YLR 2008 Judgments

2008 Y L R 2

[Karachi]

Before Mrs. Yasmin Abbasey, J

ABDUL RASHEED---Applicant

Versus

ABDUL HAFEEZ and others--Respondents

Civil Revision No.275 of 1994, decided on 28th September, 2007.

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

----O.IX, Rr.4, 8 & 9---Bar of fresh suit---Scope---Such bar would apply only when point in issue was wholly or partly disposed of under O.IX, R.8 or R.9---Where suit was dismissed in absence of both parties without adjudication of case on merits or on admission of defendant, then O.IX, R.4, C.P.C. would come into play---Plaintiff under O.IX, R.4, C.P.C. had two options, one of filing fresh suit and other of making prayer for setting aside dismissal of suit---Principles.

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

----O.XX, R.18 & O.XXVI, R.13---Suit for partition---Execution of agreement and registered partition deed having contents not disputed by parties---Site plan prepared by Architect with consent of parties bifurcated share of each share-holder-No difference between parties as to quantum of area to be acquired by each of them and how such partition was to be given effect to between them---Taking over possession of property by parties without having any formal wall in between them---Defendant admitted to be in possession of more area than his due share---Dispute between parties arose over construction of wall---High Court appointed Commissioner to enforce settlement arrived at between parties in terms of such agreement and partition deed.

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

----Art.114---Estoppel---Approbate and reprobate, principle of---Applicability---Statement of parties in writing in form of unregistered agreement, if mutually agreed by them to be true, then at later stage, they could not be allowed to take contradictory stand---Law of estoppel as well as principle of approbate and reprobate would apply thereto.

Syed Shaukat Ali Jaffery for Applicant.

Irfan Ahmed Qureshi for Respondents.

Date of hearing: 10th September, 2007.

2008 Y L R 10

[Karachi]

Before Muhammad Athar Saeed and Muhammad Moosa K. Leghari, JJ

Mst. NARGIS BANO through Attorney---Petitioner

Versus

A.R. EQBAL and 2 others---Respondents

C.P. No.516 of 2003, decided on 31st August, 2006.

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

---S.15---Default in payment of rent---Rent according to rent deed was payable within first week of every month in advance---Tenant on 6-11-1998 tendered rent for months of August, September and October, 1998 for payment to landlord, and on his refusal to issue receipt, same was remitted to him on 12-11-1998 through money order---Held, tenant had committed default in payment of rent for such months---Ejectment petition was accepted in circumstances.

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

---S.15---Default in payment of rent for months of August, September and October, 1998---Filing of ejectment petition in April 2000---Effect---Such delay in filing ejectment petition would neither mean waiver of alleged default by landlord nor could deprive him of right to move Court for ejectment of tenant.

Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 111 ref.

Muhammad Aminuddin Qureshi v. Salahuddin 1990 CLC 1394 and Mrs. Afia Baig v. Pakistan State Oil Company Ltd. PLD 1991 Kar.239 fol.

Messrs Pakistan State Oil Company Ltd. v. Sikandar A. Karim, reported in 2005 CLC 3 distinguished.

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

---Ss.12, proviso & 15---Default in payment of rent---Non-receipt of rent by landlord after alleged default---Deposit of rent in Court by tenant---Effect---Proviso to S.12 of Sindh Rented Premises Ordinance, 1979 would not apply to tenant for not having fulfilled conditions thereof-Rent Controller in such case could not exercise discretion in favour of tenant.

M.G. Dastigir for Petitioner.

Sathi M. Ishaque for Respondents.

2008 Y L R 24

[Karachi]

Before Rahmat Hussain Jafferi, J

Mst. AISHA and another---Petitioners

Versus

Mrs. SAMAR AFROZE---Respondent

Constitutional Petition No. 618 of 2004, decided on 29th October, 2007.

Sindh Rented Premises Ordinance (XVII of 1979)-

----Ss. 15(2) (ii) & 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Default in payment of rent---Change of ownership of premises---Original owner of premises having gifted away premises in question to respondent; notice of said transfer was duly served on tenant not only by respondent, but by the original owner also---Tenant despite said knowledge of transaction and receipt of notices did not tender rent of premises to new owner---Effect---After service of notice of transfer under S.18 of Sindh Rented Premises Ordinance, 1979, tenant was required to pay the rent of premises within 30 days to the new landlord and not the old landlord---Deposit of rent in court in the name of previous owner was not a valid tender of rent to the new landlord after receipt of notice under S.18 of Sindh Rented Premises Ordinance, 1979---Two Courts below, in circumstances had rightly passed ejectment order against tenant on ground of default in payment of rent of the premises-In absence of any illegality or irregularity in, the orders of the courts below same could not be interfered with in constitutional jurisdiction by High Court.

Abdul Wajid Wyne for Petitioners.

Shahnawaz Ali Nasri for Respondent No.1.

Date of hearing: 22nd October, 2007.

2008 Y L R 32

[Karachi]

Before Gulzar Ahmed, J

GOL MARKET, CLOTH MERCHANTS, WELFARE SOCIETY, LIAQUATABAD through President and another---Plaintiffs

Versus

CITY DISTRICT GOVERNMENT through City Nazim, Karachi and others---Defendants

Suit No.588 of 2005, decided on 25th January, 2007.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and injunction---Dispute was between defendants with regard to ownership of suit property---Contention of plaintiffs was that they being tenants of the suit property, were depositing the rent in court jointly in the names of defendants-Counsel for one of the defendants had stated before the court that he was not going to forcibly dispossess the plaintiffs, but would take action in accordance with law---Counsel for the plaintiffs, in view of statement made by counsel for defendants, had stated that the purpose of filing of the suit having been achieved, he would not press the suit---Suit was dismissed as not pressed along with pending applications.

Ashiq Hussain Mehar for Plaintiffs.

Manzoor Ahmed for Defendant No. 1.

Bilal Aziz for Defendant No.2.

Latifur Rehman for the Intervener.

2008 Y L R 37

[Karachi]

Before Muhammad Moosa K. Leghari and Mrs. Yasmin Abbasey, JJ

IRFAN ALI BHAYO---Appellant

Versus

THE STATE---Respondent

Cr. Special Appeal No.D-50 of 2006 and Cr. Jail Appeal No.D-73 of 2006, decided on 26th September, 2007.

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

----S.9(c)---Appreciation of evidence---Nothing had been mentioned in the F.I.R. or the mashirnama of the recovery regarding the samples drawn from the recovered narcotics; it could not be presumed, in circumstances that all the rods contained Charas as neither the samples were drawn from all those rods nor those were chemically examined---Samples were received at the laboratory after delay of about 8 days from recovery of narcotics--Parcel containing the samples was not sent under any letter and same neither contained the letter number nor the date-of dispatch---No explanation was available on the record to justify such major lapse an the part of prosecution---Conviction of accused could not be sustained as the case of prosecution was full of doubts---Burden was on the prosecution to prove the charge beyond all reasonable doubts whereas accused was only to create a reasonable doubt in the case of prosecution---Serious doubts having been created in the case of prosecution, judgment of conviction of accused was unsustainable---Conviction was set aside and accused were set at liberty.

Muhammad Hashim v. The State PLD 2004 SC 856 rel.

Qazi Abdul Sattar for Appellant (in Cr.Spl. A. No.D-50 of 2006).

Allah Bachayo Soomro for Appellant (in Cr. Jail A. No.D-73 of 2006).

Mashooq A. Samoo, Asstt. A.-G. for the State.

Date of hearing: 19th September, 2007.

2008 Y L R 41

[Karachi]

Before Zia Perwez, J

SHAHID ZARI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 655 of 2007, decided on 28th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.393/34---Bail grant of---Contention of counsel for accused was that no recovery had been effected from the possession of accused; he was behind the bars since 9-6-2007; that complainant was inimical to accused and that accused had been falsely implicated in the case-State counsel had 9 conceded that neither there was any injury nor any empty had been recovered---Accused was not past convict---Accused was admitted to bail, in circumstances.

Ali Nawaz v. The State 2001 YLR 341 and Tanveer Hussain alias Bhaiya v. The State 1985 PCr. LJ 266 rel.

A. Karim Ayoob Memon for Applicant.

Muhammad Ayaz for the State.

2008 Y L R 47

[Karachi]

Before Abdur Rehman Faruq Pirzada, J

MUHAMMAD ISMAIL and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. S-284 and S.373 of 2007, decided on 26th September, 2007.

Criminal Procedure Code (V of 1898)---

---S.497 --- Penal Code (XLV of 1860), Ss. 302, 364-A, 436,148 & 149 -- Bail, grant of --- Two counter versions of the case---Was difficult to ascertain at bail stage as to who was the aggressor --- Case admittedly was of two different versions in which one person from each side lost his life and both parties were challaned and were pending trial --- Interest of justice, in circumstances, would not be served by making any discrimination against any of the accused and putting there at disadvantageous position as against the opposite party --- State Counsel had rightly conceded to the grant of bail --- Accused being entitled to concession of bail , were admitted to bail.

