR 818 and Haji .Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 ref.

Mehr Din (represented by his legal heirs) v. Dr. Bashir Ahmad Khan and 2 others 1985 SCMR 1 rel.

Jehangir Ahmad Jhoja for Petitioners.

Ahmad Waheed for Respondents.

Date of hearing: 19th June, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2738 #

2007 Y L R 2738

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, J

TAHIR ABBAS---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No. 1083 and Murder Reference No.357 of 2002, heard on 15th February, 2005.

Penal Code (XLV of 1860)---

---S. 302(b)---Appreciation of evidence---Benefit of doubt---Complainant, real brother of deceased, alone had furnished the ocular account of occurrence, who was chance witness being a resident of twenty miles away from the village of occurrence---Explanation offered by complainant of his visit to the house of deceased and having seen the incident, was not satisfactory and he could not be safely relied upon---ether three eye-witnesses of the case had refused to support the complainant---Further it was complainant alone who had deposed about motive, but had admitted that he was not present during the motive incident--Ocular testimony being unsatisfactory, medical evidence could not be used to corroborate the .same---No crime empty having been recovered from the spot, recovery of pistol was inconsequential, because in the absence of matching report of the Expert the weapon could not be said to have been used in the occurrence---Benefit of doubt was extended to the accused in .circumstances and he has acquitted accordingly.

Ejaz Ahmad Chadhar for Appellant.

Mian Abdul Qayyum Anjum far the State.

Date of hearing: 15th. February, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 2747 #

2007 Y L R 2747

[Lahore]

Before Maulvi Anwarul Haq, J

ADIL MOHY-UD-DIN KHAN and another---Petitioners

Versus

Mst. TAJAMAL SHEREEN alias TAJAMAL BEGUM and others---

Respondents

Civil Revision No.04 of 2007, heard an 27th June, 20007.

Islamic-Law---

----Inheritance---Residuary---Daughter of pre-deceased brother---Owner of suit property was an issueless lady and. respondent was daughter of 'her pre-deceased brother---After passing of final decree in suit for partition of the estate left by the owner after her death, respondent filed an application under S.12 (2) C.P.C. for setting aside of decree---Trial Court set aside the decree on the ground that respondent was entitled to inherit the estate of deceased owner as a residuary--- Validity---Such finding of Trial .Court was not only against the express provisions of the Holy Quran governing succession to estate of the lady but was also violative of all available text on 'the subject---High Court set aside the order passed by Trial Court and dismissed the application under S.12 (2) C. P. C. ---Revision was allowed in circumstances---Civil Procedure Code (V of 1908), S.12(2).

Irshad Ahmad Cheema for Petitioners.

Tariq Ali Jathol for Respondent No.1.

Gohar Siddique for Respondents Nos.2 to 4.

Ijaz Feroze for Respondents Nos. 9 and 11 to 15.

Umar Khan and Jamil Ahmad Khan for Respondents Nos.31 and 32.

Remaining Respondents ex parte.

Date of Bearing: 27th June, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2749 #

2007 Y L R 2749

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

MUHAMMAD ASHFAQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.462 and Murder Reference No.148 of 2000, heard on 3rd February; 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Eye-witnesses, .despite being real brothers of the, deceased were not only inimical and interested witnesses, but they were also chance witnesses and their testimony could not be accepted without independent corroboration---Possibility of consultation and deliberation could not be ruled out in making the report to the police after a delay of five and half hours of the occurrence, in the absence .of any satisfactory explanation for the same---Eye-witnesses, therefore, were riot readily believable---Although the deceased had lived for about 15 days after the incident, yet his dying declaration about the occurrence had not been recorded, which too had raised suspicion against the prosecution version---Medical evidence did not fully support the ocular testimony---Motive was too remote to connect the accused with the murder of the deceased---Recovery of pistol was inconsequential as according to the report of Forensic Science Laboratory it was not in working order---Accused was acquitted on benefit of doubt in circumstances.

Syed Zahid Hussain Bokhari for Appellant.

Syed Fazal Hussain Jaffery for the State.

Date of hearing: 3rd February, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 2754 #

2007 Y L R 2754

[Lahore]

Before Sh. Hakim Ali, J

ASGHAR ALI---.Appellant

Versus

AHMED ALI and others---Respondents

R.S.A. No.75 of .2002, decided on 5th June, 2007.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Non-joinder of necessary parties---Effect---Appellant had shown careless attitude, as he was too negligent in the process of constitution and preparation of memorandum of appeal that he left over nor only one respondent but three respondents at a time---When application was moved for impleadment of legal representatives of one deceased respondent, appellant should have been vigilant to file application for impleadment of other respondent who was left over from array of respondents---Such was a case of clear neglect and carelessness and not a bona fide act of appellant himself---Appeal having not been properly constituted same was dismissed.

Muhammad Sher v. Muhammad Khan PLD 1975 Lah. 1016; Mst. Maqbool Begum and others v. Gullan and others PLD 1982 SC 46 and Muhammad Sher v. Muhammad Khan PLD 1975 Lah. 1016 rel.

Muhammad Nazir Janjua for Appellant.

Syed Dilawar Hussain Bukhari for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2756 #

2007 Y L R 2756

[Lahore]

Before Khawaja Muhammad Sharif, J

NOOR KARIM and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.1771 and 399-J of 2002, heard on 11th February, 2005.

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

----Ss. 302(c)/308---Appreciation of evidence---Deceased according to medical evidence had only one fire-arm injury on his body wherefrom broken piece of pellet was recovered---Existence of blackening and tattoing on the wound was not ,fatal to the prosecution case---Accused- had the motive to commit the murder of the deceased---Eye-witnesses had fully implicated the accused in the-case and he was also found guilty by the police---Gun had been recovered from accused---Medical evidence had supported the ocular version--Conviction and sentences of imprisonment awarded to accused were maintained ire circumstances---However, payment of Diyat amount to the legal heirs of the deceased being mandatory under section 308, P. P. C. , accused was directed to pay the same, which was prevalent on the day of occurrence---Compensation payable by accused was aside---Appeal was dismissed accordingly:

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

---S. 302(b)---Appreciation of evidence---Benefit of doubt---No incriminating recovery was effected from the accused, who according to police officer war empty handed at the spot---Co-accused alone was found to have committed the murder of the deceased---Accused was given benefit of doubt and acquitted in circumstances.

Azam Nazir Tarrar for Appellants (in Criminal Appeal No.1771 of 2002)

Muhammad Sharif Cheema for Appellants (in Criminal Appeal No.399/J of .2002)

Syed Hassam Qadir Shah for the Complainant.

Miss Tasneem Amin for the State.

Date of hearing; 11th. February, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 2764 #

2007 Y L R 2764

[Lahore]

Before Muhammad Muzammal Khan, J

GHULAM FARID-Appellant

Versus

ADDITIONAL DISTRICT JUDGE, T.T. SINGH and 2 others---Respondents

F.A.O. No.4 of 2006, decided on 26th June, 2007.

Civil Procedure Code (V of 1908)--

----Ss. 47, 145 & O.XXXVII, R. 3---Qanune-Shalzadat (10 of 1984), Art.129 (e)---Execution of decree---Liability of surety---Conditional leave to defend the suit---Judicial acts and functions---Presumption---Plaintiff sought recovery of money on the basis of pro note---Trial Court granted conditional leave to defend the suit subject to furnishing of surety bond---Appellant executed surety bond in favour of defendant---Defendant absented from the proceedings during the trial, and after passing ex parte proceedings, the suit was decreed ex parte---In execution of ex parte decree, order was passed against appellant as he had undertaken to pay the decretal amount--- Validity--- Appellant, besides giving surety bond to place of defendant, got his own statement recorded before Trial Court undertaking responsibility of payment of decretal amount in case suit of plaintiff was ultimately decreed---Judicial proceedings could not be belied / dispelled except through any ' solid proof---Presumption of regularity / correctness was attached. to judicial proceedings---Land of appellant was attached in execution of a money decree and no legal / factual defect could be pointed out in the proceedings so taken---Appellant could not absolve himself of the liability undertaken by him on the basis of mere bald and unfounded assertions---Controversy was correctly put to rest by the Trial Court without committing any error of law / facts---High Court declined to interfere with the order passed by Executing Cowl-Appeal was dismissed in circumstances.

C.M. Sarwar for Appellant.

Ch. Ijaz Ahmad for Respondents Nos.2 and 3.

YLR 2007 LAHORE HIGH COURT LAHORE 2766 #

2007 Y L R 2766

[Lahore]

Before M.A. Shahid Siddiqui, J

BADAR UR ISLAM---Petitioner

Versus

DISTRICT POLICE OFFICER, FAISALABAD and 3 others---Respondents

Writ Petition No.7375 of 2005, heard on 1st December, 2005.

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

----S. 406---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Complainant being a property dealer had simply brought the parties in contact to negotiate a deal. in respect of a house and he had no personal interest in the transaction, except that the accused besides committing breach of agreement had not returned the earnest money to the purchaser---Purchaser had /wither initiated any action against the complainant nor against the accused and he was never associated with the investigation of the case---Record did not reflect any grievance of the purchaser---Complainant appeared to have got the case registered with an ulterior motive---Even otherwise, part payment of Rs.1,00,000 to the accused of the sale price could not be termed as "entrustment" within the meaning of section 406, P.P.C.---Allegation levelled by the complainant was only a breach of contract for which the purchaser alone might approach the Civil Court---Breach of contract could not be allowed to be made a basis for criminal prosecution---Case being purely of civil nature, registration of criminal case was illegal and continuance of criminal proceedings would amount to abuse of process of law---High Court in exercise of its powers under Article 199 of the Constitution and also under section 561-A, Cr.P.C. was competent to quash the F.I.R. at any stage of the proceedings---Impugned F.I.R. as well as the consequential proceedings pending before the trial Court were quashed in circumstances-- Constitutional petition was accepted accordingly.

1994 SCMR 798 and 2002 SCMR 1076 ref.

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

----Art. 199---Criminal Procedure Code (V of 1898), 5.561-A---Jurisdiction----Quashing of F.I.R. at any stage of proceedings---High Court in exercise of its constitutional jurisdiction under Art.199 of the Constitution and also under section 561-A, Cr. P. C. has ample powers to quash the F.I.R. as well as the proceedings emanating there from pending in the Court irrespective of the stage of proceedings.

1994 SCMR 798 and 2002 SCMR 1076 ref.

Syed Nisar Ali Shah for Petitioner.

Zafar Iqbal Awan, Addl.A.-G. for the State with Mubarak Ali, S.-I.

Muhammad Jahangir Wahla for the Complainant.

Date of hearing: 1st December, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 2769 #

2007 Y L R 2769

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

GHULAM MUHAMMAD---Petitioner

Versus

ATTA MIUHAMMAD and 2 others---Respondents

Civil Revision No.832/A of 2003, heard on 22nd June, 2007.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), 5.115---Specific performance of agreement to sell---Concurrent findings of fact by the Courts below---Misreading and non-reading of evidence---Our of five witnesses produced by plaintiff in support of his claim, petition writer was facing criminal trial on the charges of fabricating false and bogus document and evidence of other witness was also not convincing and confidence inspiring---Trial Court and Appellate Court dismissed the suit and appeal respectively, filed by plaintiff---Validity---Plaintiff failed to prove that defendant had agreed to sell suit-land. in his favour---Judgment passed by Appellate Court was well reasoned and there was no illegality or infirmity in the same---No misreading or non-reading of evidence having been noticed, therefore, there was no justification to disturb concurrent findings recorded by the Courts below--- Revision was dismissed in circumstances.

Sh. Naveed Shaharyar for Petitioner.

Muhammad Ali Selheri for Respondents.

Date of hearing: 22nd June, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2776 #

2007 Y L R 2776

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD YOUSAF---Petitioner

Versus

DHUMMAN KHAN and 2 others---Respondents

Civil Revision No. 488 of 2000, heard on 16th May, 2007.

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

S. 13---Pre-emption suit---Talb-i-Muwathibat and Talb-i-Ishhad, performance of-Non-disclosing in plaint and evidence of pre-emptor as to when and where he got knowledge about sale---Effect---Assertions made in pleadings and evidence led thereafter lacked essential factual and legal test---Suit was dismissed in circumstances.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 fol.

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

----S. 115---Revision---Concurrent .findings of fact, if contrary to law, would lose. their sanctity and would be liable to be set aside.

Ch. Muhammad Din Ansari for Petitioner.

M. Baleegh-uz-Zaman Chaudhry for Respondents.

Date of hearing: 16th May, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2777 #

2007 Y L R 2777

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Sh. M. JAMIL---Petitioner

Versus

ADDL. SESSIONS JUDGE and others---Respondent

Writ Petition No. 11546 of 2006, decided on .31st October, 2006.

Criminal Procedure Code (V of 1898)---

S. 145---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability--- Remand order-Initiating proceedings under S. 145, Cr. P. C. ---Both parties had claimed their ownership upon the disputed premises-Police had reported that there were chances of breach of peace whereupon Magistrate initiated proceedings under S. 145, Cr. P. C. ---Additional Sessions Judge, in the case, had discussed in detail the facts and circumstances---Petitioner had admitted that respondent had claimed that he was in possession of the disputed property and he had also filed a civil suit in that regard, wherein status quo order had been passed by the Civil Court---Petitioner allegedly had violated the status quo order and application under Contempt of Court Act, 1976 had also been filed against him--Initiation of proceedings under S. 145, Cr.P.C., in circumstances, could not be said to be illegal---Additional Sessions Judge had only remanded the case to Judicial Magistrate for passing a fresh order after recording evidence of both the parties; consequently the matter was still open to the parties, who could produce evidence to refute the claim of other parry---Constitutional petition was not maintainable against remand order as the matter was still to be finally decided by the. court of competent jurisdiction and it could not he said that no other remedy was available to the petitioner---Constitutional petition being not maintainable,.,, was dismissed in circumstances. .

Muhammad Akram Javaid for Petitioner.

YLR 2007 LAHORE HIGH COURT LAHORE 2779 #

2007 Y L R 2779

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD and others---Petitioners

Versus

HASHMAT ALI and others---Respondents

Civil Revision No. 260-D of 1990, heard on 7th May, 2007.

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (IX of 1948)---

---Ss. 2 & 3---Inheritance---Death of widow of last Muslim male owner in year, 1950---Effect---Legal heirs of such widow would be entitled to inherit her Islamic share.

(b) Co-sharer--

----Every co-sharer/co-heir would be deemed to be in possession of joint property---In absence of plea of ouster-and its proof, possession of one co-sharer would not become adverse to other co-sharer not in actual possession---Principles. Every co-sharer or co-heir shall be deemed to be in possession of the joint estate or land, and similarly because any of the co-sharers, is not in an actual possession, the possession of other co-sharer, who is in possession, would not become adverse, unless a plea of ouster is taken and proved. According to law, the possession of those co-sharers, who are in possession will enure for the benefit of the co-sharers, who are not so in possession.

O XLI, R. 27---Additional evidence, production of, application for---Not explained as to why documents mentioned in application were not produced during trial---Validity---Findings on material questions had been recorded after evidence of parties---Observation of Revenue Officer made during mutation proceedings would not be relevant---High Court dismissed such application.

Khizar Abbas Khan for Petitioner.

Kh. Saeed-uz-Zafar for Respon?dents Nos.1 to 3.

Remaining Respondents. Ex parte.

Date of hearing: 7th May, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2782 #

2007 Y L R 2782

[Lahore]

Before Iqbal Hameed ur Rehman, J

MUHAMMAD AKMAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2769-B of 2006, decided on 7th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 337-A(i), 337-F(i), (ii)& (iii)---Bail, grant of---None of the offences with which accused was charged fell within prohibitory clause of S.497(1), Cr.P.C.---Accused was behind the bars for the last one and half years---Accused in circumstances being entitled to concession of bail, was admitted to bail.

Malik Javed Akhtar Wains for Petitioner.

Abdul Ghaffar Sial for the State with Muhammad Ayub, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 2789 #

2007 Y L R 2789

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SHAFIQUE and 3 others---Petitioners

Versus

Ch. MUHAMMAD HUSSAIN SINDHU and 4 others---Respondents

Civil Revision No. 1149 of 1992, heard on 13th June, 2007.

Islamic Law---

---Inheritance---Limitation, question of--Scope-Such question would not arise in inheritance cases.

Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447 fol.

Muhammad Masood Chishti for Petitioners.

Rana Nasrullah Khan for Respondents.

Muhammad Asif, Patwari, Halga Hajipura No.2, Sialkot, with records.

2007 Y L R 2800

[Lahore]

Before Syed Hamid Ali Shah, J

NOOR AHMED---Petitioner

Versus

ZULFIQAR ALI and others---Respondents

Civil Revision No. 2106 of 2006, decided on 1st June, 2007.

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

----S. 24-A--Transfer of suit---Transferor Court directing parties to appear in transfree Court on specified date---Effect---Transferee Court in such case would not be required to send formal notices to parties.

(b) Affidavit--

----Affidavit of counsel contrary to Court record would have no evidentiary value---Court record would have precedence.

Mian Shah Abbas for Petitioner.

Malik Munsif Awan for Respondent No.2.

YLR 2007 LAHORE HIGH COURT LAHORE 2802 #

2007 Y L R 2802

[Lahore]

Before Maulvi Anwarul Haq, J

ALI MUHAMMAD through L.Rs. and others-Appellants

Versus

FAZAL and 21 others---Respondents

Regular Second Appeal No.82 of 1999, heard on 12th June, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Transfer of Property Act (IV of 1882), 5.118---Suit for declaration---Plaintiff claimed to be owner in possession of suit-land on basis of oral exchange with defendant---Denial of plaintiff's claim by defendant---Proof---Revenue Record showed both parties to be in possession of each other's land since last more than 50 years--Oral evidence produced by parties supported plaintiff's claim---Suit was decreed in circumstances.

Abdul Majid Khan for Appellants.

Khan Zia Ullah Khan for Respondents.

Date of hearing: 12th June, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2804 #

2007 Y L R 2804

[Lahore]

Before Muhammad Khalid Alvi, J

ABDUL LATIF--Petitioner

Versus

MUHAMMAD ASHRAF and another---Respondents

Civil Revision No.646 of 2006, decided on 18th June, 2007.

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

----S.6---Civil Procedure Code (V of 1908) O.XLI, R.27---Pre-emption suit---Preemptor claimed to be Shaft -Shank---Dismissal of suit---Application under O.XLI, R.27, C.P.C. by pre-emptor contending that his father and mother were owners in suit Khata, who died before suit sale, thus, he became owner therein---Dismissal of such application and appeal by Appellate Court---Validity---Name of pre-emptor's father was mentioned in Jamabandi for suit Khata---Record did not show whether pre-emptor's father was alive or dead; whether he died prior to sale or after sale---Copy of such application was not placed on record to show as to what was the actual case of pre-emptor seeking permission to lead additional evidence---Findings of courts below regarding superior right of pre-emption could not be interfered with in such circumstances---High Court dismissed

revision petition.

Ch. Muhammad Aslam Zia for Petitioner.

Ch. Muhammad Rafique Warraich for Respondent No.1.

YLR 2007 LAHORE HIGH COURT LAHORE 2805 #

2007 Y L R 2805

[Lahore]

Before Sh. Hakim Ali, J

SHADA and another-Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.308/B of 2006/BWP, decided on 30th June, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302/148/149/337-A(i) (ii) (iii) (iv) (v)---Bail, grant of---Accused has allegedly given "Safi" blows to deceased, whereas according to post-mortem report deceased had died due to sharp-edged weapon injuries---Even no specific injury by "Soti blow was attributed to any accused on .any particular part of the body of the deceased---Accused were behind the bars for the last bow ten months, but the trial had not shown any progress---Guilt of accused required further probe---Accused could not be allowed to be rotted in jail for an indefinite period without material progress in the case---Bail was allowed to accused in circumstances.

Mehar Ahmad Sher Kathia, Abdur Rasheed Rashid and Tahir Saeed Khan for the Petitioners.

Malik Sadiq Mahmood Khurram for the Informant.

Mirza Muhammad Nadeem Asif for the State along with Said Ali, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 2807 #

2007 Y L R 2807

[Lahore]

Before Muhammad Jehangir Arshad, J

FAYYAZ AHMAD---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1225/B of 2005/BWP, decided on 17th February, 2006.

Criminal Procedure Code (V of 1898)--

----Ss. 497 & 156-B---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(2) & 11---Bail, grant of---Alleged abductee present in the court had in unequivocal terms confirmed her marriage with accused and denied her alleged abduction by any person including the accused---Photocopy of Nikahnama was also available on record, whereby marriage of accused with female co-accused had taken place---When alleged abductee/coaccused had admitted her Nikah with accused and denied allegation of complainant about her abduction and accused had been arrested without following the procedure as laid down in 5.156-B, Cr.P.C., accused were admitted to bail, in circumstances.

Muhammad Sharif Bhatti for Petitioners.

Abdul Rasheed Rashid for the Complainant.

Muhammad Nadim Asif for the State along with Sarfraz, S.-I.

2007 Y L R 2816

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD SHARIF Petitioner

Versus

Haji MUHAMMAD ASHRAF---Respondent

Civil Revision No.1817 of 2006,. heard on 7th March, 2007.

Civil Procedure Code (V of 1908)---

O. XXI, R.10 & 5.151---Specific Relief Act (I of 1877), S.12---Money , decree---Restoration of execution petition---Execution petition was dismissed on 3-10-2000 as withdrawn on statement of decree-holder that parties had reconciled and there was no necessity for any further proceedings against judgment-debtor---Decree-holder, after three years from' said withdrawal, filed an application for restoration of earlier execution petition which was dismissed on ground that decree had been satisfied---Appeal, was allowed---Validity---Decree-holder relying upon an agreement dated 30-9-2000 which was executed between him and the judgment-debtor contended that judgment-debtor had not complied with the said agreement therefore, decree-holder was entitled to execution of the earlier decree dated 1-4-1998---Contention raised by decree holder was misconceived---Even if it was accepted that agreement was entered into by judgment debtor this would not support the case of decree-holder---Alleged agreement could at most, be treated as satisfaction of the decree or it might have furnished a fresh cause of action to decree holder---If so, the decree-holder would have to enforce the agreement through a suit and not by means of execution proceedings-Application was allowed and impugned order was set aside by High Court.

Ch. Pervez Iqbal Gondal for Petitioner.

Rana Rashad Akram Khan for Respondent.

Date of hearing: 7th March, 2007.

2007 Y L R 2827

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD IJAZ GORAYA---Appellant

Versus

Mst. HAMEEDAN BIBI and others-Respondents

Regular Second Appeal No.206 of 2004 and C.M. No.1260-C of 2006, decided on 15th March, 2007.

Civil Procedure Code (V of 1908)---

----O. XVII R.3 & S.149---Dismissal of suit for non-production of evidence---First appeal dismissed for deficiency in court fee---Validity---Record revealed that in spite of several adjournments granted to appellant on his, request, appellant failed to produce his evidence and thus, he abused the process of Court; it was only thereafter that plaintiffs' right to produce evidence was closed and suit was dismissed by Trial Court---Upon dismissal of suit plaintiff filed an appeal on which requisite court fee was not affixed---Although an opportunity in this behalf was granted by First Appellate Court but the deficiency in court fee was not made up--Impugned judgment and decree of Trial Court as well as First Appellate Court were therefore, in accordance with law and no illegality therein had been pointed out by counsel for appellant---Appeal was dismissed by High Court with cost.

Ch. Anwar Khan for Appellant.

Arif Mahmood Chaudhry for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2828 #

2007 Y L R 2828

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ARSHAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6320/B of 2006, decided on 27th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 148, 149, 170, 171 & 109---Bail, grant of---Further inquiry---Occurrence in the case had taken place during night time and F.I.R. had been lodged with a noticeable delay---No specific overt act had been attributed therein to accused and accused was only present at the scene of the crime along with co-accused---Accused though was stated to be carrying weapon, but he had not caused any injury to any person---Accused was not directly connected with motive set up in F.I.R.---No weapon had been recovered from the possession of accused during investigation--Investigation had already been completed and Investigating Officer had recorded his opinion regarding innocence of,, accused---Challan prepared in connection l with the case, showed accused's name in Column No.2 thereof---Case against accused calling for further inquiry into his guilt within the purview of subsection (2) of S.497, Cr.P.C. he was admitted to bail.

Aftab Ahmad Bajwa for Petitioner.

Ishfaque Ahmad Chaudhry for the State with Allah Bakhsh, S.-I. with record.

Complainant in person.

YLR 2007 LAHORE HIGH COURT LAHORE 2829 #

2007 Y L R 2829

[Lahore]

Before Jawwad S. Khawaja, J

ALLAH DEWAYA and others---Petitioners

Versus

HAQ NAWAZ---Respondent

Civil Revision No. 651 of 2003, heard on 6th February, 2007.

Specific Relief Act (I of 1877)---

----S.42---Sale of land in excess of entitlement---Suit-land measuring 16 Kanals and 16 Marlas was owned by the original owner of Khata---Out of said land 8 Kanals 7, Marlas was purchased by predecessor of defendants vide mutation while the 8 Kanals of land was purchased by some other vendee vide mutation---Only 8 Marlas of land remained with the original owner of suit-land---Plaintiff claimed that out of the impugned ,khata further 1 Kanal and 8 Marlas was transferred in his favour vide sale mutation---Defendants alleged that original owner had sold land in excess of his entitlement to plaintiff so he filed a petition before Revenue Collector seeking review of relevant mutation---Petition for review was accepted---Question hanged for determination was, as to whether original owner of khata after having sold land to predecessor of defendants and said other vendee was left with sufficient title in the khata to justify conveyance of 1 Kanal 8 Marlas to plaintiff---Report of Tehsildar relied upon by Revenue Collector disclosed that original owner after having sold land to predecessor of defendants and said vendee was entitled to only 8/335 share in the Khata but due to an error on the part of revenue functionaries his entitlement was wrongly noted as 28/335---Such was the error which crept into Register Haqdaran for relevant year and relevant mutation was sanctioned in favour of plaintiff---Original owner of suit-land therefore could not have conveyed more than 8 Marlas and this fact was conceded by counsel for plaintiff--

Appellate judgment and decree were set aside and decree of Trial Court stood restored.

Malik Ejaz Hussain Gorchha for Petitioners.

Qazi Khurshid Alam for Respondent.

Date of hearing: 6th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2831 #

2007 Y L R 2831

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Syed IRFAN HUSSAIN SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.326/B of 2007 decided on 13th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497----Penal Code (XLV of 1860), Ss.337-A(i), (ii) & (iv), 337-F(1)---Application for grant of bail---Counsel for applicant/accused had opted not to press bail application on merits, but had only requested for direction to expedite the trial as applicant was behind the bars for .the last about 1-1/4 years, but not a single witness had been recorded---Bail application was dismissed, however the Trial Court was directed to conclude the trial within specified period.

M.A. Zafar for Petitioner.

Naeem Tariq Sanghera, Dy. P.G. for the State.

Ghulam Murtaza, A.S.-I. with the record.

YLR 2007 LAHORE HIGH COURT LAHORE 2832 #

2007 Y L R 2832

[Lahore]

Before Asif Saeed Khan Khosa, J

MUKHTIAR HUSSAIN SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.109/B of 2007, decided on 14th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 322---Bail, grant of---Further inquiry---No serious motive was attributed to the accused to do away with deceased---Accused was empty-handed at the relevant time and assault by accused and his co-accused upon deceased was a result of a sudden flare-up without any premeditation on their part---Nothing had been recovered from possession of accused during the investigation of the case---No specific injury to deceased was attributed to accused in F.I.R. which contained only a generalized and collective allegation against accused and co-accused---F.1. R. showed that accused and his co-accused had jointly and collectively given fist blows and slaps to deceased on his face after throwing him on the ground, but post-mortem examination report pertaining to dead body, had shown that deceased had sustained only two abrasions, one of which was on his hand and other on his knee joint and that deceased had sustained no injury on his face at all---Investigating Officer, had pointed out in his case-diary that case did not attract provisions of 5:302, P. P. C., but same attracted an offence under 5.322, P.P.C. and offence under S. 322, P.P.C. did not carry any sentence of imprisonment---Challan had been submitted in connection with the case and accused was languishing in judicial lock-up and his physical custody was not required by the police for the purposes of investigation---Case against accused calling for further inquiry into his guilt. within the purview of subsection (2) of S. 497, Cr.P.C. he was admitted to bail, in circumstances.

Rana Khalid Mehmood for Petitioner.

Mian Bashir Ahmad Bhatti, Deputy Prosecutor-General for the State.

Sardar Tanvir Hayder Buzdar for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 2834 #

2007 Y L R 2834

[Lahore]

Before Muhammad Muzammal Khan, J

SAEED AHMAD BARRY---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No.6163 of 2001, decided on 1st December, 2006.

Constitution of Pakistan (1973)---

----Art. 199--Constitutional jurisdiction---Scope---Availability of alternative remedy---Petitioner had prayed for a direction to authorities requiring registration of criminal case under Ss.419, 420, 468, 471, 465, 466 & 474, P.P.C. contending that he had come to know that someone had forged an agreement to -sell touching his land, though he never executed any such agreement and same was forged, fabricated and fictitious at the hands of beneficiary---Stance canvassed in the petition rested - on disputed factual controversy, requiring, determination through detailed inquiry/ recording of evidence---Such exercise could not be undertaken by High Court while discharging jurisdiction under Art.199 of the Constitution---Petitioner had an alternative remedy of proceeding in the matter by filing a private complaint under S. 200, Cr.P.C.-Direction to register ,criminal case as prayed for by petitioner, could not be given---Petitioner could have recourse to other alternative remedies, provided by law---Constitutional petition was dismissed.

The Province of East Pakistan v. Kshiti Dhar Roy and others PLD 1964 SC 636 and Muhammad Younis Khan and others v. Government of N-W.F.P. through Secretary Forest and others 1993 SCMR 618 rel.

Qadir Zaman Shah Tairmoori for Petitioner.

Gohar Siddique, A.A.-G. for Respondents with Ashraf Khan, A.S.-I..

YLR 2007 LAHORE HIGH COURT LAHORE 2837 #

2007 Y L R 2837

[Lahore]

Before Maulvi Anwarul Haq, J

ZAMAN PAPER AND BOARD MILLS LIMITED-Petitioner

Versus

ABDUL QADIR---Respondent.

Civil Revisions Nos.466 and 467 of 2006, heard on 25th April, 2007.

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

----Art.113---Facts admitted need not to be proved.

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

----Ss.186, 187, 188 & 192---Special Attorney appointed by General Attorney of principal---Special Power of Attorney authorized Special Attorney to sell principal's land located in District "S" with additional powers to file application, affidavit or other proceedings in the offices located in District "L"-Execution of sale deed by Special Attorney and its registration in District "S"---Validity---Such Power of Attorney fully authorized Special Attorney to sell such land and present document for Registration in office of Sub-Registrar ,concerned---Such Power of Attorney was not confined only to District "L"---Special Attorney had authority to execute sale-deed and present same for registration at District "S".

---Power of Attorney would be construed strictly.

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

---S.41---Suit-land purchased by defendant through registered document---Admission of defendant that before such, sale in his favour, he had not examined in the office of Sub-Registrar previous registered documents relating to suit-land---Held, defendant had not purchased suit-land after making a bona fide inquiry.

Muhammad Atif Amin for Appellant.

Mian Zafar Iqbal Kalanori for Respondent.

Date of hearing: 25th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2847 #

2007 Y L R 2847

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ARSHAD---Appellant

Versus

THE STATE---Respondent

Murder Reference No.31 of 2003, Criminal Appeal No.1300 of 2002, heard on 1st March, 2007.

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

----Ss.302(b) & 302(c)---Appreciation of evidence---Sentence, reduction in---Delayed F.I.R. could not be used as a corroborative piece of evidence---Despite the occurrence having taken place in a thickly populated area, nobody from the vicinity was joined in investigation nor produced in the Court to substantiate the prosecution version---Eye-witnesses had failed to establish their presence at the scene of occurrence---Ocular testimony was not trustworthy and reliable---Accused had taken a specific plea of having killed the deceased under grave and sudden provocation on having seen his real sister in compromising position with the deceased during odd hours of night---Prosecution itself had set up the motive that accused had a suspicion about illicit relations of the deceased with his sister and both of them had been killed by the accused on the eventful night---Accused had already been acquitted from the charge of murder of his sister on the basis of compromise---First version of the accused before the Investigating Officer after his arrest was the same as taken by him during the trial--.-Vaginal swabs of the deceased were found to be stained with semen---Medical evidence and the circumstances of the case had fully supported the defence plea---Case against accused thus, was not one of Qatl-i-amd---Conviction of accused was consequently altered from section 302(b), P.P.C. to S. 302 (c), P.P.C. and his sentence of death was reduced to seven years R.I. in circumstances---Direction for payment of compensation was set aside as the deceased was not Masoom-ud-Dam who had provoked the accused by indulging in the indecent act.

Sultan Khan v. Sher Khan and others PLD 1991 SC 520 and Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 ref.

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

----S. 302(b)-Criminal Procedure Code (V of 1898), S.342---Defence plea, appreciation of---Principles---Where prosecution evidence is disbelieved and conviction has to he based on the sole defence plea of the accused, the same has to be believed or rejected in to and not in piecemeal to suit the prosecution version.

Sultan Khan v. Sher Khan and others PLD 1991 SC 520 ref.

----S. 302 (c) ---Intent and scope---Cases covered by the Exceptions to the old S. 300, P.P.C. read with old section 304, P.P.C. are intended to be dealt with under clause (c) of the new S.302, P.P.C.

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

M.A. Zafar for Appellant.

Ch. Muhammad Hussain Chhachhar for the State.

Asghar Aali for the Complainant.

Date of hearing: 1st March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2854 #

2007 Y L R 2854

[Lahore]

Before Abdul Shakoor Paracha, J

TARIQ MEHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.346-B of 2006, decided on 3rd May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), A'rts.3 & 4---Bail, grant of---Complaint and F.I.R., showed that 60 Ruppies of liquor in each bag numbering twenty were recovered from the possession of accused when he was, driving vehicle, but in the report under 5.173, Cr.P.C., it had been mentioned that 50 Ruppies from each bag were recovered---Counsel for State could not reconcile such discripancy---Mere possession of liquor would attract provisions of Art.4 of Prohibition (Enforcement of Hadd) Order, 197,9, which was bailable---Case of prosecution, if taken to its extreme and considered to be a case of transportation of liquor; even then the same, in view for the purpose of selling a huge quantity of liquor, it would attract Art.3 of Prohibition (Enforcement of Hadd) Order, 1979. which offence also did not fall under prohibitory clause of S.497, Cr.P.C.---Bail was a rule and refusal was an exception---Accused was behind the bars for about 5-1/2 months and he was previous non-convict---Accused might have been used as a carrier by some other person who was indulging in the business of preparing and selling the liquor---Accused was admitted to bail in circumstances.

Chaudhry M. Tanvir for Petitioner.

Mukhtar A. Gondal for the State along with Mukhtar S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 2856 #

2007 Y L R 2856

[Lahore]

Before Umar Ata Bandia, J

PUNJAB COOPERATIVE BOARD FOR LIQUIDATION through Chairman---Petitioner

Versus

JOINT REGISTRAR COOPERATIVE SOCIETIES, PUNJAB, LAHORE and 3 others-Respondents

Writ Petition No.1836 of 2006, decided on 15th May, 2006.