Shoib Mehmood Butt v. Iftikhar-ul-Haq and others 1996. SCMR 1845; Fazal Muhammad v. Ali Muhammad 1976 SCMR 391; Mst. Shafiqan v. Hashim Ali and another 1972 SCMR 682; Muhammad Murad v. The State 2002 PCr.LJ 1051; Rehmat Ali v. Hussain and 8 others 1978 SCMR 195; Barkat Ali and 3 others v. The State 1988 MLD 2735; Nazaro alias Nazar Muhammad v. State 2003 PCr. LJ 414; Hameed Akhtar alias Maggu v. The State 2004 YLR 823; Shahadat Ali v. Mubarik Shah PLD 1986 SC 347; Nisar Muhammad Wassail v. State 1992 SCMR 501; Syed Maqbool Muhammad v. The State 2005 SCMR 635; Arif Din v. Amil Khan 2005 SCMR 1402 and Fazal Ahmed v. The State 1995 SCMR 860 rel.

Ahsan Ahmed Qureshi for Applicants in Criminal Bail Application No. S-284 of 2007.

Safdar Ali Bhutto for the applicant in Criminal Bail Application No. S-373 of 2007.

Altaf Hussain Surahio for the Complainant.

Mushtaque Ahmed Kourejo for the State.

2008 Y L R 65

[Karachi]

Before Mrs. Yasmin Abbasey, J

NAEEM AKHTAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-289 of 2007, decided on 11th September, 2007.

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

----S.497(2)---Penal Code (XLV of 1860), S.302/34-Bail, grant of---Further inquiry---All the four prosecution witnesses in their statements under S.164, Cr. P. C. had given different versions---Two of such witnesses had implicated accused, whereas other two had exonerated him-In view of the material contradictions in statement of prosecution witnesses, who had not been put to the test of cross-examination, it was a case of further inquiry and at the stage of disposal of application for grant of bail, deeper appreciation of evidence was not required-Element of interaction, previous events and enmity as disclosed by complainant between him and accused, could not be overlooked, when their statements were recorded after 21 days of the happening of the incident---Delay of six hours in lodging F.I.R., which had been fully explained, however could not be attributed as a negative factor against the complainant---Case against accused requiring further inquiry he was enlarged on bail.

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

----S.190---Penal Code (XLV of 1860), S.302/34---Powers of cognizance of offence by Magistrate---Scope---'Cognizance'---Connotation---By virtue of S.190, Cr.P.C., the Magistrate of 1st Class or any other Magistrate specially empowered by Provincial Government to take cognizance of the offence after receiving complaint or report in writing by a police officer, was fully competent to look into the matter; and if it appeared to him that offence was triable by the court of Session then without recording any evidence, he would send the same to the Court of Sessions for trial---Term "cognizance" as used in S.190, Cr.P.C., would mean taking judicial notice of the matter placed before the court and its judicial examination---When once the Magistrate was empowered to examine a matter, it was incumbent upon him to go through the papers and report submitted by the Investigating Officer; and then either to take cognizance of it or pass any judicial order after going through the material collected during investigation he deemed just and proper in the circumstances of the case---Section 190, Cr.P.C. or any other section of the Code, would not debar a Judicial Magistrate to take cognizance of the offence before sending it to the Court, of Session---Contention of accused that Judicial Magistrate had no jurisdiction to issue process to him as he was shown in column No.2 of challan by Investigating Officer; because the matter was exclusively triable by the Court of Session and that it was only the Court of Session which could pass an order, was repelled, in circumstances.

Safdar Ali v. Zafar Iqbal 2002 SCMR 63; Falak Sher v. State PLD 1967 SC 425 and. Qudrat Bibi v. Muhammad Iqbal 2003 SCMR 68 ref.

Syed Madad Ali Shah for Applicant.

Muhammad Azeem Panhwar for Respondent.

Ameer Ali Mahessar for the Complainant.

2008 Y L R 72

[Karachi]

Before Abdur Rahman Faruq Pirzada, J

MUHAMMAD HAYAT---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 389 of 2007, decided on 9th October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 337-II (ii), 147 & 148---Bail, grant of---Further inquiry---No effective role was ascribed to accused who was confined in custody since January 2007---Prosecution case revealed that accused being armed with gun, allegedly made ineffective firing upon complainant party, whereas co-accused directly fired with kalashnikov upon deceased who died due to such firearm injuries and it could not be ascertained at bail stage as to whether accused could be held vicariously liable for the commission of alleged offence---Such question could be appropriately determined at the stage of trial, when sufficient material would be brought on record ---Prosecution case was that incident occurred at night time and the identification of accused was made in the torch light---Identification in the light of torch was a weak piece of evidence and implicit reliance could not be placed on it --- Even otherwise torch in question was never produced during investigation---Background of previous enmity existed between the parties and three real brothers had been implicated in the case --- False implication of accused in the case could not be ruled out ,in circumstance---Even if accused had absconded, he being entitled to concession of bail on merits of the case, his abscondence simpliciter could not come in his way---State counsel had also conceded to the grant of bail in view of circumstances of the case---Case against accused requiring further inquiry as envisaged by the provisions of S.497(2) Cr. P. C., he was admitted to bail.

Qalib Abbas v. State 2000 PCr.LJ 464; Laiq Muhammad v. State 2000 PCr.LJ 1229; Muhammad Sadiq and another v. State 1996 SCMR 1654; Muhammad' Saeed Mehdi v. State 2002 SCMR 282; Mubashir Ahmed v. State 1989 PCr.LJ 244; State v. Mukhtar Ahmed Awan 1991 SCMR 322; Sharbat and another v. State 2003 MLD 1191; Mubashir Ahmed v. State 1989 PCr.LJ 244; State v. Mukhtar Ahmed Awan 1991 SCMR 322; Abdul Wahab v. State 2003 YLR 1915; Sirajuddin v. Kala PLD 1964 SC 26; Ameenuddin v. State PLD 1976 SC 629; Nasij Gul v. Khalid Khan 1989 SCMR 899; Sher Ali alias Sher v. State 1998 SCMR 190; 2004 PCr.LJ 1785; 1995 PCr.LJ 1316 and 1985 SCMR 382 rel.

Asif Ali Abdul Razzak Soomro and Arif Safdar Ghauri for Applicant.

Altaf Hussain Surhio for the State.

2008 Y L R 78

[Karachi]

Before Mrs. Qaiser Iqbal, J

RIZWAN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. S-27 of 2006, heard on 1st November, 2007.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), Ss.302 & 337-L(ii)---Suspension of sentence---Applicants/ accused were confined in the jail for the last five years and five months---Observation of the Trial Court for awarding lesser punishment, had itself suggested doubt in the prosecution case---Evidence recorded at the trial was disbelieved against co-accused in relation to their identification in the torch light---Operation of impugned judgment was suspended and applicants/ accused were directed to be admitted on bail.

Syed Madad Ali Shah for Appellants.

Muhammad Azeem Panhwar for the State.

2008 Y L R 81

[Karachi]

Before Mrs. Yasmin Abbasey, J

ABBAS ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-94 of 2007, decided on 17th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Bail, grant of---Complainant present in the court made statement that due to intervention of nekmards, he had compromised with accused and had no objection if bail was granted to accused on the ground of hardship---In view of compromise arrived at between the parties and that offence with which accused was charged being also compoundable, accused was admitted to bail.

Syed Madad Ali Shah for Applicant.

Muhammad Azeem Panhwar for the State.

2008 Y L R 88

[Karachi]

Before Rahmat Hussain Jafferi and Munib Ahmad Khan, JJ

MUHAMMAD YOUSUF and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. 1140 of 2006 and 15 of 2007, decided on 26th January, 2007.

Criminal Procedure Code (V of 1898)---

----Ss.497, 54, 59 & 156(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9, 21 & 22---Bail, refusal of---Counsel for accused had stated that accused were searched and property was allegedly recovered by the complainant who being A.S.I. was not competent to do so in view of mandatory provisions of Ss.21 & 22 of Control of Narcotic Substances Act, 1997---Further contention of accused was that said provisions of law having been violated, accused were entitled to the concession of bail---Validity---Cognizable offence was committed within the view of complainant who was Assistant Sub-Inspector of police---Apart from his own powers under S.54, Cr. P. C., said complainant could arrest accused under S.59, Cr. P. C. , even if he was not authorized to conduct the investigation or search under S.21 of Control of Narcotic Substances Act, 1997--Accused were arrested on the spot--Complainant/A.S.-I. produced them at the Police Station, lodged the F.I.R. and then the investigation was conducted by Sub-Inspector who was competent to investigate the case---No illegality in circumstances was committed in arresting accused and seizing the property--Even otherwise, if investigation was conducted by an unauthorized officer, then S.156(2), Cr. P. C. would protect such proceedings---When the case was challaned and after taking its cognizance by the court, the irregularity in the investigation, would not affect the trial which would not be vitiated---Case against accused was fully supported by the prosecution witnesses and was corroborated by the Chemical Analyzer's report---Accused in circumstances were not entitled to the concession of bail.

Nasrullah v. State PLD 2001 Pesh. 152 and Muhammad Hanif v. State 2003 SCMR 1237 rel.

Rahim Khan Bangash for the Applicants.

Habib Ahmed, Assistant A.G.