Punjab Undesirable Societies (Dissolution) Act (I of 1993)---

----S.16---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of society---Contention of petitioner was that Co-operatives Judge had exclusive jurisdiction in respect of all matters pertaining to the question of dissolved societies including respondent society, which stood dissolved by operation of law---Petitioner had further submitted that orders passed by authorities at the instance of respondent in the matter pertaining to said respondent over the liability owned to the society, were violative of statutory bar and without jurisdiction---Objection to jurisdiction which went to the root of the matter, could be raised at any stage because it would affect the validity of impugned proceedings rendering same void ab initio---No limitation would run against void order---Question of jurisdiction had not been adverted to in the case by the forums below---Such was a matter that needed to be decided at the outset and was a question that over-reached the law of limitation, because of void, it would infect the impugned proceedings with incompletion and illegality---Impugned order that had foreclosed any challenge by the petitioner on the ground of limitation was declared to be without lawful authority---Authorities, in the first instance would determine the jurisdictional competence of the statutory functionaries under the Punjab Co-operative Societies Act, 1925 to deal with any matter pertaining to property matters and claims of defunct societies under the Act.

Pak American Fertilizer Limited through Managing Director and another v. Bahadar Khan and 53 others 2004 MLD 1621; Haji Abdul Sattar v. Additional District Judge, Rawalpindi and others 1984 SCMR 925; Chittaranjan Cotton Mills Ltd. v. Staff Union . PLD 1971 SC 197 and Rashid Ahmad v. The State PLD 1972 SC 271 rel.

Ahmad Hussain Anwari for Petitioner.

Waqar A. Sheikh with Abdul Majeed, Superintendent Registrar Office for Respondent.

Safdar Mahmood for Respondent No.4.

YLR 2007 LAHORE HIGH COURT LAHORE 2858 #

2007 Y L R 2858

[Lahore]

Before Syed Asghar Haider, J

Mst. SHABNAM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE---Respondent

Writ Petition No.2222 of 2006, decided on 13th March, 2006.

Civil Procedure Code (V of 1908)---

----O.XVIII, R.2, Ss. 12(2) & 151---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for setting aside of ex parte decree---Application for production of witnesses---Suit for possession through partition filed by respondents, having been decreed ex parte, petitioner filed application under S.12(2), C.P.C. for setting aside the same---Petitioner in course of proceedings had made an application under O.XVIII, R.2 read with S.151, C.P.C. praying that petitioner be granted permission to produce two witnesses, contending that it was the right of every party to produce evidence in rebuttal, whenever new points were raised---Said application was dismissed by Trial Court and revision petition filed against such order was also dismissed---Petitioner had urged that evidence, of both said witnesses was essential to establish that petitioner had not engaged any counsel---Validity---Provisions of O.XVHI, R.2, C.P.C. circumscribed the production of evidence in rebuttal, but in the present case no such ground had been made---Counsel for respondents was correct to state that burden of proving all issues being on petitioner, she could have produced all witnesses which she desired at the relevant time, but no convincing reason for non-production of witnesses had been put forth by her in that context---No illegality or misreading of law having been pointed out in the order of the Appellate Court, constitutional petition, was dismissed.

PLD 1985 SC 131; 1984 SCMR 1284; 1981 CLC 361; 1988 CLC 779; 1990 PCr.LJ 1231 and 2003 CLC 504 ref.

Mushtaq Ahmad Qureshi for Petitioner.

Muhammad Shahzad Shaukat and Ch. Tanvir Akhtar for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 2860 #

2007 YLR 2860

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD INAYAT and others---Petitioners

Versus

SAHLOON and others---Respondents

Civil Revision No.825 of 1998, heard on 13th June, 2007.

Specific Relief Act a of 1877)---

--Ss. 42 & 54---Civil Procedure Code (V of 1908), 5.115---Suit for declaration and injunction---Predecessor-in-interest of plaintiffs, in his suit for declaration had claimed that he occupied land measuring 46 Kanals and 11 Marlas as non-occupancy tenant and that entries of non-occupancy tenancy had been omitted to be recorded in collusion with defendants and that transaction of sale and exchange was made whereby land stood owned by other defendants---Predecessor-in-interest sought declaration to the effect that he was in possession of suit-land as non-occupancy tenant and that defendants be restrained from ejecting him otherwise than in due course of law---Suit was decreed to the effect that predecessor-in-interest of plaintiffs, should not be dispossessed otherwise than in due process of law---Predecessor-in-interest who alleged that defendants had violated temporary injunction granted to him and they had taken over possession of suit-land, filed application purporting to be under Ss.144, 151 and O.XXXIX, R.2(3), O.XXI, R.32, C.P.C. praying that since plaintiffs were dispossessed during pendency of temporary injunction, their possession be restored---Matter was taken in appeal and Appellate Court directed that possession be restored straightaway without further inquiry---Defendants filed objection stating that possession could not have been delivered to plaintiffs---Executing Court allowed said objection, directing plaintiffs to deliver back possession of suit-land---Appeal filed by plaintiffs against said order had been dismissed---Validity---Both Courts mis-read documents on record including plaint filed by predecessor-in-interest of plaintiffs---Observation of courts about the entry in the "Lagan" Column, however, was correct---Impugned orders were set aside and plaintiffs were to be delivered possession of Khata numbers concerned; however, in `Eagan Column, the words "Basharah Malkan Bawajah Rishtadari" would be omitted and plaintiffs would be recorded as in possession as non-occupancy tenants at will.

Mian Qamar-uz-Zaman for Petitioners.

Ch. Inayatullah for Respondents Nos.7 to 13.

Date of hearing: 13th June, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2863 #

2007 Y L R 2863

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD ABDUR REHMAN and another---Petitioners

Versus

MUHAMMAD ZAHID ALI and 2 others---Respondents -

Civil Revision No.2579 of 2006, decided on 8th June, 2007.

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

----O.IX, R.8---Date fixed for filing reply by plaintiff to defendant's application---Nonappearance of plaintiff on such date---Effect---Suit could not be dismissed on such date as same was not fixed for hearing of case.

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

----O.IX, Rr.8 & 9---Limitation Act (IX of 1908), S.5 -& Art.163---Date fixed for filing reply by plaintiff to defendant's application---Dismissal of suit for non-appearance of plaintiff on such date---Application for setting aside dismissal of suit filed after one year and three months---Plea of plaintiff was that clerk of counsel had been giving him wrong dates---Validity---Such plea could not be accepted as matter was between plaintiff and his counsel, such clerk was nowhere in picture---Such plea was an afterthought and concocted and if considered to be true, even then such matter would be between clerk and plaintiff---Plaintiff for imparting him wrong information could file proceedings against clerk---Application for setting aside dismissal of suit was dismissed.

Rana Rashid Akram Khan for Petitioners.

Mian Muhammad Aslam for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2865 #

2007 Y L R 2865

[Lahore]

Before Jawwad S. Khawaja, J

Mst. BHAGOO---Petitioner

Versus

MUHAMMAD AFZAL and 11 others---Respondents

Civil Revision No.916 of 2006, decided on 16th October, 2006.

Specific Relief Act (I of 1877)---

----Ss. 42 & 39---Suit for declaration and cancellation of documents---Plaintiff was the owner of suit land---Defendants who were legal heirs of deceased brother of plaintiff, claimed that plaintiff executed and registered a power-of-attorney in favour of her husband, authorizing him to sell her property and that husband of plaintiff, in exercise of powers vested in him under alleged power-of-attorney, executed and registered sale-deed in respect of property of plaintiff in favour of their father, who was brother of plaintiff---Plaintiff expressly denied having executed alleged power of attorney in favour of her husband---Courts below had non-suited plaintiff on the ground that she had not been able to produce any witness or documentary evidence to corroborate her testimony--- Validity---Plaintiff having denied execution of such power-of-attorney; onus of proving that . document/power-of-attorney was executed and registered by her, shifted on to defendants but they had failed to discharge said onus---Marginal witnesses to alleged' power-of-attorney were not examined by defendants and no explanation was on record for not producing said witnesses---Courts below had not considered such material aspects of the case---Impugned decrees, in circumstances were result of non-reading of the record and material irregularity in the exercise of jurisdiction by the courts below--Impugned decrees were set aside and suit filed by the petitioner was decreed.

Muhammad Anwar Bhatti for Petitioner.

Syed Zahid Hussain Shah for Respondents.

Date of hearing: 16th October, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 2867 #

20Q7 Y L R 2867(2)

[Lahore]

Before Ali Nawaz Chowhan and Syed Sakhi Hussain Bokhari, JJ

GHULAM ZOHRA alias RANI---Appellant

Versus

THE STATE--Respondent

Criminal Appeal No.257 of 2004, heard on 22nd March, 2006.

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

----S. 9(b)---Appreciation of evidence---Sentence, reduction in---Counsel for accused did not assail the order of conviction of accused, though according to him raiding party consisted of only the officials which gave rise to a doubt with respect to the weight of narcotics recovered---Credibility of the witnesses having not been impeached, order of conviction was upheld, but was a fit case 'where sentence awarded to accused could be modified---Sentence was reduced from two years to one year R.I. and sentence of fine was also reduced from Rs.20,000 to Rs.10, 000.

Muhammad Tanveer Ch. for Appellant.

M.D. Shahzad for the State.

Date of hearing: 22nd March, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 2869 #

2007 Y L R 2869

[Lahore]

Before Sh. Hakim Ali, J

Mst. MEHTAB BIBI---Petitioner

Versus

KALEY KHAN and 4 others---Respondents

Civil Revision No.964-D of 2002, decided on 6th June, 2007.

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

----S.35 (2)---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Pre-emption suit---Filing of suit during interregnum--Requirements- Talb-i-Ishhad--- Proof---Non-appearance of pre-emptor in witness box---Withholding of evidence---Effect---Suit land was sold through registered sale deed dated 5-10-1987 but suit was filed on 28-9-1988---Trial Court and Appellate Court concurrently dismissed the suit of pre-emptor on the ground that necessary Talbs were not proved---Validity---Held, in suits filed during interregnum, under S.35 (2) of Punjab Pre-emption Act, 1991, it was sufficient if pre-emptor had performed Talbs in presence of two truthful witnesses---Preemptor was to appear in court to depose on oath with regard to performance of Talb-i-Ishhad---Statement of special attorney of pre-emptor could not be believed, when pre-emptor herself was present and could give her own evidence---Pre-emptor was the best and material witness with regard to performance of Talbs---No reason existed as to why pre-emptor had not appeared as her own witness in the suit, although she had gone to the house of vendee---Preemptor knowingly withheld herself from appearance into the court, so as to save herself from cross question to be put to her during recording of evidence---Withholding of best evidence adversely affected truthfulness of pre-emptor's version---Not a single independent witness was produced by pre-emptor to prove performance of Talb-i-Ishhad---No cogent and independent evidence of truthful witnesses of credible nature with regard to performance of Talbi-Ishhad was available---High Court in exercise of revisional jurisdiction declined to upset concurrent ' findings of fact rendered by the Courts below---Revision was dismissed in circumstances.

Mst. Tasneem Bibi and another v. Muhammad Ali and 8 others 2007 MLD 820; Muhammad Bakhsh v. Mst. Aziman and another 2003 MLD 14; Rahim Bakhsh v. Mian Muhammad Shafi and 7 others 1995 SCMR 440; Jamal Din and another v. Allah Bakhsh and another 1994 CLC 1957; Altaf Hussain v. Abdul alias Abdul Majeed through legal heirs and another 2000 SCMR 314; Muhammad Hani v. Mst. Munwar Bi alias Munawar Noor 1999 SCMR 2309; Muhammad Ilyas and others v. Khadim Hussain and others 2005 SCMR 798; 2005 SCMR 798; Muhammad Ilyas v. Khadim Hussain and others 2006 SCMR 1761; Fazal Din v. Farzand Ali and others 2004 YLR 927 and Haji Rana Muhammad Shabbir Ahmad Khan v. Government of the Punjab PLD 1994 'SC 1 ref.

Sh. Naveed Shahryar for Petitioner.

Ghulam Nabi Bhatti for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2873 #

2007 Y L R 2873

[Lahore]

Before Mian Saqib Nisar, J

Mst. BASHIRAN---Petitioner

Versus

MUHAMMAD RAMZAN and 3 others---Respondents

Civil Revision No. 1277 of 2003, heard on 4th April, 2005.

Civil Procedure Code (V of 1908)---

----O. XLI, R.25---Remand of entire case to Trial Court for its fresh decision after framing of an additional issue by Appellate Court---Validity---No justification existed to remand case for all other issues---Appellate Court, after framing such issue, should have followed provisions of O.XLI, R.25, C.P.C.---High Court accepted revision petition and set aside impugned order to the extent of remanding entire case to Trial Court with observations that appeal would be deemed to be pending before Appellate Court awaiting finding of Trial Court on such issue.

Hafiz Khalil Ahmad for Petitioner.

Zahid Hussain Khan for Respondents.

Date of hearing: 4th April, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 2875 #

2007 Y L R 2875

[Lahore]

Before Muhammad Muzammal Khan and Syed Sajjad Hussain Shah, JJ

TARIQ GLASS INDUSTRIES LTD. through Director---Appellant

Versus

MOHAMMADI GLASS INDUSTRIES through Proprietor/Partner/Manager and others---Respondents

Intra-Court Appeal Nos.1-C and 2-C of 2006, decided on 31st January, 2007.

Code of Civil Procedure (Amendment) Ordinance (X of 1980)---

----S. 15---Limitation Act (IX of 1908), S.12---Infra Court appeal--Limitation---Delay, condonation of---Requirement of filing of certified copies of orders appealed against---Scope---Since appeal against an interlocutory order passed by High Court in exercise of original jurisdiction, had been provided by section 15 of Code of Civil Procedure (Amendment) Ordinance, 1980, requirement of filing of certified copies of orders appealed against, could not be dispensed with, like an appeal under S.3 of Law Reforms Ordinance, 1972; as far that purpose attaching of certified copies of order/judgment, was not required under Chapter-1, R.4 of High Court (Lahore) Rules and Orders---Appellant was entitled to exclusion of time spent on getting certified copies of impugned order in terms of S.12 of Limitation Act, 1908---Appeal being within time---Impugned orders were set aside in appeal, in circumstances.

Board of Governors Area Study Centre for Africa and North America, Qauid-e-Azam, University, Islamabad and another v. Ms Farah Zahra PLD 2005 SC 153 ref.

Hassan Irfan Khan for Appellant.

Messrs Syed Mansoor Ali Shah and Saima Amin Khawaja for Respondent No. 1.

YLR 2007 LAHORE HIGH COURT LAHORE 2877 #

2007 Y L R 2877

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD IBRAHIM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4594-B of 2006, decided on 17th January, 2007.

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

---S. 497---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Bail, refusal of---Ample material was available against accused, prima facie, establishing his complicity in the alleged' fraud---Material available on record revealed that it could be safely stated that accused was the one who was the initiator of the fraud and he was the one who was the ultimate beneficiary of the same---Accused could not take advantage of order of Supreme Court whereby bail had been allowed to a Patwari in the Irrigation Department holding that no direct evidence/material was available against him connecting him with the commission of any offence with regard to changes in the Revenue record---Bail was refused to accused.

Syed Karamat Ali Naqvi for Petitioner.

Muhammad Ghani for the Complainant.

Syed Khalid Bukhari for the State.

Muhammad Azam, S.-I. P:S. ACE, Lahore with record.

YLR 2007 LAHORE HIGH COURT LAHORE 2880 #

2007 Y L R 2880

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Hasnat Ahmed Khan, JJ

GHULAM NABI SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 505 of 2005, heard on 1st February, 2007.

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in---Substantial quantity of "Charas" and opium was recovered from the possession of accused, who was apprehended at the spot---An amount of Rs.7600 was also recovered from personal search of accused---F.I.R. was promptly lodged---Four prosecution witnesses had proved the recovery of narcotics from the accused, who had successfully faced the test of crossexamination---Reports of Chemical Examiner in respect of the recovered "Charas" and opium were positive---Conviction of accused was maintained in circumstances----Sentence of accused however, was reduced from 10 years' R.I. to 7 years' R.I. in view of his ailment, with increase in his fine.

Muhammad Tariq Niaz for Appellant.

Rao Atif Nawaz for the State.

Date of hearing: 1st February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2883 #

2007 Y L R 2883

[Lahore]

Before Syed Shabbar Raza Rizvi, J

AMEER HAMZA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4866/A/B of 2006, decided on 18th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497----Penal Code (XLV of 1860), S.302---Bail, refusal of---Dispute, in the ..present case was whether the accused was involved in offence under S. 302, P. P. C. and not that accused had committed offence covered under S. 324, P. P. C. which fell within the prohibitory clause of S. 497, Cr. P. C.---Cause of delay was also attributed to accused party by the Trial Court---Bail application of accused was dismissed in circumstances.

Mian Mumtaz Ahmed Watoo for Petitioner.

Mian Abdul Ghaffar for Complainant.

Ijaz Ahmad Bajwa for the State.

Majeed A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 2884 #

2007 Y L R 2884

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SIDDIQUE---Petitioner

Versus

MUHAMMAD SHARIF through L.Rs.---Respondents

Civil Revision No. 1814 of 2002, heard on 19th April, 2007.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession of a part of joint building by one of its co-owners---Plaintiff as ,co-owner in a building allowed defendant to occupy apart of its joint courtyard---Defendant, instead of vacating suit property on demand, raised thereon illegal construction---Locus standi of plaintiff to file such suit---Record of Settlement Department and earlier judgments of civil Court showed that suit property in fact formed a part of a common courtyard appended to such building for joint use of its' owners---Defendant had not pleaded that he was there under licence of some other co-owner---Only plaintiff had given permission to defendant to occupy suit part of common courtyard of joint building---Defendant being in illegal occupation of suit property was liable to be rejected at the behest of plaintiff---Suit was decreed in circumstances.

Zafar Iqbal Chauhan for Petitioner.

Nemo for Respondents.

Date of hearing: 19th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2887 #

2007 Y L R 2887

[Lahore]

Before Sh. Hakim Ali, J

FAISAL RAZZAQ---Petitioner

Versus

TEHSIL MUNICIPAL ADMINISTRATION, KHAIRPUR TAMEWALI and 5 others---Respondents

Writ Petition No. 3096 of 2006/BWP, decided on 13th February, 2007.

Punjab Local Government (Auction of Collection Rights) Rules, 2003---

----Rr.3, 5, 11 & 25---Constitution of Pakistan (1973), Art. 199---Constitutional .petition---Auction of contract regarding collection of tax for transfer of immovable property---In response to advertisement, twelve persons had deposited 2% of reserve price to take part in auction of contract regarding collection of tax for transfer of immovable property, but only four persons had participated in the bid and out of said four persons, respondent was declared the highest bidder and was granted contract---Petitioner, who did not take part in the bid, had challenged bid granted to respondent---Constitutional petition was filed by petitioner after about four months from the date of auction and said delay had proved the concoction of story of events and ingeniousness of the version of petitioner---If as alleged by the petitioner there was no auction or papers were fictitiously prepared in that respect, then petitioner must have arisen to the occasions with immediate action---As it was a periodical contract of only for 10 months, petitioner had to be more cautious and careful and must have approached High Court with promptitude and immediate action after auction in question was held---From said delay in approaching the High Court, it could easily be conceived that in fact no forgery was committed and no violation was made during the conduct of auction and . finalization bf bid in favour of respondent---Petitioner who, despite depositing 2% of reserve price, had not participated in bid, had got no locus standi to challenge auction---Constitutional petition though could be filed in presence of alternate remedy available to a party, but each case had to be seen in accordance with its own facts---In the present, case, since factual inquiry was required, appeal or suit was the proper remedy and not the constitutional petition.

Saeed Ahmad v. Tehsil Municipal Administration, Ahmadpur-East, and others 2005 YLR 1788; Sh. Javed Khalid Akhtar v. D.C. Khanewal and others 2001 MLD 151; Brigadier Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271; M/S N.S Enterprises v. Government of Pakistan and others 1997 CLC 106; Manzoor Ahmad Watto v. Federation of Pakistan and 3 others PLD 1997 Lahore 38; Pervaiz Iqbal and 2 others v. Provincial Transport Authority Sindh and another 1996 CLC 182 and Kanwar Iqbal Talib, duly authorized Director v. Province of Punjab through Secretary Local Government Department Lahore and another 2000 CLC 54 ref.

Malik Sadiq Mahmud Khurram and Muhammad Umair Mohsin for the Petitioner.

Ijaz Ahmad Ansari for Respondents Nos.1 to 4&6.

Shamshir Iqbal Chughtai for Respondent No.5.

YLR 2007 LAHORE HIGH COURT LAHORE 2890 #

2007 Y L R 2890

[Lahore]

Before Syed Shabbar Raza Rizvi, J

ZAHID NISAR and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1339-B of 2007, decided on 7th March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-B---Bail, grant of---Accused, according to F.I.R., were arrested when they were in possession of counterfeit currency notes---Question whether the case against accused was covered by S. 489-B or S. 489-C, P.P.C. was yet to be decided by Trial Court---Accused, according to a newspaper had been attested three, days prior to the occurrence---Police officials alone had attested the recovery memo. ---Persecution case not only needed further probe but was also doubtful for purpose of hail, benefit of which would go to the accused---Bail was allowed to accused accordingly.

M.A. Zafar for Petitioners.

Asif Mahmood Cheema, D.P.G. Punjab and Ibrar S.-I. for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2892 #

2007 Y L R 2892(2)

[Lahore]

Before Khawaja Muhammad Sharif and Asif Screed Khan Khosa, JJ

SHAUKAT ALI, MANAGER, N . B . P. ---Petitioner

Versus

M. ANWAR and others---Respondents

Criminal Miscellaneous No. 7534-BC of. 200G, decided on 20th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Ss. 4 & 5---Penal Code (XLV of 1860), Ss.380/434/489-F---Cancellation of bail---Trial Court was competent to grant bail to the accused for the offence under S.380, P. P. C. being a scheduled offence, but not for the offences under Ss. 454 & 489-F, P. P: C: ---Being conscious of its jurisdiction Trial Court had observed in the impugned order that the bail petition of the accused would be considered to the extent of S.380, P. P. C:, but it appeared that Ss. 454 and 489-F, P. P. C. were also mentioned in routine while filling the surety bonds, which were accepted by Trial Court---Impugned order to the extent of S.380, P.P.C. was, therefore, maintainable---However, the amount of surety was enhanced from Rupees five lacs to Rupees eighty three lacs i.e., the misappropriated amount---Accused were granted one week's time to move the concerned Court for bail for offences under Ss.454 & 489-F, P. P. C. ---Petition was disposed of with such directions and observations.

1985 PCr.LJ 1849; 1986 PCr.LJ 567; 1989 PCr.LJ 613; 1988 MLD 2215; PLD 1997 SC 545; 2004 PCr.LJ 1612; 1995 SCMR 149 'and 1985 PCr.LJ 2207 ref.

Muhammad Qamar uz Zaman for Petitioners.

Tahir Mahmood Gondal, A.A.-G.

.Muhammad Asghar Khan for Respondents Nos. 1 and 2.

Mrs. Aneela Jabeen for the State.

Muhammad Arif, A.S,-I.

YLR 2007 LAHORE HIGH COURT LAHORE 2894 #

2007 Y L R 2894

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUHAMMAD ILYAS----Appellant

Versus

THE STATE----Respondent

Criminal Appeal. No.1511 of 2004, heard, on 1st February, 2007.

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

----S. 9(c)---Appreciation of evidence---F.I.R. as well as in the Memorandum of Recovery, had not specified as to the shape in which Charas' had been recovered from accused 's possession,. but both witnesses of the alleged recovery had categorically stated before the Trial Court the recovered ,Charas' was in the shape of littars'---Both said witnesses, however, could not specify before the Trial Court as to how may 'littars' ofCharas' had been recovered and what was the weight of each `littar.'--- Admittedly only ten grams of recovered substance- had been. sent to Chemical Examiner -for analysis and a report was received in that regard in the positive-- In case of recovery of narcotic substance in :the shape of rods, slabs or littars a sample had to be taken from each of recovered rod,. slab or-littar and if that was not done, then accused could be convicted only for the weight of one rod, slab or littar from which sample was taken and sent to the Chemical Examiner---In the present case even the weight of littar allegedly recovered from. possession of accused, was riot available on ' the record---Conviction of accused was upheld for only the weight of the sample of the recovered substance sent to Chemical Examiner for analysis---Conviction and sentence of accused recorded by the Trial Court: for an offence under S.9(c) of Control of Narcotic Substances Act, 1997, were set aside and instead accused was convicted for an offence under S.9(c) of said Act and .was sentenced to rigorous imprisonment for two years while accused had already spent more than five years in jail and thus, he was to be released forthwith.

Muhammad Hashim v. The State PLD 2004 SC 856 and Muhammad Riaz and 2 others v. The. State 2006 SCMR 1378 ref.

Imran Asmat Chaudhry for Appellant.

Malik Muhammad Sideman Awan for the State.

Date of hearing: 1st February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2896 #

2007 Y L R 2896

[Lahore]

Before Jawwad S. Khawaja, J

PROVINCE OF THE PUNJAB through Secretary Government

Communication and Works Department, Lahore and another----Petitioners

Versus

Ch. QAISER MAHMOOD----Respondent

Civil Revision No.382 of 2006, heard on 7th February, 2007.

Arbitration Act (X of 1940)---

----S. 14(1) & (2)---Respondent, a contractor, had a dispute with the Province and Executive Engineer Provincial Building Division/ petitioners regarding the contract awarded to him---Dispute was referred to arbitration with the intervention of Court upon an application made by respondent---Award was filed in court and case was adjourned to the following day for objections---Statements of Assistant District Attorney' and S.D.O., Building Division were recorded to the effect that petitioners did not wish to file objections to the award hence a decree was passed in favour of respondent---Decree was challenged ort ground that A.D.A. and S.D.O. had no authority to record a statement on behalf of petitioners---Appellate findings that because S.D.O. and A.D.A. had been appearing on behalf of petitioners prior to the date on which reference was made, also had authority to record .statement in relation to the award was a misconception as the appearance of S.D.O. and A.D.A. in court prior to the date on which matter was referred to arbitration had no relevance in the present case---No notification, statutory instrument or other legal basis was available on record from which it could have been determined that. S.D.O. or A.D.A'. had a general authority to act on behalf of petitioners and to make concessional statement like the one recorded in the suit---A.D.A. and S.D.O., in the post award proceedings, did not have the requisite authority and consequently, statements made by them could not bind the petitioners---No evidence of a notice issued to petitioners by Arbitrators under S.14(1) - of Arbitration Act, 1940 was available nor was there any notice of filing of the award given to petitioners by Trial Court as required by S.14(2) of the said Act---Petitioners, in circumstances, did not have knowledge that award had been made and filed in the court, therefore, petitioners could not have made or authorized the making of a statement that they had no objection to the award---Judgments and decrees of courts below were set aside by High Court.

Muhammad Nawaz Bajwa, A.A.-G. for Petitioner.

Ch. Muhammad Luqman for Respondents.

Date of hearing; 7th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2899 #

2007 Y L R 2899

[Lahore]

Before Muhammad Jehangir Arshad and Hasnat Ahmad Khan, JJ

Malik ZUBAIR ALTAF----Petitioner:

Versus

THE STATE----Respondent

Criminal Revisions Nos.91 to 93 of 2007, decided on 22nd March, 2007.

Drugs Act (XXXI of 1976)---

----Ss. 23 & 24---Criminal Procedure Code (V of 1898), Ss.90 & 91---Taking accused into custody---Accused who appeared before the Drug Court, were ordered to be taken into custody and they were sent to jail as according to the Drug Court, accused had failed to make any application for bail---Validity---Bail before arrest applications of accused were entertained by the Chairman Drug Court, with his own handwriting---Finding of the Drug Court that no such application was made for bail, was 'against facts as ,well as record---Drug Court by passing such-like orders tried to punish accused for approaching High Court---Drug Court, in other cases also passed similar orders and sent accused to jail without adopting procedure laid down in S.90, Cr. P. C. by way of obtaining bond---Act of Drug Court sending accused in a complaint case directly to jail and issuing non-bailable warrants without allowing accused opportunity of furnishing bond under S.91, Cr.P.C., was not only highly prejudicial and detrimental to the safe administration of criminal justice, but also violative of provision of law as contained in S.91, Cr.P,C.---Impugned orders of the Drug Court, were set aside and accused were directed to be released on bail, in circumstances.

Ch. Mahmood Ali for Petitioner.

Rao Atif Nawaz for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 2901 #

2007 Y L R 2901

[Lahore]

Before Nasim Sikandar, J

GHULAM HAIDER----Petitioner

Versus

GHULAM FARID----Respondent

Civil Revision No.476 of 1999, heard on 29th March, 2007.

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

----S. 13---Civil Procedure Code (V of 1908), S.115---Performance of Talb-i-Muwathibat---Concurrent findings of fact by two courts---Interference by High Court in revision under S.115, C.P. C. --Scope---Principles.

Performance of Talb-i-Muwathibat was a pure question of tact and if the concurrent. findings of fact given by the two courts were not based upon conjectural presumptions, erroneous assumptions, wrong proposition of law, insufficient evidence, misreading of evidence, non-reading of material evidence, erroneous assumption of facts, patent errors of law, arbitrary exercise of power and unreasonable view of evidence, the High Court should not have interfered' with simply to substitute its own finding. The date and time were required to be mentioned in the pleadings because therefrom the performance of Talb-i-Ishhad had to be computed so as to be within 15 days. Cases of pre-emption could not be exception to the general rule in civil cases that time qua the accrual of knowledge needed to be mentioned in specific so that nothing was invented during evidence as an afterthought. Further that it had never been made permissible in the realm of civil law that a plaintiff who did not disclose the point of time of his knowledge about accrual of cause of action to be accommodated subsequently in the evidence to specify the same. It was important to tell the date and time of the performance of Talb-e-Muwathibat in the same meeting and before the dispersal thereof.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 rel.

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

----S. 13---Civil Procedure Code (V of 1908), S.115---Performance of Talbs---Concurrent findings of fact by courts below---Revisional jurisdiction of High Court---Scope---Plaintiff's suit for pre-emption was dismissed on ground that notice of Talb-i-Ishhad was not sent in accordance with and within the period prescribed by the Act---Making of Talbs by the plaintiff, in view of Trial Court was not proved---Dismissal of suit was maintained by Appellate Court---Validity---Since the concurrent findings of fact recorded by courts below did not suffer from any of the infirmities, no case for interference in revisional jurisdiction of High Court was made out.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 3.15 fol.

Muhammad Farooq Qureshi Chishti for Petitioner.

Ch. Salim Khan Chichi for Respondent.

Date of hearing: 29th March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2903 #

2007 Y L R 2903

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD BOOTA and another----Petitioners

Versus

THE STATE----Respondent

Criminal, Miscellaneous No.3329IB of 2006, decided on 5th December, 2006.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 337-L(ii), 337F(ii), F(v), 148 & .149---Bail, grant of --Further inquiry---Case of cross-version---Both sides alleging aggression against each other---Question as to which of the versions was correct, could not be determined at bail stage without recording evidence---In the present case though S.302, P, P. C. had also been added, but both accused did not cause any injury to the deceased---Vicarious liability of accused to the extent of ,S.302 or 324, P, P, C. was also open to, further .inquiry and ,offence under S.337-L(ii), P.P.C., was bailable, whereas offences under Ss.337F (iii) & (v); P.P.C. did not fall within prohibitory clause of 5.497, Cr. P.C,---Allegation against opposing party also did not constitute any offence falling within prohibitory clause of S.497, Cr. P.C.---Offences under Ss.337:A(i) and 337L(ii); P.P.C. were bailable and the injuries attributed to accused also .were open to further inquiry in the light of subsequent report of Medical Board expressing doubt about their genuineness---Offence under S.324, P.P:C. could not be presumed at bail stage as same required recording of evidence so as to attract its ingredients---Accused in both cases, were admitted to bail in circumstances.

Malik Javed Akhtar Vains for Petitioner (in Criminal Miscellaneous No.3329 of 2006).

Mehr Zauq Muhammad Sips for the Complainant as well as Petitioners (in Criminal Miscellaneous No.3282/B of 2006):

Malik Zafar Mehmood Anjum for the State.

Muhammad Aslam S.-I, with record.

YLR 2007 LAHORE HIGH COURT LAHORE 2905 #

2007 Y L R 2905

[Lahore]

Before Jawwad S. Khawaja, J

Syed SADAQAT SULTAN----Appellant

Versus

BAHADUR and another----Respondents

Regular Second Appeal No.126 of 2006, heard on 16th February, 2007.

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

----S. 12---Civil Procedure Code (V of 1908), S.12(2)---Suit for specific performance of agreement to sell---Plaint averred that after the agreement parties entered into an arbitration agreement in respect of the suit property---Arbitrator entered upon the reference .and rendered an award whereby suit property was to be conveyed to the son of defendant---Said award was made a rule of court by the judgment and decree---Plaintiff filed ~a suit against defendant for specific performance and cancellation of the said decree---Court below dismissed the suit on ground that plaintiff had not availed the appropriate remedy available under S.12 (2), C.P. C. --- Validity---Plaintiff sought specific performance of an agreement and therefore; his remedy was by way of filing a suit---Transaction between parties, who were son and father was also challenged in the suit including the award mad decree passed whereon---Proper trial was conducted. in this behalf in which both the parties produced evidence therefore, there was no occasion for proceedings on the premises that ,parry could only have filed do application under S.12(2) to assail the decree in question--Reason prevailing with the Courts below for dismissing the suit, was not legally tenable---Record revealed that decree in question was collusive between the father and son and was meant solely for the purpose of frustrating the other parry 's right under the agreement to sell, plaintiff's suit was decreed by High Court subject to payment to balance amount of agreed consideration.

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

----S. 12(2).---Specific Relief Act (I of 1877), S.12---Where suit for specific performance to sell and cancellation of a decree was based on fraud qua the suit property; court had jurisdiction to decide the plaint as an application under S.12(2), C.P. C.

Syed Mukhtar Abbas for Appellant.

Respondents: Ex parte.

Date of hearing: 16th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2907 #

2007 Y L R 2907

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ILYAS----Petitioner

Versus

KHALID JAVED----Respondent

Civil Revision No.848 of 2004, heard on 19th February, 2007.

Specific Relief Act (I of 1877)---

----S. 8---Suit for separate possession by partition---Plaintiff claimed that suit property was owned by deceased and devolved upon his widow, three sisters, and a brother---Share of sisters which came to 7/10 was purchased by plaintiff while share of brother which came to 3/10 was purchased by defendant---Plaintiff asserted that shares in the joint property had been sold to the parties, therefore, he prayed for separate possession by partition---Suit was resisted by defendant contending that suit property was not joint between parties, sisters of deceased had sold a specific portion i. e. the house to plaintiff while brother of deceased had sold a shop for defendant---Trial Court decreed the suit filed by plaintiff but Appellate Court reversed the decree---Validity---Sale-deed executed by three ladies clearly narrated that a house described therein was being sold to the plaintiff whereas the sale-deed executed by the brother of deceased clearly narrated that a shop described therein was being sold to defendant---Both the vendees were delivered possession and were continuing in possession accordingly---Said admitted documents revealed that disputed property was not joint---Sale-deeds were executed within a period of 10 days, plaintiff paid Rs.50, 000 as consideration whereas defendant paid Rs. 60, 000 as consideration---Appellate Court had very correctly drawn the inference that the larger share being residential and the smaller share being a commercial shop were valued accordingly---No ground had been made out for interference with judgment and decree of Appellate Court.

Malik Abdul Wahid for Petitioner.

Maqbool Hussain Sheikh for Respondent.

Date of hearing: 19th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2909 #

2007 Y L R 2909

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD YASEEN----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.974. 1007 and Criminal Revision No.550 of 2003, heard on 28th September, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Case of dark hours of night---Statements of eye-witnesses with regard to motive were in conflict with each other---Prosecution had failed to prove the motive and also recovery of carbine from accused---Crime empty though ,was recovered from the spot, same was sent to Fire-arm Expert, but no report of Fire-arm Expert was available on record---Recovery did not support the ocular account furnished by -both the eye-witnesses---Both eye-witnesses were related inter se and to deceased and were chance witnesses---No independent corroboration was available from any source, either about the motive or the recovery---Co-accused though was armed with dagger, but no overt act was attributed to him and he did not cause any injury to deceased---Appeal of co-accused was accepted and conviction arid sentence recorded against him by the Trial Court was set aside---No independent corroboration was available to the statements of very close relatives of deceased regarding accused---Accused was granted benefit of doubt and his appeal was accepted in circumstances----Conviction and sentence recorded against accused by the Trial Court were set aside.

Rana Muhammad Arif for Appellants (in Criminal Appeal No.974 of 2003) .

Ch. Muhammad Hussain Naqshbandi for Appellant (in Criminal Appeal No.1007 of 2003).

Mumtaz Ahmad Khan for the State.

Nemo for the Complainant.

Date of hearing: 28th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 2913 #

2007 Y L R 2913

[Lahore]

Before Muhammad Farrukh Mahmud, J

Mst. NAZIRAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.384/B of 2005/BWP, decided on l8th May, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(2) & 16---Bail, grant of---Allegation against accused was that she being already a married woman, had married with an other person---Accused, after completion of investigation had been sent to jail--.-Accused being woman her case was covered by the proviso to subsection (1) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Sardar Muhammad Shehzad Khan Dhukkar for Petitioner.

Mian Abdur Rasheed Rashid for the Complainant.

Mujahid Wasti for the State.

Subah Sadiq, A.S-I.

YLR 2007 LAHORE HIGH COURT LAHORE 2914 #

2007 Y L R 2914

[Lahore]

Before Iqbal Hameedur Rahman, J

ZAFAR IQBAL alias GADRI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.71/B of 2007, decided on 25th January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Bail, grant of---Offence against accused did not fall within the prohibitory clause of S.497, Cr. P. C. ---Accused had no previous history qua his involvement in such-like activity---Accused was admitted to bail, in circumstances.

2005 MLD 698 and 1999 PCr.LJ 924 rel.

Rana Khalid Mahmood for Petitioner.

Zia Mohy-ud-Din for the State.

Muhammad Ashraf, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 2915 #

2007 Y L R 2915

[Lahore]

Before Muhammad Jehangir Arshad, J

GHULAM HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.97/B of 2006/BWP, decided 21st February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(ii), 337-F(v)&(v)8c 337-L(ii)---Ad interim pre-arrest bail, confirmation of---Accused having been found innocent during the police investigation, ad interim pre-arrest bail already .granted to him was confirmed on the bait bond already furnished by him---If, however, the Trial Court would not agree with the opinion of the police, complainant would be at liberty to move for .cancellation of bail granted to accused.

Abdur Rasheed Rashid for Petitioner.

Malik Wajid Aftab for the Complainant.

Ch. Abdul Ghani for the State.

Muhammad Iqbal, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 2916 #

2007 Y L R 2916

[Lahore]

Before Syed Hamid Ali Shah, J

Mst. FAIZ BIBI----Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY through Director-General, L.D.A., Lahore and 2 others

Writ Petition No.6184 of 2005, decided on 22nd March, 2007.

(a) Lahore Development Authority Act (XXX of 1975)---

----Ss. 13 & 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allotment of plot to widow on payment of its tentative cost---Conversion of allotment from widow quota 'to destitute quota by Chief Minister at widow's request---Allottee under destitute quota was not liable to pay such cost---Cancellation of widow's allotment for iron-deposit of such cost as High Court in a judgment had declared quota for destitute persons as illegal---Validity---Widow was entitled to claim allotment against destitute quota---Allotment to widow against destitute quota being earlier than such judgment of High Court would remain intact---Widow had all along been willing to pay such cost, but Authority had not issued her challan for its deposit---Authority had delayed such matter, for which widow could not be penalized---High Court declared" impugned order as illegal while directed the Authority to Issue fresh chnllan to widow, who would pay such cost at prevailing rate and not at its initial rate.

(b) Administrative decision---

---Public functionary omitting to act in a matter---Effect---Aggrieved party could not be penalized for such omission.

Waqar Anjum for Petitioner.

Mian Qamar-uz-Zaman Legal Advisor for L.D.A.

YLR 2007 LAHORE HIGH COURT LAHORE 2918 #

2007 Y L R 2918

[Lahore]

Before Khawaja Muhammad Sharif, J

ABDUL HAQUE----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.9551/B of 2006, decided on 8th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.365---Bail, grant of---Further inquiry---All co-accused had already been allowed bail by the Trial Court---Delay of five months occurred in lodging F.I.R. against accused---Accused who was arrested, remained on physical remand for full fourteen days, but nothing was recovered from him---Alleged abduciee had not been recovered---Offence against accused did not fall within the prohibitory clause of S.497(1), Cr. P.C.---Accused having made out a case falling under sub-section (2) to S.497, Cr. P. C. for further inquiry, he was entitled to concession of bail---Grant of bail, in suchlike case, was a rule and refusal was an exception.

Tariq Bashir and 6 others v. The State PLD 1996 SC 34 rel.

Ch. Shaukat Hayat Gondal for Petitioner.

Naseeruddin Khan Nayyar, Addl. Prosecutor-General for the State with Hameed S.-I. with record.

M.A. Zafar for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 2919 #

2007 Y L R 2919

[Lahore]

Before Syed Sajjad Hussain Shah, J

FOZIA PERVEEN----Petitioner

Versus

JUDICIAL MAGISTRATE SECTION 30, KHUSHAB

and another

Writ Petition No.12487 of 2006, decided on 21st December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 164---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recording of second statement---Petitioner had sought direction to the Magistrate through her constitutional petition to record her second statement under S.164, Cr. P. C. ---Magistrate in his order refusing to record second statement of petitioner, had not advanced any cogent reason for such refusal---Petitioner had alleged that when she was previously produced before Magistrate for recording of her statement she was not a .free agent as site was abducted and was forced to make statement---Section 164, Cr.P.C. did not indicate that second statement of petitioners could not be recorded under said section, .every if it already stood recorded---In the present case,' the moment petitioner got opportunity she joined her parents and narrated to them what happened with her---No bar existed on recording second statement under S.164, Cr. P. C., petition was allowed and order of the Magistrate refusing to record second statement of petitioner, was set aside, with direction to the Magistrate to record statement of petitioner under S.164, Cr. P. C., in accordance with law.

Fozia Shabbir v. Additional Sessions Judge, Lahore and 8 others PLD 2006 Lah. 304 rel.

Fayyaz Ahmad Mehr for Petitioner.

Hashim Sabir Raja, A.A.-G. for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 2921 #

2007 Y L R 2921

[Lahore]

Before Jawwad S. Khawaja, J

GHULAM SHABBIR and others----Petitioners

Versus

DILSHAD ALI and others----Respondents

Civil Revision No.659 of 2001, heard on 31st May, 2005.

Specific Relief Act (I of 1877)---

---Ss. 12 & 54---Civil Procedure Code (V of 1908), S.47 & O.XX, R.9---Suit for specific performance of agreement of sale and injunction---Non-identification of suit-land by metes and bounds---suit dismissed by Trial Court was decreed by Appellate Court allowing parties to agitate question of identification of suit-land before Executing Court under S.47, C.P. C. ---Validity---Such controversy had to be resolved by Trial Court and Appellate Court---Execution of decree only would fall within domain and competence of Executing Court---Plaintiff claiming to be in possession of suit-land had sought relief of injunction to restrain defendant from interfering in his possession---Defendant did not object to passing of decay for specific performance in favour of plaintiff regarding land in his possession---High Court with consent of parties appointed Local Commission to identify through metes and bounds land possessed by plaintiff pursuant to agreement of sale and prepare its site and setting out length of its each side and identify occupants of adjoining properties---Plaintiff raised objections regarding report submitted by Local Commission---High Court set aside impugned judgment/decree and remanded case to Appellate Court for its decision afresh on all issues after considering such report and objections.

Zahid Hussain Khan for Petitioner.

Hafiz Khalil Ahmad for Respondent No. 1 .

Muhammad Farooq Qureshi Chishti for Respondents Nos. 4 and 5.

Respondents Nos.2 and 3: Ex prte.

Date of hearing: 31st. May, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 2924 #

2007 Y L R 2924

[Lahore]

Before Farrukh Lateef, J

Messrs SHAMIM AKHTAR and 2others---Petitioners

Versus

MUHAMMAD DIN---Respondent

Civil Revision No.305 of 2004, heard on 12th March, 2004.

Civil Procedure Code (V of 2908)---

----O.XLI, Rr. 23, 24 & 25---Remand of case---Plaintiff filed suit for specific performance of an agreement allegedly executed by defendant in favour of plaintiff---Defendant, in her written statement had denied execution of the agreement---Finding of the Trial Court after framing necessary issues and recording of evidence was that plaintiff could trot prove execution of sale agreement and payment of alleged sate consideration thereunder; that it was a fabricated document---Appellate Court set aside judgment and decree of the Trial Court and remanded case to the Trial Court with the direction to obtain thumb impression of defendant to send same, for comparison with her alleged thumb-impression on the sale agreement and thereafter to decide case afresh after recording evidence on all the issues---Decision was given by the Trial Court ort all issues, but Appellate Court without adverting to the reasons and findings recorded by the Trial Court and without setting aside findings on any issue, had set aside the judgment and decree and had remanded the case for recording evidence on all the issues without any justification---Validity---Appeal was .disposed of by the Appellate Court by ignoring the provisions of O.XLI, Rr.23, 24 & 25 of C.P.C. by remanding the case on a frivolous and irrelevant ground; which was not even raised in appeal by any of the parties---Appellate Court, in circumstances, had acted in the exercise of its jurisdiction illegally and with material irregularity---Impugned judgment of the Appellate Court was set aside and. appeal would be deemed as pending before Appellate Court which would be disposed of in accordance with law within specified period.

Muhammad Ramzan Khalid Joya and Muhammad Siddique Kamiana for Petitioners.

Nemo for Respondent.

Date of hearing: 12th March, 2004.

YLR 2007 LAHORE HIGH COURT LAHORE 2926 #

2007 Y L R 2926

[Lahore]

Before Khawaja Muhammad Sharif and Tanvir Bashir Ansari, JJ

IRFAN BASHIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.175 and Murder Reference No.145 of 2000, heard on 27th January, 2005.

Penal Code (XI V of 1860)---

----S. 302(6)/34--- Appreciation of evidence---Sentence, reduction in--- Mitigating circumstance---Eye-witnesses mentioned in the, F.I.R. had fully implicated the accused in the case who had made a fire shot on the right side of the abdomen of the deceased---Medical evidence had supported the eye-witness account---Pointed out contradictions and discrepancies in prosecution evidence were superfluous and more imaginary than real---Accused had been an absconder for a long time---Conviction of accused was maintained in circumstances---Role of accused was identical ,with the role of his brother co accused---Motive for the occurrence had prompted the Trial Court to sentence the said co-accused to imprisonment for life and the same motive could be regarded as a mitigating circumstance in the case of accused as well---Accused had caused a single fire arm injury to the deceased which by itself was not established to be sufficient to cause death in the ordinary course of nature---Two injuries according to medical opinion were sufficient to cause the death of the deceased---Sentence of death of accused was reduced to imprisonment for life in circumstances.

Shahzad Ahmed Khan v. The State 2004 PCr.LJ 320;. Muhammad Jehangir v: .The State 2002 YLR 1146; Noor Muhammad v. State 1999 MLD 60; Gulab v. The State 1.987 PCr.LJ 1803 and Muhammad Arshad and 2 others v. State PLJ 1995 SC 684 ref.

Shaukat Rafiq Bajwa for Appellant.

Ch. Nazir Ahmed for the State.

Munir Ahmed Bhatti for the Complainant.

Date of hearing: 27th January, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 2931 #

2007 Y L R 2931

[Lahore]

Before Muhammad Muzammal Khan, J

Messrs EKON YAPI ONARIM TICARET VE SANAYI LTD. Through Managing Director---Appellant

Versus

Messrs SEZAI TURKES FEYZI AKKAYA CONSTRUCTION COMPANY, through Regional Director and 2 others---Respondents

F.A.O. No.20 of 2007, heard on 8th March, 2007.

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

----O.XXXIX, Rr. 1, 2 & O.XXXVIII, R.5---Respondent an overseas company was. awarded with a contract by Port Authority---Respondent hired appellant as sub-contractor who completed the allocated work but respondent failed to make payment to appellant---Appellant filed a recovery suit, sought injunctive order restraining the authority from releasing amount to respondent---Appellant also prayed that respondent be required to deposit sufficient security in Court to satisfy ultimate decree in favour of appellant or to restrict it from removing its assets beyond the jurisdiction of Court---Injunction was refused while further prayer .was not attended to by trial Court---Validity---Asserted loss was measurable in terms of money which would not result in any irreparable loss/injury to appellant---Claim of appellant having been refuted by respondent, required determination after recording evidence hence no prima facie/arguable case was made out---Injunction was, therefore, correctly declined by Trial Covert---Record revealed that respondent company was facing bankruptcy proceedings which had been deferred by Commercial Court of First Instance abroad for a period of one year to liquidate some outstanding debts---Attachment before the judgment, in circumstances, could have been ordered within the parameters fixed by R.5 of O.XXXVIII, C.P.C.---Appellant's application under O.XXXVIII, R. 5, C.P.C. would be deemed pending.

Omer Farouk Adam for Appellant.

Babas Bilal and Tariq Bilal for Respondents.

Date of hearing: 8th March, 2007.

2007 Y L R 2946

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ARIF---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SADAR, SHEIKHUPURA

and 5 others---Respondent

Writ Petition No.2772 of 2007, decided on 6th July, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Penal Code (XLV of 1860), Ss.302, 324, 148, 149 & 109---Constitutional petition---Maintainability---Order discharging accused persons from F.I.R. was sought to be set aside---One accused was neither attributed any injury on the person of .deceased nor on the injured prosecution witnesses---Another accused was attributed an injury on, the head of prosecution witness with a firearm, but no offence had been mentioned for said injury nor the X-Ray report had been taken by the police---Both the said accused persons had produced their witnesses during the course. of investigation in support of their plea of alibi which was verified by the two Investigating Officers, whereby .they were declared innocent---Discharge report was prepared and said accused were accordingly discharged by the Judicial Magistrate vide impugned order which was a speaking and legal order---Reasoning had been given by the Magistrate qua discharge of the accused persons---Complainant had got remedy to file a private complaint against those accused who had either been declared innocent or discharged---Constitutional petition having no merits, was dismissed, in circumstances.

1994 PCr.LJ 842, 1991 MLD 523; 1997 SCMR 1503; 1996 PCr.LJ 1187; 2000 PCr.LJ 43 and Awal Khan v. The Superintendent of Police Attock and 13 others 1989 PCr.LJ 909 rel.

Ch. Imtiaz Hussain Bhatti for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.-G. Punjab with Muhammad Yar, S.-I.

Rana Asif Mehmood for Respondents.

YLR 2007 LAHORE HIGH COURT LAHORE 2950 #

2007 Y L R 2950

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD SADDIQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.789-B of 2004, decided on 25th February 2004.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16---Penal Code (XLV of 1860), S.380---Bali, grant of---F.I.R. had been registered after a delay of 7-1/2 months---Matrimonial dispute between the complainant and his wife existed and a suit for dissolution of marriage was pending---Whole family had been roped in the case with mala fide intention by the complainant---No evidence of abduction of the alleged abductee was available on record---Grounds for further inquiry into the guilt of accused within the meaning of S.497(2), Cr. P. C., thus, were present---Accused was admitted to bail in circumstances.

A.D. Naseem for Petitioner.

Muhammad Farid Sulahry, Abid for the State.

Muhammad Zafar, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 2951 #

2007 Y L R 2951

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4693-B of 2004, decided 19th July, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.324/34---Bail, grant of----Gunshot injury suffered by the complainant, according to the Doctor, fell under S.337-F(i), P.P.C. which entailed punishment of one year's R.I.---Medical Board had opined that possibility of fabrication of the said injury could not be ruled out---Accused had been declared innocent during investigation upto the level of DS.P.---Cross F.I.R. had been registered at the instance of accused party wherein real brother of accused had suffered 13 injuries by sharp and blunt edged weapons---Damage attributed to accused who was armed with a lethal fire-arm had questioned the applicability of S.324, P. P. C. as also his common intention and his case called for further inquiry--Bail was allowed to accused in circumstances.

M. A. Zafar for Petitioner.

Sh. Khurshid Iqbal for the State Asmatullah, A.S.-I. with police file.

YLR 2007 LAHORE HIGH COURT LAHORE 2953 #

2007 Y L R 2953

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

TAUFIQUE KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 40 of 2004, heard on 12th December, 2006.

Explosive Substances Act (XI of 1908)---

----S.5---Appreciation of evidence---Benefit of doubt---Accused while in custody in another case had allegedly led to the recovery of a plastic gattoo containing 23 detonators, one timer, blasting wire 10-1/2 feet and explosive material weighing 8-1/2 kilograms---Sufficient material was available on record to show that accused had been taken away from his house by the police on 20-8-2002---In a report lodged at police station regarding disappearance of the accused an A. S. -I. had stated that the accused was taken into custody in some other case, but he had not intentionally mentioned the date of arrest of the accused, which had spoken volumes qua the present case---Accused had been taken into custody by the police on 20-8-2002, whereafter he was kept in illegal confinement and ultimately his arrest was shown on 26-9-2002---Said crucial aspects had badly spoiled the prosecution case---Prosecution had failed to prove its case beyond doubt, benefit of which must go to the accused under the law---Accused was acquitted under the circumstances.

Basharatullah Khan for Appellant.

Syed Hasnain Kazmi, A.A.-G. for the State.

Date of hearing: 12th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 2955 #

2007 Y L R 2955

[Lahore]

Before Jawwad S. Khawaja, J

Ch. MERAJ DIN and others---Petitioners

Versus

Mst. BIBI NOREEN AND COMPANY---Respondent

Civil Revision No.2546 of 2005, decided on 24th April, 2006.

Specific Relief Act (I of 1877)---

----S.54---Civil Procedure Code (V of 1908), O.IX, R.6---Ex parte decree---Factual. controversy---Apportioning of liability---Grievance of plaintiffs was that to complete the project of government, contractor, without paying them compensation, excavated earth from their lands---Plaintiffs sought mandatory injunction against government and contractor for filling up of excavation---- Trial Court passed ex party decree against both the defendants---Plea raised by contractor was that he had only executed the work order, therefore, decree should have been passed against government only--Contention of government was that the contractor had excavated earth from outside the limits demarcated for the purpose---Validity---Contest between contractor and government had been identified 'and there was nothing which prevented the government from raising factual controversy, even if such was to be done through amendment in their written statements---High Court without setting aside decree in favour of plaintiffs,' remanded the case to Trial Court to resolve the controversy between contractor and government, after taking evidence---High Court directed Trial Court to apportion the liability inter se between contractor on one hand and Government on other---Revision was allowed accordingly.

Khalid Jameel for Petitioners.

Ex parte for Respondents Nos.1 to 8.

Ch. Nawaz Bajwa, A.A.-G. with Ch. Muhammad Azeem for Respondents Nos.9 and 10.

Date of hearing: 26th April, 2006.

JUDGEMENT

JAWWAD S. KHAWAJA, J.---Mst. Bibi Nooran etc. (plaintiff/respondents Nos. 1 to 8) have been served and the name of the learned counsel also appears in the cause list. None has appeared on their behalf. They are, therefore, proceeded against ex party. 'The learned Assistant Advocate General states that Mst. Bibi Nooran etc. are no longer interested in the lis because the decree in their favour has already been satisfied through payment of a sum of Rs.3,95,000 to them by the Province.

The petitioner Messrs Ch. Miraj Din &Company is a partnership firm. The petitioner impugns the decree of the learned trial Court dated 20-10-1998 passed exparte against the petitioner and respondents Nos.9 and 10 (Province of Punjab and XEN Irrigation). The petitioner has also impugned the order of the learned trial Court dated 20-2-2004 whereby an application filed by the petitioner seeking setting aside of the aforesaid ex parte decree has been dismissed, and, the order of the learned Appellate Court dated 26-10-2004 upholding the aforesaid dismissal.
The facts of this case are simple. The respondents Nos.1 to 8 filed a suit against the petitioner and respondent Nos.9 and 10 praying for a mandatory injunction directing the said defendants to fill up the excavation which., had been undertaken by then from land belonging to them. The case of the respondents/plaintiffs is that the defendants- had excavated earth from their land without paying compensation to them.
Learned counsel for the petitioner, firstly, argued that even if the ex parte testimony of the P.Ws. is considered, it will be apparent that they had contradicted themselves and as such, they are not reliable. On this basis, it was contended that a decree could not have been passed in favour of the respondents/plaintiffs. Secondly, it was argued that there is no evidence at all as to the quantum of compensation and the party which is liable to pay the same. To support this contention learned counsel has referred to the final para of the judgment of the learned trial Court wherein an ex parte decree has been passed in favour of the plaintiffs and against the defendants without spelling out the nature of the relief granted and without specifying the party liable under the decree.
Finally, learned counsel for the petitioner has argued that the petitioner was merely a contractor who had been awarded a civil works contract .by respondents Nos.9 and 10 vide work order dated 16-10-1995 and therefore, a decree if any could only have been passed against respondents Nos.9 and 10 and not against the petitioner Who simply executed the work order.
The above contentions lead to just one conclusion. The outstanding dispute now remains only between the petitioner and the respondents Nos.9 and 10. The learned Law Officer has argued that the contract awarded to the petitioner was only for the purpose of excavating earth and there was no element of acquisition of land. According to him the area from which the earth was to be excavated did belong to Mst. Bibi Nooran etc. However, the petitioner excavated earth outside the limits demarcated by respondents Nos.9 and 10. On this basis, it was .argued that the learned Courts below were obliged to apportion the liability between the petitioner as contractor and the respondents Nos.9 and 10 while passing the decree. This was necessary because of the dispute as to whether the petitioner excavated earth from an area outside the one identified by the Executive Engineer, Irrigation (respondent No.10).
Learned counsel for the petitioner stated that this issue was not agitated by the respondents Nos.9 and 10 in their written statement. This may be so. However, it is also apparent that both the petitioner and respondents Nos. 9 and 10 were defendants in the suit filed by Mst. Bibi Nooran etc. These defendants did not lead evidence. The ex parte decree was thus passed in favour of Mst. Bibi Nooran etc. (respondents/ plaintiffs).
The contest between the petitioner, on the one hand, and respondents Nos.9 and 10, on the other, has now been identified and there is nothing which prevents respondents Nos.9 and 10 from raising the factual controversy mentioned above, even if this is to be done through an amendment in their written statements.

YLR 2007 LAHORE HIGH COURT LAHORE 2958 #

2007 Y L R 2958

[Lahore]

Before M. Naeemullah Khan Sherwani, J

BASHIR AHMAD and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No. 110 of 2003, heard on 1.8th February, 2004.

Penal Code (XLV of 1860)---

----S.337-F(i)/34---Sentence, reduction in---Revision petition was not pressed on .merits and only reduction in sentence of six months' R.I. was sought---Accused had already suffered a lot by facing the agony of a protracted trial and pendency of revision petition--Sentence of each accused was accordingly' reduced to the imprisonment. already undergone by him which was sufficient to meet the ends of justice---Accused were directed to deposit Daman amount of Rs.1000 each within one month, as per their undertaking, to be paid to the victim of assault---Petition was disposed of accordingly.

Muhammad Amir Khan Niazi for Petitioners.

Mian Muhammad Bashir for the State.

Date of hearing: 18th February, 2004.

YLR 2007 LAHORE HIGH COURT LAHORE 2960 #

2007 Y L R 2960

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

RIAZ AHMED---Appellant

Versus

PRESIDENT, NATIONAL BANK OF PAKISTAN and 3 others---Respondents

Regular First Appeal No. 539 of 2006, heard on 12th June, 2007.

Constitution of Pakistan (1973)---

----Art. 212---Civil Procedure Code (V of 1908), O. VII, R. 11---Service Tribunals Act (LXX of 1973), S.2-A---Suit for damages---Rejection of plaint---Bank of where appellant was appointed as Godown keeper having been merged in another Bank, services of appellant stood transferred to the said Bank---Appellant completed 25 years of service---Service of appellant in the first Bank from 21-11-1972 to 20-6-1974 having not been included, full emolument due to appellant were not paid t~ ;aim and he had to resort to litigation in the High Court, Service Tribunal and Supreme Court; and in the light of decision so a rendered, appellant was paid his remaining emoluments---Attributing mala fide to respondent, appellant claimed damages on various counts in his suit for damages--In written statement filed by respondents, their main objection was that jurisdiction of civil court was barred under Art.212 of the Constitution and respondents filed separate application under O. VII, R.11, C.P. C. for rejection of plaint, which was rejected---Appellant had filed appeal against said rejection order---Contention of respondents was that claim for damages was relatable to the terms of service and was cognizable only by Service Tribunal---Validity---Damages were being claimed by appellant on the' ground-that because of acts of respondents, appellant was forced to resort to litigation and he had also sought compensation for the delay---Appellant, in circumstances, could not be treated as a civil servant under S.2-A of Service Tribunals Act, 1973 as his terms and conditions were not determined by Federal legislation---Appeal was allowed and impugned order and decree was set aside, with the result that suit filed by appellant would be deemed to be pending before civil court, which would be decided in accordance with law.

Muhammad Mubeen-us-Salim and others v. Federation of Pakistan PLD 2006 SC 602; Federal Ministry of Railways and others v. Zafarullah Khan 1988 PLC (C.S.) 602 and Zafar Ali Qureshi v. Muhammad Ali PLD 2002 SC 723 rel.

Muhammad Akram Jived for Appellants.

Zafar Iqbal Chaudhary for Respondent.

Date of hearing: 12th June, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2962 #

2007 Y L R 2962

[Lahore]

Before Ali Nawaz Chowhan and Syed Shabbar Raza Rizvi, JJ

Haji KABIR KHAN---Petitioner

Versus

THE STATE through Prosecutor General National Accountability Bureau, Lahore---Respondent

Writ Petitions Nos. 10676, 10677 and Criminal Appeal No. 1678 of 2005, decided on 20th October, 2005.

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

----S.31-A---Absconding to avoid service of warrants---Trial Court, after having decided the exemption application of accused had issued warrants against him and decided the case under S.31-A of the National Accountability Ordinance in absentia inflicting maximum sentence through sheer haste---Even if Trial Court was obsessed of the fact that the accused was a clever and an influential person, who might be avoiding .his appearance before the Court, the judicial requirement was there and the Trial Court was to follow the direction of High Court and to have proceeded to decide the matter by following the due process of law and not in such a haste---Conviction and sentence of accused were consequently set aside with the direction to Trial Court to proceed with the trial of accused who had surrendered and was now in NAB custody.

Noor Muhammad Khatti and others v. The State 2005 PCr.LJ 1889 and, Muhammad Arif Saigol v. Federation of Pakistan through Ministry of Interior, Pak Secretariat, Islamanad and another PLD 2003 Lah. 733 rel.

(b) Criminal trial---

----Interest of the prosecution and the accused--- Safeguard provided--- Real concern of the prosecution ought to be that the accused faces a just trial and the prosecution has to afford all opportunities to him for this purpose--Next thing is to safeguard the interest of the prosecution in ensuring that the accused faithfully participates in the trial proceedings and the trial proceeds and if the accused has genuine health problem, to allow him respite in accordance with law for meeting the ends of justice ensuring the expedient dispatch of trial proceedings.

----S.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bail on medical grounds, grant of---Reasons given by High Court for admitting the accused to bail previously- on medical ground did not suffer from any infirmity and the same were accepted with some modifications---Accused was directed not to break his commitment of appearing faithfully before the Trial Court and of not creating any hindrance in the way of trial---Best way to safeguard the interest of the prosecution and the accused was to accept the plea of accused for bail and allow him ad-interim- post arrest bail until the next date---Future extension of bail would be subject to the above condition of his faithful adherence to his commitment---Constitutional petitions were disposed of accordingly.

Mian Manzoor Ahmad Watto v. State 2000 SCMR 107 ref.

Abid Hussain Minto and Sh. Zia Ullah Khan for Petitioner.

Asad Manzoor Butt for NAB.

YLR 2007 LAHORE HIGH COURT LAHORE 2970 #

2007 Y L R 2970

[Lahore]

Before Fazal-e-Miran Chauhan, J

Mst. MARYAM BIBI---Petitioner

Versus

ALLAH RAKHA and others---Respondents

Criminal Miscellaneous No. 7870/CB of 2006, decided on 15th February, 2007.

Criminal Procedure Code (V of 1898)---

----Ss.497(5) & 498---Penal Code (XLV of 1860); Ss.379, 427, 447, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Petition for cancellation of bail---Trial Court while confirming the bail before arrest of accused persons had observed that Investigating Officer had deleted the offences under Ss.379, 427, P. P. C, acid S.14 of Offences Against Property. (Enforcement of Hudood) Ordinance, 1979 and offence under S.447, P. P, C. was bailable---When main offence was bailable, other offences would be considered as bailable as same would sail and sink together with the main offence---section 497(5), Cr.P.C. did not command the Court to cancel the bail even when the offence was punishable with death or imprisonment for life and even if the grant of bait was prohibited under S.497(1), Cr.P. C. ---Principles :for grant and cancellation of bail were altogether different---Strong and exceptional grounds were needed for cancellation of bail---In the present case petitioner had failed to point out any of the reasons for cancellation of bail---No allegation was on the record that accused had misused the concession of bail granted to them by the Trial Court or some fresh facts of material had been collected by the police during investigation, which could tend to establish or point out guilt of accused---Provisions of S.497(5); Cr. P. C. being not at all punitive in nature, strong and exceptional grounds were needed for cancellation of bail---Once bail was granted by the court of competent jurisdiction, it must be shown satisfactorily for its cancellation that discretion exercised by said Court was either perverse or violative of the fundamental principles qua the bail matters or the same could not have been exercised at all in the circumstances of the case.

Inayat Ullah v. State and another 1997 PCr.LJ 13661; Syed Amanullah Shah v. State PLD 1996 SC 2411 and, Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231 rel.

Ms. Najma Parveen for the Petitioner.

Zafar Abbas Khan for Respondents Nos. 1 to 5.

Abdul Majeed Chishti for the State.

Saeed Iqbal, S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 2971 #

2007 Y L R 2971

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

SABIR HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 45 of 2004, heard on 12th December, 2006.

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

----S.13---Appreciation of evidence---Prosecution witnesses had fully supported the prosecution case---Accused had neither rebutted the prosecution version under S.340(2), Cr.P.C., nor he had produced any defence evidence in order la prove his innocence---Police witnesses had no malice or motive to falsely depose against the accused and their testimony could not be discarded merely because they were public witnesses---Huge quantity of arms and ammunition recovered from the accused could not be planted oh him---Conviction and sentence, of accused were upheld in circumstances.

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

----S.13---Appreciation of evidence---Police witnesses, credibility of --Police witnesses are as good as -any other public witnesses and their testimony cannot be discarded merely because they relate to police department.

Malik Muhammad Rafique Khan for Appellant.

Syed Hasnain Kazmi, A.A.G. for the State.

Date of hearing; 12th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 2973 #

2007 Y L R 2973

[Lahore]

Before Syed Asghar Haider, J

SURRAYA NASREEN---Petitioner

Versus

MUSSARRAT KHAN through legal heirs---Respondents

Regular Second Appeal No. 212 of 1988, decided on 8th December, 2006.

Specific Relief Act (I of T877)

----Ss.12 & 20---Specific performance of agreement to sell---Liquidated damages and penalty---Recovery ---Defendant executed agreement to sell in favour of plaintiff but due to clog on title, sale deed could not be completed within stipulated period, .therefore, two extensions were granted---Both the courts below, concurrently dismissed the suit and appeal filed by plaintiff---Validity---No credible documentary evidence was available to substantiate assertion of plaintiff, resultantly both the courts declined discretion in herfavour---Plaintiff had accepted that in case plot was not. transferable on target date, a penalty was incorporated in alternate---Intention, of parties -was that if transfer of property could not be completed on target date, for title not being absolute, then plaintiff could seek re-course by penalty clause incorporated---Such wets ..done and concurrently held by both the courts below after appraising evidence---Concurrent findings against plaintiff --Provisions of S.20, Specific Relief Act, 1877; had no bearing on -the case, as they were inapplicable to contracts in alternate, for which court was required to hold determination---Plaintiff was rightly found entitled to compensation---High Court declined to interfere in concurrent judgments and decrees passed by two courts below---Second appeal-was dismissed in circumstances.

Abdul Aziz v. Maqsood Ahmad 2000 MLD 1875; Mst. Noor Jehan and others v. Muhammad Rafique and others 1995 CLC 43; Messrs Pioneer Housing Society (Pvt.) Limited through Managing Director, Bank Square,. Lahore v. Messrs Baber & Company through Shakir Ali Khan and 2 others PLD 1999 Lahore 193; Hakim Ghulam Rasool v. Sh. Imdad Hussain and another PLD 1968 Lah. 501; Sakinabai and others v. Kunool Muhammad Bashir PLD 1967 Kar.158; Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39; Ghulam Hussain and others v. Muhammad Yousaf etc. PLD 1998 Lah. 11 and Muhammad Saleeir v. Muhammad Shafi and 4 others 2004 YLR 1882 distinguished.

Jahaiigir A. Jhoja for Appellant.

Nemo for Respondent.

Date of hearing: 8th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 2976 #

2007 Y L R 2976

[Lahore]

Before Bashir A. Mujahid, J

WALID HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 2068 of 2003, heard on 31st March, 2004.

Penal Code (XLV of 1860)---

----Ss.324, 397, 458 & 748---Appreciation of evidence---Sentence, reduction in---Eyewitnesses had been injured in the occurrence and their testimony was corroborated by medical evidence---Accused had been found guilty during the investigation---Defence counsel, therefore, had rightly not challenged the conviction of accused---Accused was the first offender and his co-accused had .already beers acquitted on the same evidence---Sentence awarded to accused by Trial Court appeared to be harsh and the same was reduced from seven years' R.I. to five years' R.I. on each count under Ss. 324, 397 and 458, P. P. C. ---Sentence of one year's R.I. under section 148, P.P.C. was maintained---Sentences were ordered to run concurrently with the benefit of section 382-B, Cr. P. C. ---Appeal was disposed of accordingly.

Nadeem Mehmood Mian for Appellant.

Haji Ghulam Asghar for the State.

Date of hearing: 31st March, 2004.

YLR 2007 LAHORE HIGH COURT LAHORE 2978 #

2007 Y L R 2978

[Lahore]

Before Tariq Shamim, J

MUHAMMAD HANIF---Petitioner

Versus

SEUNG GOOK KIM alias SIMON KIM, and another---Respondents

Criminal Miscellaneous No.2138/BC of 2007, decided on 22nd August, 2007.