2008 Y L R 92

[Karachi]

Before Sarmad Jalal Osmany, J

GUL MUHAMMAD and another---Petitioners

Versus

THE STATE---Respondent

Criminal Bail Application No. S-184 of 2005, decided on 7th October, 2005.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302---Bail, refusal of---Crime in question was the alleged gruesome murder of the deceased by as many as five accused with iron rods/lathis due to the allegation of "Karo Kari "---Accused though did not hit the deceased on his head, which role was given only to co-accused, but it was alleged in the F.I.R. that accused along with other co-accused hit deceased with lathis/iron rod on other parts of the body of deceased causing 13 injuries to deceased on various parts of his body---Contents of the F.I.R. had been corroborated by the statements of the prosecution witnesses recorded under S.164, Cr. P. C. as well as the postmortem report---Accused, prima facie, could be connected with the crime in question---Case of accused, in circumstances was not one of further inquiry---Discrepancies pointed out by the counsel for accused as to the location of the dead body etc. required a deeper probe in the matter which was the function of the Trial Court only, since at the bail stage the evidence had to be sifted summarily in order to arrive at the conclusion, whether or not accused could be connected to the crime in question---Bail application was dismissed, in circumstances.

Ashraf v. State 2005 PCr.LJ 272; Gulu Khan v. Gul Daraz Khan 1995 SCMR 1765 and Akbar Jawed v. State PLD 2003 Kar. 417 rel.

Sher Muhammad Shar for the Applicant.

Sher Muhammad K Shaikh for Complainant.

Muhammad Mahmood S. Khan Yousfi, A.A.-G.

2008 Y L R 102

[Karachi]

Before Muhammad Athar Saeed, J

ALTAF HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No. 245 of 2007, decided on 20th June, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---West Pakistan Arms Ordinance (XX of 1965), S.13---Bail, grant of---Further inquiry---No recovery of any empties had been shown which could be said to have been fired from 30-bore pistol---Even otherwise, fact that no one was injured in the firing which went on for. more than ten minutes and no allegation had been made that any bullet hit any of the Police mobiles which were allegedly present on the scene of the incident, had created serious doubt whether such extensive firing had taken place---Wherever ineffective firing had been alleged, the courts had been inclined to grant bail to accused---Case against accused required further enquiry to connect accused with the offences and such enquiry could only be conducted at the trial on the basis of evidence produced---Accused was entitled to bail, in circumstances.

Sarfraz Khan Jatoi for Applicant.

Muhammad Ismail Bhutto for State Counsel.

2008 Y L R 131

[Karachi]

Before Zia Perwez, J

HINA HOUSING PROJECT (PVT.) LTD. through Managing Director and Chief

Executive and 3 others---Plaintiffs

Versus

PROVINCE OF SINDH through Chief Secretary, Government Sindh, Karachi

and 31 others---Defendants

Suit No.146 of 1994, decided on7th October, 2002.

Specific Relief Act (I of 1877)---

----S. 42----Sindh Urban State Land (Cancellation 'of Allotments, Conversions and Exchanges) Ordinance (III of 2001), Ss.3 & 4---Suit for allotment of alternate land---Subject-matter of suit which was allotment of alternate land and was disputed by defendants, had already become infructuous by operation) of law after promulgation of Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001---Suit was dismissed having become infructuous---If plaintiff, was aggrieved, he could pursue his remedy before the appropriate forum under said Ordinance.

Nemo for Plaintiffs.

Abbas Ali, A.A.-G. for the State.

Manzoor Ahmed for the Defendant No.8.

Abdul Karim Khan for the alleged Contemnors.

Muhammad Jamil for Khalil-ur-Rehman for Defendants Nos. 13-32.

2008 Y L R 140

[Karachi]

Before Anwar Zaheer Jamali, J

MUHAMMAD ASLAM---Applicant

Versus

MUHAMMAD RAFIQUE 'and 5 others---Respondents

C.R.A. No.99 and C.M.As. Nos. 390, 391 of 2007, decided on 18th September, 2007.

(a) Pleadings---

----Averments made in written statement (pleadings) would be read as a whole and not piecemeal.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for specific performance of sale agreement---Plaintiff alleged to have paid Rs.1,92,000 at the time of execution of agreement, while balance amount of Rs.1,21,000 was paid to defendant against receipt---Defendant's plea was that such documents were forged; and that he gave suit-land on lease for one year to brother-in-law of plaintiff, who had played such drama to cheat hint---Proof---Plaintiff had not examined one marginal witness of such documents without showing any valid reason therefor---Marginal witness examined in Court had not been confronted with such documents nor had he deposed that such documents were executed in his presence by defendant or same bore signatures of defendant---Amount of Rs.3,13,000 as sale consideration allegedly paid in cash instead of through cheque, pay-order or demand draft, seemed to be improbable and doubtful---Plaintiff had not disputed defendant's statement made in Court in support of his such plea---Suit was dismissed in circumstances.

Hakim ud Din v. Faiz Bakhsh 2007 SCMR 870 and Abdul Wali Khan v. Muhammad Saleh 1998 SCMR 760 ref.

Mst. Kalsoom Bibi v. Muhammad Arif and others 2005 SCMR 135 rel.

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

----Ss. 115 & 96---Conflict in findings of fact recorded by Trial Court and Appellate Court---Interference with such findings by Revisional Court---Scope---Findings of Appellate Court would be preferred, unless same were perverse, arbitrary or based on no evidence---Principles.

Mere fact that the judgments of two lower Courts are conflicting or on the basis of evidence available on record another conclusion different from the one recorded by Appellate Court is possible will not justify interference in the judgment of Appellate Court by the Revisional Court, and in case of conflict in the findings of fact recorded by Lower Court and Appellate Court, preference .is to be given to the findings of Appellate Court, unless the same are perverse, arbitrary or based on no evidence.

Hakim ud Din v. Faiz Bakhsh 2007 SCMR 870 and Abdul Wali Khan v. Muhammad Saleh 1998 SCMR 760 rel.

Abdul Latif Bhatti for Applicant.

2008 Y L R 152

[Karachi]

Before Muhammad Athar Saeed and Mrs. Qaiser Iqbal, JJ

SADIQ HUSSAIN---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.P. No. D-1213 of 2007, decided on 25th June, 2007.

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

----S. 85---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Issuance of notice of recall of Nazim---Councillors expressed their feelings in notice regarding failure of Nazim to work in public interest and his negligence in discharge of public responsibilities, but not their intention of moving motion in Union Council for recall of Nazim---Validity---Councillors had not expressed in notice opinion that there was reason to believe that Nazim had committed defaults mentioned therein---Councillors had not given any reason for formation of their belief or feelings expressed in notice nor had presented any reason before Council or High Court-Such notice for not fulfilling requirements of S. 85(1) of Sindh Local Government Ordinance, 2001 could not be sustained---Entire structure based on foundation of such illegal notice would collapse---High Court quashed entire proceedings initiated against Nazim under S.85 of Ordinance, 2001.

2004 CLC 707; PLD 2004 S.C. 694; PLD 2005 Kar. 512; PLD 1970 SC. 185; PLD 1970 S.C. 514; 2005 YLR 2549; PLD 1970 Kar. 730; 1969 SCMR 127; PLD 1967 Lah. 1040; PLD 1982 Lah. 217; PLD 1983 Lah. 83; 1982 SCMR 775; 1993 SCMR 618; 2004 YLR Lah. 2004 CLC Kar. 2007 and 1989 CLC Lah. 2163 ref.

Burhan Engineering Co. Ltd. v. Income Tax Officer Companies Circle II. Karachi and others (1985) Tax 55 (H.C. Kar); Chaudhary Shujaat Hussain v. State 1995 SCMR 1249; Messrs Spiceco International v. Regional Commissioner of Income Tax Southern Region, Karachi and another 1993 PTD 1007 and Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 413 rel.

Ishrat Alvi for Petitioner.

Muhammad Sarwar Khan A.A.-G. for Respondents Nos. 1 to 3.

Shakeel Ahmed and Zahid Farooq Mazari for Respondent No.4.

2008 Y L R 175

[Karachi]

Before Muhammad Athar Saeed, J

Baba ANWAR SHAH TAJI through Legal Heirs---Applicants

Versus

M. AMIN through Legal Heirs---Respondents

Civil Revision Application No. 147 of 2004 and C.M.As. Nos. 3304 and 3305 of 2006, decided on 8th October, 2007.

Civil Procedure Code (V of 1908)---

----O.XXIII, R. 3 & S. 115---Revision application---Locus standi---Compromise of suit---Trial Court declined to allow application of respondents for disposal of suit in the light of compromise arrived at between the parties---Appellate Court allowed the appeal and accepted application of compromise---Validity---9 Applicants had no locus standi to file revision against order of Appellate Court because applicants or even their predecessor was not affected by judgment of Appellate Court---In administration suit predecessor of applicants was only impleaded as a party' for rendering of accounts and was not entitled to any interest in any of the properties left behind by deceased as it had been candidly accepted by the predecessor in his written statement---Appellate Court, though had not passed d' specific order refusing permission to withdraw the appeal but apparently other respondents had not filed appeal because an appeal had already been preferred by contesting respondent and in allowing permission to withdraw the appeal, rights of other respondents would have been prejudiced---Was not in the interest of justice to allow withdrawal of appeal by contesting respondent---High Court declined to interfere with the judgment and decree passed by Appellate Court-Revision was dismissed in limine.