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

----S.497(5)---Penal Code (XLV of 1860), S.406---Cancellation of bail---Principles---Police during investigation had found that entire amount in question had been received by the petitioner---question whether agreement between .parties constituted a valid and binding document, could only be answered at the trial after ,recording of evidence---Prima facie it appeared that amount in question had been received by the petitioner for the -goods supplied through respondent/accused---Trial Court in the impugned order had rightly observed that element of entrustment which was an essential ingredient to attract the provisions of S.406, P.P.C., was missing from the case---Argument that respondent had failed to disclose any mala fide intent on the part of the petitioner for his false implication in the case, was devoid of any .force as documents referred by the counsel for respondent, prima facie, reflected payment of disputed amount to the petitioner who for some .ulterior motive :was still insisting on payment thereof --Once a Court, in exercise of its discretion, would extend the concession of bail to accused, same could only be cancelled, if bail had been allowed on artificial grounds or the bail granting order was either whimsical or perverse---No such impending circumstance had been brought to the notice. of the court by counsel for petitioner---Discretion left in the court under S.497(5), Cr. P. C. while deciding application for cancellation of bail, was akin to the principles which applied to setting aside an order of acquittal---Impugned order was well reasoned and conclusion drawn by the court below did not appear to be whimsical or illogical---Even otherwise provisions of S.497(5), Cr. P. C. were not punitive in nature and there was no legal compulsion for the court to cancel the bail once validly allowed---Challan in the case had been submitted and copies of the statements of the witness recorded under S.161, Cr. P. C, had been supplied to accused---case was fixed for framing of charge.

Mian Dad v. State and another 1992 SCMR 1286 ref:

(b) Criminal trial---

----Appreciation of evidence---Opinion of the police---Binding nature of---Opinion of the Police, though was not binding on the court, but being adverse to the prosecution, put the court on enquiry as to the veracity of the prosecution case, same had to be given sufficient weight, unless it could be shown that same smacked of mala fide.

Dr. Syed Shaukat Hussain for Petitioner.

Ch. Waris Ali Janjua for Respondent No.1.

Ch. Amjad Hussain, Deputy Prosecutor General for the State along with Abdul Ghafoor, A.S.-I. With record.

YLR 2007 LAHORE HIGH COURT LAHORE 2983 #

2007 Y L R 2983

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD PERVAIZ and 6others---Petitioners

Versus

MUHAMMAD ASLAM---Respondent

Civil Revisions Nos. 1590-D & 1591-D of 1999, decided on 8th December, 2006.

Specific Relief Act (I of T877)---

----Ss.8 & 42---Declaration of title and recovery of possession---Concurrent findings of fact by the courts below, setting aside of---Mis-reading and non-reading of evidence---Plaintiffs sought recovery of suit land on the ground that it was owned by them and was encroached upon by defendant, whereas defendant had denied any encroachment upon any land owned by plaintiffs---Trial Court appointed Naib Tehsildar as Local Commission to demarcate disputed land and on the basis of report of Local Commission, suit was dismissed--Appeal filed by plaintiffs was also dismissed by Appellate Court---Plea raised by plaintiffs was that both the courts below had misread demaracation report prepared by Local Commissioner---Validity---Trial Court had wrongly observed in its judgment that demaracation report showed that defendant never made any encroachment on Khasra number pf plaintiffs---Appellate Court had also wrongly stated in its judgment that Local Commission did not report any encroachment on the land of plaintiffs---Both the courts below had made such observations without reading the report of Local Commission---High Court, in exercise off revisional jurisdiction set aside judgments and decrees passed by both the courts below and decreed the suit in favour of plaintiff --Revision was allowed in circumstances.

Muhammad Asif Bhatti for Petitioners.

Muhammad Nawaz for Respondent.

Date of hearing: 8th December, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 2986 #

2007 Y L R 2986

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4001 of 2005 nr Criminal Appeal No. 400 of 2004, decided on 19th April, 2005.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1898), S.302(b)/34---Suspension of sentence---Accused who not alleged to be armed with any weapon and he was not attributed any Injury to the deceased---Role of "Jappha" only had been assigned to accused when co-accused had given "soova" blows on the body of the deceased---High Court was yet to determine as to whether the accused had shared common intention with co-accused for the murder of the deceased---Appeal was not likely to be heard in near future---Sentence of imprisonment for life of accused was suspended in circumstances and he was released on bail accordingly.;

Saghir Ahmad Bhatti for the Petitioner.

Ch. Masood Sabir for the State.

YLR 2007 LAHORE HIGH COURT LAHORE 2987 #

2007 Y L R 2987

[Lahore]

Before Mian Muhammad Najam-uz- Zaman, J

MUHAMMAD ARIF NAVEED--- Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 7879-B of 2005, heard on 23rd November, 2005.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 420/468/471/409--- Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of --Allegation against accused was that ort the basis of a fake letter issued from the office of Chief Minister, he had got job of Assistant . Secretary, Board of Intermediate and Secondary Education---Accused, during- investigation was found innocent and competent authority had recommended for dropping of proceedings against him--Allegation against the accused was. also found,- false during three departmental inquiries and the document on the basis of which he had got job was held to be genuine---Bail was granted to accused in circumstances.

Malik Noor Muhammad Awan for Petitioner.

Saif Ullah Khalil for the State.

Tahir Siddique Circle. Officer, Faisalabad.

YLR 2007 LAHORE HIGH COURT LAHORE 2988 #

2007 Y L R 2988

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASAD SALEEM--- Petitioner

Versus

Mst. SALOOMI RANA and another--- Respondents

Criminal Miscellaneous Nos. 4574/CB and 3375-B of 2007; decided on 9th 7uly, 2007.

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

----S.497(5)---Penal Code (XLV of 1860), Ss.408/109---Bail, cancellation of --Bail before arrest granted to accused was cancelled by the Trial Court passing detailed order which was upheld upto the Supreme Court and accused was taken into custody---Accused was produced therefore Deputy Judicial Magistrate, who without going through the order of apex Court whereby order cancelling bail was upheld, treating offence of accused to be bailable, granted him bail within a span of twenty four hours---Accused head misused the concession of bail---Duty Magistrate in granting hail to accused had violated the dictum laid down by Supreme Court in case PLD .1986 SC 173---Accused being not entitled to the discretionary relief of bail, order granting him bail passed by the Duty Magistrate was cancelled and she was taken into custody.

2003 SCMR. 573; Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442; 1997 SCMR 278; PLD 1997 SC 545; 2006 MLD 403; 2006 PCr.LJ 584; 2003 MLD 125; 1999 PCr.LJ 1348; PLD 1999 SC 504; 2005 PCr:LJ 1797; Zubair's case PLD 1986 SC 173; 2003 YLR 1911; 1990 PCr.LJ 1186; 2005 MLD 942; PLD 1973 Lah. 874; 1991 MLD 518; 1985 PSC 689; PLD 1989 SC 585; 2004 PCr.LJ 996 and PLD 1973 SC 478 rel.

(b) Criminal Procedure Code (XLV of 1860)---

----S.497---Penal Code (XLV of 1860), Ss.408/109---Bail, refusal of---Bail on medical ground---Unless the disease. of accused was not life threatening, accused could not be enlarged on bail on medical ground---Allegation against accused, in the case was that he along with his wife, ,had usurped rupees fifty lac being employee of complainant---Grarzt of bail in cases not ,falling within the prohibitory clause of S.497(1), Cr, P. C. was a rule and refusal was an exception, but prima facie, case against accused ,fell within exceptions because accused and his wife in connivance with each other had caused a damage of huge amount of rupees fifty lac which were yet to be recovered from accused---Accused was refused bail, in circumstances.

Muhammad Siddique v. Imtiar Begum and 2 others 2002 SCMR 442 and Zubair's case PLD 1986 SC 173 ref.

Ch. Arshad Mehmood for the Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.-General, Punjab with Muhammad Shafi Lashari; S.-I. with record.

Syed Tahir Abbas Rizvi, Assistant Prosecutor General Punjab for the State.

Ch. Imran Masood for Respondent.

Muhammad Ahsan Bhoon for Zeshan Bhatti for Petitioner (in Crl. Misc. No. 3375-B of 2007).

YLR 2007 LAHORE HIGH COURT LAHORE 2993 #

2007 Y L R 2993

[Lahore]

Before Maulvi Anwarul Haq, J

UMAR FAROOQ---Petitioner

Versus

MUHAMMAD AMTN and 3 others--- Respondents

Civil Revision No. 1341 of 2003; heard on 17th April, 2007.

Canal and Drainage Act (VIII of 1873)-

----S.68---Amendment in "Warabandi "; application for---Petitioner filed application for amendment of "Warabandi " as also obtaining- "Nakal" in the year 1989---Contention of petitioner was that since his land was located at the' end of the square, he should be given "Nakal "---Said application was dismissed and said dismissal orders were not challenged by ,filing a suit---Petitioner, however filed fresh application for the same relief, which was dismissed, however his appeal was allowed and "Nakal "was given to him---No plea or evidence was available as suit to the effect that there was any law and order situation or that there was some deficiency in water for the land in arrangement was going on for the last almost half century---No new circumstance or what had been described as "different" in judgment of High Court, had been brought on. record, petition was dismissed.

Muhammad Sultan and others v. Lab Din 1976 SCMR 260 and Saif ur Rehman and others v. Rehmat Ali. 1989 ALD 485 ref.

Mirza Aziz ur Rehman for Petitioner.

Inayatullah Chaudhry for Respondent Nos. 1 and 2.

Nemo for others.

Date of hearing: 17th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 2995 #

2007 Y L R 2995

[Lahore]

Before Umair Ata Bandial, J

JAVED IQBAL---Petitioner

Versus

DISTRICT EDUCATION OFFICER, CIRCLE LAHORE

and another---Respondents

Civil Revision No. 1054 of 2006, decided on 28th February, 2007.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Transfer of Property Act (IV of 1882), 5.116---Application, for grant of interim relief --Plaintiff filed suit for declaration and permanent injunction against his eviction from the premises of book shop in the college---Plaintiff along wits .suit filed application for grant of interim relief, which application was concurrently dismissed by the courts below---Validity---Plea of plaintiff was that he was lessee under -agreement which allowed lease of said premises for book shop inside the college compound for a period of one year at monthly rent---Contention of plaintiff was that he should be deemed to be holding over under Section116 of the Transfer of Property Act, 1882 as lessee on the terms contained in said lease agreement---Plaintiff had further submitted that impugned notice of termination of lease was illegal---Submission of authorities was that alleged agreement was not one of lease, but was .contract to provide services at the premises of the college and its duration, which was specifically limited to one year, had expired---Authorities had denied that they had recovered any rent from plaintiff for the post-expiry period---Amounts allegedly deposited by the plaintiff in the authorities' bank account without permission, authority or consent of the college, could not enure to the benefit of the plaintiff---No acceptance , of rent was made in circumstances in terms of S.116 of the Transfer of Property Act, 1882, nor assent by the authorities had been given to the plaintiff to continue in possession of contracted premises---Plaintiff had not placed any receipt from authorities on record to show that rent had. been received and acknowledged---Unilateral payments made into some Bank account without concurrence and acknowledgment of authorities, did not prima facie support the plea of holding over---Plaintiff did, not have a prima-facie case, balance of convenience too lay in favour of Authorities ---No case, in circumstances, was made out for interference with concurrent view expressed by courts below.

Ghulam Haider Al-Ghazali -for Petitioner.

Raja Sajjad Afzal for Respondents Nos. 1 and 2.

YLR 2007 LAHORE HIGH COURT LAHORE 2997 #

2007 Y L R 2997

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Hasnat Ahmad Khan, JJ

SPEEN GULL and another--Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 819 and Murder Reference No. 828 of 2001, decided on 23rd January, 2007.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Motive of murder which stood fully proved, could not be discarded only on the ground that details of motive were not provided by the complainant while lodging F.I.R. as it was not necessary to give each and every detail in the F.I.R.---Prosecution, in circumstances, had successfully proved motive against accused---During the investigation, blood-stained hatchet and "Dater" were recovered at the instance of accused and report of Serologist was positive in respect of blood on said weapons---Ocular evidence was fully corroborated by medical evidence---F.I.R. was promptly lodged---Explanation of presence of eye-witnesses at the time of occurrence, appeared to be natural---Occurrence had taken place in a broad daylight in a thickly populated area---Substitution of accused was a rare ,phenomena---Even otherwise, defence could not establish any valid reason for false implication of accused---Both eye-witnesses, though, were related, could not be termed as interested witness as they had got no previous enmity of the sort as to falsely implicate accused in a heinous case of murder----Both eye-witnesses were cross-examined at great length, but their testimony could not be shaken; their testimony was corroborative to each other and no material contradictions had been found in their evidence---Ocular evidence, in circumstances was reliable and worthy of .acceptance---Injuries attributed to accused, were found to be very serious---Accused was rightly awarded death sentence by the Trial Court, in circumstances---Co-accused, however did not deserve death sentence as injuries attributed to him were found to be on hand, which was non-vital part of the body of deceased and were not so grievous---Death sentence awarded to accused was confirmed, while death sentence awarded to co-accused was not confirmed and same was converted into life imprisonment.

Sahibzada Farooq Ali Khan for Appellant.

Altaf Ibrahim Qureshi and Malik Muhammad Qasim for Complainant.

Bashir Ahmad Bhatt, D.P.G. with Rao Aatif Nawaz for the State.

Date of hearing: 23rd January., 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 3004 #

2007 Y L R 3004

[Lahore]

Before Tariq Shamim, J

FARYAD ALI---Petitioner

Versus

THE STATE---Respondent

Bail Application No. 4570/B of 2007, decided on 3rd July, 2007.

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

----S. 498---Penal Code (XLV of 1860), Ss.420, 467, 468 & 471---Pre-arrest bail, refusal of--Accused was nominated in the F.I.R. and specific role had been ascribed to Nina---Accused, who was a property dealer, was the master. mind behind the cringe and was the beneficiary of major portion of the amount fraudulently received by him---Purported buyer and owner of property in dispute, were allowed bail on the basis of two affidavits sworn in by the complainant which disclosed that said two persons were also victims of the fraud perpetrated by accused---Said persons had been let off by .the complainant after being satisfied of their innocence in the matter---Document in question was sent for comparison of the signatures and the report received, had revealed that signature of the complainant had been forged on the said document---Accused during investigation, was found to be fully implicated in the crime by the police---After being allowed ad interim. pre-arrest bail by the High Court, accused had failed to join the investigation and had made an attempt to do so only a night before---No mala, fides of complainant or the police lead been shown or established by accused for his false involvement in the case---No case for bail before arrest having been made out, petition was dismissed.

Muhammad Salman Arif for the Petitioner.

Ch. Muhammad Jawad Zafar for the Complainant.

Abdul Latif Hanjra, Deputy Prosecutor General with Muhammad Boota, A.S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 3005 #

2007 Y L R 3005

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Mst. BALQEES BIBI---Petitioner

Versus

STATION HOUSE OFFICER and 4others---Respondents

Writ Petition No. 13709 of 2005, decided on 27th July, 2005.

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

----Art.199---Criminal Procedure Code (V of 1898), S.22-A---Constitutional petition---Adequate remedy---Registration of case---Section 22-A, Cr. P. C. is an adequate remedy for the .petitioner before invoking Article 199 of the Constitution, for registration of a case---Where police officers are unwilling or reluctant to register a case, petitioner should avail an adequate remedy of ,ding a private complaint before the competent Court, which is ,fully empowered during the complaint proceedings to order the police officer, even to investigate or make recoveries etc.---In such circumstances it is better that the petitioner remains incharge of his case instead of leaving the same to the mercy of a biased police officer or Investigating Officer.

PLD 2005 Lah. 470; 2002 PCr.LJ 1613 and PLD 2002 Kar. 328 ref.

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

----Art.199---Criminal Procedure Code (V of 1898), S.22-A---Constitutional petition---Adequate remedy-~-Registration of case---Petitioner had filed the constitutional petition to seek registration of a case under the relevant provisions of law---Petitioner herd an adequate remedy under S.22-A, Cr. P. C. which he should have availed of before invoking Art. 199 of .the Constitution, for registration of the case---Where police officers were unwilling or reluctant to register the case, petitioner could avail an adequate remedy of filing a private complaint .before a competent Court, which during the complaint proceedings was fully empowered to order the police officer to investigate or make recoveries etc. ---Petitioner in this way would remain incharge of his case instead of leaving the same to the mercy of a biased police officer or Investigating Officer---In case the petitioner would choose to file a petition under S.22-A, Cr. P. C. or a private complaint, the concerned Justice of Peace or the Court were directed to decide the same in accordance with law in the light of full Bench judgment cited as PLD 2005 Lah. 470---Constitutional petition was disposed of with the said observations.

PLD 2005 Lah. 470; 2002 PCr.LJ 1613 and PLD 2002 Kar. 328 ref.

2007 Y L R 3021

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

Mst. FAZEELAT BIBI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 57-B of 2006, decided on 23rd January, 2006.

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

----Ss. 6, 9 & 2(d)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4---Application and scope---Bhang/ hemp, recovery of---When Bhang/hemp is referred to without specification of any particular part of the cannabias plant and without the other details mentioned in S.2(d)(ii) of the Control of Narcotic Substances Act, 1997, the offence would be covered by the provisions of the Prohibition (Enforcement of Hadd) Order, 1979---Recovery of Bhang/hemp would attract the provisions of the control of Narcotic Substances Act, 1997, only when the requirements of S.2(d) thereof are fulfilled.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9 & 2(d)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4---Bail, grant of---F.I.R. memorandum of recovery and the Chemical Examiner's report did not specify as to whether the substance allegedly recovered from the possession of accused was the flowering or fruiting tops of the cannabis plant or not, as to whether the same excluded the seeds and leaves when not accompanied by the tops or not and as to whether resin had been extracted from the recovered substance or not---Requirements of section 2(d) of the Control of Narcotic Substances Act, 1997, thus prima facie were not fulfilled so as to attract the provisions of the said Act---Allegation against the accused regarding recovery of "Bhang" weighing 10 kilograms from her possession, fell within the scope of Article 4 of 'the Prohibition (Enforcement of Hadd) Order, 1979, which carried a maximum sentence of two years' R.I.---Accused was a woman and nothing was to be recovered from her---Bail was allowed to accused in circumstances.

Major (R) Aftab Ahmad Khan for the Petitioner.

Muhammad Sharif, Special Prosecutor for the Anti-Narcotics Force.

Ch. Muhammad Nazir for the State with Muhammad Ali, S.I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 3022 #

2007 Y L R 3022

[Lahore]

Before Maulvi Anwarul Haq, J

Mst: KHATOON and others---Petitioners

Versus

ZAFAR ALI and others---Respondents

Civil Revisions Nos. 925 and 1614 of 2000, heard on 12th June, 2007.

Specific Relief Act (I of 1877)---

----S.42---Declaration of title---Joint property---Plaintiffs claimed to be the joint owners of the suit property and assailed sale-deed executed by one of the co-owners in favour of defendant---Trial Court partly decreed the suit in favour of plaintiffs to the extent of their shares whereas it was dismissed to the extent of the share purchased by defendant---Judgment and decree passed by Trial Court was maintained by Appellate Court---Defendant contended that share sold by vendor was well within Iris share in the entire joint property of the parties---Plea raised by plaintiff was that the sale was invalid because vendor had sold the property in excess of his share---Validity---Record showed that there were four shops on the joint plot and some portion was lying vacant as well, in such state of evidence on record, the sale could not have been declared void---Sale had to take effect in accordance with the share of the vendor at the time of partition of the entire joint property---High Court, in exercise of revisional jurisdiction declared the registered sale-deed to he ineffective upon the rights of plaintiffs in the joint property and declared that sale-deed would take effect in accordance with the share of vendor in the joint property at the time of partition---Revision was allowed

accordingly.

Malik Noor Muhammad Awan for Petitioners.

Inayat Ullah Ch. For the Respondent.

Date of hearing: 12th June, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 3026 #

2007 Y L R 3026

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD ASIF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 7112-B of 2005, decided on 27th October, 2005.

(a) 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), Ss.3/4---Bail, grant of---Accused, according to F.I.R. had never received any amount from the deportees on the pretext of sending them abroad for employment and provisions of S.22 of the Emigration Ordinance, 1979, thus were not attracted---Evidence available on record also did not show the involvement of accused under Ss.3/4 of the Prevention and Control of Human Trafficking Ordinance, 2002---Circumstances found on record, no doubt, prima facie, attracted the provisions of 5.17 of the Emigration Ordinance, 1979, qua the accused because he had immigrated from. Pakistan without lawful Authority and was taken into custody by foreign authorities, but the offence being punishable with five years' R.I. did not fall within the prohibitory clause of S. 497(1), Cr. P. C. and grant of bail in such-like cases was a rule and refusal an exception---Accused was admitted to bail in circumstances.

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

----S.497---Bail---Cases not falling within the prohibitory clause of S.497, Cr.P.C.---Principles---Grant of bail in cases not hit by the prohibition contained in S.497(1), Cr. P. C. is a rule and refusal of bail is an exception.

Mian Muhammad Rafi Mughal for the Petitioner.

Muhammad Jahangir Wahlah, Standing Counsel.

Ahmar Naeem Sindhu, S.I. F.I.A.

YLR 2007 LAHORE HIGH COURT LAHORE 3027 #

2007 Y L R 3027

[Lahore]

Before Asif Saeed Khan Khosa, J

AHSAN SABIR and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 67-Q of 2006, heard on 9th April, 2007.

Criminal Procedure Code (V of 1898)---

----Ss.561-A & 265-K---Penal Code (XLV of 1860), S.302---Quashing of proceedings---Occurrence had taken place after dark in the month of February and culprits committing alleged murder remained unidentified at the spot---Both accused had not been nominated in the F.I.R.---Names of accused persons surfaced in the case for the first time through an application submitted by mother of deceased before Investigating Officer wherein she had alleged that mother of accused had made extra judicial confession before her regarding involvement of accused in the murder in issue--Application submitted by mother of deceased before Investigating Officer indicated no date or time of making of extra judicial confession by mother of accused---Even the individual roles allegedly played by the accused persons or the details of occurrence had not been mentioned in said extra judicial confession---No other piece of evidence was available on the record tending to incriminate accused in the alleged murder---Accused had been found to be innocent during investigation---Extra judicial confession was a very weak type of evidence and it seldom would suffice all by itself for recording a conviction in the absence of any other piece of evidence---Weakness of .alleged extra judicial confession in the case, was compounded by the fact that same had not been made by accused persons in the circumstances, there was hardly any likelihood or possibility of recording of conviction of accused by the Trial Court---Petition for quashing of proceedings was allowed and application filed by accused before the Trial Court under S.265-K, Cr. P. C. was accepted and accused- were acquitted, in circumstances.

Nadeem Shibli for Petitioners.

Muhammad Siddique, Deputy Prosecutor-General for the State.

Date of hearing: 9th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 3029 #

2007 Y L R 3029

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD NAWAZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 248-B/BWP of 2007, heard on 16th April, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S. 9(b)---Bail, grant

of--- "Charas " was neither recovered from person of the accused nor from his place of abode---Accused was not previously involved in any such case---Six police officials could not apprehend the single empty handed accused---Such assertion was not believable---No customer was spotted by the raiding parry at the time of raid at the place where according to prosecution the accused was selling "Charas "---Accused was allowed bail in circumstances.

Sardar Riaz Ahmad Dahar for the Petitioner.

Ch. Haq Nawaz, DDPP for the State with Asghar Ali, S.I.

Syed Shaheen Masood Rizvi, A.A.-G. with Director Excise and Taxation, Bahawalpur.

YLR 2007 LAHORE HIGH COURT LAHORE 3030 #

2007 Y L R 3030

[Lahore]

Before Sardar Muhammad Aslam, J

Mst. SAFIA BEGUM---Appellant

Versus

MUHAMMAD AJMAL---Respondent

Regular Second .Appeal No. 33 of 2001, heard on 22nd May, 2007.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Arts.17(2) (a) & 79---Suit for specific performance of agreement to sell---Vendor, a pardanashin lady---Denial of execution of agreement by vendor---Proof---Author of agreement was an Advocate, who did not know vendor personaly---Vendor was neither accompanied by any male member, when she thumb-marked the agreement nor the vendor was related to the vendee---Sole marginal- witness having entered in witness box was father of vendee, while other marginal witness being step-brother of vendor did not enter. in witness box---Validity---Agreement had not been proved by producing two marginal witnesses as required by Art.17 of Qanun-e-Shahadat, 1984---Advocate could not be treated at part with Petition Writer---Statement of Advocate would have no evidentiary value for not having produced his register for examination of Court---No independent advice was available to vendor, who was not accompanied by her father or any other person of her confidence---Vendor .had failed to prove the agreement---Suit was dismissed in circumstances.

Altaf Hussain Shah v. Nazar Hussain Shah 2001 YLR 1967; Qasim Ali v. Khadim Hussain PLD 2005 Lah. 654; Mst. Janat Bibi v. Sikandar Ali PLD 1990 SC 642 and Amirzada Khan and another v. Itbar Khan and others 2001 SCMR 609 rel.

(b) Witness---

----Advocate as author of document---Appearance in Court as witness---Non-production of register for examination of court, wherein Advocate had entered such document---Effect---Advocate was not obliged to keep record---Such Advocate could not be treated at part with Petition-Writer, who maintains a register, with page marking and entries are carried with serial numbers and dates---Statement of such Advocate would have no evidentiary value.

Altaf Hussain Shah v. Nazar Hussain Shah 2001 YLR 1967 and Qasim Ali v. Khadim Hussain PLD 2005 Lah. 654 rel.

Ch. Nazar Hussain for Appellant.

Muhammad Farooq Qureshi Chishti for Respondent.

Date of hearing: 22nd. May, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 3033 #

2007 Y L R 3033

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD ANWAR and another---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No. 111 of 2006, heard on 2nd March, 2003.

Penal Code (XLV of 1860)---

----S.302/34---Criminal Procedure Code (V of 1898), Ss.345 & 439---Compromise---Accused was facing trial under section 302/34, P.P.C. who had allegedly committed the murder of his real sister on the plea of Ghairat/family honour---Punishment fixed under S.302, P.P.C. by virtue of latest amendment was not less than ten years' R.1:---Act committed by accused was heinous in nature---Trial Court being not satisfied had rightly refused the application of the accused moved under S.345, Cr.P.C.---No illegality was pointed out in the impugned order warranting interference by High Court in its revisional jurisdiction---Criminal Revision was dismissed accordingly.

Zahid Hussain Khan for petitioners.

M. Akbar Tarar; Addl. A.-G. for the State.:

Ahmed Nawaz, S.I.

YLR 2007 LAHORE HIGH COURT LAHORE 3034 #

2007 Y L R 3034

[Lahore]

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

VICTOR MASIH alias CHHOOTO---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 382 and 973 of 2005, heard on 20th June, 2006.

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

----S.9(c)---Appreciation of evidence---One accused had been apprehended cat the spot, while his co-accused who had succeeded to .flee away was arrested on dismissal of his application for pre-arrest bail by Trial Court---Accused had failed to produce any evidence with regard to their enmity with the police---Police officials were as good witnesses as any witness from public---Trial. Court had already taken a lenient view while awarding sentence of six years' R.I. to each accused---Conviction and sentence of accused were maintained in circumstances.

Zahid Hussain Khan for Appellant.

Miss Najma Parveen for the State.

Date of hearing: 20th June, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 3036 #

2007 Y L R 3036

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

AHMAD RIAZ SHEIKH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1965 of 2001 'and Writ Petitions Nos. 15582 and 7109 of 2004, heard on 17th May, 2005.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9(a)(v), 10, 18(g) 24---Appreciation of evidence---Sentence, reduction in---Reference was filed by `Acting Chairman' N.A.B. against accused in Accountability Court on the plea that accused as holder of public office, had indulged in acts of corruption and corrupt practices and had acquired valuable assets i.e. gold ornaments; prize bonds; and Share certificates, immovable assets---Anti-Corruption Establishment investigated into the matter and Investigating Officer in his report had submitted. that accused had acquired movable and immovable properties and pecuniary resources disproportionate to his known sources of income and that accused had acquired said assets through misuse of authority and had gained benefits and favour for himself and for his benamidars---Prosecution story revealed that late father of accused used to look after the farms and properties of Ex Director-General of the department---Accused joined said department in the year 1977 as Sub-Inspector, but in the course of Iris service he accumulated assets beyond his known sources of income through corruption .and corrupt practices---Prosecution in the course of trial produced video-cassettes to show the lavish style of living of accused and way he was spending money---Gold ornaments valuing Rs. one arore approximately were recovered from the house of accused during raid---Explanation given by accused in his. statement under S.342, Cr. P. C. was unsatisfactory---Heaps of evidence had been collected against accused---Accused, after joining the department, the assets and income of accused "sky rocketed" and it was not even imaginable that a person of such humble origin, would accumulate wealth to the extent that one would not be able to describe it---Expenditure on the foreign trips of family of accused and details of household expenditure within the country was amazing---Accused had himself admitted prize bonds .to .the extent of Rs. 2,55,000 in his statement under S.342, Cr. P.C.---Allegations embodied in details of assets and properties given in the charge-sheet stood fully established against accused---Trial Court, in circumstances had rightly convicted accused for the offence under Ss.9(a)(v) and 10 of National Accountability Ordinance, 1999---Conviction of accused as recorded by the Trial Court, was upheld; however, as accused and his family members had suffered over a long period, of time on account of prolonged proceedings and the agony faced by them over the years; and also considering the ailment of accused, sentence of imprisonment for 5 years would serve ends of justice---Sentence of 14 years' R.I. and other sentences awarded to accused by the Trial Court were reduced to five years' R.I., with fine of Rs.2 crores---With said modification in the impugned judgment regarding the quantum of sentence, appeal filed by accused was dismissed by the High Court.

Aitzaz Ahsan for Appellant.

Asad Manzoor Butt for Respondent.

Date of hearing: 17th May, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 3060 #

2007 Y L R 3060

[Lahore]

Before M.A. Shahid Siddiqui and Hasnat Ahmad Khan, JJ

YOUNIS and another---Appellants

Versus

THE STATE---Respondents

Criminal Appeals Nos. 80, 102 and PSLA Nos.16 and 25 and Murder Reference No.152 of 2006 and Criminal Miscellaneous No.31-M of 2007, heard on 17th April, 2007.

Criminal Procedure Code (V of 1898)---

----S.410---Penal Code (XLV of 1860), Ss.459/460/302/34---Pendency of appeal against conviction and sentence awarded to accused---Application by accused persons seeking permission to compound offences---Legal heirs of deceased forgave accused and had no objection to their acquittal---Parties to case had entered into compromise without any coercion or duress---Offence under S.302(b), P.P.C. was compoundable, thus, accused convicted thereunder was acquitted of charge---Offences under Ss.459/460, P.P.C. were not compoundable, but accused had prayed for reduction in sentence---Object of compromise would be frustrated, if sentences of accused were allowed to remain in force---High Court reduced sentences of accused for offences under Ss, 459/460, P.P.C. to the term already undergone by them---Appeals were disposed of in such terms.

Yousaf Ali and others v. The State 2002 SCMR 1885 ref.

Ahmed Raza for Appellants.

Malik Naseer Ahmed Thaheem for Respondent.

Rao Atif Nawaz for the State.

Date of hearing: 17th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 3062 #

2007 Y L R 3062

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD BASHIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4260/B of 2005, decided on 5th July, 2005.

Criminal Procedure Code (V of 1598)---

----S.497(2)---Penal Code (XLV of 1860), S.302/324---Bail, grant of---Accused was not named in the F.I:R: and he was implicated in the case after five months, of the occurrence by the father of the deceased---Crime empty did not match with the gun allegedly used in the commission of the offence---Guilt of accused required further probe as envisaged by section 497(2), Cr. P. C. ---Accused was admitted to bail in circumstances.

Fayyaz Ahmad Mehr for Petitioner.

Abdul Haq for the State.

Muhammad Yasin, S.I.

YLR 2007 LAHORE HIGH COURT LAHORE 3067 #

2007 Y L R 3067

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD YOUSAF---Petitioner

Versus

SULTAN MUHAMMAD through legal heirs and others---Respondents

Civil Revision No. 1884 of 2000, heard on 6th April, 2007.

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

----Ss.6 & 13---Suit for pre-emption---Making of Talbs---Suit for possession by way of pre-emption was filed claiming. to be Shafi Sharik Khalit and Jar---Performance of Talbs was pleaded---Trial Court found that both parties were co-sharers in the suit land and had an equal right of pre-emption and that defendant paid Rs.1,00,000 for the suit land---Issue pertaining to (albs was answered against plaintiff and consequently suit was dismissed---First appeal filed by plaintiff was allowed by appellate Court who passed a decree in favour of plaintiff for half the suit-land subject to deposit of Rs. 50,000---Only question of talbs was agitated before the appellate Court as well as High Court---Sufficient pleadings qua the matter of talbs were there and evidence was led accordingly---Revision against the appellate order was dismissed in circumstances.

Hafiz Muhammad Yousaf for Petitioner.

Allah Wasaya Malik for the Respondents.

Date of hearing: 6th April, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 3069 #

2007 Y L R 3069

[Lahore]

Before Sh. Javaid Sarfraz, J

ALI AKBAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 10140/B of 2006, decided on 4th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 109, 148 & 149---Bail, grant of---Further inquiry---Deputy Prosecutor General who appeared on behalf of State had submitted that accused was declared innocent by DSP and matter was referred to S.P. Range Crime, who also declared the accused as innocent---Role attributed to accused in the F.I.R. was that he .fired at the deceased, which hit him under his right shoulder---Altogether, nine accused had been nominated in the F.I.R. who took active part, while two co-accused allegedly abetted the crime---Accused had been found innocent during investigation---Case of further inquiry having been made out requiring further probe into the guilt of accused, he was entitled to grant of bail---Accused was behind the bars since his arrest---Challan having been submitted, no useful purpose would be served by keeping accused behind the bars---Accused was allowed bail, in circumstances.

Aftab Ahmad Bajwa for the Petitioner.

Naeem Tariq Sanghera, Deputy Prosecutor General for the State with Bashir Ahmad, S.I.

YLR 2007 LAHORE HIGH COURT LAHORE 3071 #

2007 Y L R 3071

[Lahore]

Before Asif Saeed Khan Khosa, J

KHALID MEHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9325/B of 2005, decided on 9th January, 2006.

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

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Accused, according to F.I.R. was not present at the scene of occurrence and he had provided behind the scene abetment to his co-accused---Prosecution had not set up any motive as to why accused was interested in killing the deceased---Actual persons who had allegedly administered poison to the deceased had not been nominated or arrested---No poison had been detected in the dead body of the deceased by the Chemical Examiner--No cause of death of the deceased was given in the post-mortem examination report and it was not clear as to whether the deceased had died an unnatural death or his death was natural---Eye-witnesses being relied upon by prosecution had come forward after eighteen days of the alleged occurrence and no explanation was available on record to justify their such conduct---Accused had been found to be innocent during investigation---Accused being a public servant was not likely to abscond---Case against accused called for further inquiry into his guilt within the meaning of section 497(2), Cr. P. C. ---Accused was admitted to bail in circumstances.

M.A. Zafar for the Petitioner.

Abdul Wajid Malik for the State with Munawar Hussain, S.-I. with record.

Abdul Qayyum Butt for the Complainant.

YLR 2007 LAHORE HIGH COURT LAHORE 3076 #

2007 Y L R 3076

[Lahore]

Before M. Bilal Khan, J

FAYYAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6490/B of 2005, decided on 7th December, 2005.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.324/34/148/149---Bahr grant of---Accused was not named in F.I.R.---Complainant had involved the accused in the case in his supplementary statement after seventeen days of registration of the case---Accused had only indulged in aerial firing---Culpability of accused under S.34, P.P.C. needed further probe within the meaning of S. 497(2), Cr. P. C. ---Abscondence of accused would not disentitle him to bail if otherwise he was entitled to the same--Accused was not previous convict and he was in custody for .the last one year---Trial of accused had not yet commenced---Accused was admitted to bail in circumstances.

Zahid Hussain Khan for the Petitioner.

Ms. Naseem Noor for the State with Muhammad Ashraf A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 3078 #

2007 Y L R 3078

[Lahore]

Before Jawwad S. Khawaja, J

KHIZAR HAYAT---Petitioner

Versus

ALI MUHAMMAD---Respondent

Civil Revision No. 2284 of 2006, heard on 1st March, 2007.