PLD 1962 SC 291; PLD 1981 Kar. 177; 1996 CLC 1847; PLD 1983 Kar. 382; 2003 SCMR 1368; PLD 1995 Pesh. 96; PLD 1964 SC 229; AIR 2001 SC 2790; NLR 1981 SCJ 591; Ahmad Din v. The M.C. Gujianwalla 2000 YLR 773; Muzzafar Shah and others. v. Mir Sarwar Khan and others PLD 1995 Pesh. 96 and Mian Ahmad Ali v. The Rehabilitation Authority PLD 1964 SC 229 ref.

SCMR 1996 1433 and Unichem Corporation (Pvt.) Ltd. v. Khurshed Ismail 2000 SCMR 456 rel.

H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd. Karachi and another PLD 1969 SC 65 distinguished.

Mushtaq A. Memon along with Shahid Ali Ansari for Applicants.

Fiaz H. Shah for Respondent No.5.

Syed Zafar Hadi Shah for Intervenor.

2008 Y L R 198

[Karachi]

Before Amir Hani Muslim, J

ALI HASSAN---Appellant

Versus

ASGHAR ALI and 3 others---Respondents

Criminal Acquittal Appeal No.12 of 2007, decided on 8th August, 2007.

Penal Code (XLV of 1860)---

S.392---Criminal Procedure Code (V of 1898), S.417(2-A)--- Appeal against acquittal---Appellant was occupying government plot and respondents, who were railway employees under the directives of their superiors, were required to remove the encroachment and they, in discharge of their duties, had demolished the house of appellant---Ingredients of S.392, P.P.C. were not attracted and the direct complaint ex facie appeared to have been filed to counter the proposed F.I.R. which Railway wanted to lodge against appellant---Premises in question was along with the Railway track which area could not be used or utilized for residential purposes.

Shamsuddin Abbasi for Appellant.

Sardar Ali G. Bhutto for Respondents Nos. 1 to 4.

2008 Y L R 206

[Karachi]

Before Mrs. Qaisar Iqbal, J

ECHO WEST INTERNATIONAL (PVT.) LTD.---Plaintiffs

Versus

PAKLAND CEMENT LTD.---Defendants

Suit No.510 of 1999, decided on 17th April, 2007.

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

----O.III, R.1 & O.XXIX, R.1---Suit by company registered under Companies Ordinance, 1984---Signing, verification and filing of plaint by Chairman of the company---Non-mentioning in plaint as to how and in what manner Chairman was legally authorized to file suit on behalf of company---Vakalatnama lying on record being a Letter Head of company finding mention of Board Resolution authorizing Chairman to file shit---Non-filing along with affidavit-in-evidence Articles of Association of company or Resolution of its Board of Directors to show delegation of power on its behalf in favour of its Chairman---Validity---No cross-examination could be conducted on such Letter Head being so-called resolution, which was not exhibited in evidence---Once court had consciously framed issue regarding authority to file suit, then plaintiff was bound to have produced/exhibited such letter, failing which same could not be relied upon---Suit instituted by Chairman was dismissed for being incompetent and non-maintainable.

Khan Iftikhar Hussain Khan v Ghulam Nabi Corporation Limited PLD 1971 SC 550 and Dr. S.M. Rub v. National Refinery PLD 2005 Kar. 478 rel.

(b) Pleadings---

----Written statement per se cannot be used as evidence.

Abdul Karim v. Mst. Kohi Noor Begum 1981 CLC 1055; Kabir Ahmed v. Saudabad Trust through Administrator Deputy Commissioner Office, Karachi 2007 CLC 288; Messrs Ainy Builders and Company Hyderabad v. Hyderabad Municipal Corporation, Hyderabad 1997 MLD 732 and Abdul Majid v. Syed Muhammad Ali Shamim 2000 SCMR 1391 ref.

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

----Arts.117 & 118---Failure of plaintiff to prove his claim---Effect---Plaintiff could not take assistance from weaknesses apparent in defendant's case.

Ahmed Khan v. Rasul Shah and others PLD 1975 SC 311; Abdul Karim v. Mst. Kohi Noor Begum 1981 CLC 1055; Kabir Ahmed v. Saudabad Trust through Administrator Deputy Commissioner Office, Karachi 2007 CLC 288; Messrs Ainy Builders and Company Hyderabad v. Hyderabad 'Municipal Corporation, Hyderabad 1997 MLD 732 and Abdul Majid v. Syed Muhammad Ali Shamim 2000 SCMR 1391 rel.

(d) Interpretation of document---

----Document would be read as a whole and not piecemeal.

Asad Waheed v. Khalid Perviz 2005 MLD 986 and Pakistan Agricultural Storage and Services Corporation Limited (PASSCO) v. Qamar-ul-lslam 2005 YLR 879 rel.

(e) Damages---

----Suit for---Party would be bound to prove factum and quantum of damages sustained by it by producing cogent evidence---Principles.

Suit for damages cannot be decreed without proof and every averment in the plaint has to be separately proved by evidence on each point. General, vague and scanty evidence cannot be relied upon. The damages suffered: and the quantity of the amount claimed item-wise has to proved by cogent evidence. Mere assertion in the plaint and repletion in evidence is of no avail to the plaintiff. Party has to be prove the factum as well as quantum of damages sustained by it.

Nazir Ahmed v. Haji Nasir Ali 2006 MLD 907; Messrs. Taj Oil Industries Limited v. Messrs. Bengal Oil Mills Ltd. 1990 MLD 877; Messrs Muhammad Amin Muhammad Bashir Ltd. v. Messrs. Muhammad Amin Bros. Ltd. PLD 1969 Karachi 233 and Moin's (Private) Limited v. Pakistan Television Corporation Ltd. Karachi 2001 MLD 1065 rel.

Bilal A. Khawaja for Plaintiffs.

Dr. Farogh Naseem along with Sardar M. Ajaz Khan for Defendants.

2008 Y L R 233

[Karachi]

Before Munib Ahmad Khan, J

MUHAMMAD SALEEM ASAR and others---Plaintiffs

Versus

KARACHI BUILDING CONTROL AUTHORITY and others---Defendants

Suit No.1269 of 2003, decided on 3rd March, 2006.

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

---S.42---Cooperative Societies Act (VII of 1925), S.70---Suit for declaration against Cooperative Housing Society---Conversion of amenity plot into commercial plot by Society alleged to be mala fide---No notice under S.70 of Cooperative Societies Act, 1925 would be necessary.

PLD 1987 Kar 676; PLD 2000 Kar 168; 1987 CLC 1266 and PLD 1985 Kar 481 rel.

(b) Words and phrases---

---"Amenity"-Meaning.

Black's Law Dictionary, Sixth Edition ref.

(c) Karachi Development Authority Order (5 of 1957)---

---Arts.40 & 52-A---Sindh Buildings Control Ordinance (V of 1979), S.6---Karachi Building and Town Planning Regulations, 1979---Amenity plot in Cooperative Housing Society---Word "amenity "---Connotation.

The word "amenity" as has been used in Development Authority Law as well as in Building Control Regulations, and its meaning coming out of Agreement to License of the Society means recreation plots for benefit and enjoyments of the residents of the vicinity. The local body or the concerned Cooperative Society is controlling these amenity plots. The plots of amenity are meant for to provide sigh of relief from congested atmosphere and to release additional burden which could be, when construction is allowed- on the amenity plots.

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

----S.42---Karachi Development Authority Order (5 of 1957), Arts.40 & 52-A---Suit for declaration---Amenity plot in Coopera­tive Housing Society---Conversion of amenity plot in year 1973 from Park to commercial Hospital--Validity--Article 52-A of Karachi Development Authority' Order, 1957 introduced on 11-12-1974 would not apply to impugn conversion---No zonal scheme as required under Art.40 of Karachi Development Authority Order, 1957 was planned in the Society---Article 40 of the Order was applicable to individual plots---Under Licence Agreement of the Society, Building Control Authority had power to approve change or to allow conversion in use of plot---Suit plot was regularized vide letter dated 13-2-1995 by Housing and Works Division,. Government of Pakistan and Building Control Authority had approved construction plan---No specific restriction existed at relevant time in respect of change of use of plot from one particular purpose to another particular purpose---Concerned authorities were competent to grant permission for impugned conversion---Housing and Works Division, Government of Pakistan in its letter dated 13-2-1995 while regularizing Hospital had clarified that suit plot would not be utilized as other than amenity plot i.e. on commercial basis---Suit plot was basically an amenity plot, which had been converted from one amenity to another amenity in year 1973 and could not be challenged after 30 years---Suit plot would remain for welfare of residents and would not be utilized on commercial basis---Hospital to be constructed on shit plot would be for welfare of residents of vicinity and would not be allowed to run on commercial basis---Suit was disposed of with such observations.

Ardeshir Cowasji v. KBCA and others 1999 SCMR 2883 and Syed Ali Asghar v. Creator Builders 2001 SCMR 279 ref.

Ardeshir Cowasji v. Clifton Cantonment Board 1998 MLD 1818 and Sh. Muhammad Naseem v. Al Murtaza Society 2003 CLC 627 fol.

(e) Karachi Development Authority Order (5 of 1957)---

---Arts.40 & 52-A---Provisions of Arts.40 & 52-A of Karachi Development Authority Order, 1957 would not operate retros­pectively.

(f) Karachi Development Authority Order (5 of 1957)---

---Arts.40 & 52-A---Grant of permission for change in use of plot---Scope---No absolute bar existed against grant of such permission---Such permission once granted by concerned Authority, could not -be disturbed.

Sh. Muhammad Naseem v. Al Murtaza Society 2003 CLC 627 fol.

(g) Limitation---

---Law of Limitation is called law of peace---Such law not only restricts right after certain period, but also discourages litigation after lapse of prescribed time and provides permanency to rights of people---Principles.

The law in respect to limitation cannot be stretched to unlimited length. The limitations under the law have been provided not only to restrict right after certain period, but also to discourage litigation after lapse of time and to provide permanency in respect to rights of people for their properties. The presumption under the law of limitation is that if a claimant does not press his claim within the time prescribed, then it will be presumed that either the claimant waived his right or .was not interest or being indolent has acquiesced in the other party's claim. Law of limitation is called is the law of peace as it provides certainty to the rights of holders/claimants, if they remained unquestioned for a longer period surpassing thereby limitation provided under the law.

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

---S.42---Karachi Development Authority Order (5 of 1957), Arts.40 & 52-A---Shit for declaration---Change in use of plot--Limitation-Such cause could be initiated within a reasonable time and unreasonable delay would amount to acquiescence.

Syed Ali Asghar v. Creator Builders 2001 SCMR 279 fol.

Muhammad Zahid Khan for Plaintiffs.

Mansoor Ahmed for Defendant No. 1.

Mian Mushtaq Ahmed for Defendant No.9.

Date of hearing: 13th February, 2006.

2008 Y L R 254

[Karachi]

Before Nadeem Azhar Siddiqi, J

Mrs. LAILA SARFARAZ and others---Plaintiffs

Versus

HUSSAIN A. HAROON and others---Defendants

Suit No.595 of 1988, decided on 7th November, 2007.

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

----O. XXIII, R. 1---Unconditional withdrawal of suit---Principles---For such withdrawal leave of Court is not necessary and plaintiff has unfettered right to withdraw tine suit at any time after its institution.

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

----O.XXIII, R.3---Conditional withdrawal of suit-Principles-For effecting conditional withdrawal of suit, order of court is necessary---Proceedings cannot be terminated merely by filing application for withdrawal of suit as the court determines cost and plaintiff is precluded from instituting fresh shit in respect of scone subject-matter or part of such claim.

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

----O.XXIII, Rr.1 & 3---Right to withdraw suit---Withdrawing application for withdrawal of suit---Scope---Right to withdraw a suit is unfettered and there is no specific provision in C.P.C. by which plaintiff once requesting' for withdrawal of suit is precluded from withdrawing such request.

Glath Rashad Pharan v. B.C.C.I. (P) Ltd. 1999 YLR 1683; Yeshwant Govardhan v. Totaramavasu and others AIR 1958 Bom. 28; Shamshuddin and others v. Mst. Sitan Begum 1993 (Law Notes) Lahore 318 and Rameswar Sarkar v. State of West Bengal and others AIR 1986 Calcutta 19 rel.

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

----O.XXIII, Rr. 1 & 3---Withdrawal of suit--- Application not filed by plaintiff---Effect--- Defendant sought withdrawal of suit on the basis of photo copy of withdrawal application signed by plaintiffs---Validity---Neither plaintiffs moved any application for withdrawal of suit nor made any request to courts for withdrawal of suit---Shit in such situation, could not be ordered to be withdrawn simply on the basis of photo copy of application signed by plaintiffs and produced in court by defendant---Even otherwise if plaintiffs had filed application for withdrawal of suit, they had a right to request the court to withdraw application for withdrawal of shit and in suitable cases such request could not be refused---Suit being pending and continuing, High Court declined to grant permission for withdrawal of suit---Application was dismissed in circumstances.

Bharat Bhushan Gupta v. Rajkumar Gupta' AIR 1994 Dehli 207; Advocate General Punjab v. Sh. Abdul Haq PLD 1956 Lah. 12; Hussain A. Haroon v. Laila Sarfaraz and others 2003 CLC 771; Maharaj Bahadur Singh v. Blriode Behary Chaudhry and other A/R 1936 Calcutta 263; v. Ramchandra Ayyar and another v. Ramalrvigam Cheltiar and another A/R 1963 SC 302 and Abdul Rahim v. Naryan Das Aurora 1992 I A 84 ref. Naim-ur-Rehman for Plaintiffs.

Munir-ur-Rehman for Defendant No.1.

Yawar Faruqi for Defendant No.3.

Nadeem Ahmed for Defendant No.6.

2008 Y L R 267

[Karachi]

Before Dr. Rana Muhammad Shamim, J

IMRAN KHAN alias RAMI---Petitioners

Versus

THE STATE---Respondent

Criminal Bail Application No. 498 of 2007, decided on 13th November, 2007

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

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Delay in conclusion of trial---Principles---Delay in each case has to be' judged and weighed on its own merits---Inordinate delay, if not explained, would amount to abuse of proceeds of law even in cases of capital punishment, where prosecution was loath to submit challan, slow in producing witnesses, failing to produce accused without any justification or where delaying tactics were used by persons other than the accused including complainant---Court can exercise its discretion in favour of accused where the delay appears to be shocking and scandalous.

Gul Beg v. The State 2005 PCr.LJ 147 ref.

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

----S. 497-Penal Code (XLV of 1860), S.302---Bail, grant of---Accused was in jail for more than three and a half years---Prosecution had failed to examine even a single witness to support its case---Such inordinate delay was shocking and scandalous---No moral or legal ground was available to keep the accused in jail for an indefinite period---Bail was allowed try accused in circumstances.

Gul Beg v. The State 2005 PCr.LJ 147 and Ghulam Abbas v. The State PLD 2005 Kar 255 ref.

Nemo for the Applicant.

Muhammad Sabir Haider, A.A.-G. along with Inspector Ch. Shaukat Ali of Police Station Baldia Town, Karachi.

2008 Y L R 284

[Karachi]

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

ELECTION COMMISSIONER OF SINDH---Petitioner

Versus

Syed QALAB HUSSAIN SHAH and others---Respondents

C.P. No.D-406 of 2005, decided on 3rd October, 2005.

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

----S. 152(1)(j)---Election of Nazim-Qualification of candidate---Candidate

being guarantor/surety of several defaulting borrowers of Financial Institutions---Effect---Word "adjudged" used in S.152(1)(j) of Sindh Local Government Ordinance, 2001 would mean by a court of competent jurisdiction---Such candidate as guarantor or principal debtor, if not adjudged as wilful defaulter by a court of competent jurisdiction, could not be disqualified to contest election---Principles.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge and others 1994 SCMR 1299; Abdul Qudoos v. Arbab Ghulam Rahim 1994 CLC 1716 and Muhammad Yakoob v. Syed Noor Muhammad Shah 2001 YLR 944 ref.

Abdul Qadir Shaikh for Petitioner.

Mukesh Kumar G. Karara for Respondent No.1.

A.R. Farooq Prizada, D.A.-G.

G.A. Shahani, Addl. A.G. and Atta-ur-Rehman, Deputy Election Commissioner, Sindh, Karachi.

2008 Y L R 288

[Karachi]

Before Syed Mehmood Alam Rizvi, J

MUHAMMAD SHAHID and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.213 of 2002, decided on 12th November, 2007, (a) Penal Code (XLV of 1860)---

----S. 392---Appreciation of evidence---Eye witnesses including the complainant on whose evidence the entire prosecution case was based, had failed to corroborate each other on material points like date, time and place of occurrence, arrival and departure of police and production in the police station etc.-Doubt, thus, had been created with regard to the involvement of accused in the case benefit of which would go to them---Prosecution had failed to prove the case against the accused beyond any reasonable doubt---Accused were acquitted in circumstances.

(b) Criminal Trial---

----Benefit of doubt---Principles---Every doubt is required to be resolved in favour of accused under the law.

Ali Gohar Soomro for the Appellant.

Ms. Koki Rawat for the State.

Date of hearing: 22nd October, 2007.

2008 Y L R 306

[Karachi]

Before Nadeem Azhar Siddiqi, J

SHAUKAT AMAN through Special Attorney---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary Revenue Division

and 3 others---Defendants

Civil Suit No. 1024 and C.M.As Nos. 5930 and 5931 of 2007, decided on 10th October, 2007.

Specific Relief Act (I of 1877)---

----Ss. 10, 42 & 56---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Interim injunction, grant of----Restoration of possession---Prima facie case---Truck in question was taken into possession by the authorities on the ground that contraband items were loaded on it---Despite many opportunities, defendants failed to file counter affidavit to the application for interim delivery of possession---Plea raised by plaintiff was that it was not in his knowledge that contraband items were loaded on his truck and if the truck would remain in possession of authorities it would be destroyed---Validity---Plaintiff had made out a prima facie case and balance of convenience was also in his favour---If truck remained in possession of defendants it would lose its value, which was not in the interest of parties---High Court directed the authorities to hand over possession of the truck to plaintiff, subject to furnishing of surety bond---Application was allowed accordingly.

Daulat Khan v. The State 2005 PCr. LJ 952 fol.

M. Shafi Muhammadi for Plaintiff.

Nemo for Defendants.