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

----Ss.6 & 13---Suit for pre-emption---Making of talbs---Vendee had impugned appellate judgment and decree, whereby the decree of the Trial Court had been set aside with the result that suit for pre-emption filed by pre-emptor had been decreed---Trial Court while deciding relevant issues, had found that pre-emptor had failed to prove the talbs required under S.13 of Punjab Pre-emption Act, 1991---Findings on said issues had been reversed by Appellate Court---Appellate Court had not taken note of material shortcomings in the testimony of the pre-emptor nor had it met the reasoning of the Trial Court for deciding issues .against pre-emptor---Failure of pre-emptor to name the person who had informed him about the sale, was a material lapse---Pre-emptor, in circumstances must suffer its consequences---Impugned appellate decree was set aside and decree of the Trial Court, was affirmed.

Yar Muhammad Khan v. Bashir Ahmed PLD 2003 Pesh. 179 ref.

Ch. M. Lehrasab Khan Gondal for Petitioner.

Syed Muhammad Shah for Respondent.

Date of hearing: 1st March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 3082 #

2007 Y L R 3082

[Lahore]

Before Asif Saeed Khan Khosa and M.A. Shahid Siddiqui, JJ

OBIAQWU EZEKEKE and another---Appellants

Versus

THE STATE and 2 others---Respondents

Criminal Appeal No. 250 of 2005, heard on 29th March, 2005.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.265-K--- Appreciation of evidence---No narcotic substance had been 'recovered from the possession of accused persons and no word had been uttered by any of the prosecution witnesses in their statements recorded under S.161, Cr. P. C. aqua accused's involvement in the alleged offence---Only piece of .evidence being relied upon by the prosecution against accused was in the shape of d statement allegedly made by a co-accused during his custody with the Investigating Agency---Said co-accused had allegedly not only confessed his own guilt, but had also implicated the accused---Confession of accused before an Investigating Officer at n time when he was in custody of such an officer, was inadmissible in evidence---lf such a statement of co-accused was inadmissible in evidence to his own extent, then its evidentiary value was next to nothing vis-a-vis accused persons---Investigating Officer present in the court had 'stated in so many words that apart from the confessional statement of said co-accused made during his custody, no other material was available on the record so as to connect accused with alleged, offence---Evidence available on record showed that there was hardly any occasion for prosecuting the accused and there was no probability of conviction of accused persons---Application submitted by accused before the Trill Court under S.265-K, Cr. P. C. was accepted and accused were acquitted.

Aftab Ahmad Bajwa for Appellants.

Muhammad Sharif for the State.

Ghulam Abbas, Inspector with record.

Obiagwu Ezekeke and Nester appellants present in handcuffs produced by Asghar Ali, S.-I. from Central Jail, Kot Lakhpat, Lahore.

Date of hearing: 29th March, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 3084 #

2007 Y L R 3084

[Lahore]

Before Muhammad Khalil Alvi, J

ZAHID HAFEEZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2761/B of 2005, decided on 31st October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 337-F(v)/337-F(i)/337-F(ii)/148/149---Bail, grant of --Case was one of two versions---Complainant's side had already been summoned by Magistrate after having considered the prima facie evidence led by the accused 's side---Offences with which the accused was charged did not fall within the prohibitory clause of S. 497(1), Cr. P. C. ---Accused was behind the bars for the last more than three months---Investigation being complete accused was not required by the police---Injuries sustained by the accused persons had not been disclosed in the F.I.R. --F. I. R. suffered from an unexplained delay of three days---Accused was admitted to bail in circumstances.

2005 SCMR 1402 ref.

Altaf Ibrahim Qureshi for the Petitioner.

Rao Atif Nawaz for the State.

Tariq Zulfiqar Ahmad Ch. for the Complainant.

2007 Y L R 3108

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD AKRAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 624 of 2002, heard on 20th February, 2007.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Accused being a servant of the complainant must have been identified by the complainant and his sons at the relevant time---Complainant had made dishonest improvements at the trial---Ocular evidence had rightly been disbelieved by Trial Court---Chhuri recovered at the instance of accused from an open plot after a month of the occurrence could not be blood-stained -and even the recovery witness did not support the recovery---Recovery of cloth was effected from the shop of the complainant himself after 21 days of the occurrence---Incriminating recoveries against the accused, thus, were not believable and were discarded---No motive to commit the murder of the deceased had at all been attributed to the accused---Benefit of doubt was extended to accused and he was acquitted in circumstances.

Muhammad Wasim Shahab for Appellant.

Ch. Faqir Muhammad for the Complainant.

Rao Latif Nawaz for the State.

Date of hearing: 20th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 3119 #

2007 Y L R 3119

[Lahore]

Before M. Bilal Khan, J

KHALID HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5601/B of 2003, decided on 22nd October, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18--Penal Code (XLV of 1860), Ss. 354/337-A(i)/337-F(i)---Bail, grant of---Case initially had been registered against the accused only under S. 354, P. P. C. ---State counsel had conceded that neither any supplementary statement of the prosecution nor any statement of the witnesses under S.161, Cr. P. C. had come on record, on the basis of which section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sections 337-A(i) and. 337-F(i), P. P. C. could be added in the case---Applicability of the said- sections, prima facie, appeared to be doubtful and case of accused needed further inquiry as envisaged by section 497(2), Cr. P. C. entitling him to bail---Accused was admitted to bail accordingly.

Muhammad Amir Khan Niazi for Petitioner.

Syed Sajid Raza for the State.

Muhammad Mansab S,I. with police file.

YLR 2007 LAHORE HIGH COURT LAHORE 3121 #

2007 Y L R 3121

[Lahore]

Before Tariq Shamim, J

BAQIR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4611/B of 2007, decided on 16th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, confirmation of---Complainant present in the court had affirmed that a compromise had been effected between the parties and had acknowledged having entered into an agreement with accused, a copy of which had been placed on record---Since complainant was not inclined to prosecute the matter, High Court could not force him to do so---Deputy Prosecutor General having also not opposed the bail petition, same was allowed and ad-interim pre-arrest bail- granted to accused, was confirmed.

Malik Muhammad Arif Bara along with Agha Intizar Ali Imran for Complainant.

Ch. Amjad Hussain, Deputy Prosecutor-General for the State along with Ijaz Ali, A.S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 3122 #

2007 Y L R 3122

[Lahore]

Before Sardar Muhammad Aslam, J

SHARIFAN BIBI and others---Petitioners

Versus

PROVINCE OF PUNJAB through Collector and others---Respondents

Civil Revisions Nos. 1869-D and 1870 of 1997, heard on 1st March, 2007.

Specific Relief Act (I of 1877)

----S.42---Suit for declaration to the effect that plaintiffs were owners in possession of 1/2 share of the suit Ihata and subsequent mutation was sanctioned illegally in favour of defendants in collusion with Revenue Officials---Defendants had also filed separate suit for declaration to the effect that they were owners in possession of suit Ihata---Both suits were consolidated---Both the _courts below concurrently dismissed suit filed by the plaintiffs and decreed suit filed by defendants---Validity---Plaintiffs, in the suit filed by defendants, raised a specific plea in written statement that they were owners in possession of land in dispute by way of an agreement in their favour---Said agreement which was produced in the Court was- not objected to by the defendants---Plea specifically .raised in the written statement of consolidated suit was sufficient notice to defendants who were not taken by surprise---Both courts were not justified in discarding alleged agreement on erroneous consideration---Such non-consideration and non-discussion of remaining documentary evidence, had rendered judgments a nullity in law---Impugned judgment and decree were set aside by High Court---Suit was directed to be deemed to be pending before the Trial Court, which would decide same afresh by recording its findings on specified issues---Findings of the Court below on remaining specified issues were affirmed.

Messrs Saqib Brothers, Jhang and another v. Messrs CIBA Giegy Ltd. 1991 CLC 710 ref.

M:A. Aziz for Petitioners.

Ch. Muhammad Saleman, Addl. A.G. for Respondent No.1.

Rana Rashid Akram and Mian Muhammad Aslam for Respondents Nos.2 to 9.

Date of hearing: 1st March, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 3123 #

2007 Y L R 3123

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

MUHAMMAD SARWAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 995 of 2006, heard on 20th September, 2006.

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

----S.9(b)---Sentence, reduction in---Conviction of accused was not challenged and only reduction in sentence was sought---Statedly accused was an elderly man of about sixty years of age---Wife of accused was present in Court who stated that she had two young daughters of marriageable age and there was no male member to look after the young girls---Accused had no criminal past record and he had already served out about nine months out of his three years' R.I.---Sentence of accused was reduced to the term of imprisonment already undergone by hint in circumstances.

Zahid Hussain Khan for Appellant.

Ch. Muhammad Nazeer for the State.

Date of hearing: 20th September, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 3126 #

2007 Y L R 3126

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASIF---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 1110 of 2006, heard on 10th July, 2007.

Penal Code (XLV of 1860)---

----Ss.324, 337-A(ii) & (iv)---Appreciation of evidence---Medico-legal Report of one of injured prosecution witnesses had shown that both injuries were on the back of his head; brain matter was oozing out and he was in serious condition---Medico-legal Report of other injured prosecution witness had shown that he received three injuries, two on the head and one. on the ear with sharp-edged weapon---Hatchet was got recovered from the accused---Both injured eye-witnesses being star witnesses of the case, had fully supported prosecution case having no animies or ill-will to falsely depose against accused---Concurrent findings of the courts below ere against accused---No law point had been raised to warrant interference in both the judgments passed by the courts below---Injuries received by both injured prosecution witnesses and attributed to accused, had fully attracted the provisions of law under which accused had been convicted and sentenced by the Trial Court---Acquittal of two co-accused had no bearing on the merits of the case and was of no avail to accused as the courts below had applied principle of sifting grain from the chaff---High Court directed that all sentences awarded to accused would run concurrently with benefit of S.382-B, Cr. P. C.

Mian Makshoof Amjad for Petitioner.

Syed Tahir Abbas Rizvi, Assistant Prosecutor General for the State.

Date of hearing: 10th July, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 3129 #

2007 Y L R 3129

[Lahore]

Before Tariq Shamim, J

Haji NAWAB ALI---Petitioner

Versus

MAGISTRATE and others---Respondents

Writ Petition No. 732 of 2006, decided on 15th June, 2006.

Criminal Procedure Code (V of 1898)---

----S.169---General. Clauses Act (X of 1897), S.24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Magistrate had accepted the cancellation report endorsing the opinion of the Investigating Officer in a mechanical manner without giving any reasons and without perusing the record or hearing the parties---Validity---Section 24 of the General Clauses Act, 1897, had provided that any authority whether judicial or quasi judicial or even an executive authority vested with any power to pass an order, was required to give reasons in respect thereof---Impugned order had been passed by Magistrate without application of judicious mind in a mechanical manner and without perusing the police file and thus same was not a judicious or a speaking order---Said order was consequently set aside with the direction to Magistrate to pass a speaking order afresh after perusing the record and hearing the parties---Constitutional petition was allowed accordingly.

Federation of Pakistan v. Muhammad Tariq Pirzada and others 1999 SCMR 2744 acid Ahmad Din v. Illaqa Magistrate and others 2002 YLR .1049 ref.

Bashir Ahmad Chaudhary for Petitioner.

M.R. Khalid Malik, Addl. A.-G. with Ajmal, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 3130 #

2007 Y L R 3130

[Lahore]

Before Asif Saeed Khan Khosa and Sardar Muhammad Aslam, JJ

OBIAQWU EZEKEKE and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7608/B of 2004,- decided on 18th November, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15---Bail, grant o/~--Further inquiry---.Nothing had been recovered from accused 's possession during investigation of the case--Accused had been implicated in the case upon statement of a co-accused allegedly made before Anti-Narcotic Force---Worth and evidentiary value of such a statement of co-accused would be gone into by the Trial Court at the time of trial---No prosecution witness had uttered even a single word against accused in his statement recorded under S.161, Cr. P: C. ---Case against accused called for further inquiry into their guilt--Accused happened to be Nigerian citizens, their passports had already been taken into possession by Investigating Agency---Accused were admitted to bail, in circumstances.

Aftab Ahmed Bajwa for Petitioners.

Muhammad Sharif, Special Public Prosecutor for ANF.

YLR 2007 LAHORE HIGH COURT LAHORE 3132 #

2007 Y L R 3132

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. NAZEERAN alias NAJJAN--- Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2780/B of 2005, decided oyi 26th October, 2005.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/34/337-L (2)/337-F(i)---Bail, grant of---Accused was a woman and she was not alleged to be responsible for causing death of the deceased---Accused according to F.I.R. might be .guilty of offences under Ss.337-L (2) and 337-F(i), P.P.C. which do not fall within the prohibition contained in section 497(1), Cr. P.C.---Question of applicability of section 34, P.P.C. qua the accused would he determined during trial---Case of accused, thus, fell within the ambit of further inquiry---Accused was admitted to bail in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Mehr Muhammad Ashfaque for the State.

Muhammad Boota, A.S.-J.

YLR 2007 LAHORE HIGH COURT LAHORE 3134 #

2007 Y L R 3134

[Lahore]

Before Muhammad Khalid Alvi, J

IRFAN IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.2751/B and 2896/B of 2005, decided on 26th October, 2005.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood), Ordinance (VII of 1979), Ss.16/10--Bail, grant of---F.I.R. had indicated that the alleged abductee had prima facie, left her house on her own accord and she could not be said at such stage to have been abducted by the accused---Reasons for. leaving the house by the abductee were not available an record---Keeping the accused behind the bars would not advance the case of the complainant for the recovery of the alleged abductee, because definitely she was not in their custody, who were in jail---Accused were allowed bail in circumstances.

Altaf Ibrahim Qureshi and Mian Muhammad Akram for the Petitioner.

Rao Atif Nawaz for the State.

Mian Qamar-ud-Din Safeer for the Complainant.

Alain Sher, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 3135 #

2007 Y L R 3135

[Lahore]

Before Fazal-e-Miran Chauhan, J

SHER ABBAS and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1152/B of 2005, decided on 12th May, 2005.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324/337-D/148/ 149/ 337-F(i), (ii)/34---Bail, grant of---Mere presence, of one accused at the spot was not sufficient to hold him guilty for the offence committed by other, accused persons---Co-accused had been released oh bail---Ocular version and medical evidence did not agree with each other---Another accused had been declared innocent by the police and the .injury attributed to him did not fall within the prohibitory clause of section 497, Cr. P.C.---Accused were no more required by the police and no recovery was to be made from them---No fruitful purpose would be served by keeping the accused behind the bars---Case of accused also needed further inquiry---Bail was allowed to accused in circumstances.

Altaf Ibrahim Qureshi for the Petitioners.

Hakeem Abdul Rasheed Malik, State Counsel with Naeem Muzaffar, A.S.-I., Police Station City Lodhran.

YLR 2007 LAHORE HIGH COURT LAHORE 3137 #

2007 Y L R 3137

[Lahore]

Before Mian Saqib Nisar, J

NASIR IQBAL BUTT and another---Petitioners

Versus

SURAYYA BEGUM through General Power of Attorney---Respondent

Civil Revision No. 2002 of 2006, decided on 7th May, 2005.

Civil Procedure Code (V of 1908)---

----O.XVI, R.1---Specific Relief Act (I of 1877), S.8---Suit for possession and rendition of accounts---Application to summon official witness---Plaintiff brought suit for possession" and rendition of accounts against defendants claiming to be .the owner of the Petrol Pump in question---Defendants who denied that plaintiff had any title to said Petrol Pump; had filed application under O.XVI, R.1, C.P.C. to summon official witness from a Government Office---Said application .was rejected by the Trial Court and revision filed by defendants also stood dismissed---Contention of defendants that a case within the purview of O.XVI, R.1, C.P.C. had, been made out had no merit, when no cause had been shown by the defendants for their omission to mention the names of those witnesses in the list of witnesses which had to be filed within 7 days of the framing of the issues, besides, the record while defendants wanted to summon through the witnesses, was neither sued upon nor , relied upon.

Mian Asrar ul Haq for the Petitioners.

Khalid Mian for the Respondent.

2007 Y L R 3144

[Lahore]

Before Muhammad Muzammal Khan and Syed Hamid Ali Shah, JJ

NADEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 704-M of 2007, decided on 13th February, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of---Allegation of sale of narcotics by the accused was. not supported- by any evidence with the prosecution---No prospective purchaser .was named or arrested at the time of arrest of accused---Accused was not involved in any other alike case---Meagre quantity of 560 grams of "Charas" recovered from accused would not make him a transporter or trafficker of the contraband---Accused was in detention for about five months and conclusion of his trial could not be expected in near future---Person of accused was no more. required for investigation and his further detention would not advance any useful purpose---Bail could not be withheld as of punishment in absence of any allegation of abscondence or tampering with the prosecution evidence by the accused---Offence against accused did not fall within the prohibitory clause of section 497(1), Cr. P. C. ---Accused was admitted to bail in circumstances.

Sheraz Mahmood for the Petitioner.

Tariq Ismail Mayo, Deputy District Public Prosecutor for the State with Muhammad Riaz, S.I.

YLR 2007 LAHORE HIGH COURT LAHORE 3145 #

2007 Y L R 3145

[Lahore]

Before M. Bilal Khan, J

TARIQ HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.784/B of 2006, decided on 10th February, 2006.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.337-A(ii)/ 337.-F(i)/452/147/149---Pre-arrest bail, grant of---Both the parties were closely related to each other---Accused nominated in the F.I.R. had already been. released on bail; at the stage it would not serve any useful purpose to send the accused behind the bars---Was yet to be determined as to who was the aggressor---Case of accused needed further probe---Ad interim pre-arrest bail already granted to accused .was confirmed in circumstances.

Zahid Hussain Khan for the Petitioner.

Ch. M. Masood Jehangir for the Complainant.

M. Saleem Shad for the State with Ghulam Murtaza, S.I.

YLR 2007 LAHORE HIGH COURT LAHORE 3147 #

2007 Y L R 3147

[Lahore]

Before Maulvi Anwarul Haq, J

SAID RASOOL and others---Petitioners

Versus

SHAMSHAD ALI and others---Respondents

Civil Revision No.2444-D of 1996, decided on 26th March, .2007.

Specific Relief Act (I of 1877)---

----S.12---Suit. for specific performance of agreement---Contentions of plaintiffs were that defendants had agreed to sell suit land fora consideration; that entire amount was paid whereupon agreement was executed and possession of suit land was delivered to plaintiff and that defendants had refused to perform their part of contract--Plaintiffs had prayed for decree for specific performance of .agreement---Defendants in their written statement denied having entered into any agreement with plaintiffs or to have received any money from them--- Delivery of possession was also denied---Trial Court and Appellate Court had concurrently dismissed the suit---Validity---None of 'the witnesses produced by the plaintiffs had stated that defendants had put their thumb-impression on alleged agreement of sale at receipt in his presence---Courts below had very correctly observed that in the first instance no evidence of execution of documents by defendants was available within the meaning of law or even, in fact; that no evidence was on record to the- effect that documents -were read over to defendants including an old .and "Parch Nasheen" lady---Concurrent findings of the courts. below could not be interfered with, in circumstances.

Muhammad Sharif Chauhan for Petitioner.

Nemo for the Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 3153 #

2007 Y L R 3153

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

GULZAR AHMAD alias GULLOO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1670 of 2000 in Murder Reference No. 702 of 2000, heard on 31st January, 2005.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Benefit of doubt---Prosecution case was .based only on circumstantial evidence---Complainant, real brother of the deceased, admittedly being inimical towards accused. was an interested witness and other prosecution witness being his servant could be under his influence---Accused, according to complainant had borne .severe grudge against the deceased and even then he allowed his deceased brother to accompany the accused and, that too, at night time when the accused and his companion were armed with guns---Evidence of last seen, thus, was not reliable for which no independent corroboration was available---"Wajh Takkar" evidence had rightly been disbelieved by Trial Court---Medical evidence, no doubt, had proved the death of the deceased and the cause of death, but the same did not lead to any clue of the culprits and did not provide much support to the prosecution version in that behalf---Motive as set up by the prosecution .was not convincing and was an afterthought---Recovery of the gun from the accused was of no consequence, as parcel of the crime empties was kept in police station for one month and twenty days and the empties were sent to Forensic Science Laboratory after the recovery of the .gun, which delay had not been explained---Despite the positive report of the said Laboratory, the recovery could not be believed---Accused was given benefit of doubt and acquitted in circumstances.

Dr. Khalil Ranjha for Appellant.

Ishfaq Ahmed Chaudhary for the State.

Syed Zahid Hussain Bokhari for the Complainant.

Date of hearing: 31st January, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 3157 #

2007 Y L R 3157

[Lahore]

Before Muhammad Khalid Alvi, J

GOVERNMENT OF PAKISTAN---Petitioner

Versus

WAHID BAKHSH and others---Respondents

Civil Revision No. 237 of 2006/BWP decided on 22nd June, .2006.

Land Acquisition Act (I of 1894)---

----Ss.4, 11 & 18---Acquisition of land---Announcement of award---Dismissal of reference---Application for restoration of reference---Land was acquired and award of acquisition was announced---Land owners, dissatisfied with said award filed reference under S.18 of Land Acquisition Act, 1894, which reference was dismissed for non-prosecution and application for its restoration was also dismissed---Another application for restoration, however, was allowed---Effect---By allowing said application, previous application was restored and not the reference---Revision petition was allowed with observation, that application for restoration of reference, would be deemed to 'be pending before the Trial Court, which would be disposed of in accordance with law.

Muhammad Shamshir Iqbal Chughtai for Petitioner.

Malik Muhammad Hanif Ghaffari for Respondents.

Date of hearing: 22nd June, 2006.

YLR 2007 LAHORE HIGH COURT LAHORE 3159 #

2007 Y L R 3159

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL AZIZ---Petitioner

Versus

ABDUL HAMEED---Respondent

Civil Revision No. 813 of 2002, heard on 16th February, 2007.

Civil Procedure Code (V of 1908)---

----O.XVII, Rr. 2, 3 & O.IX, R.8---Preemption suit---Plaintiff on the date fixed for evidence neither appeared nor produced evidence---Trial Court proceeded to dismiss the suit under Order XVII, R.2 as well as rule 3 C. P. C. ---Validity---Record revealed that on the date fixed for recording evidence, none of the parties were present---Suit, in circumstances, could have been proceeded only under Order XVII, Rule 2, C.P.C. and at the most it could have been dismissed for non-prosecution---Order passed by Trial Court was without jurisdiction hence rightly set aside in first appeal.

Hassan Akhtar Joya for Petitioner.

Mian Jived Iqbal Arain for Respondent.

Date of hearing: 16th February, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 3165 #

2007 Y L R 3165

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

QAISAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 705 of 2003, heard on 3rd February, 2005.

(a) Penal Code (XLV of 1680)---

----Ss.302(b) & 302(c)---Appreciation of evidence---Sentence, reduction in---Place, time of occurrence and the pistol used in the incident were admitted by the accused, who had accepted the liability of having killed the deceased under grave and sudden provocation to save the honour of his wife---Motive for the occurrence was not proved by cogent evidence---Eye-witnesses had only seen the .accused running away from the spot and they did not see as to whet trod happened inside the room where firing was made---Occurrence had taken place at 4 a.m. in the morning---Matter was reported to the police after a delay of 5-1 /2 hours .when- the police reached the spot on receiving information through .some source---Prosecution witnesses died not explain as to why they did not inform the police about the occurrence in time -when police station was at a distance of only 2-1 /2 miles---Possibility of the said time having been consumed by the prosecution in concocting and fabricating the story could not be ruled out---First version of the accused immediately after his arrest was the same as narrated by him before the Trial Court under S. 342; Cr. P. C. ---Wife of accused while appearing in Court as a defence witness had supported the defence plea and her statement rang true, inspired confidence and could be relied upon---Trial Court while disbelieving the prosecution case and relying upon the defence plea had taken a harsh view in awarding sentence to accused only because he had fired two shots at the deceased---Quntum of injuries or damage could not possibly be measured in golden scales while acting under grave and sudden provocation or in the right of self-defence---Award of sentence of imprisonment for life solely on the ground that the accused had caused two fire-arm injuries to the deceased was not justifiable in the circumstances of the case---Accused had committed the murder of the deceased in the right of his self-defence in order to protect. the honour of his wife---Conviction of accused under S. 302 (b), P.P.C. was consequently converted into S.302(c), P.P.C. and his sentence was reduced to imprisonment already undergone by him in circumstances.

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

----S. 302---Murder---Crime and punishment---While causing injuries under grave and sudden provocation or in the right of self-defence, it is not possible to measure the quantum of injuries or damage in golden scales.

M. S. Shad for Appellant.

Mian Muhammad Asghar for the State.

Date of hearing: 3rd February, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 3169 #

2007 Y LR 3169

[Lahore]

Before Muhammad Jehangir Arshad; J

MUHAMMAD HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1929-B of 2006, decided on 18th July, 2006.

Criminal Procedure Code (V of 1898)---

----Ss.497 & 156-B---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(2), 13 & 14---Bail, grant of -- Female co-accused had been released on bail and she got her statement recorded under S.161, Cr.P.C. in which she did not level any allegation of zina against any person---Lady was living with accused as his legally wedded wife after contracting marriage with him since 1996 and Nikahnama was also got registered in the Union Council---Complainant never bothered to find-out whereabouts of female accused nor made, any effort for getting her recovered--Accused was arrested without prior permission of the Magistrate in violation of S. 156-B, Cr. P. C. ---Accused was behind the bars since 28-7-2005 and question whether co-accused was legally wedded wife of accused, was yet to be determined after recording of evidence---Accused was allowed bail, in circumstances.

2005 YLR 1634 ref.

Sardar Muhammad Shehzad Khan for Petitioner.

Syed Athar Hassan Bokhari for-the Complainant.

Pervaiz Qamar Butt for the State.

Ghulam Farid, S.-I. with record.

YLR 2007 LAHORE HIGH COURT LAHORE 3181 #

2007 Y L R 3181

[Lahore]

Before. Mian Saqib Nisar, J

PROVINCE OF PUNJAB---Appellant

Versus

Mian FAKHAR AND COMPANY---Respondent

First- Appeal from Order No. 46 of 2006, heard on 31st May, 2006.

Arbitration Act (X of 1940)---

----Ss. 20, 39, 41 & Second Sched. 2---Application for filing of arbitration agreement and its reference to arbitration--Respondent, .along with application for fling of the arbitration agreement and its reference to the arbitration, had also filed another application under S.41 read with Sched.2 of the Arbitration Act, 1940 seeking restraint against the appellants from the encashment of the security deposits---Plea of appellants in reply to the said application, was that -they did not intend to encash the security deposits, but it was simple transfer of amount front one Bank to another, which would in no case affect the status of security deposits---Validity---Such was the realization of security deposits in the garb of the alleged transfer, which was objected to and which during the pendency of the application, had been considered .inappropriate by the Trial Court---No error was found in the said order, however, it could be held that arty observation made by the Trial Court in its order, would not cause any prejudice to the case of either of .the parties at the trial.

Muhammad Nawaz Bajwa for Appellant. .

Riaz Karim Qureshi for Respondent No.1.

YLR 2007 LAHORE HIGH COURT LAHORE 3182 #

2007 Y L R 3182

[Lahore]

Before Muhammad Muzammal Khan, J

ALLAH DITTA---Petitioner

Versus

RIAZ HUSSAIN SHAH---Respondent

Civil Revision No. 938 of 2006, decided on 19th February, 2007.

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

----S.13---Right of pre-emption, exercise of---Conditions---Pre-emptor has to prove through positive evidence, the place along with time, day, month and year of gaining the knowledge of sale and instant performance of Talb-i-Muwathibath in same meeting/majlis in which declaration was 'made for .exercise of right of pre-emption---Plaintiff had failed to prove spontaneous performance of Talb-i-Muwathibat on receiving .knowledge of sale---Entire fiber attempted to be weaved by statements of witnesses was apparently afterthought as the vendor was none else but real sister in law of the plaintiff---Non-production of informer, the star witness about the alleged performance of Talb-i-Muwathibat, would give rise to an adverse-inference against plaintiff.---Statements of-witnesses without specifying the date/ month/year of acquiring the knowledge by ,plaintiff were held of general nature not enough to prize the plaintiff with a decree for pre-emption.

Muhammad Yousaf v. Muhammad Rafique and others PLD 2006 Lah. 39; Amin ud -Din v. Mst. Zarina 2003 CLC 1775 and Atiqur Rehman through (real father) and another v, Muhammad Amin PLD 2006 SC 309 ref.

Khalid Ikram Khatan for Petitioner.

Mian M. Nawaz for Respondent.

YLR 2007 LAHORE HIGH COURT LAHORE 3185 #

2007 Y L R 3185

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD SALEEM-UL-HASSAN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 1359 of Q-2005/BWP, decided on 16th February, 2006.

Criminal Procedure Code (V of 1898)---

---S.561-A---Penal Code (XLV of 1860), Ss. 379, 452; 748 & 149---Petition for setting aside of summoning order---Respondent got F.I.R. registered and case was investigated by the police, but no theft was found to have been committed and cancellation report was forwarded by the police to Illaqa Magistrate for his approval---Grievance of petitioner was that cancellation report was not approved by Illaqa Magistrate, but he had summoned petitioner as an accused, despite the fact that he was not entered and shown as an accused into the cancellation report---Validity---Summoning .order of petitioner had not been passed upon any conscious application of legal mind to the facts and circumstances of the case---Cancellation report and in F.I.R., showed that name of petitioner was not entered---Legal way to act for Magistrate was to record the statement of informant and a few of his witnesses and then to pass order upon the material brought on the record---Summoning order of petitioner could not have been passed by the Magistrate, without legal application of mind to the facts and circumstances and material on record---Impugned orders, were declared illegal and unlawful, and were set aside, in circumstances.

Malik Imtiaz Mehmood for Petitioner.

Ch. Shafi Muhamnad Tariq, A.-A.G.

Syed Muhammad Anwar Javed for Respondent. No.4 in person.

Pervaiz Iqbal, Inspector/S.H.O: .Muhammad Iqbal, S.-I.

YLR 2007 LAHORE HIGH COURT LAHORE 3187 #

2007 Y L R 3187

[Lahore]

Before Ijaz Ahmad Chaudhry, J

KHUDA BAKHSH alias MANJOO---Petitioner

Versus

ABDUL REHMAN and 3 others---Respondents

Criminal Revision No. 420 of 2003, heard on 13th June, 2005.

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

----Ss. 200 & 439---Penal Code (XLV of 1860),. Ss. 302/324/452/148/149---Private complaint---Non-summoning of accused---Stand of the complainant was consistent 20 the extent of the accused in his statement under S.154, Cr. P. C., in the private complaint and in the evidence recorded at the preliminary stage; that he, while armed with a pistol had fired at his mother hitting her at her left wrist---Declaration of the accused as innocent by the police in the challan alone was no ground for not summoning him, as tentative assessment of the evidence had to be made by Trial Court at the time of summoning the accused in the private complaint---Case of accused was of par with that. of co-accused who had been summoned to face the trial through the impugned order---Said accused was directed to be summoned to face the trial and revision petition to his extent was accepted accordingly.

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

----Ss.200 & 439---Penal Code (XLV of 1860), Ss.302/324/452/1487149---Private complaint---Non-summoning of accused---One accused was not named in the F.I.R and only a person in police uniform was alleged to have fired at the deceased hitting near her left ear---Other accused though was allegedly armed with a "Soto ", yet no injury was attributed to him in the F.I.R.---Complainant had involved both the said accused in the case in the private complaint by .making improvements, which had been filed after nine months of the occurrence---Trial Court had rightly not summoned the said two accused giving valid reasons, and the impugned order qua them did not suffer from any illegality-Revision petition was dismissed accordingly.

Altaf Ibrahim Qureshi for Petitioner.

Muhammad Arif Alvi for Respondents Nos. 1 to 3.

Rao Muhammad Shafique for the State.

Date of hearing: 13th June, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 3189 #

2007 Y L R 3189

[Lahore]

Before Khawaja Muhammad Sharif and Tanvir Bashir Ansari, JJ

MUHAMMAD ASHIQ---Appellant

Versus

THE STATE---Respondent

Criminal' Appeal No. -221 of 2002, heard on 18th January, 2005.

Contempt of Court Act (LXIV of 1976)---

----Ss. 3& 4---Constitution of Pakistan (1973), Art.204---Accused in a case after having been granted ad interim pre-arrest bail by the High Court had been arrested by the contemner, A.S-.I. on the same day at about 1.00 p.m. from his house---Neither it appeared to be reasonable nor probable to believe that the accused 'did not inform the said A. S. -I. (appellant) about his pre-arrest bail at the time when the appellant had come to arrest him---Appellant should have given due consideration to the said plea of accused, particularly when he had also produced the certificate issued by his counsel to this effect---Appeal of the contemner A. S-.I. was consequently dismissed---However, keeping in view the fact that the accused after rejection 'of his pre-arrest bail by Sessions Court had remained an absconder for one month and. the contemner A. S. -I. on coming to know about his presence in the house had promptly proceeded to the spot and arrested him so that he might not flee from law once again, sentence of 3 months S.I. of the contemner. appellant was reduced to 2 months' S.I.

Naseer Ahmad Bhatta for Appellant.

Muhammad Iftikhar for the State.

Date of hearing: 18th January, 2005.

YLR 2007 LAHORE HIGH COURT LAHORE 3192 #

2007 Y L R 3192

[Lahore]

Before Hasnat Ahmad Khan, J

SOOBA and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1223 of 2003; heard. on 23rd- July, 2003.

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

----S.302(b)---Appreciation of evidence---Occurrence having taken place in -the broad daylight, there was no chance of misidentification or substitution of the perpetrator of the crime---Accused as .well as injured prosecution witness received injuries besides. deceased---Injury suffered by .accused was duly mentioned in the F.I.R. stating that injured prosecution witness caused a sickle blow to accused in his self-defence---Presence of accused and injured prosecution witness at the spot hid fully been proved, in circumstances---Medical evidence had duly confirmed the factum of receipt of fire-arm injuries by the deceased as -well as by the injured prosecution witness, to show the aggression on the part of accused parry---Occurrence had taken place in the courtyard of the residence of deceased---F.I.R. though was lodged after consultation with a counsel to whom medico-legal reports were -also shown, but that fact alone, could oat demolish the prosecution's entire case---Some contradiction though .existed in the medical evidence to the, extent of direction from which deceased was fired at, but said inconsistency could not advance -the case of defence, when the fact was that .during the occurrence deceased was shot at---Motive of occurrence had fully been proved---Corroborating evidence in the case was forthcoming in the shape of Medico-legal Report of accused, which had clearly revealed that he was present at the time of occurrence---Accused had failed to prove defence version---Ocular, version which included evidence of injured prosecution witness, being probable and plausible, was believed---Conviction and sentence awarded to accused was maintained---Accused, who was on bail, 'was directed to be taken into custody to serve out his remaining sentence.

Sneed Ahmed v. Zamurd Hussain 1981 SCMR 795; Javaid Akhtar and another v. State 1998 PCr.LJ 1009; State v. Muhammad Adam and others 1999 MLD 335; Munir Ahmed v. State 2001 SCMR 56; Mst. Saeeda Begum v. .1998 SCMR 1513; Ghulam Rasool v. State 1908 MLD 1366; Bashir Begum v. Safdar Ali 2000 SCMR 1038; Muhammad Tayyab v. State 1991 NLR 24I; Khizer Hayat v. State 2006 SCMR 1755; Muhammad Ehsan v. State 2006 SCMR 1857; Muhammad Akram v. State 2006 SCMR 954; Abdul Rauf and others v. Mehdi Hussain 2006 SCMR 1106; Liaquat v. State 2006 SCMR 33 and Muhammad Akram and others v. State 2006 MLD 1973 ref.