2008 Y L R 351

[Karachi]

Before Abdul Rasheed Kalwar, J

SIKANDAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 339 of 2007, decided on 8th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Police Order (22 of 2002), Art.18(4)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Bail, grant of---Admittedly samples had not been drawn from all the pieces of "Charas" allegedly recovered from the accused, but only one piece of 15 grams had been taken as a sample and sent to Chemical Analyser---Remaining 1000 grams of the recovered substance thus could not be treated as a narcotic---Resultantly prima facie S.9(a) of the Control of Narcotic Substances Act, 1997, was attracted, in the case which did not fall within the prohibitory clause of S.497(1), Cr. P. C.-Complainant Investigating Officer had conducted investigation' in the case who did not belong to Investigation Section, in violation of the provisions of Art.18(4) of the Police Order, 2002, which appeared to be tainted with mala fides creating serious doubts---Accused was admitted to bail in circumstances.

2007 MLD 1092; 2007 SCMR 1437; 2006 SCMR 1051; 2007 PCr.LJ 89 and 2002 PCr.LJ 965 ref.

Ghulam Shabir Dayo for the Applicant.

M. Mahmood Khan Yousfi, A.A.-G. for the State.

2008 Y L R 381

[Karachi]

Before Abdul Rasheed Kalwar, J

ALI AKBAR alias IBRAHEEM and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-638 of 2006, decided on 22nd October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/324/148/149---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Bail, grant of---False implication of innocent persons in the case could not be ruled out because complainant had not even spared a blind man who had been shown to be armed with Kalashnikov playing identical role to that of co-accused---Trial Court, thus, would have to decide as to who was aggressor and who had caused fatal injuries to deceased---Number of crime empties recovered from the spot did not tally with the number of accused and the same had no incriminating effect as no weapons were recovered from the accused-Complainant party as well as the accused party had lodged F.I.Rs. giving their own versions regarding the incident and it was yet to be determined as to which version was true' and which was false---Injured witness in his statement recorded under S.161, Cr. P. C. had not made any specific allegation against the accused and had not provided any additional material to connect the accused with the offence---Said injured prosecution witness was himself an accused in a criminal case---No independent corroboration to oral account of the complainant's version was available on record for establishing the participation of accused in the commission of offence beyond reasonable doubt---Case against accused was one of further inquiry within the meaning of S.497(2), Cr. P. C. ---Bail was granted to accused in circumstances.

1978 SCMR 195; 1980 SCMR 784 and 2002 PCr. LJ 1051 ref.

1995 SCMR 1765 distinguished.

Imdad Ali Awan for the Applicant.

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

2008 Y L R 456

[Karachi]

Before Arshad Noor Khan, J

IMDAD ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. S-169 and S-177 of 2006, decided on 24th December, 2007.

Penal Code (XLV of 1860)---

----Ss. 320, 279, 337-G, 337-F(vi) & 337-F(i)---Appreciation of evidence---Incident took place while accused was driving the oil tanker recklessly in rash and negligent manner and hit the jeep wherein complainant, deceased and others were travelling---Co-accused, who was owner of the oil tanker in question was neither present at the spot at the alleged time of incident nor had participated in the incident in any manner---Responsibility regarding the incident squarely lay on accused who was driving the oil tanker and co-accused who was owner of the oil tanker could not be blamed or held responsible for the act committed by the driver of his vehicle---Incident of accident was the risk and responsibility of the driver and he was responsible for the whole act of the incident committed by him---Trial Court had convicted and sentenced co-accused being owner of the oil tanker to pay amount of Diyat and compensation, in his absence without hearing him---Broad principles of natural justice, in circumstances had been violated as no one should be condemned unheard prior to passing of adverse order against him---Order passed against co-­accused/owner of oil tanker, was illegal, inoperative, unjust and against the principles of natural justice---Accused had been convicted and sentenced to suffer five years R.I. and amount of Rs. 2,80,000 as Diyat and Rs.10,000 each as compensation to legal heirs of deceased and injured persons---Trial Court had not sentenced accused for the amount of Diyat, which was also mandatory requirement of S.320, P. P. C.---Impugned order was set aside and case was remanded to the Trial Court for fresh adjudication of the matter in accordance with law.

Ghulam Muhammad for Appellant in person.

Mumtaz Alam Leghari, Assistant A.-G. for the State.

2008 Y L R 464

[Karachi]

Before Munib Ahmad Khan, J

ABDUL RAUF---Plaintiff

Versus

Ch. MUHAMMAD AHMED and another---Defendants

Suit No.1372 of 2003, decided on 27th November, 2006.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O. VI, R.1---Suit for specific performance of agreement of sale---Claim of plaintiff was that one defendant acting as attorney of the other defendant entered into a sale agreement with plaintiff, that plaintiff had paid certain amount to defendants at the time of execution of agreement and balance amount was to be paid subsequently on execution of sale-deed before the Sub-Registrar---Plaintiff, after some adjournments filed affidavit in evidence and produced certain documents in proof of his claim---No one being present in court for defendants, cross-examination of the plaintiff was not conducted---Defendants and his counsel having failed to appear on subsequent dates, their side was closed and case was fixed for arguments, but despite intimation notice none appeared for defendants---Plaintiff's version was supported through his evidence, while defendants failed to appear---When signatory to written statement failed to appear then even written statement could not be exhibited in rebuttal to the plaintiff's version---Suit of the plaintiff was decreed to the extent that defendants should specifically perform agreement to sell and execute proper conveyance deed in favour of plaintiff, in circumstances.

Muhammad Amin Lakhani for the Plaintiff.

I.H. Zaidi for the Defendants.

2008 Y L R 483

[Karachi]

Before Khawaja Naveed Ahmed, J

SULEMAN---Applicant

Versus

ABDUL SATTAR---Respondent

Criminal Revision No.106 of 2006, decided on 29th November, 2007.

Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction---Scope---Concurrent findings of two courts below were against the petitioner--Controversy between the parties hardly raised question of law, but was dependant upon resolution of facts which had already been determined by the concurrent findings of the two courts---No defect having been pointed out in appreciation of evidence, judgments of the courts below were upheld by the High Court in revision.

Abdul Hafiz v. Muzaffar Karim PLD 1973 Karachi 253; Abdul Karim v. Bashir Ahmed PLD 1974 SC 61; Jan Muhammad Khan v. Shah Mir Hussain 1985 SCMR 2029; Qabil Shah v. Shaday PLD 1992 Peshawar 144; 1994 MLD 2464; Muhammad Bakhsh v. Province of Punjab 1994 SCMR 1836; Manager, State Bank of Pakistan v. Muhammad Ikram 1999 SCMR 2578; Fiaz Hussain v. Muhammad Din 1999 MLD 1386; Sardar Muhammad v. Muhammad Akram 2000 YLR 1824; Rashid Beg v. Rehmat Ullah Khan PLD 2001 SC 443 and Mumtaz Khan v. Nawab Khan 2003 MLD 399 rel.

Abdul Sattar Memon for the Applicant. .

Abdul Rehman Respondent in person.

2008 Y L R 498

[Karachi]

Before Azizullah M. Memon, J

ABDUL SATTAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.20 and 41 of 2007, decided on 30th April, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302---Bail, grant of---Accused had been placed in column No.2 of the challan submitted 'by the police before competent court of law---Co-accused had confessed the guilt of having committed murder of deceased all alone---Accused was admitted to bail, in circumstances.

Zamir Ghumro and Syed Azmat Shah for Applicant.

Haider Sheikh for the State.

Date of hearing: 30th April, 2007.

2008 Y L R 528

[Karachi]

Before Mrs. Qaiser Iqbal, J

NASEEMUL HAQ and another---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.78 of 2007, decided on 23rd August, 2007.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), Ss.409, 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S.5(2)---Quashing of proceedings/case---Considerations---Every criminal case should be adjudged on its own facts and merits---Main consideration to be kept in mind was whether the continuance of the proceedings before the trial forum would be a futile exercise and would result in abuse of process of court or not---If, on the basis of the facts admitted and patent on record, no case was made out then it would amount abuse of process of law to allow the prosecution to linger on with case in which charge sheet had been filed after inordinate delay---In the present case on the basis of facts admitted and patent on record no offence was spelled out against the applicants/ accused and if the prosecution was allowed to continue, it would result in the abuse of process of court---F.I.R. lodged against applicants was quashed, in circumstances.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Muhammad Ali and another v. Assistant Commissioner, Narowal and another 1987 SCMR 759 and Ali Muhammad v. The State 1996 PCr.LJ (Kar.) 1347 rel.

Ch. Abdul Rasheed for Applicants.

Ms. Afsheen Aman for The State.