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

----S.302(c)---Appreciation of evidence---Benefit of doubt---Only .allegation against co-accused was that of resorting to ineffective and aerial firing---During investigation,. no recovery was effected from the place of occurence---Some self destructive suggestions though were put to the eye-witnesses regarding presence of two witnesses, but when it had come on record that F.I.R. was lodged after consultation with one advocate, co-accused were entitled to benefit of doubt---Co-accused were acquitted of `the charge, in circumstances.

Ch. Arshad Mehmood for Appellant.

Hafiz Khalil Ahmed for the Complainant.

Date of hearing: 23rd. July, 2007.

YLR 2007 LAHORE HIGH COURT LAHORE 3200 #

2007 Y L R 3200

[Lahore]

Before Muhammad Jehangir Arshad, J

2007 Y L R 385(2)

[Peshawar]

Before Said Maroof Khan, J

GOVERNMENT OF N.-W.F.P. through Collector D.I. Khan and others---Petitioners

Versus

MUHAMMAD IBRAHIM KHAN---Respondent

C.R. No.290 and C.M. No.198 of 2006, decided on 30th October, 2006.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Defendants awarded contract for construction of road to plaintiff who was a Government Contractor vide agreement duly executed between the parties---Plaintiff executed contract work and payment was made to him as per contract/agreement---On objection raised by audit party that road roller charges were not recovered from the contractor as per prescribed formula, Executive Engineer directed plaintiff to make payment of road roller charges---Plaintiff, in his suit for declaration and permanent injunction had challenged validity of said recovery---Trial Court decreed the suit and Appellate Court below dismissed appeal filed by petitioner against judgment and decree of the Trial Court---Validity---Held, on the basis of audit objection, no recovery could be made from plaintiff because audit objection was a matter to be settled between Audit Officers and the defendant-department and plaintiff had no concern with that---Trial Court, in circumstances had rightly decreed suit in favour of plaintiff and Appellate Court had rightly dismissed the appeal against judgment and decree of the Trial Court---Concurrent findings of the Court below were not suffering from any illegality or material irregularity warranting interference by High Court.

Muhammad Sharif Chaudhary D.A.-G for Petitioners along with Mushtaq, S.D.O.

YLR 2007 PESHAWAR HIGH COURT 389 #

2007 Y L R 389

[Peshawar]

Before Said Maroof Khan, J

MIRA JAN---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Revision Petition No.58 of 2005, decided on 4th May, 2006.

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

----Ss. 88 & 89---Attachment of property of person absconding---Restoration of attached property---Limitation---Period of limitation prescribed by S.89, Cr.P.C. for filing application for restoration of attached property, was two years from the date of attachment---Date of attachment in the case of immovable property, would mean the date on which property was practically and physically attached on the spot in accordance with provisions of sub-section (4) of S.88, Cr.P.C. in pursuance of attachment order under subsection (1) of S.88, Cr. P. C.

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

----Ss. 88, 89, & 561-A---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Attachment of property of absconder---Restoration of attached property---Limitation---Accused who was involved in criminal case, having remained absconder for a considerable period, proceedings under S. 88, Cr.P.C. were initiated against him and an order for attachment of his land was passed---Accused surrendered . himself before the Court and was arrested; he was tried and was acquitted---Accused, after his acquittal filed application for release of his land, but his application was dismissed by Judicial Magistrate and appeal against judgment of Magistrate was also dismissed being timebarred---Possession of attached land remained with accused during alleged period of his abscondence---Land was not practically attached on the spot and accused remained in its actual physical possession during alleged period of abscondence, so he could not get knowledge of attachment---Accused stated that he got information about attachment order on a specified date and that fact stood un-rebutted---Submission of application by accused for restoration of attached land under S.89, Cr.P.C. within one month of date of knowledge, was well within time---Refusal to release attached property on the only ground that accused remained absconder in a criminal case, in which he had been ultimately acquitted, would be absolutely unjustified and against all canons of justice---Allowing petition, attached land was ordered to be released in favour of petitioner.

Muhammad Shah Nawaz Khan Sikandari for Petitioner.

Muhammad Sharif Chaudhry, D.A.-G. for the State.

Date of hearing: 4th May, 2006.

YLR 2007 PESHAWAR HIGH COURT 444 #

2007 Y L R 444

[Peshawar]

Before Salim Khan, J

HAQ NAWAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.102 of 2006, decided on 27th November, 2006.

Penal Code (XLV of 1860)---

----S. 324---Appreciation of evidence---Sentence, reduction in---Prosecution witnesses had clearly stated that accused had fired at complainant---No conflict existed between oral and medical evidence---Identification of accused at the time of occurrence was not doubtful---Co-accused who was acquitted of the charge in the case, as he was not charged in F.I.R. for any effective firing---Such fact would not make case against accused doubtful in any manner---Trial Court in circumstances, had rightly convicted accused, but punishment of three years awarded to accused was excessive in circumstances of the case which was reduced to one year with fine of Rs.10,000, with facility that benefit under S.382-B. Cr.P. C. was given to the accused.

Malik Khalid Mahmood for Appellant.

Waliullah Khokar and Khalid Rehman Qureshi for the State.

Date of hearing: 27th November, 2006.

YLR 2007 PESHAWAR HIGH COURT 448 #

2007 Y L R 448

[Peshawar]

Before Said Maroof Khan, J

HABIB ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.3 of 2006, decided on 30th November, 2006.

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

----S. 13---Explosive Substances Act (VI of 1908), S.5---Appreciation of evidence---Case of conviction of accused, though entirely rested on evidence of police officials and no independent witness was associated with the search, but that omission on the part of prosecution would not vitiate the proceedings---Mere fact that prosecution had not complied with the provisions of S.103, Cr.P.C., was not sufficient for setting aside conviction of accused; it was not an absolute requirement that in each and every case witnesses from the public must necessarily be produced as that requirement depended upon the facts of each case---Main object of provisions of S.103, Cr.P.C. was to avoid concoction, while in the present case neither any allegation of concoction was made nor accused was alleged to have been prejudiced in his defence due to non-compliance of S.103, Cr.P.C.; there was no allegation that recovered items were planted by the police officials just to make out a false case against accused for some ulterior motives---Lengthy cross-examination of prosecution witness, there was nothing material brought on record to shatter his testimony---Another prosecution witness who was alleged to be one of marginal witnesses of recovery memo. had fully supported prosecution case and stated that recovery was made in his presence---Evidence of first prosecution witness stood duly corroborated by evidence of the other witness---None of said two witnesses had deposed about any enmity with accused so as to implicate him in a false case---Recovery of huge quantity of arms and ammunition ruled out the possibility of false implication of accused---Prosecution case was further corroborated by positive report of A.I.-G. (Bomb Disposal) who had examined the sample of explosive material---Not sending arms to the Arms Expert for his opinion, was not fatal to prosecution case because accused had not alleged that he had transported unserviceable weapons and ammunition---Sending of ammunition to Arms Expert for his opinion otherwise, was also not a legal requirement---Plea of accused that confession was extracted from him through coercion was not supported by any evidence---Evidence produced 'by prosecution, had proved guilt of accused beyond doubt, and he was rightly convicted and sentenced by the Trial Court---Impugned judgment, in circumstances, was not suffering from any infirmity calling for interference by High Court.

Abdul Latif Khan Baloch for Appellant.

Ch. Muhammad Sharif, D.A.-G. for the State.

Date of hearing: 26th September, 2006.

YLR 2007 PESHAWAR HIGH COURT 456 #

2007 Y L R 456

[Peshawar]

Before Said Maroof Khan, J

ROMAN ALI alias ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.123 of 2005; decided on 1st December, 2006.

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

----S. 13---Surrender of Illicit Arms Act (XXI of 1991), S.7---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Search proceedings---All prosecution witnesses were police officials and prosecution case mainly hinged upon the testimony of prosecution witnesses---One of the said prosecution witnesses was alleged to have made the recovery while the other witness was stated to have witnessed search and recovery of Kalashnikove---Both prosecution witnesses had admitted in their statements that besides accused, three other persons of the locality were also present at the spot, but they were neither associated with the search and recovery proceedings nor any reason was shown for non-compliance of provisions of S.103, Cr. P. C. ---Compliance of S.103, Cr. P. C. was not possible only when no one lived in the place of search except the offender---Besides accused, three other persons were present at the place where the raid was conducted, but none of them was associated with search and recovery proceedings---Requirements of S.103, Cr. P. C. had not been fulfilled, in circumstances, especially when no evidence was on record to suggest that said persons had expressed their unwillingness to become witnesses of the recovery---In absence of any explanation to condone the legal requirement of associating two persons of the locality with recovery proceedings, legality of search and recovery had become suspicious and unbelievable---Impugned judgment was set aside and accused was acquitted of the charge levelled against him and he was released.

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

---S. 103---Recovery proceedings---Principles.

Gohar Zaman Khan Kundi for Appellant.

D.A.-G. for the State.

Date of, hearing: 28th November, 2006.

YLR 2007 PESHAWAR HIGH COURT 545 #

2007 Y L R 545

[Peshawar]

Before Muhammad Raza Khan, J

ASAL KHAN---Petitioner

Versus

MAUSAM KHAN and others---Respondents

Civil Revision'No.44 of 2002, decided on 24th April, 2005.

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----Ss. 2 & 2-A---Inheritance---Limited estate---Duration of limited ownership---Limited ownership would continue with female legal heir of deceased till her marriage (in case of a widow) or marriage (in case of sisters of deceased) or death of limited owner---One of the sisters of deceased who was married prior to the death of her deceased brother, was not entitled to limited estate while other sister of deceased who at the relevant time was unmarried, got entire property of deceased in the year 1925 through mutation-Said second sister of deceased who entered into marriage in 1933, her limited estate would not continue till her death in 1982 and after her death in 1933 at the time of her marriage, limited estate had to revert to those legal heirs of deceased owner brother of said sister who were alive in 1925---Both sisters of deceased brother, in circumstances were entitled to 1/3rd share each and remaining 1/3rd had to go to the residuaries---Since there was no descendents or ascendants as residuary, nearest relatives admitted to be alive in 1925 were the sons of paternal uncle of father of deceased brother of said two sisters, they being four in number were entitled to share per capita---Said two sisters of deceased were entitled to inheritance of 4/12th share each---Second sister could not alienate by gift or exchange any property as a limited owner, but she could transfer share that could devolve on her as a legal heir.

Gauhar Zaman Khan Kundi for Petitioner.

Rustam Khan Kundi, Mazhar Alam Khan, Faridullah Khan Kundi and Tahir Iqbal Khan for Respondents.

Date of hearing: 26th April, 2005.

YLR 2007 PESHAWAR HIGH COURT 650 #

2007 Y L R 650

[Peshawar]

Before Said Maroof Khan, J

NOOR ALI KHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.99 and Criminal Revision No.48 of 2005, decided on 19th June, 2006.

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

----S.324/34---Appreciation of evidence---Daylight occurrence---Medical evidence supported recovery of pellet .from body of complainant---Version of complainant as contained in F.I.R. was supported by him and eye-witness, and they were consistent as to .firing at complainant by accused and receiving injury thereby---Record did not show that complainant was inimical towards accused persons---Presence of complainant at the spot could not be doubted in view of fire-arm injury sustained by him---Non-recovery of blood and empties from spot could not adversely affect prosecution case as remaining evidence on record was sufficient to prove guilt of accused and absconded accused---Conviction and sentence of accused and absconded accused were maintained in circumstances.

PLD 1996 SC 122 rel.

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

----S. 324/34---Appreciation of evidence---Charge against accused was to have commanded his sons (co-accused) for firing at complainant party---Accused, in spite of being armed, had not fired at complainant party---Such allegation against accused was doubtful as evidence on record did not show with certainty of having shared common intention in causing injury to complainant---Conviction and sentence awarded to accused by Trial Court was set aside and he was acquitted of charged offence.

Sanaullah Khan Gandapur for Appellants.

Muhammad Sharif Chaudhry, D.A.-G. for the State.

Muhammad Yaqoob Khan Marwat for the Complainant.

Date of hearing: 19th June, 2006.

YLR 2007 PESHAWAR HIGH COURT 657 #

2007 Y L R 657

[Peshawar]

Before Ijaz-ul-Hassan Khan and Said Maroof Khan, JJ

HANIF KHAN---Appellant

Versus

THE STATE and 2 others-Respondents

Criminal Appeal No.53 and Murder Reference No.1 of 2006, decided on 7th December, 2006.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Both prosecution witnesses attributed the role of firing to accused, resulting in the death of deceased---Both witnesses had supported prosecution case and demonstrated complete unanimity on all important features of the case---Statements of said witnesses corresponded to each other and there was consistency in their evidence---Some minor discrepancies coming on .record during cross-examination of said witnesses, were of minor character, which hardly be considered sufficient to discard or disbelieve their version---Relationship of said prosecution witnesses with deceased or complainant, was no criteria for discarding their evidence, when they were found to have given trustworthy and confidence-inspiring account of the incident---Acquitted co-accused having been scribed distinguishable role qua accused, case of accused could not be treated at par with acquitted co-accused and extend him benefit of doubt in view of principle of consistency---Acquittal of co-accused would not detract the credibility of ocular account provided by complainant and her daughter---Delay in lodging F.I.R., had reasonably been explained and explanation offered by complainant was plausible and appeared compatible with human behavior---Ocular account was fully corroborated by medical evidence---Prosecution case was further corroborated by absconsion of accused who remained absconder for about six years and proceedings under Ss. 204/87, Cr.P.C. were duly taken against him---No doubt existed regarding commission of offence by accused, but despite that it was not a case of capital punishment because it had come on record that accused had acted under the command of acquitted co-accused and he had .fired a single shot at the deceased and did not repeat his act---In view of mitigating circumstances, conviction of accused was maintained, but, death sentence awarded to him by the Trial Court under S.302 (b), P.P.C. was converted into life imprisonment with benefit of S.382-B, Cr. P.C., accordingly.

Mehmood Ahmad and 2 others v. State 1995 SCMR 127; Muhammad Tayyab v. Akbar Hussain 1995 SCMR 73; Amir Shah v. Federal Government and 2 others PLD 1986 Pesh.195; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730; Basharat and another v. The State 1995 SCMR 1735; Jan Alam v. The State and another 2004 PCr.LJ 68; Saleh Muhammad v. The State and another PLD 2006 Pesh.132; Naik Muhammad alias Noata v. The State 1996 SCMR 317; Tariq Khan v. The State 1997 SCMR 254; Sheral alias Sher Muhammad v. The State 1999 SCMR 697 and Muhammad Tariq v. The State 2004 SCMR 783 rel.

Sanaullah Khan Gandapur for Appellant.

Saleemullah Ranazai for the Complainant.

Ch. Muhammad Sharif D.A.-G. for the State.

Date of hearing: 4th December, 2006.

YLR 2007 PESHAWAR HIGH COURT 713 #

2007 Y L R 713

[Peshawar]

Before Ijaz-ul-Hassan Khan and Fazl-ur-Rehman Khan, JJ

HAZAR GUL and other---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.855 and 146 of 2005, decided on 15th December, 2006.

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

----S. 9(c)---Appreciation of evidence---Samples certificate and destruction certificate, were issued by Civil Judge/Judicial Magistrate Ist Class, whereas competent Court to put accused to trial was ,the Court of Judge, Special Court (C.N.S.) and not the Court of Civil Judge/Judicial Magistrate Ist Class---Said two certificates, in circumstances were issued without lawful authority, and thus were of no legal effect---Before destruction of case property, issuance of notice to accused and their counsel was mandatory, non-compliance of which would vitiate entire proceedings against accused---No such notice was issued to the party/ counsel---Conviction and sentence of accused being wrong and illegal, could not be maintained and were set aside.

Nawab Ali v. The State PLJ 1995 FSC 90; Said Karim v. Anti Narcotic Force PLD 2003 Karachi 606; Ijazuddin v. The State 2005 YLR 16 and Mst. Rahat Bibi and another v. The State 2006 PCr. LJ 561 rel.

Abdul Fayyaz Khan for Appellants.

Salahuddin Khan, D.A.-G. for the State.

Date of hearing: 16th November, 2006.

YLR 2007 PESHAWAR HIGH COURT 818 #

2007 Y L R 818

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

AFSAR ZAMAN and others---Petitioners

Versus

AYUB KHAN and others---Respondents

Civil Revision No.816 of 2002, heard on 18th September, 2006.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XX, R.5, O.XLI, R.31 & S.115---Suit for declaration and permanent injunction---Contents of judgment of appellate court---Decision on each .issue---Suit for declaration and permanent injunction, was contested by seven defendants while remaining defendants admitted claim of plaintiffs and filed "Iqbal Dawa" in favour of plaintiffs---Trial Court dismissed suit against seven defendants and decreed suit against remaining defendants---Appeal against said judgment was dismissed by Appellate Court---Validity---Concurrent findings of facts recorded by the courts below were based on correct appreciation of evidence, which could not be interfered with by the High Court in its revisional jurisdiction, especially when plaintiffs could not point out any misreading and non-reading of evidence on record by the courts below---Contention of counsel for plaintiffs that impugned judgment of Appellate Court was in violation of mandatory provisions of O.XLI, R.31, C.P.C., was repelled as Appellate Court was alive to the situation and issue involved had been dealt with and decided in a careful manner---Appellate Court had given its findings on all points of controversy and no prejudice. seemed to have been caused to the plaintiffs---Giving issue-wise findings by the Appellate Court was not the requirement of law as under O.XLI, R.31, C.P.C., Appellate Court was to state the points for determination, give its decision thereon and mention reasons for the decision.

Mer Din v. Ghazanfar and 2 others 1991 SCMR 1868 and Mst. Husna Bano v. Faiz Muhammad and another 2000 CLC 709 rel.

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

----O.XX, R.5, O.XLI, Rr.23, 25 & S.115---Remand of case by Appellate Court---Provisions of O.XX, R.5, C.P.C. were applicable to the original court which heard a civil suit---Requirement of recording finding issue-wise by the appellate Court was not mandatory and it was sufficient for appellate court to deal with all the issues as were material for disposal of controversy, excepting those abandoned by the appellant---Appellate Court while recording its findings on the points raised before it, without discussing the issues separately, could not be said to have committed any illegality or error---Appellate and revisional court were always empowered to remand the case in terms of O.XLI, R.25, C.P.C. but such discretionary power was to be used only in exceptional situation and if the parties had led evidence with regard to the particular point and the Court of first instance by giving specific finding on the said point decided the same in the light of evidence available on record, remand of the case in appeal or revision was not proper exercise of the jurisdiction.

Muhammad Zahir Shah for Petitioners.

Fateh Muhammad Khan for Respondents.

Date of hearing: 18th September, 2006.

YLR 2007 PESHAWAR HIGH COURT 836 #

2007 Y L R 836

[Peshawar]

Before Dost Muhammad Khan, J

NISAR KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Petition No.1649 of 2006, decided on 8th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Counsel for accused had stated at bar that accused was neither a previous convict nor had been booked for similar offences in the past and such factual position remained un-controverted---Bail in other case having been granted on similar grounds and in similar circumstances, for taking a different view in case of accused, there must be some exceptional grounds, which were not available in case of accused where case was on better footing---Bail was granted to accused, in circumstances.

Nasrullah's case PLD 2001 Pesh. 152 and Muhammad Hanif's case 20.03 SCMR 1237 rel.

Noor Alam Khan for Petitioner.

Salahuddin Khan, D.A.-G. for the State.

Date of hearing:- 8th December, 2006.

YLR 2007 PESHAWAR HIGH COURT 839 #

2007 Y L R 839

[Peshawar]

Before Tariq Pervez Khan, C.J. and Muhammad Raza Khan, J

HAIDER ALI SHAH and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.251 and 282 of 2006, decided on 13th July, 2006.

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in---Where prosecution wanted to prove that the entire quantity of substance recovered was narcotics, it had to be specifically proved by taking samples from each slab so that no doubt was left that the entire case property comprised of narcotics---In the present case Investigating Officer had admitted that he had not counted the number of slabs recovered; that he had not taken samples from each slab, but from different slabs; and, that he was not sure as from how many slabs, samples were taken---Benefit to that extent would go to accused---Prosecution in view of statement of star witness, had not proved that the entire quantity of narcotics weighing 1180 Kgs., was, Charas, but only to the extent of one sample sent to Chemical Examiner---Appeals were partially allowed, convictions of accused were maintained, but sentence of imprisonment and amount of fine was reduced.

Noor Alam Khan for Appellants.

Salahuddin Khan, D.A.-G. for the State.

Date of hearing: 13th July, 2006.

YLR 2007 PESHAWAR HIGH COURT 851 #

2007 Y L R 851

[Peshawar]

Before Fazl-ur-Rehman Khan, J

MIRMAT KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.3 of 2007, decided on 18th January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 540---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Application for re-summoning witnesses for re-examination---Prosecution, after examining two witnesses, closed its case and case was fixed for statement of accused under S.342, Cr. P.C.---Petitioner/accused, in the meantime, filed application that as his previous counsel had not properly cross-examined the two witnesses, they might be re-summoned for their re-examination by his new counsel under S.540, Cr.P.C.---Said application having been rejected, petitioner had filed revision petition---Admissibility---Petitioner had failed to point out that re-summoning of the two prosecution witnesses for further cross examination was essential to meet the ends of justice---Mere improper cross-examination was no ground for acceptance of such application-Trial Court, in circumstances had rightly rejected application of petitioner.

Saleem Ahmad Naseer v. The State and another 1985 PCr.LJ 1078; Moulvi Hazoor Bux v. State PLD 1983 SC 209 and Painda Gul and another v. The State and another 1987 SCMR 886 ref.

Habib-ur-Rehman for Petitioner.

YLR 2007 PESHAWAR HIGH COURT 860 #

2007 Y L R 860(2)

[Peshawar]

Before Dost Muhammad Khan and Ijaz-ul-Hassan Khan, JJ

WAHID ALI and another---Petitioners

Versus

COLLECTOR CUSTOMS, PESHAWAR and 4 others---Respondents

Writ Petition No.1714 of 2005, decided on 11th October, 2006.

Customs Act (IV of 1969)---

----S. 182---Constitution of Pakistan (1973), Art.199---Constitutional petition---Confiscation of vehicle---Sale of confiscated vehicle through open auction---Failure of State functionaries to return sale price to petitioner/auction purchaser when the vehicle was discovered to be stolen---Smuggled confiscated car which was put to auction, was purchased by petitioner being highest bidder and petitioner deposited sale price and proper sale certificate was issued to hire---Car was delivered to petitioner after completing all legal formalities, who subsequently sold the same to another person who got the same registered in his name on basis of no objection certificate---Subsequently when the car was found to be stolen one, petitioners (auction-purchaser and other persons) approached authorities for return of amount received in respect of sale of car through auction, but authorities failed to return the amount---Authorities being the functionaries of the State had deprived a citizen of his property (money) by selling out car in question to petitioner after giving him absolute and firm impression that car was State property free from all defects of title, muchless, stolen one and when authorities had received money in that manner, under the constitutional mandate, authorities were bound to return the money to petitioner---Authorities,, who had failed to discharge their legal obligations were in no manner justified to withhold the amount paid to them by the petitioner (auction-purchaser)---Remedy availed by the petitioner through constitutional petition, could not be held to be improper, in circumstances---More than three years having passed after the authorities had received the money from auction purchaser pushing back both the auction purchaser and buyer of the car from him to the civil court or to any other forum for the same relief would be against all the canons of justice---High Court allowed the constitutional petition and authorities were directed to return the entire amount of money to petitioner positively within a specified period.

Muhammad Ashraf Ali v. Muhammad Naeem and 2 others 1986 SCMR 1096; Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 and Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others PLD 1997 SC 823 rel.

Safirullah for Petitioners.

Hashim Raza for Respondents on pre-admission notice.

YLR 2007 PESHAWAR HIGH COURT 904 #

2007 Y L R 904

[Peshawar]

Before Shah Jehan Khan and Ijaz-ul-Hassan Khan, JJ

SABIR KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.29 of 2005, decided on 28th-September, 2006.

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

----Ss. 9 & 29---Penal Code (XLV of 1860), Ss.419, 420, 170 & 171---Appreciation of evidence-Both prosecution witnesses seemed to he independent witnesses having no reason to falsely implicate accused in the case---No material discrepancy was found at all in their deposition inter se regarding recovery of Charas, Frontier Constabulary uniforms and false number plates---Prosecution witnesses were consistent regarding, the time, place of occurrence, recovery of Charas, other articles and the manner in which it had been effected---Discrepancies pointed out by the accused, were inconsequential and of no importance---Statement of marginal witness of recovery memo. was in line with the evidence of Inspector and 'despite lengthy cross-examination of said prosecution witnesses, neither defence could create any dent in their statements nor anything else favourable to accused could be elicited from them--Prosecution witnesses though were officials of police, but they had no reason or motive to falsely implicate accused---Accused had not urged any rancour or animosity against those witnesses with accused---Unanimity was found in the deposition on the material aspects e f the recovery and no reason was to disbelieve the witnesses---Taking of small quantity out of each packet for chemical examination, was enough to prove that entire recovered material was contraband--S.29 of Control of Narcotic Substances Act, 1997 had provided that presumption was of possession of illicit articles, unless person prosecuted would rebut such presumption--Prosecution had succeeded to prove its case to the hilt and conclusions drawn and reasons given by the Trial Court had shown fair evaluation of evidence---In absence of any illegality or infirmity in the impugned judgment of the Trial Court warranting interference of the High Court, appeal against said judgment was dismissed.

Ali Muhammad and another v. The State 2003 SCMR 54 and Mst. Anwar Bibi v. The State 2004 PCr.LJ 692 rel.

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

----Ss. 9, 20 & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Provisions of S.103, Cr. P. C. had been excluded under the provisions of S.25 of Control of Narcotic Substances Act, 1997---Provisions of S.20 of the Act were directory in nature---Non-compliance of said provisions of law, could not be considered as a strong ground for holding that the trial of accused was bad in the eye of law---Main aim and object of enacting S.103, Cr.P.C. was to ensure that the search was fair which would exclude any possibility of concoction and transgression which would never mean to disbelieve the statements of official witnesses in any other circumstances.

Mirza Shah v. State 1992 SCMR 1474 rel.

----S. 9---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Appreciation of evidence---Delay in receiving samples by Forensic Science Laboratory---Accused had contended that samples separated from the seized Charas were received by Forensic Science Laboratory after considerable delay, whereas report prepared was sent about one and a half months after said receipt; that in the process sufficient time had been consumed in view of Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 and that samples dispatched for analysis beyond seventy two hours and the report received after considerable delay, after seizure of narcotics was illegal and it rendered the seizure invalid in the eye of law---Validity---Contentions were without substance because Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, had placed no bar on the Investigating Officer to send the samples beyond seventy two hours of seizure, receive Forensic Science Laboratory report after fifteen days and the report so received to place before the Trial Court---Control of Narcotic Substances (Government Analysts) Rules, 2001 which were directory and not mandatory, could not control the substantive provisions of Control of Narcotic Substances Act, 1997 and these were to be applied in such a manner that its operation would not frustrate the purpose of the Act under which the Rules were framed---Failure to follow Control of Narcotic Substances (Government Analysts) Rules, 2001 would not render the search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity and non-est and make entire prosecution case doubtful, except for the consequence provided in the Rules---Substantial compliance of directory provision was sufficient and even- where there was no compliance at all, the act was not invalidated by such non-compliance, if the act 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 the same having been tampered with or manipulated.

(d) Criminal trial---

----Proof---Onus to prove specific plea---When accused at a criminal trial took a specific plea, onus invariably would shift on him to produce evidence and prove his plea or at least his plea should be supported by the attending circumstances and it should not be unfounded altogether.

Waheedullah Khalil for Appellant.

Sher Bahadur for the State.

Date of hearing: 28th September, 2006.

YLR 2007 PESHAWAR HIGH COURT 916 #

2007 Y L R 916

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

AMIR KHAN---Appellant

Versus

AJAB KHAN and others---Respondents

R.F.A. No.32 of 2005, decided on 6th November, 2006.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---West Pakistan Land Revenue Act (XVII of 1967), S.52---Suit for declaration, permanent injunction and recovery of amount of sale consideration---Plaintiff claiming declaration to the effect that he was owner in possession of suit property and that sale mutations attested in favour of defendants, were illegal and being based on fraud were ineffective on the rights of plaintiff and liable to cancellation-Plaintiff in the alterative had prayed for recovery of amount as sale price of suit property and demanded. grant of permanent injunction restraining defendants from interfering in his possessory rights etc.---Validity---Onus regarding non-payment of sale consideration, was heavily placed on the shoulders of plaintiff, but he had failed to discharge the same through cogent and convincing evidence---Plaintiff had to prove his case from his own evidence and he could not benefit from the weakness of defendant's case---Evidence produced by plaintiff in support of his claim was discrepant and suffered from serious infirmities and flaws, which had rightly been discarded by the Trial Court for valid reasons---Trial Court adverted to every aspect of the case, rightly discussed the issues and rendered reasoned judgment, which was not open to exception---Evidence showed that mutation in question had been attested in 'Jalsa aam' in the presence of Revenue officials, marginal witnesses to the mutations and same were duly thumb impressed by the plaintiff---Mere assertion of plaintiff that sale consideration was not paid to him and same was delayed by defendants for one reason or the other without a positive attempt on his part to substantiate same, was of no consequence---Entry made in Record of Rights in accordance with law for the time being in force, must be presumed to be correct, until contrary was proved or a new entry was lawfully substantiated therefor--Mere fact that sale consideration had not changed hands in presence of Revenue Officials, by itself, could not be considered a ground to believe the claim of plaintiff---Law did not require that sale consideration must be paid by the purchaser to the owner in presence of Revenue Officials---Impugned judgment passed by the Trial Court whereby suit filed by plaintiff was dismissed, was neither contrary to evidence on record nor in violation of the principle of administration of justice---Appeal against said judgment, was dismissed, in circumstances.

PLD 1986 SC (AJ&K) 109; Muhammad Sadiq and 2 others v. Barkat Ali and 4 others 1990 CLC 533; Rana Muhammad Shabbir (deceased) through his 10 L.Rs. v. Muhammad Ismail and 3 others 1990 CLC 546 and Allah Dad v. Government of Pakistan and 53 others 1989 CLC 1571 rel.

Iftikhar Butt for Appellant.

Miss Nusrat Yasmeem for Respondents.

Date of hearing: 6th November, 2006.

YLR 2007 PESHAWAR HIGH COURT 935 #

2007 Y L R 935

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

ALI SHAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Application No.1431 of 2006, decided on 3rd November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---Accused was in jail ever since his arrest---No overt act had been attributed to accused save for facilitating his son, absconding co-accused in throwing deceased in the nearby canal---Circumstances had revealed that it was only co-accused who had fired at the deceased---Case of accused called for further inquiry into his guilt within the purview of subsection (2) of S.497, Cr. P. C. ---Question of vicarious liability of accused would be determined in the trial---Mere fact that the trial had commenced or accused absconded after occurrence, by itself, could not be considered a good ground to refuse relief of bail to accused, if otherwise his case was found fit for the grant of bail---Accused was released on bail, in circumstances.

Faraz Akram v. The State 1999 SCMR 1360; Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others 1999 SCMR 1362; Muhammad v. The State 1998 SCMR 454; Muhammad Akram v. The State 2005 PCr.LJ 596; Muhammad Mansha v. The State 2006 PCr.LJ 47; Khadim Hussain and 5 others v. Sher Afzal and another 2000 PCr.LJ 1974; Babar Hussain v. Muhammad Rashid Khan and another 2000 PCr.LJ 980: Allah Ditta and others v. The State 1990 SCMR 307 and Muhammad Bashir v. The State 2000 SCMR 78 rel.

Muhammad Saleem Khan for Petitioner.

Nadir Khan for the Complainant. Jamal Shah for the State.

Date of hearing: 3rd November, 2006.

YLR 2007 PESHAWAR HIGH COURT 940 #

2007 Y L R 940

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

FAZAL-UR-REHMAN---Petitioner

Versus

ARSHAD MEHMOOD and 2 others---Respondents

Criminal Miscellaneous Q.P. No.210 of 2005, decided on 27th November, 2006.

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

----S. 561-A---Quashing of proceedings---Jurisdiction of High Court---Scope---High Court could quash the proceedings pending before any criminal Court, if that Court had violated provisions of law by committing incurable irregularities or illegalities---If any criminal Court passed any order, without having jurisdiction to pass the same, then the High Court could exercise its powers under S.561-A, Cr.P.C. against such order---Law never intended that in exercise of powers under S.561-A, Cr.P.C., the normal course of trial in subordinate Courts established by law should be diverted---High Court could exercise its jurisdiction to quash criminal proceedings before a criminal Court, if the Court had started criminal proceedings in a dispute, which was of civil nature---Object of S.561-A, Cr.P.C., whereby inherent powers were conferred on High Court, was to do real and substantial justice and to prevent abuse of process of Court---Jurisdiction of High Court was extraordinary in nature and was designed to do substantial justice and was to be exercised in special circumstances and only to prevent abuse of process of Court---Inherent powers could not be used by way of additional remedy.

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

----S. 561-A---Petition for quashing of proceedings and orders---Respondent in the case claimed ownership of vehicle in question on basis of registration thereof being in his name and possession while the rival claimant/petitioner alleged ownership of vehicle on the basis of a private agreement deed---Private agreement deed could not be given preference over registration, which was in the name of respondent---Petitioner had not been able to show that impugned order had been recorded in a mechanical manner without application of independent mind and contrary to the material on file---In the absence of any substance in petition for quashing of the proceedings and orders, same was dismissed and impugned order was maintained.

Muhammad Asif for Petitioner.

Munir Hussain for Respondent No.1.

Arbab Muhammad Usman, A. A.-G. for the State.

Date of hearing: 2nd October, 2096.

YLR 2007 PESHAWAR HIGH COURT 1041 #

2007 Y L R 1041

[Peshawar]

Before Salim Khan, J

AHMAD NAWAZ---Petitioner

Versus

THE STATE and 4 others---Respondents

Criminal Miscellaneous Bail Petition No.397 of 2006, decided on 18th January, 2007.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Bail, grant of---Accused was charged by complainant but without confidence as to who had fired at him and deceased---Other prosecution-witnesses had directly charged accused---Offence charged against accused fell within prohibitory clause of S. 497, Cr.P.C.-Trial had commenced---Trial Court could grant or refuse bail to accused in the light of fresh evidence brought on record during trial---No extraordinary circumstance existed entitling accused to grant of bail---Bail was declined to accused in circumstances.

PLD 1972 SC 277; 2003 PCr.LJ 2036; 2003 PCr.LJ 1944 and 2004 PCr.LJ 870 ref.

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

----S. 497---Bail, grant or refusal of---Principle---Commencement of trial by itself not a good ground for refusal of bail.

Muhammad Fareed Khan for Petitioner.

Muhammad Yaqoob Khan for the Complainant.

D.A.-G. for the State.

Date of hearing: 18th January, 2007.

YLR 2007 PESHAWAR HIGH COURT 1451 #

2007 Y L R 1451

[Peshawar]

Before Hamid Farooq Durrani, J

MUHAMMAD TAHIR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.19 and 25 of 2007, decided on 6th March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), 5.302/34---Bail, refusal of---Confessional statement of co-accused made before competent court had disclosed that it was not an exculpatory statement, while the tenor of the same had suggested that it was voluntary---No ill-will or mala fide was gathered against accused by Investigating Agency or legal heirs of deceased---Events as disclosed in the said confessional statement of co-accused, were corroborated in the terms of recovery of crime weapon and also blood-stained clothes---Apparently, two accused had joined hands to commit offence alleged against them with the help of confessing accused---Offence against accused fell in the prohibitory clause of S.497, Cr. P. C. ---In-depth scrutiny of the material available on record was to be avoided at the bail stage, lest it should prejudice the merits of the case at trial---Accused in view of facts and circumstances, seemed to be involved in the alleged offence---Bail was refused accordingly.

1997 SCMR 1279, 1999 PCr.LJ 30, 2003 PCr.LJ 142; PLD 1996 Lah. 295; PLD 1991 FSC 53;1998 MLD 1307; PLD 1997 SC 547; 2005 PCr.LJ 1881; 1990 SCMR 315; 2003 SCMR 1425; PLD 1992 Pesh.123 and 2006 SCMR 1292 ref.

Sajjad Afzal for Petitioner.

Shazia Mughal and Qazi Shamasud-Din for Respondents.

Date of hearing: 6th March, 2007.

YLR 2007 PESHAWAR HIGH COURT 1599 #

2007 Y L R 1599

[Peshawar]

Before Hamid Farooq Durrani, J

MUZAFFAR KHAN and 5 others---Petitioners

Versus

S. ABDUL KHALIQ and others---Respondents

Civil Revision No.192 of 2004, decided on 30th October, 2006.

Civil Procedure Code (V of 1908)---

----S. 115---Specific Relief Act (I of 1877), Ss. 42 & 54---Revision---Limitation---Computation of period---Principles---Suit for declaration and permanent injunction, having concurrently been decreed by the Trial Court and Appellate Court, petitioners had filed revision petition against said concurrent judgments and decrees of the courts below with a delay of 45/46 days---Counsel for petitioners had contended that time consumed in obtaining certified copies of the record pertaining to the file of Trial Court, could also be considered as same would be excluded while computing the period of limitation for filing revision---Validity---Contention was repelled, as in the ordinary course, the copies of the judgment and decree of the Trial Court were obtained much before the decision of the appeal---Besides, in the circumstances of the case, it was the date of judgment and decree of the Appellate Court which operated as a starting point for period of limitation for filing revision petition before High Court---Said period, in circumstances, was to be computed keeping in view the dates of application, preparation and issuance of certified copies by the Appellate Court---In the present case, even if the time was calculated from the date of obtaining copies of Trial Court record, revision petition was still barred by 11 days---As period of limitation had been provided in S.115, C.P.C., the provisions regarding the condonation of delay as provided in law of limitation, would not attract to the matter---Besides the revision of concurrent findings recorded by two courts also demanded prompt action on part of the party preferring the petition for the purpose.

M. Sultan Khan Jadoon for Petitioners.

Masud-ur-Rehman Awan for Respondents.

Date of hearing: 30th October, 2006.

YLR 2007 PESHAWAR HIGH COURT 1651 #

2007 Y L R 1651

[Peshawar]

Before Ijaz-ul-Hassan Khan and Talat Qayyum Qureshi, JJ

GULDAASH---Appellant

Versus

THE STATE and another---Respondent

Criminal Appeal No.281 of 2004, decided on 22nd March, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 449---Appreciation of evidence---Report was made promptly within fifty minutes of the occurrence---Such lodging of report had excluded any possibility of consultation or deliberation for the purpose of selecting accused---Prosecution witnesses had fully supported the prosecution version and charged accused for firing culminating in the murder of deceased---Said witnesses had faithfully deposed about the incident---Evidence of eye-witnesses had gone unchallenged and defence had failed to .rebut the contention of the witnesses in their examination-in-chief---Nothing in cross-examination had been brought on record to suggest that witnesses had any motive for falsely implicating accused---No inherent defect or material lacuna was found in evidence, of witnesses whose presence at the spot had been established beyond reasonable doubt and had been proved by independent and disinterested witnesses having no animus against accused---Eye-witnesses though were close relatives of deceased, but mere relationship of witnesses was no ground for disbelieving them as no enmity with accused was suggested to the witnesses and nothing was on record on basis of which it could be said that . those witnesses were inimical towards accused---Some minor discrepancies which came on record during cross-examination of the witnesses, being of minor character could hardly be considered sufficient to discredit or discard their version---Said witnesses were subjected to lengthy cross-examination, but their testimony could be shaken and they remained consistent on all material particulars of the case---Said witnesses were natural witnesses and their statements appeared convincing---Non-production of other inmates of the house would not adversely reflect on prosecution case as it was the quality of evidence which would matter and not the quantity of evidence---If prosecution felt satisfied that its case could be proved by producing a single witness, then there was no compulsion on it to produce all the witnesses---Motive set up in F.I.R. which was quarrel between the children of two families on account of which they were nursing grudge against each other, had fully been proved---Ocular account which was truthful, was in complete harmony with medical evidence---Counsel for accused had not been able to point any serious defect in the investigation, except some minor lapses which did not affect the validity of the trial---Impugned judgment of the Trial Court was neither arbitrary nor perverse---Nothing had been brought on record which could indicate that there existed any enmity between accused and prosecution witnesses and accused had been falsely implicated in the commission of offence on account of mala fides---Trial Court had discussed evidence properly and counsel for accused had not been able to point out any illegality or irregularity in the judgment of the Trial Court---Impugned judgment was maintained and upheld.

Anwar v. The State 1975 PCr.LJ 750; Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Abrar Hussain v. The State 1992 SCMR 294; Muhammad Khalil v. The State (sic) SCMR 249; Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524; Federal Government Ministry of Defence v. Sepoy Liaqat Ali 2004 SCMR 1676; Amal Sherin and another v. The State through Advocate General, N.W.F.-P. PLD 2004 SC 371; Wilayat Ali v. The State and another 2004 SCMR 477; Rashid Ahmad alias Kuku v. The State 2003 SCMR 497; Gul Raza v. The State and 4 others PLD 2004 Pesh. 219; Iftikhar alias Istikhar v. The State and another PLD 2004 Pesh. 143 and Riaz Ahmad v. The State 1986 SCMR 1460 rel.

Barrister M. Zahurul Haq for Appellant.

Muhammad Ayaz Khan, D.A.-G. for the State.

Khawaja Muhammad Khan for the Complainant.

Date of hearing: 28th February, 2007.

YLR 2007 PESHAWAR HIGH COURT 1683 #

2007 Y L R 1683

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

SHAH JEHAN---Petitioner

Versus

INAYAT-UR-REHMAN---Respondent

Civil Revision No.574 of 2006, decided on 25th January, 2007.

Civil Procedure Code (V of 1908)---

----O.XLI, R.23---Remand of case by Appellate Court---Order remanding case to the Trial Court passed by Appellate Court, had been assailed contending that Appellate Court had illegally exercised its jurisdiction by remanding the case---Validity---Where evidence on the record, though was sufficient for Appellate Court to decide the matter itself, remand, could not be ordered and discretionary power was to be used only in exceptional situation, but Appellate Court in the present case had advanced valid and convincing reasons for remanding the case to the Trial Court---Controversy involved in the case, could not' have been resolved properly and effectively, without examining respondent and deputing a Local Commissioner---Mere assertion of counsel for petitioner that appointment of Local Commissioner was an exercise in futility and the impugned remand order had been recorded in a mechanical manner, without application of independent judicial mind and without a positive attempt to substantiate same, was of no consequence---No infirmity was found in the impugned judgment, which could justify interference by High Court-while exercising revisional jurisdiction.

Muhammad Dervaish Al-Gilani and 14 others v. Muhammad Sharif and others 1997 SCMR 524; Syed Abdul Hakim and others v. Ghulam Mohiuddin PLD 1994 SC 52 and Arshad Ameen v. Messrs Swiss Bakery and others 1993 SCMR 216 rel.

H. Muhammad Zahir Shah for Petitioner.

Mian Kausar Ali Shah Kakakhel for Respondent.

Date of hearing: 15th December, 2006.

YLR 2007 PESHAWAR HIGH COURT 1706 #

2007 Y L R 1706

[Peshawar]

Before Talaat Qayum Qureshi, J

MAFTAH-UD-DIN---Petitioner

Versus

FAIZ MUHAMMAD KHAN and another---Respondents

Criminal Miscellaneous No.173 of 2006, heard on 15th February, 2007.

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

----Ss. 154 & 156---Registration of criminal case---Investigation into cognizable cases---Under provisions of S.154, Cr.P.C. on receipt of every information relating to the commission of a cognizable offence, if given orally to an officer Incharge of the police station, would be reduced in writing by him or under his direction and be read over to the informant; and every such information, whether in writing or reduced to a writing, would be signed by the person giving it; and substance thereof would be entered in a book to be kept by such officer in such form as Provincial Government would prescribe in that behalf---Any person who would give any information, either orally or in writing with regard to the commission of cognizable offence, could ask officer Incharge of the police station to register a case, if any cognizable offence was committed; what to speak of Superintendent of Police ,who was Incharge of Investigation Cell of the entire District.

Colonel Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel.

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

----S. 561-A---Penal Code (XLV of 1860), S. 337-F(i)---Quashing of F.I.R. ----Petition for---No illegality, whatsoever, had been committed by respondent in sending Murasila to S.H.O. of concerned police station---Section " .337--F(i), P.P.C. under which petitioner had been charged was punishable with punishment of 5 years and same was cognizable---Investigation of the case had been completed and challan of the case had been submitted in the court wherein charge against petitioner and his co-accused had also been framed and case was fixed for evidence---Not appropriate at such stage to deflect the working of the court of competent jurisdiction.

Colonel Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel.

Muhammad Amin Lachi for Petitioner.

Ehsanullah Khan, Malik Hamid Khan Afridi for Said Wali Respondent No.1 present in person.

Date of hearing: 15th February, 2006.

YLR 2007 PESHAWAR HIGH COURT 1712 #

2007 Y L R 1712

[Peshawar]

Before Salim Khan, J

JAN AGHA---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.159 of 2006, decided on 26th January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), Ss.32 & 74---Return of vehicle---Petitioner had sought return of vehicle from which 50 kilograms Charas had allegedly been recovered---Petitioner had contended that he had purchased said vehicle and bargaining receipt and open Transfer Letter and Registration Book of said vehicle was also available with him---Validly---Vehicle in question was not registered in the name of petitioner and Transfer Letter was not in his name---Copy of Transfer Letter did not contain, the name of the original owner or the transferee and it was yet to be proved that it was a genuine document and it would be seen at the time of trial, whether petitioner was not in the knowledge of the crime and whether he was not responsible for properly looking after his vehicle to avoid its use in crime---Petitioner could have a civil case---Vehicle was yet required for the purposes of trial and provisions of S.32 of Control of Narcotic Substances Act, 1997---No good ground being available for return of vehicle to petitioner, petition was dismissed, in circumstances.

2005 YLR 2864; 2002 PCr.LJ 97; 2004 PCr.LJ 2060 and PLD 2006 Lah. 167 rel.

Malik Musraf Khan for Petitioner.

Ubaidullah Anwar A.A.-G. for the State.

Date of hearing: 26th January, 2007.

YLR 2007 PESHAWAR HIGH COURT 1716 #

2007 Y L R 1716

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

ALI REHMAN---Petitioner

Versus

GOVERNMENT OF N.-W.F.P. through Home Secretary---Respondent

Civil Revision No.953 of 2006, decided on 12th January, 2007.

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

----S. 42-Civil Procedure Code (V of 1908), S.115 & O.XLI, R.31---Suit for declaration---Plaintiff sought declaration to the effect that he was owner in possession of the suit-land by virtue of inheritance and that defendant had no justification to deny his title in respect of suit-land---Onus of proof on the plaintiff---Trial Court and Appellate Court below had concurrently dismissed suit---Validity---Onus to prove relevant issues was heavily placed on the plaintiff, but he had failed to discharge same through cogent and independent evidence---Evidence produced by plaintiff was discrepant and could not be considered sufficient to sustain his claim---Plaintiff had to prove his case from his own evidence and could not benefit from the weaknesses in the defendant's case---Whoever desired any court to give judgment as to any of his legal rights or liability on existence of facts, which he had asserted, must prove that those facts existed---Both Courts below had given exhaustive judgments after due appraisal of evidence on the file and after discussing all the pros and cons of the case---No legal defect appeared in concurrent judgments of the courts below which were in consonance with the evidence on the file---All legal formalities had been duly complied with and no prejudice seemed to have been caused to plaintiff---Appellate Court below had given elaborate findings on each and every point---Judgment of the Appellate Court had been recorded keeping in view the provisions contained in O.XLI, R.31, C.P.C.---Judgments of the courts below were neither tainted with any illegality or irregularity nor were fanciful or arbitrary---No interference was called for by the High Court in its revisional jurisdiction.

Abdur Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293 ref.

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

----S. 115---Revisional jurisdiction of High Court---Scope---If the Trial Court had exercised jurisdiction which was upheld by the first Appellate Court, High Court seldom interfered, unless and until the discretion was exercised arbitrarily---High Court had very limited jurisdiction to interfere in concurrent findings of courts below while exercising jurisdiction under S.115, C.P.C., unless and until judgments of the courts below were result of misreading or non-reading of evidence or decision of the case was in violation of parameters prescribed by the superior Courts.

Khan Bahadur Khattak for Petitioner.

Respondents placed ex parte.

Date of hearing: 12th January, 2007.

YLR 2007 PESHAWAR HIGH COURT 1723 #

2007 Y L R 1723

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

NIAZ WAR JAN---Petitioner

Versus

GUL NAWAZ---Respondent

Civil Revision No.911 of 2006, decided on .20th April, 2007.

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

----S. 8---Civil Procedure Code (V of 1908), S.115---Suit for possession---Plaintiff who had brought suit for possession of suit-land, had claimed to have been found in possession of defendant in demarcation proceedings vide decision of Collector---Plaint stated that in view of application moved before the Collector, demarcation proceedings in respect of land in suit were carried out and suit-land was found to have been encroached upon by defendant---Suit property was Shamlat-e-deh' and defendant was one of the co-owners in theShamlat'---Legal proposition that a co-sharer in possession of a particular area out of that property was entitled to retain that till partition, without any interference on the part of other co-sharers and the remedy of the other co-sharers was to go for partition was not disputed---Parties were co-sharers and a co-sharer in possession of a joint property was not liable to be ousted therefrom, except on a partition by metes and bounds taking place between the co-sharers---Plaintiff had not been able to point out any illegality or irregularity in the decision concurrently arrived at by the forums below justifying interference of High Court in its revisional jurisdiction---Revision petition was dismissed.

Muhammad Sadiq represented by Muhammad Sarwar and others v. Amir Muhammad and others 2006 SCMR 702; Mahmood Khan v. Ilam Din 2004. CLC 1345; Mst. Ghulam Sughran v. Muhammad Ayub Dar 1989 CLC 2493. Muhammad Muzaffar Khan v. Muhammad Yousaf Khan PLD 1959 SC 9; Saadullah Khan and 6 others v. Mir Piayo Khan and 14 others PLD 1970 Pesh.150 and Isa Khan and 23 others v. Barkatullah and 9 others PLD 1989 Pesh.67 rel.

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

----S. 115---Revisional jurisdiction---Scope---Scope of S.115, C.P.C. being limited, High Court could not interfere in its revisional jurisdiction with the concurrent findings on a question of fact rendered by the two courts below, unless it found misreading and non-reading of evidence therein.

Amanullah Khan Khattak for Petitioner.

Haji Muhammad Zahir Shah for Respondent.

Date of hearing: 20th April, 2007.

YLR 2007 PESHAWAR HIGH COURT 1728 #

2007 Y L R 1728

[Peshawar]

Before Muhammad Raza Khan, J

ZEWAR---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No.91 of 2007, decided on 6th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of---Allegedly the police took action on the spy .information that accused was selling Charas---No indication existed that any sale proceed was recovered from the accused---No attempt of introducing a dummy purchaser nor any of the customer who had purchased or had intended to purchase narcotics from accused, had been made---Number of pieces and their separate weight had not been recorded nor the samples had been distinctly obtained from each of such pieces---Such was a major defect which was supplemented by the fact that there had been unexplained abnormal delay of one month in dispatching of the material to the Chemical Expert---Accused was not a previous convict and the maximum punishment likely to be imposed in the case did not attract the prohibitory provision S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Noor Alam Khan for Applicant.

Ubaidullah Anwar A.A.-G. for the State.

Date of hearing: 6th April, 2007.

YLR 2007 PESHAWAR HIGH COURT 1730 #

2007 Y L R 1730

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

QAMAR ZAMAN KHAN---Petitioner

Versus

NAZIR AHMAD and others---Respondents

Civil Revision No.35 of 2006, decided on 7th February, 2007.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13 & 24---Civil Procedure Code (V of 1908), S.115---Suit for pre-emption--Interpretation of amended S.24, N. -W.F.P. Pre-emption Act, 1987---Failure to deposit 1/3rd of sale price of suit property---Dismissal of suit--- Plaintiff was directed to deposit 1/3rd of sale price of suit property before stipulated date---Plaintiff's application for grant of extension in time was declined and resultantly his suit was concurrently dismissed by the Trial Court and Appellate Court---Validity---Before amendment of S.24 of North-West Frontier Province Pre-emption Act, 1987 by North-West Frontier Province (Amendment) Act, 1992 court had the power to extend period not beyond 30 days from filing of suit, but under amended S.24, no statutory limit was prescribed within which deposit had to be made and the matter had been left to the discretion of the court to fix time within which deposit had to be made; and its failure must result in dismissal of suit--By amending S.24 of North-West Frontier Province Pre-emption Act, 1987, only the words "thirty days" had been omitted and rest of the provision had been kept intact, which would mean that once a time was fixed, pre-emptor would be bound to comply with the same and neither he would be allowed to apply for further extension nor court would be competent to allow the same---Judgments and decrees of the courts below were in consonance with the spirit of law and would hardly call for interference of High Court in its revisional jurisdiction---No illegality or arbitraniness could be pointed out in the impugned judgments, even otherwise a lawful decision taken within the ambit of conferred jurisdiction could neither be interfered nor could be substituted in revisional jurisdiction.

Shahabuddin and 5 others v. Mir Ali Khan 2001 SCMR 543; Haji Gul Nabi v. Mst. Sahib Jamala and 8 others 1994 SCMR 845; Muhammad Sultan v. Muhammad Ali Raja 2002 SCMR 1108 and Muhammad Ayub and others v. Mst. Nusrat Begum 2003 YLR 793 rel.

H. Muhammad Zahir Shah for Petitioner.

Alam Gul Khan for Respondents.

Date of hearing: 7th February, 2006.

YLR 2007 PESHAWAR HIGH COURT 1739 #

2007 Y L R 1739

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

ROOH-UL-AMIN and others---Petitioners

Versus

GUL AHMAD alias JAM KHAN and others---Respondents

Civil Revision No.786 of 2003, decided on 12th January, 2007.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for declaration and permanent injunction---Claim of plaintiffs was that they were owner in possession of 1 /2 share" in the legacy of their predecessor-in-interest and that defendants had no right to deprive plaintiffs of their due share in the property left behind by deceased---Plaintiff also had prayed for grant of permanent injunction restraining defendants from transferring or alienating the suit property in any manner---Defendants denied claim of plaintiffs contending that one of the defendants had purchased suit property from his brother who was father of plaintiffs on the basis of sale-deed and that plaintiffs had no concern with it---Concurrent judgments of dismissal of suit---Validity---Plaintiffs though had produced fifteen witnesses in proof of their claim, but they had not been able to establish their claim satisfactorily---Evidence produced by the plaintiffs was discrepant, contradictory and not worthy of credence---Established principle of civil law was that plaintiff had to prove its case from his own evidence and could not benefit from the weaknesses in defendant's case---Whoever desired any court to give judgment as to any legal right or liability dependant on the existence of facts, which he asserted, must prove that those facts existed---Record had revealed that defendant had purchased share of his brother who was father of plaintiff on the basis of sale-deed---Judgments passed by the courts below were unexceptionable, legal, apt to the facts and circumstances of the case which did not call for any interference by High Court---Findings on questions of fact or law recorded by court of competent jurisdiction, could not be interfered with in revisional jurisdiction of High Court, when same did not suffer from jurisdictional defect, illegality or material irregularity---Impugned judgment, in all respects fulfilled all requirements of doing justice and counsel for plaintiffs had not been able to point out any misreading or non-reading of evidence on the part of forums below---Impugned judgments could not be interfered with under S.115, C.P.C.

Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 ref.

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

----S. 115---Revisional jurisdiction of High Court---Scope---If the Trial Court had exercised jurisdiction, which was upheld by first Appellate Court, High Court would seldom interfere, unless and until discretion was exercised arbitrarily---High Court had very limited jurisdiction to interfere in concurrent findings of courts below while exercising jurisdiction under S.115, C.P.C., unless and until judgments of the courts below were result of misreading or non-reading of evidence or decision of the case was in violation of parameters prescribed by the superior courts.

----S. 5---Civil Procedure Code (V of 1908), S.115---Revision under S.115, C.P.C.---Limitation---Section 5, Limitation Act, 1908, was not applicable to proceedings under S.115, C.P.C.

Muhammad Aslam and 12 others v. Faisal Nadeem and 3 others 2003 CLC 1812; Sultan Muhammad v. Muhammad Ashraf and 4 others 1991 CLC 269 and M.E.O. and others v. Mian Sardar Shah and others 2002 CLC 1269 rel.

Abdul Latif Afridi for Petitioners.

Muhammad Shoaib Khan for Respondents.

Date of hearing: 22nd December, 2006.

YLR 2007 PESHAWAR HIGH COURT 1767 #

2007 Y L R 1767

[Peshawar]

Before Ijaz-ul-Hassan Khan and Dost Muhammad Khan, JJ

IBRAHIM---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.653 of 2006, decided on 7th February, 2007.

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

----Ss. 9(c) & 25---Appreciation of evidence---Sentence, reduction in---Both prosecution witnesses had fully supported prosecution story and had remained absolutely consistent, coherent and had successfully faced the test of cross-examination---Contradictions pointed out by counsel for accused, were not of serious nature and those could not be considered sufficient to vitiate the trial or to make recovery doubtful---Mere fact that said witnesses belonged to Police Department, by itself, could not be considered a good ground to discard their statements---Defence had not been able to shatter their testimony or pinpoint any ill-will, which could have prompted them to depose falsely against accused---No allegation from accused was that property was tampered with during the process of transit or the remaining property was not Charas---Chemical Analyzer's report had revealed that sealed packet was received by him .which contained signatures of marginal witnesses---In the absence of any allegation of tampering with the property, arguments of counsel for accused were not sound---Provisions of S.103, Cr.P.C. were not applicable to the facts and circumstances of the case in view of provisions of S.25 of Control of Narcotic Substances Act, 1997, even otherwise for various reasons, private persons do not come forward to give evidence in such type of cases---No serious defects were found with the evidence adduced against accused---Conviction of accused by trial Court was maintained, but sentence of three years was reduced to two years' R.I., which would meet the ends of justice---Sentence of fine, however would remain intact, accordingly.

Amjad v. The State 2006 PCr.LJ 988 and State v. Muhammad Amin 1999 SCMR 1367 ref.

Miss Farhana Marwet for Appellant.

Azmatullah for Respondent.

Date of hearing: 7th February, 2007.

YLR 2007 PESHAWAR HIGH COURT 1781 #

2007 Y L R 1781

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

GOVERNMENT OF N.-W.F.P. and others---Petitioners

Versus

AHMAD SHAH and others---Respondents

Civil Revision No.85 of 2006, decided on 16th February, 2006.

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

----S.115---Specific Relief Act (I of 1877), Ss.8, 42 & 54---Revision---Scope---Suit for declaration, permanent injunction and possession---Trial Court and Appellate 'Court having concurrently decreed suit, petitioners had filed revision petition against said concurrent judgments and decrees---Trial Court and Appellate Court had elaborately discussed every aspect of the case and dealt with the same in detail, leaving no room for further consideration---Both the courts below had appreciated evidence in its true perspective and same did not suffer from any legal or factual infirmity, warranting interference of High Court under S.115, C.P.C.-Finding of facts arrived at concurrently by both the courts below, was not open to legitimate exception, particularly when no specific misreading or non-reading of evidence had been pointed out---High Court while sitting in revisional jurisdiction was not supposed to interfere in the concurrent findings of the courts below unless it was established that the judgments of the courts below were without jurisdiction or the courts below had committed illegality or material irregularity resulting into miscarriage of justice---Both courts below had given exhaustive judgments after appraisal of evidence on the files and after discussing all the pros and cons of the case---No legal defect was found in the judgments of the courts below which were in consonance with the evidence on the file---Judgments of the Courts below were neither tainted with any illegality or irregularity nor wee fanciful or arbitrary---No interference, in circumstances was called for by the High Court---Revision being bereft of merit, was dismissed on merits as well as found barred by time.

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

----S. 115[as amended by Civil Procedure (Amendment) Act (XI of 1992)]---Limitation Act (IX of 1908), Ss.5, 12, 14 & 29---Revision petition---Limitation---Delay, condonation of---Revision was barred by time---Application for condonation of delay---Revision petition under S.115, C.P.C. (after amendment) would be made within 90 days of the decision of the courts below---Prior to said amendment though no statutory period was prescribed by the law for filing of revision, but superior courts had always insisted that ordinarily such proceedings should be instituted within 90 days---Limitation Act, 1908 contained in its fold remedial provisions like Ss.5, 12 & 14 which empowered the court to enlarge the period of limitation in peculiar circumstances of each case, provided those provisions had been specifically made applicable on the proceedings and in the, absence of its application, the court on its own would not be competent to make applicable the provisions of said sections of Limitation Act, 1908---Section 5 of Limitation Act, 1908, had not been made applicable in accordance with S.29 of Limitation Act, 1908 on the revision under S.115, C.P.C.---Delay of each day must properly and satisfactorily be explained and that was no ground that matter was delayed because it had to pass through the hands of different Government officials due to which sufficient time was consumed---Said ground was not a valid ground for extension of period of limitation and would not constitute sufficient ground for condonation of delay---Revision deserved "dismissal on that score alone---Government could not claim to be treated in any manner differently from an ordinary litigant.

Province of East Pakistan v. Abdul Hamid Darji and others 1970 SCMR 558; Government of Balochistan v. Muhammad Ibrahim 2000 SCMR 1028; Government of N.-W.F.P. and others v. Abdul Malik 1994 SCMR 833; The Deputy Director Food v. Syed Safdar, Hussain 1979 SCMR 45 and Custodian of Enemy Property v. Hoshang M. Dastur and others 1979 SCMR 191 ref.

Sardar Shoukat Hayat A.A.-G. for Petitioner.

Amjad Ali for Respondents.

Date of hearing: 22nd December, 2006.

YLR 2007 PESHAWAR HIGH COURT 1788 #

2007 Y L R 1788

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

BACHA KHAN and others---Petitioners

Versus

ABDUL QAYUM and others---Respondents

Civil Revision No.1422 of 2005, decided on 26th January, 2007.

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

----Ss. 8 & 42---Suit for declaration and possession---Suit was decreed by Trial Court but Appellate Court set aside the same and remanded the suit to the Trial Court for re-decision with direction to appoint Local Commission to decide the Us---Validity---Defendants had become owners of suit property not only on the basis of sale-deed, but they had also placed on record certain other deeds in support of their claim---Plaintiff was to prove his case and he could not take benefit of the weaknesses, if any, of the defendant's case---Appointment of Commission, in the case, would not give any strength to the plea of plaintiffs about their ownership---Appointment of Commission seemed to be an exercise in futility in the circumstances of the case---Trial Court had delivered a detailed and exhaustive judgment considering all the aspects of the case, leaving no room for further deliberation--Impugned judgment and decree of Appellate Court were set aside by the High Court and that of the Trial Court was restored.

Mst. Saleem Akhtar v. Nur Muhammad Khan and 4 others 1994 CLC 1828 rel.

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

----O.XLI, Rr.23, 24, 25 & 27---Remand of case and production of additional evidence---Appellate and revisional Court was always empowered to remand the case, but that discretionary power was used only in exceptional situation---If the parties had led evidence with regard to the particular point and the court of first instance had given specific finding on the said point, remand of the case in appeal or revision in the light of evidence available on record was not proper exercise of jurisdiction---Powers under O.XLI, R.27, C.P.C., were to be exercised only if the court considered that if it would not be able to pronounce judgment without further evidence---Said provision of law could not be used for the benefit of a party which had not been vigilant enough to see that no weaknesses were left in its case---Under O.XLI, Rr.23 & 24, C.P.C., only those cases should be remanded which could not be decided on the basis of available material/record---If a 'controversy could be resolved on the basis of available evidence, then the question of remand, would not arise---Such power should not be exercised lightly, but sufficient care should be taken in remanding the case---Court should examine the evidence and if it came to the conclusion that it was not sufficient to pronounce the judgment or decide the issues between the parties, it could remand the case or could itself record the evidence and decide it---If on record adequate and sufficient evidence existed on which decision could be made, remand would not be justified.

Nasir Ahmad and another v. Khuda Bakhsh and another 1976 SCMR 388; Fateh Ali v. Pir Muhammad and another 1975 SCMR 221 and Ashiq Ali v. Zameer Fatima PLD 2004 SC 10 ref.

Mazullah Barkandi and Shahabuddin Burq for Petitioners.

Abdul Samad Khan for Respondents Nos.1 to 5.

Masood ur Rehmnan for Respondents Nos.6 to 10.

Date of hearing: 24th November, 2006.

YLR 2007 PESHAWAR HIGH COURT 1794 #

2007 Y L R 1794

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

NAWAB ALI and others---Petitioners

Versus

SARDAR ALI and others---Respondents

Civil Revision No.323 with C.M. No.305 of 2007, decided on 20th April, 2007.

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

----O. XXXIX, Rr.1 & 2---Temporary injunction, grant of---Injunction could only be issued, if circumstances mentioned in R.I. of O.X XIX, C.P.C. were attracted i.e. as a step in aid of or to refrain or prevent, waste, damage, alienation, sale, removal or disposal of property; and even where that was so, it was discretionary with the court to grant an injunction---Factors to be considered while determining the question of granting a temporary injunction were; prima facie existence of a right in the applicant and its infringement by the respondent or the existence of a prima facie case in favour of applicant; that irreparable damage or injury would accrue to applicant, if injunction was not granted; and that inconvenience which applicant would undergo from withholding the injunction would be comparatively greater than that, which was likely to arise from granting it, or in other words the balance of inconvenience should be in favour of applicant---Court need not closely examine the merits of the case nor was the applicant to be required to establish his legal title and it was sufficient. if the applicant was able to establish an arguable case or show that the nature and difficulty of the question was such that an injunction should be issued, or in other words, if the evidence was to remain as it was, applicant should be able to show that he would get a decision in his favour and that case was bound to fail on account of some apparent defect in it.

Haji Shahjahan Khan v. Aurang Zeb Khan and another PLD 1995 SC 462 and Amanullah v. Hameedullah and others 2006 YLR 856 rel.

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

----S. 115 & O.XXXIX, Rr.1 & 2--Revision---Temporary injunction, grant of---Trial Court, in the present case, on appraisal of material on record, had considered the matter from all angles keeping in view the factors relating to grant and refusal of temporary injunction---Trial Court had advanced sound, cogent and sagacious reasons in support of the order which were not open to exception---Appellate Court had also upheld said order for valid reasons---Scope of S.115, C.P.C. was limited, as such, High Court could not interfere in its revisional jurisdiction with the concurrent findings on the question of fact rendered by the two courts below, unless it would find misreading and non-reading of evidence therein---Mere assertion that impugned judgments and orders suffered from misreading and non-reading of material on record without a positive attempt to substantiate same, was of no consequence---Concurrent finding of fact recorded by the courts below, could not be disturbed by High Court in exercise of its revisional jurisdiction under S.115, C.P. C., unless two courts below, while recording the finding of fact had either misread evidence or ignored any material piece of evidence on record or the finding of fact was perverse to the evidence on record---Petitioner having not been able to point out any illegality or irregularity in the decisions concurrently arrived at by the forums below justifying interference of High Court in its revisional jurisdiction, revision was dismissed.

Abdul Mabood Khattak for Petitioners.

YLR 2007 PESHAWAR HIGH COURT 1799 #

2007 Y L R 1799

[Peshawar]

Before Ijaz-ul-Hassan Khan and Dost Muhammad Khan, JJ

ABDUL HASSAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.594 of 2005, heard on 21st February, 2007.

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

----Ss. 9(c) & 25---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Appreciation of evidence---Sentence, reduction in---Both witnesses were subjected to lengthy and searching cross-examination in order to shatter prosecution version, but nothing beneficial to accused could come out of their mouth---No ill-will or animosity had been pointed out against the police officials for false implication of accused---Was not believable, that such huge quantity of contraband Charas weighing 40 Kgs,., was planted by the police officials to oblige their superiors and earn credit---Counsel for accused had contended that samples separated from seized 'Chagas' were sent to the Forensic Science Laboratory at belated stage and in the process sufficient time had been 'consumed in view of Rr.4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, that samples were dispatched for analysis beyond seventy two hours and the report received was illegal and rendered the 'seizure invalid in the eye of law---Contention was repelled because the Rules had placed no bar on the Investigating Officer to send the samples beyond seventy two hours of the seizure, receive the Forensic Science Laboratory report after fifteen days and the report so received to place before the Trial Court---Control of Narcotic Substances (Government Analysts) Rules, 2001, were directory and not mandatory and said Rules could not control substantive provisions of Control of Narcotic Substances Act, 1997---Failure to follow the Rules would not render the search, seizure and arrest an absolute nullity and non-est and make the entire prosecution case doubtful, except for the consequences provided in the Rules---Delay, otherwise in sending the incriminating articles to the concerned quarter for expert opinion, could not be treated fatal in the absence of objection regarding the same having been tampered with or manipulated---Section 25 of Control of Narcotic Substances Act, 1997, having excluded application of S.103, Cr. P. C., contention that provisions of S.103, Cr.P.C. had been violated was repelled---Counsel for accused could not point out lapses in the process of investigation, which could vitiate the trial---Prosecution having proved the guilt of accused beyond any reasonable doubt, through consistent and confidence inspiring evidence, no case for acquittal of accused had been made out---Accused, however being first offenders, and having no previous record, their sentence was reduced to R.I. for fourteen years from life imprisonment, whereas payment of fine was maintained, accordingly.

Muhammad Hashim v. The State PLD 2004 SC 85?; Aqal Khan and another v. The State PLD 2,004 Pesh. 59; Noorab Khan v. State Criminal Appeal No.69 of 2005; Ashiq Ali v. The State Criminal Appeals Nos.788 and 789 of 2003; Syed Sadaqat Ali Shah v. State Criminal Appeal No.965 of 2004; Said Ahmed Shah v. State Criminal Appeal No.644 of 2003; Sajjad v. State Criminal Appeal No.195 of 2002; Haider Ali Shah v. The State Criminal Appeal No.251 of 2006; Mst. Jan Bibi v. The State Criminal Appeal No.219 of 2005; Fida Muhammad v. The State 2006 PCr.LJ 316; Mir Hassan v. The State 2007 YLR 242; Munir Khan v. The State 2007 MLD 501; Mst. Noor Bibi v. The State 2007 MLD 408; Ghuncha Gul v. The State 2007 YLR 373; Muhammad Amin v. State 1999 SMCR 1367 and Mian Gul Bacha Khan and another v. The State PLD 2004 Pesh. 246 rel.

Sohail Akhtar for Appellants.

Salahuddin D.A.-G. for the State.

Date of hearing: 21st February, 2007.