2008 Y L R 545

[Karachi]

Before Dr. Rana Muhammad Shamim, J

KHALID ZAMAN KIYANI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1012 of 2007, decided on 26th November, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 109, 147, 148 & 149---Bail, grant of---Accused was not present at the time of incident and no specific role had been assigned to him connecting him with the alleged offence---Witnesses of the incident, who were guards, had not supported the version of complainant, who had also not implicated accused---Prima facie the case against accused was of a conspiracy hatched to kill which had been disclosed by the two witnesses after 30 days of the incident to the fourth Investigating Officer, whereas nobody made such disclosure in first three investigations, which had created doubts that it was an afterthought---Prosecution witnesses, despite having the knowledge of conspiracy, being hatched did not report the matter to the police immediately and kept mum for thirty days for which no explanation was available on record---Statements as to the abetment and conspiracy were recorded after a delay of about 30 days---No lapse was shown on the part of the defence in the trial of the case, whereas prosecution witnesses were not examined on the date despite complainant was present, he was not examined and other prosecution witness who was confined in jail could not be produced and examined---Accused was in custody for the last 2 years and 6 months without any progress in the trial and only charge had been framed---Accused who had made out a prima facie case for grant of bail, was admitted to bail, in circumstances.

Abdullah Khan v. Abdul Qayyum 1996 SCMR 493; Malik Muhammad Iqbal v. Syed Abid Hussain Shah 2000 PCr. LJ 1171; Allama Syed Sajid Ali Naqvi v. The State PLD 2004 Lah. 549; Maratab Ali v. The State 1997 PCr.LJ 183; Qabil Shah v. The State PLD 1960 (W.P.) Kar.697; Syed Amanullah Shah v. The State PLD 1996 SC 241; Muhammad Sharif v. The State 2002 YLR 2619; Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Muhammad Sadiq v. The State PLD 1960 SC Pak.223; Bashir Ahmed v. The State 2007 MLD 1872; Kaloo Khan v. Muhammad Manzoor Khan 1997 MLD 660. Vikio v. Abdullah 1980 PCr.LJ. 602; Gul Hasan Penhyar v. The State 1997- SCMR 390; Ashok v. The State 1997 SCMR 436; Muhammad Aslam v. The State 1999 SCMR 2147; Anwar v. The State 2003 PCr.LJ 1416; Rahim and Rahmak v. The State 1998 PCr.LJ 821; Nazar Muhammad v. The State 1987 PCr.LJ 1754), Khalik Taqi v. The State 1999 PCr.LJ 271 and Nasrullah v. The State 1995 MLD 515 rel.

Muhammad Ashraf Kazi for Applicant.

Muhammad Sabir Haider, A.A-G. for The State.

Z.U. Mujahid for the Complainant.

Date of hearing: 19th November, 2007.

2008 Y L R 565

[Karachi]

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

Dr. MUHAMMAD TANVEER ALAM and others---Appellants

Versus

THE STATE---Respondent

Criminal Accountability Appeals Nos. 6, 7, 8, 9, 10, 11, 12 of 2003 and 14 of 2002, decided on 30 May, 2007.

Penal Code (XLV of 1860)---

----S. 409--- National Accountability Ordinance (XVIII of 1999), S.2---Appreciation of evidence---Charge against accused was abetting and conspiring with the main accused in fraudulently obtaining exemption from the payment of customs duty and sales tax in huge amounts by issuing fake consumption certificates with regard to the raw material imported by the company concerned---One of the prosecution witnesses who was Incharge of the Quality Control Department of the company, had stated that company was supposed to maintain a stock register showing the quantities. of imported raw material which had been consumed for the manufacture of drugs---Registers/record produced by said witness showed no entries with regard to either import/consumption of such raw material---Said witness, however had admitted in cross-examination, that the Bin cards produced by him were signed by him as well as by the incharge of production, which Bin cards, in fact, were the official record of consumption of the entire raw material in question in the manufacture of drugs; and that accused had prepared the consumption certificates after examining the entire record of the company---Bin cards in question therefore, were the only record denoting the imported raw material and their consumption in the preparation of drugs in the company's factory---Prosecution witness in cross-examination had unequivocally admitted that the entire quantity of imported raw material was consumed in preparation of drugs by the company---Deposition of said witness being based on an eye-witness account, was quite convincing---Prosecution having failed to establish beyond reasonable doubt the charge brought against accused, he was acquitted of the charge.

Azizullah K. Shaikh for Appellants.

Ainuddin Khan for Respondent.

2008 Y L R 670

[Karachi]

Before Gulzar Ahmed, J

SHAHID---Applicant

Versus

THE STATE---Respondent

Criminal Bail No.867 of 2005, heard on 10th November, 2005.

Criminal Procedure Code (V of 1898)---

----S.497--Penal Code (XLV of 1860), S.302/34---Bail, refusal of---Deceased, who was a young man of 26/27 years, engaged in active services in Rangers and was physically very fit and healthy, when he reached the house of accused and died there in mysterious circumstances---Complainant had named accused in the F.I.R. and had stated that deceased had estranged relations with accused whose character was suspected---Counsel for accused had sought from the High Court assessment of evidence at the bail ,.stage, which was not permissible---Case fell under S.302/34, P. P. C., punishment of which was death or for more than ten years---Accused had failed to make out any case for bail---Material evidence had not been recorded---Application of bail filed by accused was dismissed---Accused could move bail application after some evidence was recorded, especially the medical evidence.

Ali Sher Habibani for Applicant.

Agha Zafar Ali A.A-G.

Shaikh Khalid Ali for Complainant.

2008 Y L R 678

[Karachi]

Before Muhammad Afzal Soomro, C.J.

RAJA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.783 of 2007, decided on 6th December, 2007.

Criminal Procedure Code (V of 1908)---

----S.498---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Pre-arrest bail, grant of---Accused along with 21 persons were nominated in the F.I.R. and 'they all were alleged to have fired directly upon the complainant party in which complainant received fire-arm injury on her right shoulder, whereas her cousin, who was said to have sustained fire-arm injuries on his abdomen, had succumbed to injuries---F.I.R., however, did not disclose any specific role against any of the accused---Record had further revealed that accused party had lodged an F.I.R. against complainant party in respect of murder of uncle of accused---False implication of accused in the case could not be ruled out in view of said enmity between the parties---Accused having made out a case for grant of pre-arrest bail, interim pre-arrest bail granted to him was confirmed.

PLD 1997 SC 194 ref.

Ghulam Akbar Khan Jatoi for Applicant.

Haider Shaikh for the State.

Date of hearing, 29th November, 2007.

2008 Y L R 690

[Karachi]

Before Muhammad Moosa K. Laghari, J

MUHAMMAD EJAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.678 of 2007, heard on 4the September, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.376---Bail, grant of---Further inquiry---Accused had contended that; he had been falsely implicated in the case due to some dispute as the complainant was the tenant of father of accused; that it did not appeal to common sense that though the place wherefrom the victim was allegedly taken away by accused on gun point being a thickly populated area, no body from the public came on the cries allegedly raised by the victim girl, which had made the prosecution story doubtful; that medical report did not support the allegation of commission of forcible zina as no bleeding was found though the victim was alleged to be a virgin; that according to the complainant; the victim was dropped at her home by someone else and not by the accused and that statement of the victim girl was doubtful as according to the complainant the victim girl was brought by said other person, but the victim girl had stated that after commission of zina upon her she became unconscious and regained her consciousness at her house---Contention of accused was that his case called for further inquiry---State Counsel though opposed the grant of bail to accused, but had not been able to controvert the submissions made by counsel for accused--Submissions made by counsel for accused were not without force and had made the case of accused as that of further inquiry, entitling him to the concession of bail.

Syed Nadeem-ul-Haq for Applicant.

Kazi Wali Muhammad for the State.

2008 Y L R 696

[Karachi]

Before Zia Perwez, J

MUHAMMAD FAROOQ and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.810 of 2007, decided on 20th October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.379/34---Bail, grant of---State Counsel had contended that recovery had been effected from the shop of accused, however, he could not advance any arguments in reply to the fact that accused were dealers of scrapped material---Alleged copper wire recovered, had neither been measured as to its length nor its ends were tallied with those of snapped wire---Accused was admitted to bail, in circumstances.

Khawaja Muhammad Azeem for Applicants.

Muhammad Ayaz for the State.

Date of hearing, 2nd. October, 2007.

2008 Y L R 704

[Karachi]

Before Sarmad Jalal Osmany, J

GHULAM SARWAR---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Applications Nos.64, 72 and 85 of 2005.

Criminal Procedure Code (V of 1898)---

----S. 190---Powers of Magistrates of First Class---All Magistrates of the First Class, were empowered to take cognizance of any offence---Under S.190(2) Cr.P.C., a Magistrate doing so of an offence triable exclusively by a Court of Session, would, without recording any evidence, send the case to such court for trial---Term "taking cognizance" had been judicially interpreted in its broad and literal sense to mean "taking notice of an offence"; it would include the intention of initiating judicial proceedings against an offender in respect of that offence, of taking steps to determine whether any "basis was available for initiating judicial proceedings etc. and in essence, it would mean the conscious application of mind by the Magistrate to the fact as stated by the police in report under S. 173 Cr. P. C. or in a report recommending the case to be disposed of under the cancelled class---F.I.R. in the case was supported by statements of the prosecution witnesses under 161, Cr.P.C.---No reason existed to disagree with the impugned order passed by Magistrate.