YLR 2007 PESHAWAR HIGH COURT 1808 #

2007 Y L R 1808

[Peshawar]

Before Salim Khan, J

JAMIL---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.210 of 2006, decided on 25th January, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 514 & 439---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Absence of accused---Forfeiture of bail bond---Responsibility of verifier of bail bond---Accused for whom two persons stood sureties, having absented from the court, notices were issued to said two sureties under S.514, Cr. P. C. ---Petitioner was verifier of bail bond executed by said two sureties---One, of the sureties appeared in the court, but second one could not be brought to the court by the petitioner despite many opportunities were given to him and police assistance was also provided to him---Trial Court finding petitioner equally responsible in view of the terms and conditions of the bail bond, directed him to deposit amount of surety bond---Validity---Order of the court granting bail, apparently, was to the effect that accused and her two sureties were bound to pay the amount; and that bail bond was to be submitted to the satisfaction of the court---Verification/attestation of the bail bond was only for the purpose of satisfying the court that sureties were reliable persons having financial means and Court had not directed to bind down the verifier as third surety---Acceptance of the bond by the court had shown that court was satisfied with the verification/attestation of the petitioner---Petitioner being verifier could be prosecuted, if it was ever proved that his verification by itself was incorrect, which was not the case---Trial Court, in circumstances had exceeded its authority under the provisions of S.514, Cr.P.C. and impugned order which had overstepped the legal limits, was not maintainable--Impugned order to the extent of binding petitioner to deposit amount, was set aside.

PLD 1972 AJK 42 and 2004 YLR 1240 rel.

Khalid Rehman for Petitioner.

Waheedullah for the State.

Date of hearing: 25th January, 2007.

YLR 2007 PESHAWAR HIGH COURT 1812 #

2007 Y L R 1812

[Peshawar]

Before Talaat Qayum Qureshi, J

NOSHERAWAN KHAN and others---Petitioners

Versus

ABDUL WAHAB and others---Respondents

Civil Revisions Nos.30, 31 and 360 of 2006 and 1440 of 2005, decided on 7th November, 2005.

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

----S. 115---Revision petition---Maintainability of---Petitioner in two revisions having failed to avail remedy of appeal, revision being not maintainable, was dismissed.

Muhammad Ibrahim and others v. Group Captain Salahuddin 1987 SCMR 218; S. Azizul Hassan and another v. Malik Ghulam Muhammad 1971 SCMR 123 and Khawar Ali Shah and 2 others v. S. Murtaza Shah and others PLD 1969 Pesh. 203 ref.

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

----S.12(2) OXXI, R.103 & S.115---Execution of compromise decree---Objection to---Claim of petitioners in third revision was that they were in lawful possession of respective properties since the time of their forefathers and said property had nothing to do with the suit property and that said property was separate and entirely different one, but same was wrongly included by Local Commission for partitioning the property, which could not be lawfully done---Validity---Executing Court, should have decided objection petition while treating same as a suit as envisaged under O.XXI, R.103, C.P.C. but the Court had erred in converting same into application under S.12(2), C.P.C., which was not maintainable before said Court because decree had been eventually modified by High Court as per compromise executed by and between the parties of the said suit---Executing Court as well as Appellate Court having failed to exercise jurisdiction vested in them, revision petition was accepted and impugned orders/judgments, were set aside and case was remanded to Executing Court for determining as to whether property belonging to petitioners, had also wrongly been included by 'the Local Commission for partition purposes or not and that with such specific question another Local Commission could be appointed.

1992 SCMR 1908; PLD 1983 SC 155; 1982 SCMR 90; 2003 CLC 10; 1986 CLC 2600; 1986 MLD 2997; 1904 CLC 2255; 1984 CLC 2935; PLD 1983 Lah. 234 and PLD 1881 Lah. 289 ref.

Khalid Khan for Petitioners.

Javed Ali and Shahabuddin Burq for Respondents.

Date of hearing: 7th November, 2005.

YLR 2007 PESHAWAR HIGH COURT 1822 #

2007 Y L R 1822

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

MIR ZAMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Petition No.65 of 2007, heard on 26th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of---Two type of Charas i.e. "Pukhta" or consolidated and "garda" were sent to Forensic Science Laboratory for Chemical examination and both had been opined to be Charas, but without specifying which one of the parcels was Charas "Pukhta" or in consolidated form; and which parcel was containing "garda charas "---Accused was admitted to bail in circumstances, and because of no previous involvement of accused in offence of such nature.

Inayatullah v. State 2006 PCr.LJ 840 and Aamir v. State 1973 PCr.LJ 205 rel.

Noor Alam Khan for Petitioner.

Aurangzaib for the State.

Date of hearing: 26th February, 2007.

YLR 2007 PESHAWAR HIGH COURT 1827 #

2007 Y L R 1827

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

KHAN KHEL and others---Petitioners

Versus

HAJI NASIR---Respondent

Civil Revision No.1142 of 2004, decided on 22nd January, 2007.

Civil Procedure Code (V of 1908)---

----O. V, R.20 & O.IX, R.13---North-West Frontier Province Pre-emption Act (X of 1987), Ss. 6 & 13---Suit for pre-emption--Ex parte decree---Setting aside of---Substituted service---Defendant having-failed to appear in the court, suit was decreed ex parse---Application for setting aside ex parte decree filed by defendant was dismissed by the Trial Court, but Appellate Court accepting appeal, set aside order passed by the Trial Court and remanded the case---Plaintiff feeling aggrieved thereby filed revision---Summons issued to defendant, were returned unserved and subsequently summons issued on three times, were either returned unserved or served---Defendant thereafter was served through substituted means by affixation of notices on the house of defendant, but defendant having failed to appear, ex parte proceedings culminating in ex parte decree, were initiated---Validity---Requirements of O. V, R. 20, C.P.C., had not been complied with as defendant was neither served through ordinary manner, through registered A.D. nor through publication in newspaper---Where defendant evaded service or could not be served in the ordinary way or refused to accept service, or had not been heard for a long time and service could not be effected in the ordinary manner, the court, was satisfied of the same, could order substituted service under O. V, R.20, C.P.C. which could only be ordered when conditions warranting it existed and provisions of O. V, R. 20, C.P.C. were strictly complied with---Irregularities in that behalf would be of no consequence when defendant would waive proper notice---Unless all efforts to effect service in the ordinary manner were verified to have failed, substituted service could not be resorted to---Where circumstances in which substituted service was effected were demonstrably false, service would be void---In the present case nothing was on record to suggest that defendant had knowledge of the suit, but he deliberately avoided to appear in the Court---Service of defendant having not been proved satisfactorily, impugned order was perfect and was not open to any legitimate exception.

Mst. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99 and Metropolitan Steel Corporation v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 3 others 1995 CLC 1346 rel.

S.M. Attique Shah for Petitioner.

Abdus Samad Khan for Respondent.

Date of hearing: 1st December, 2006.

YLR 2007 PESHAWAR HIGH COURT 1835 #

2007 Y L R 1835

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

WAZIR and others---Petitioners

Versus

JALAT KHAN and others---Respondents

Civil Revision No.425 of 2005, decided on 12th February, 2007.

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

----S. 42---Civil Procedure Code (V of 1908), O.XLI, R.31 & S.115---Suit for .declaration---Suit had been concurrently decreed by the Trial Court and Appellate Court---Validity---Courts below had adverted to every aspect of the case and rightly decided issues agitated and rendered a reasoned judgment which was not open to exception---Counsel for defendants had not been able to prove that impugned judgments were the result of misreading and non-reading of evidence or suffered from illegality or material irregularity---Both courts below had given exhaustive judgments after due appraisal of evidence on the file and after discussing all the pros and cons of the case---No legal defect existed in judgments of the courts below, which were in consonance with the evidence on the file---Judgment of the courts below were neither tainted with any illegality or irregularity nor were fanciful or arbitrary---No interference, in circumstances was called for by the High Court---Courts below had scanned the entire evidence in its true perspective and no material piece of evidence was left unnoticed by the courts below---Counsel for defendants could neither point out as to which issue was not properly framed nor he could point out any material portion of evidence which was overlooked or misread by the courts below---Provisions of O.XLI, R.31, C.P.C., were not found to have been violated in the case---Parties were fully alive to the controversy involved and they were given reasonable opportunity to produce evidence in support of their respective contentions---Conclusion of fact arrived at concurrently by both the courts below, being not open to challenge in revision, revision being bereft of merit, was dismissed.

Muhammad Durwaish v. Haji Muhammad Hussain alias Haji Gul and 7 others 1999 CLC 106 and Muhammad Rafiq and others v. Muhammad Ali and others 2004 SCMR 704 rel.

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

----O. XIV, R.3---Framing of issues---Issues were to be framed on the basis of material enumerated in R.3 of O.XIV, C.P. C., with regard to the material proposition of law or facts; distinct and separate issues were to be framed for each proposition in dispute--It was duty of the Judge himself to frame proper issues, so that the parties could know the controversy, the disputed fact on which evidence was to be led; and to enable an effective judgment to be rendered, but where the parties were not satisfied, it was their duty to get proper issues framed.

Mir Afzal and 2 others v. Muhammad Raza Khan and 13 others 1990 CLC 1617; Fazal Muhammad Bhatti v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 and Kaura and others v. Allah Ditta and others 2000 CLC 1018 rel.

----Art. 100---Presumption as to documents thirty years old---Discretion under Art.100 of Qanun-e-Shahadat, 1984, should be exercised judicially that the Court could refuse to raise presumption where it had reasons to believe that documents which were claimed to be 30 years old were fabricated and suspicious.

Lutufur Rehman and others v. Zahoor and others 1999 SCJ 433 and Shafiqunnisa v. Shabar Ali Khan 30 IA 217 ref.

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

----O.XLI, R.31---Judgment of Appellate Court---Contents of---Appellate judgment should state the points arising for determination, its decision thereon and reasons for its decision---It was necessary for the Appellate Court to record the points for determination, so that it could be determined whether the Court had dealt with all the points---Appellate Court must state its reasons for the decision---Provisions of O.XLI, R.31, C.P.C., were mandatory.

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

----O. XLI, Rr.25 & 27---Remand of case and production of further evidence---Appellate and revisional Court was always empowered to remand the case in terms of O.XLI, R.25, C.P.C., but that discretionary power was to be used in exceptional situation and if the parties had led evidence with regard to the particular point and the Court of first instance, by giving specific finding on the said point, decided same in the light of evidence available on record, remand of case in appeal or revision was not proper exercise of jurisdiction---Powers under O.XLI, R.27, C.P.C. were to be exercised only if the Court would consider that it would not be able to pronounce judgment without further evidence---Said provision could not be used for the benefit of a party which had not been vigilant enough to see that no weaknesses were left in its case---Power to order remand, was no doubt wide, but it should be exercised only in those cases wherein omission of a party was accidental---Party could not be allowed to adduce evidence to do away with the weakness that existed in its case.

Ashiq Ali v. Zameer Fatima PLD 2004 SC 10 ref.

Syed Zafar Abbas Zaidi for Petitioners.

Nasir Khalil for Respondents.

Date of hearing: 18th January, 2007.

YLR 2007 PESHAWAR HIGH COURT 1900 #

2007 Y L R 1900

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

GHULAM FARID---Petitioner

Versus

AKRAM KHAN---Respondent

Civil Revision No.809 of 2006, decided on 2nd February, 2007.

Civil Procedure Code (V of 1908)---

---O.V, R.20, O. VII, R.2 & O.IX, R.13---Suit for recovery of amount---Ex parte decree, setting aside of---Substituted service---Defendant having failed to appear in the court, suit was decreed ex parte---Defendant submitted application for setting aside ex parte decree under O.IX, R.13, C.P.C. alleging that he was not served and that plaintiff had furnished his wrong address---Said application of defendant was dismissed on the ground that defendant was properly served, but he intentionally failed to appear in the court---Said application was also found barred by time---Appeal against order of the Trial Court, was also dismissed--Validity---Process Server had reported that defendant refused to accept service, whereafter service through affixation was ordered and which accordingly was' made on the house. of defendant---Defendant was also served "through publication in the Newspaper, but even then, defendant did not appear before the Trial Court and he was proceeded ex parse---Defendant had the knowledge of the proceedings taken against him and of the decree passed against him which was evident from the report of process server and other evidence, which defendant had not been able to shake---Apart from application and statement of defendant, no other evidence was produced to show that wrong address was given---Effect---Substituted service, was as effective as personal service was and no limitation could be reckoned from the date of decree---Onus was heavily placed on the defendant to prove that a copy of plaint along with summons was not affixed on his door and that his, address was wrongly given---In absence of those facts, sworn testimony of the Process Server, could not be put on the shelf and excluded from consideration---Revision against concurrent judgments of courts below, was dismissed.

Ahmad Khan v. Haji Muhammad Qasim and others 2005 SCMR 664; Muhammad Khan v. Muhammad Jamil and others 2004 MLD 1301; S.R. Nawaz and another v. Mirza Nasir PLD 1962 (W.P.) Lah. 185 and Kanhaye Lal v. Kishore Chand 164 I C 790 rel.

Hussain Ali for Petitioner.

Mushtaq Ahmad for Respondent.

Date of hearing: 18th December, 2006.

YLR 2007 PESHAWAR HIGH COURT 1905 #

2007 Y L R 1905

[Peshawar]

Before Salim Khan, J

MALIK ZAHID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7 of 2007, decided on 10th April, 2007.

Criminal Procedure Code (V of 1898)---

----Ss.22-A(6) (i), 154, 156, 157 & 561-A---Registration of case and investigation therein---Quashing of order---Investigation was not to be conducted before registration of the case---Officer in charge of the police station was bound to either register or cause to be registered the F.I.R. as and when written or oral information was received by him regarding commission of cognizable offence---Justice of Peace was expected to direct in charge of concerned police station to register F.I.R., which he had not directed in the case---Original order of the Justice of Peace was not only evasive, but was not covered by the provisions of S. 22-A(6) (i), Cr. P. C. ---Order was quashed with' direction to concerned officer in charge of the police station to register F.I.R., to investigate the case at tile information given by the petitioner and after completing investigation, take into consideration the provisions of Ss.169, 170 & 173, Cr.P.C.-Officer in charge of police station would be at liberty to initiate proceedings against the complainant if it was proved that complaint was frivolous and false.

Abdullah Khan Tanoli for Petitioner.

Qari Abdul Rashid, D.A.-G. for the State.

Date of hearing: 10th April, 2007.

YLR 2007 PESHAWAR HIGH COURT 1908 #

2007 Y L R 1908

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

BANARAS KHAN---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous Petition No.188 of 2006, decided on 16th February, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 561-A---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 32, 33(4) & 74---Superdari of vehicle, petition for---Nothing was on record to show that vehicle in question had been used in the commission of crime with the knowledge of petitioner---Section 74 of Control of Narcotic Substances Act, 1997, no doubt, prohibited the grant of custody of a vehicle used in the import, export or transportation of narcotic substance to accused or any of his associates or relatives or any private individual till the conclusion of the case, but application of said provision by no canon of interpretation could be extended to cover an owner who had no hand or involvement in the crime, as it could not be construed independently of the provisions contained in S.32 of said Act; which protected the right of the owner, who had no conscious hand in the commission of crime---Petitioner claimed to be the owner of seized vehicle and his claim was based upon a registration book and a transfer letter---Petitioner was not accused person in the relevant criminal case and nothing had been recovered from his possession in the said case---Nothing was available on the record of investigation of the case showing that petitioner had any knowledge that accused would use his car for committing any offence relating to narcotics and law did not allow putting onus on petitioner to prove his lack of knowledge in that regard---Rights of the owners who had no knowledge of commission of offence or had no conscious hand in the crime, were fully protected---Vehicle in question was parked in open space exposed to the vagaries of whether; its retention in police custody for an indefinite period would achieve no useful purpose---Local police was directed to hand over custody of vehicle to petitioner, accordingly---Present order, however, would not prejudice the right of a rival claimant, if any, with a better title.

Javed Hayat and another v. The State PLD 2006 Lah. 167; The State v. Rashid PLD 2003 Pesh. 87 and Aamir Khalil v. Government of Pakistan through Director General, ANF Rawalpindi and 5 others PLD 2004 Pesh. 251 rel.

Nek Nawaz Khan Awan for Petitioner.

Salahuddin Khan, D.A.-G. for the State.

Respondent No.3 in person.

Date of hearing: 9th February, 2007.

YLR 2007 PESHAWAR HIGH COURT 1956 #

2007 Y L R 1956

[Peshawar]

Before Talaat Qayum Qureshi, J

FAZL-E-AMEEN---Petitioner

Versus

MANZOOR AHMAD and others---Respondents

C. R. No.1514 with C.M. No.1505 of 2006, decided on 16th February, 2007.

Civil Procedure Code (V of 1908)---

----O.V, R.20(2) [as amended vide Civil Law (Reforms) Ordinance (XXXIII of 1993)] & O. VII, R.2-Suit for recovery of amount---Ex parte decree---Application for setting aside of---Substituted service---Petitioner, who was proceeded ex parte and ex pane decree was passed against him, filed application for setting aside said decree; which application was concurrently dismissed by courts below and petitioner had filed revision against said concurrent orders---Trial Court on receipt of suit, directed that petitioner be served through registered/A.D.---Petitioner could not be served through said mode---On application of respondents that petitioner was avoiding service, he should be served through publication in the newspaper and courts below directed for publication in the newspaper after receipt of said .proclamation, ex parte decree was passed---Application for setting aside ex parte decree was filed after one year and 2 days and said application was not supported by any application for condonation of delay---Courts below dismissed application being barred by time---Validity---Trial Court, while resorting to service through registered/A.D. directly, had committed no illegality because according to amendment brought in sub-rule .(2) of R.20 of O.V, C.P.C. vide amending Ordinance of 1993, court on its satisfaction that there were reasons to believe that petitioner Was keeping out of the way for the purpose of avoiding service or that for any of the reason, the summons could not be served in the ordinary way, could order substituted service---Under provisions of O.V, R.20(2), C.P.C., the court could use all or any of the manners and modes prescribed for service, simultaneously---If the court had in its wisdom directed for service of petitioner through registered/ A.D., it could do so under said provision of law---Courts below had properly dealt with the matter---In absence of any illegality or material irregularity or any jurisdictional error or defect warranting interference in the concurrent findings of the courts of competent jurisdiction, revision against concurrent judgment, was dismissed.

1985 SCMR 1228; 1989 CLC 2183 and Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. and others 2005 SCMR 609 ref.

Javed Ali for Petitioner.

YLR 2007 PESHAWAR HIGH COURT 1962 #

2007 Y L R 1962

[Peshawar]

Before Ijaz-ul-Hassan Khan and Salim Khan, JJ

WAHID GUL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.36 of 2006, decided on 8th March, 2007.

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

----Ss. 9(c) & 25---Control of Narcotic Substances (Government Analysts) Rules, 2000, Rr.4 & 5---Appreciation of evidence---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 the rejection of testimony of said witnesses---Witnesses were cross-examined, but nothing had been elicited from their statements---Counsel for accused had contended that recoveries had been effected in violation of S.103, Cr. P. C. ---Contention was devoid of force, as recovery of narcotic substance had been made in accordance with the provisions of S.25 of Control of Narcotic Substances Act, 1997 which had specifically excluded application of S.103, Cr. P. C. ---Police officials were competent witnesses and their testimony could not be discarded merely for the reason that they were police officials, especially where counsel for accused had failed to point out any back ground of bitterness or ill-will between the recovery witnesses so as to prompt police officials to falsely involve accused in a case of that nature---Huge quantity of 117 Kgs. had been recovered by the raiding party from the secret cavities of the truck in question---Report of Chemical Examiner regarding the sample of the recovered material was in the positive---Discrepancies highlighted by counsel for accused, were minor in nature and insignificant and were not fatal to main allegation of recovery of narcotics---Contention of counsel for accused was that samples separated from seized Chat-as were sent to Forensic Science Laboratory after 28 days of recovery, which was in violation of Rr.4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, whereby sample dispatched for analysis beyond seventy two hours, was illegal---Contention was repelled as said Rules had placed no -bar on the Investigating Officer to send samples beyond seventy two hours of seizure---Even otherwise said Rules were directory and not mandatory and as such could not control substantive provisions of Control of Narcotic Substances Act, 1997---Substantial compliance was sufficient in directory provisions---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---Confessional statement of accused was recorded by Magistrate---Mere fact that confessional statement was recorded three days after obtaining accused's police custody, would not, by itself, suggest that confession was result of coercion or torture by police---Plausible explanation had been furnished for non-production of truck in question---Prosecution had brought sufficient material on record to connect accused with the commission of crime---In absence of any illegality or irregularity in impugned order, appeal filed against impugned orders, was dismissed.

Sarwar v. State 2003 PCr.LJ 1387; and Qayum v. The State 2005 PCr.LJ 2034; Niaz Muhammad v. The State 2006 PCr.LJ 228 and Rozi Khan v. The State PLD 1987 Pesh. 104 rel.

Mushtaq Ahmad and Muhammad Iqbal for Appellants.

Zia ud Din Siddiqui for Respondents.

Date of hearing: 8th March, 2007.

YLR 2007 PESHAWAR HIGH COURT 1968 #

2007 Y L R 1968

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

WAHID ULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.182 of 2006, decided on 1st February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of bail bond---Essentials---Essential requirements regulating the procedure of forfeiture of bond were; that it must be proved to the satisfaction of the court that a bond had been forfeited; that the court must record grounds for such proof of forfeiture; that a show-cause notice should be issued by the court to the surety as to why the penalty should not be imposed for such breach; that if sufficient cause was not- shown, or if penalty was not paid, the court could proceed to .recover the same; and that the recovery could be made by issuing a warrant for the attachment and sale of the movable property belonging to surety---When the bond was for appearance before a particular court then that court alone and no other court could proceed under S.514, Cr. P. C. to forfeit the bond---Surety bond was a contract of civil nature and the court would construe the condition strictly---In the present case, original bond was meant for the court of Illaqa Qazi only and if it was to be available for any other court also, same ought to have been expressly provided---Surety bond filed by surety having specifically provided that surety would be responsible for the presence of accused in the court of Illaqa Magistrate, no penalty for his absence in any other court was attracted---Impugned order being not in consonance with law on the subject, could not be allowed to remain in field and was set aside and surety was exonerated from the liability of penalty.

Khan Bahadur v. The State 1992 PCr.LJ 2238; Muhammad Khan and another v. The State 2004 YLR Jan v. The State 1990 MLD 2076 and Gulzada v. Muhammad Usman through Legal Heirs and 6 others PLD 1990 SC 465 rel.

Hidayatullah Muhammadzai for Petitioner.

Umar Hayat for the State.

Mian Shaukat Hayat for Respondent No.2.

Date of hearing; 18th December, 2007.

2007 Y L R 2132

[Peshawar]

Before Muhammad Qaim Jan Khan, J

HUKAM KHAN---Petitioner

Versus

QASIM KHAN---Respondent

Civil Revision No.1077 of 2006, decided on 1st June, 2007.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession---Revenue record showed that plaintiff was owner of the suit house---Defendant had failed to ,prove his alleged purchase of the suit house from the father of the plaintiff---Alleged sale deeds were neither registered nor executed between the contesting parties and position whether the said deeds pertained to the suit house or otherwise was also not clear---Factum that the plaintiff was the owner of entire house or not and the other-persons were co-sharers with the plaintiff was of no help to the defendant---Defendant, who had posed himself to be the owner of the house, having failed to prove the same, revision against plaintiff was dismissed.

Hayatullah for Petitioner.

Mokhtar Ahmad Khan for Respondent.

YLR 2007 PESHAWAR HIGH COURT 2188 #

2007 Y L R 2188

[Peshawar]

Before Talaat Qayum Qureshi and Dost Muhammad Khan, JJ

ALI AKHTAR SHAH---Petitioner

Versus

PROVINCE OF N.-W.F.P. through SECRETARY and another---Respondents

Civil Revision No.28 of 2006, decided on 19th October, 2006.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Civil Procedure Code (V of 1908), O. VII, R.2 & O.IX, R.8---Suit for declaration, permanent injunction and -- recovery of amount---Dismissal of suit for non-prosecution---Application for restoration of suit---Dismissal of the application---Validity---Trial Court though had directed plaintiff to appear personally, before the court, but he was not served for the purpose---Case was fixed for appearance of plaintiff, attendance of defendant and for filing of written statement on behalf of the other defendant---Courts below without verifying the fact as to whether plaintiff had been served about the direction of Court to appear personally, dismissed the suit for non-prosecution, though said date was not "date of hearing "---Suit, in circumstances could not be dismissed for non-prosecution---Impugned order being illegal, was not sustainable---Allowing revision, parties were directed to appear before the trial Court.

Arshad Zaman Kiyani for Petitioner.

Nizar Muhammad, Deputy A.-G. for Respondent No. 1.

Astaghfirullah for Respondent No.2.

YLR 2007 PESHAWAR HIGH COURT 2341 #

2007 Y L R 2341

[Peshawar]

Before Tariq Parvez Khan, C.J. and Muhammad Qaim Jan Khan, J

MUHAMMAD YOUSAF---Appellant

Versus

THE STATE and other---Respondents

Criminal Appeal No.368 of 2006, decided on 11th July, 2007.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.156(2)---Appreciation of evidence---Protection to investigation conducted by an officer not empowered to investigate---Contention of accused was that arrest and investigation in the case having been carried out by C.I.A. Staff who was not 'authorized to conduct investigation, the very foundation of the case was illegal and subsequent proceedings including the conviction and sentence were void---Validity---Section 156(2), Cr.P.C. gave protection to investigation conducted by an officer not empowered to investigate---On the strength of statute whereunder Government had issued S.R.Os. read with the law laid down by the apex Court, the arrest and investigation conducted by C.I.A. staff who was part of the police Department, would not vitiate the trial; if on the basis of cogent evidence, it was proved by the prosecution that narcotics were ,found in possession of or under the control of accused such accused could not claim that because of deficiencies or incompetent investigation he was entitled to acquittal---Where an accused by investigation conducted by a wrong Investigating Agency, was prejudiced in his defence, that might be taken as one of the grounds amongst others while recording final judgment, but that by itself, could not be a ground for holding that accused was entitled to acquittal---Accused had not alleged in S.342, Cr.P.C. statement, that he had been prejudiced by the investigation conducted by C.I.A. police---Both defence witnesses could not be believed as they had belatedly stated and such like oral evidence was easy to procure at any stage of the investigation and at the trial---Prosecution had proved to the hilt the charge of possession and control of accused over the narcotics recovered---Accused having not admitted his presence with .the motor car nor the possession of narcotics, he could not argue that to the extent of samples sent, the recovery would be accepted and not beyond that---Samples were taken from the packets recovered were sent to the Chemical Examiner and the samples were sent under an application carrying F.I.R. number of the case in question---Nexus of the samples with the case F.I.R. and the case properly had been made out---Appeal was dismissed accordingly.

Muhammad Younas and others v. Mst. Parveen alias Mano and others 2007 SCMR 393; Muhammad Hanif v. The State 2003 SCMR 1237; Fida Jan v. The State 2001 SCMR 36; Kausar Irshad v. the State 1998 SCMR 1184; Muhammad Afzal v. The State PLD 2000 SC 816 and State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 ref.

Abdul Fayyaz and Noor Alam for Appellant.

Pir Liaqat Ali Shall for the State.

Date of hearing: 26th June, 2007.

YLR 2007 PESHAWAR HIGH COURT 2513 #

2007 Y L R 2513

[Peshawar]

Before Talaat Qayum Qureshi, J

ABDULAH JAN---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No.69 of 2006, decided on 4th June, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 249-A & 265-K---Penal Code (XLV of 1860), S's.420, 466, 468 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---Quashing of proceedings---Petitioner had sought quashing of proceedings pending against him before the Trial Court on the ground that matter being of a civil nature, criminal proceedings were liable to be quashed---Petition was resisted by respondents on the ground that offence committed by petitioner was Scheduled offence, which was triable by Special Judge Anti-Corruption---Question which required determination in the case was as to whether complaint was to be filed under S.195(a), Cr. P. C. by the court of Collector or the complainant could file same against petitioner before Judge Special Court Anti-Corruption; or whether Trial Court itself could proceed with the matter---In order to resolve such questions, petitioner should have moved an application before the Trial Court under S.265-K, Cr. P. C. ---Ordinarily High Court would not quash proceedings under S.561-A, unless Trial Court had exercised its power under 5.249-A or 265-K, Cr. P. C. , which were of the same nature---Petition for quashing of proceedings, was dismissed---Petitioner, however, could move the Trial Court under S.265-K, Cr.P.C. to resolve said questions.

AIR 1935 Rangoon 125; PLD 1992 SC 353 and The State v. Asif Ali Zardari and another 1994 SCMR 798 rel.

Mian M. Yunis Shah for Petitioner.

Muhammad Alam Khan for Respondent No.2.

Aftab Khan Khubai for Respondent No.3.

Date of hearing: 4th June, 2007.

YLR 2007 PESHAWAR HIGH COURT 2616 #

2007 Y L R 2616

[Peshawar]

Before Salim Khan and Hamid Farooq Durrani, JJ

MURAD ALI and another---Petitioners

Versus

CHIEF EXECUTIVE, TRIBAL ELECTRIC SUPPLY COMPANY, (TESCO) PESHAWAR and another---Respondents

C.O.C. No. 53 of 2007, decided on 9th July, 2007.

Contempt of Court Ordinance (IV of 2003)---

----S. 3--Petition for- contempt of Court---Acquisition of land---Law relating to acquisition of land---Applicability to Tribal areas---Petitioner had submitted that he would he satisfied, if petition for contempt of court was converted into a reference to the Political Agent of Khyber Agency and sent to him with the direction to decide same regarding the payment of compensation to the petitioner within a period of three months---Whether law relating to acquisition of land was or was not applicable; to the Federally Administered Tribal Areas, was not clear, however, no person could be deprived of his property except in accordance with law---Request of petitioner being genuine, was accepted---Political Agent of Khyber Agency was directed to consider the petition as a reference to him in accordance with established principles of law and decide same within a period of three months in accordance with such established principles---Office was directed to send the original petition to the Political Agent Khyber Agency.

Haji Muhammad Zahir Shah Khan for Petitioner.

YLR 2007 PESHAWAR HIGH COURT 2623 #

2007 Y L R 2623

[Peshawar]

Before Ijaz-ul-Hassan Khan and Salim Khan, JJ

ISRAR MUHAMMAD ---Petitioner

Versus

TEHSIL NAIB NAZIM, TEHSIL LAHOR DISTRICT SWABI and

2 others---Respondents

Writ Petitions Nos. 1847 and 1894 of 2006, decided on 11th July, 2007.

North-West Frontier Province Local Government Ordinance (XIV of 2001)---

----Ss. 70-A, 70-B, 98, 99, 101(2), 132 (i) (h) (g) & 190---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability of---Whole scheme of North-West Frontier Province Local Government Ordinance, 2001, was that internal disputes between the organizations, the officers, the authorities and the Local Government at different levels, were to be settled internally through the mechanism provided in said Ordinance---Section 132 of North-West Frontier Province Local Government Ordinance, 2001, provided the functions of the Provincial Local Government Commission; it was one of the functions of said Commission to take cognizance of violations of laws and rules by a Local Government in the performance of its functions while its other functions were to conduct, on its own initiative or whenever so directed by the Chief Executive of the Province, an inquiry by itself or through District Government into any matter concerning a Local Government---Petitioners had the remedy to avail the facility provided to them by the provisions of clauses (b) & (g) of subsection (1) of S.132 of North-West Frontier Province Local Government Ordinance, 2001, but they had not opted for the same---Provisions of Art.199 of the Constitution, in circumstances, were not attracted---Constitutional petition being not maintainable, was dismissed.

Barrister Waqar Ali Khan for Petitioner.

Muzammil Khan for Respondents.

Date of hearing: 4th July, 2007.

YLR 2007 PESHAWAR HIGH COURT 2640 #

2007 Y L R 2640

[Peshawar]

Before Talaat Qayum Qureshi, J

NOOR HABIB---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.444 of 2007, heard on 6th July, 2007.

Criminal Procedure Code (V of 1898)-

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of---Contraband Charas, no doubt;, allegedly was recovered from the residential room of house of accused, but record had shown that said house was not in exclusive use of the accused---Despite having prior knowledge about the selling of Charas, none from the locality was associated with recovery of alleged contraband---Provisions of S.103, Cr. P. C., it circumstances had not been complied with---Search warrant was issued by Judicial Magistrate whereby S.H.O. concerned was authorized to enter the house and arrest accused, whereas search warrant in question could only be issued by Judge, Special Court A.N.F. and not by Judicial Magistrate---Samples were received in Forensic Science Laboratory after delay of one month and twenty seven days and no explanation was given as to where the samples had been for such a long period---Accused was released on bail, in circumstances.

Shahzada Riazat-ul-Haq for Petitioner.

Ubaidullah Anwar, Addl A.-G. for the State.

Date of hearing: 6th July, 2007.

YLR 2007 PESHAWAR HIGH COURT 2645 #

2007 Y L R 2645

[Peshawar]

Before Muhammad Raza Khan, J

MUHAMMAD SIRAJUL ISLAM---Petitioner

Versus

MUHAMMAD NIAZUL ISLAM--- Respondent

Civil Revision No. 160 of 2003, decided on 30th November, 2005.

Specific Relief Act (1 of 1877)---

----Ss. 42 & 54---Suit "for declaration and permanent injunction---Plaintiff in his suit for declaration had claimed drat. suit house belonged to him and that defendants be restrained through perpetual injunction from interfering therewith; in alternative, prayer was for possession of suit house---Claim of plaintiff was based on sole ground that house in dispute along with other houses and shops were owned by predecessor-in-interest of the, parties and that as a result of private partition house in question was allocated' to plaintiff, but defendants were interfering therein---Claim of defendants was drat suit house was given to defendants during private partition and they were in its possession and had made improvements therein---Trial Court and Appellate Court had concurrently dismissed suit---Both parties had claimed their, title in respect of suit house on the basis of private partition, but same had not been approved by the court---Validity---Parties had a right to file independent partition proceedings and in view of. joint possession of co-owners, objection of limitation could trot he taken---Suit for partition was not barred even if present proceedings were withdrawn unconditionally, by , way of abundant caution, plaintiff had chosen to .ask for permission for withdrawal, which request had considerable force---If the private partition was alleged, but not accepted by the- court, entire private partition was nullified and the matter had to be referred back for a final partition, where the entire property- and all the legal heirs of predecessor had to be impleaded for effective and conclusive partition proceedings---Plaintiff was allowed to withdraw the proceedings commenced through his civil suit, with permission to file a fresh suit for partition for the entire joint property by impleading all legal heirs of their predecessor---Revision as -well as original civil suit filed by plaintiff, were also dismissed as withdrawn.

Mazhar Alam Khan Miankhel for Petitioner.

S. Mastan Ali Zaidi for Respondent.

Date of hearing: 30th November, 2005.

YLR 2007 PESHAWAR HIGH COURT 2724 #

2007 Y L R 2724

[Peshawar]

Before Hamid Farooq Durrani, J

MAQSOOD-UR-REHMAN and anther---Petitioners

2007 Y L R 2649

[Quetta]

Before Muhammad Nadir Khan, J

GHULAM MUSTAFA---Applicant

Versus

ADDITIONAL SESSIONS JUDGE-IV, QUETTA and another---Respondents

Criminal Miscellaneous Quashment Application No.7 of 2004, decided on 5th April, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 517---Application for return of documents submitted by surety for release of his vehicle---Vehicle of applicant which was stolen, subsequently was recovered---F.I.R. with regard to said incident though was registered, but no challan had been submitted and case had been consigned to record after recovery of vehicle---State counsel expressed hrs no objection with regard to return of documents of said vehicle, which were submitted by surety for release of vehicle---Property documents submitted by the surety for release of vehicle were returned to him.

Muhammad Shabir Rajput for Applicant.

Sardar Munir Ahmed Durrani for the State.