Bahadur v. The State PLD 1985 SC 62; Mehar Khan v. Yakoob Khan 1981 SCMR 267, Raja Khushbakhtoor Rehman v. The State 1985 SCMR 1314; Abdul Qadir v. The State 2000 PCr.LJ 520; Arif Ali Khan v. The State 1993 SCMR 187; Hussain Ahmed v. Mst. Irshad Bibi 1997 SCMR 1503; Safdar Ali v. Zafar Iqbal 2002 SCMR 63; Muzaffar Iqbal v. The State 1998 PCr.LJ 125; Muhammad Ali v. The State 1998 PCr.LJ 1323; Muhammad Tufail v. Assistant Commissioner 1995 MLD 1744; Muhammad Shareef v. ' The State 1997 SCMR 304; Awal Khan v. The Superintendent of Police 1989 PCr.LJ 909; Wazaeer v. The State PLD 1962 W.P Lah.405; Muhammad Arif Raza Ansari v. Board of Intermediate and Secondary Education Bahawalpur through its Chairman and 10 others 2001 MLD 1435, Hamid Muqeen Bukhary v. The State PLD 1985 Lah.71; Bashir, Ahmed v. Allaqa Magistrate PLD 1980 Lah.28; Farooq Sumar and others v. The State and others 2004 PCr.LJ 1023; Amir Ali v. The State PLD 1968 Lah.537; Habib v. The State 1983 SCMR 370 and Arif Khan v. The State 1993 SCMR 187 ref.

Ghulam Shabir Shar for the Applicant/Complainant, Zuber Ahmed Rajput for the Accused and Muhammad Iqbal Memon for the State (in Criminal Miscellaneous Application No. 64 of 2005).

Aziz Ahmed Khuwaja for the. Applicant/Complainant, Liaqat Ali Sher for the Accused and Muhammad Iqbal Memon for the State (in Criminal Miscellaneous Application No.72 of 2005).

Zuber Ahmed Rajput for the Applicants/Accused, Javed Hussain for the Complainant and Muhammad Mahmood S. Khan Yousufi, Asst. A-G. for the State (in Criminal Miscellaneous Application No.85 of 2005).

2008 Y L R 717

[Karachi]

Before Mrs. Yasmeen Abbasey, J

JASEEM and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.289 of 2004, decided on 13th November, 2007.

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

----S.302(b)/34---Appreciation of evidence--Sentence reduction in---Benefit of doubt--Recovery of crime weapon and its identification through prosecution witnesses had not been disputed by the defence ---Merely on the statement of prosecution witness, deposing that he could not see the knife at the time of incident due to darkness, statement of recovery witness, who was an independent witness having no previous intimate relationship with the complainant party, could not be discarded--Evidence produced by prosecution with sufficient admission on the part. of accused persons had proved the guilt against main accused---Separating the case of two co-accused, it was contended by the counsel for accused that though said co-accused had been named as persons, who caught hold of deceased at the instigation of main accused who had inflicted Chhuri blow to deceased but no specific name of the person who caught hold deceased ,except the statement that main accused called his brother co-accused to catch hold deceased, which was a weak evidence to implicate and convict co-accused---Evidence did not make it clear as to whether co-accused had provided any assistance to main accused or the incident was a pre-planned incident as S.34 P. P. C. speaks about the criminal act done by several persons in furtherance of common intention---Record had shown that except statement of complainant that main accused, while going to his home for bringing Chhuri, had directed co-accused to catch hold deceased, no direct evidence against co-accused was on record to suggest that they had played an active role in commission of offence---In absence of any definite and direct evidence benefit of doubt would go to said co-accused and thus they were acquitted from the charge---Prosecution had fully proved the charge against main accused; however considering the case of main accused and fact that incident happened in the state of sudden anger with no pre planned intention, his sentence of life imprisonment was reduced to I.O. years R.I.

Muhammad Yaqoob Sub-Inspector v. The State PLD 2001 SC 378; SCR 1083 and AIR 1945 P.C. 118 rel.

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

----S.221---Penal Code (XLV of 1860) S.302/34---Framing of charge---Common intention---Objects---Object of S.221 Cr. P. C. was to inform accused before beginning of trial, as precisely and concisely as possible, but with all material particulars about the matter on which he was charged, so as to afford him an opportunity to defend himself --- Sub-clauses 2 & 3 of S.221 Cr. P. C., further required that each offence charged against accused should be described separately, so that he could proceed to defend his case accordingly --- Section 34, P. P. C. was also a form of notice to accused that joint liability of a crime was sought to be invoked and he was amenable to same---Contention set forth by counsel for accused persons was that being a defective charge, no liability of common intention could be imposed---Certain lacunas though appeared in the charge as framed, but those were not so material as to affect the commencement of trial---Intention behind framing of charge was to make accused aware about allegation levelled against them and it appeared to have been done with the admitted signature of accused on the plea attached to the charge.

Abdul Razzak for Appellants.

Sardaruddin Qureshi for the Respondent.

Date of hearing; 13th November, 2007.

2008 Y L R 731

[Karachi]

Before Mrs. Qaiser Iqbal, J

ZAHEER AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.851 of 2007, decided on 4th October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324 & 353/34---Bail, grant of----On tentative assessment of the evidence, accused did not seem to be involved in alleged counter firing as it could not be adjudged whether accused had fired upon the police party on account of unsuccessful hit to any other person; on the contrary one of the alleged culprits was seriously injured and later succumbed to the injuries---In the absence of any injury caused to the member of the police party, it could not be conclusively held that accused was involved in the encounter, otherwise the issue could be determined after the evidence was recorded---Accused was admitted to bail, in circumstances.

Rab Nawaz v. The State 1990 SCMR 1085 rel.

Ali Lari for the Applicant.

Muhammad Ayaz Khan for State Counsel.

2008 Y L R 735

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD AKRAM NADEEM---Petitioner

Versus

THE STATE---Respondent

Constitutional Petition No.2358 of 2008, decided on 3rd January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), S.14(c)---Bail, grant of---High Court while rejecting second bail application of accused,. had ordered the Trial Court that trial should be concluded within statutory period, but same had not been complied with---Case of accused was distinguishable from the cases of the people who had mis-appropriated the government funds---No allegation was levelled against accused in the entire reference that he had misappropriated a single penny belonging to the government or he had ever misused his authority during period of his service from. Grade-6 to Grade-9---Two bail applications 'of accused had been rejected despite the fact that only two non-material witnesses had been examined, while material witnesses had not been produced by the prosecution in the court for reasons best known to them---Case being fit where bail should be granted to accused, accused was released on bail.

Anwar Saifullah Khan v. The State 2001 SCMR 1040 and Muhammad Saeed Mehdi v. The State 2002 SCMR 282 rel.

Abdul Razzak for the Petitioner.

Ainuddin Khan, ADPG for N.A.B.

2008 Y L R 738

[Karachi]

Before Khalid Ali Z. Qazi, J

Mrs. ALBA D'SA and others---Applicants

Versus

Mrs. NAHEED PABANI and others---Respondents

C.M.A. No. 2783 of 2006 in Suit No.465 of 2006 and C.M.A. No.4276 of 2006 in Suit No. 724 of 2006, decided on 1st February, 2008.

Specific Relief Act (I of 1877)---

---Ss.42 &- 54---Sindh Buildings Control Authority Ordinance (V of 1979), Ss.2 & 21-A---Karachi Buildings Control and Town Planning Regulations, 2002, Reglns. 24, 25 & 26---Constitution of Pakistan (1973), Arts.4 & 23---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Construction of multistoreyed building---Balance of convenience, irreparable loss and prima facie case---Proof---Right to acquire and protect property---Easement rights---Grievance of plaintiffs was that defendants were illegally raising buildings whereby their easement rights were being disturbed--Validity---High Court did not find any illegality or irregularity in raising multistoreyed buildings on plots in question as permission to construct multistoreyed buildings and approval of building plans was given by authorities enjoying powers to do so under Sindh Buildings Control Authority Ordinance, 1979, read with Karachi Buildings Control and Town Planning Regulations, 2002---Defendants being owners of the plots had acquired fundamental rights to hold and enjoy property rights as guaranteed under Arts.4 and 23 of the Constitution--- In protecting or safeguarding rights of easement, privacy and peaceful enjoyment of plaintiffs, fundamental rights of defendants in respect of ownership of their plots could not be violated or infringed---Presumption as required under Art.129(e) of Qanun-e-Shahadat, 1984, could be raised that official acts had been regularly performed--All contentions raised by plaintiffs required deeper appreciation of evidence which could be properly thrashed out at the time of trial---Tentative assessment of material available on record revealed that there was no prima facie case in favour of the Plaintiff---Balance of convenience was also not in favour of plaintiffs as great inconvenience would be caused to defendants being owners of properties in exercising their legal rights to deal with their properties as per law---No irreparable loss would be caused to plaintiffs, if injunction was refused because loss if any, could be compensated in the 'shape of damages, which had already been claimed by plaintiffs---High Court declined to grant interim injunction to plaintiffs---Application was dismissed in circumstances.

1979 CLC 252; PLD 1982 Karachi 425; PLD 1971 SC 61; PLD 1958 SC 104; PLD 1994 SC 512; PLD 2002 Kar.405; PLD 1993 SC 109; 1993 SCMR 1635; 2006 YLR 2537; Unreported judgment in C.P. No. 549 of 1997 paras. 13 & 16; 1986 CLC 1408; PLD 1996 SC 365; 2001 YLR 1139; Unreported judgment passed in Suit No 860 of 2005; PLD 1959 SC 550; PLD 1981 SC 377; PLD 1981 SC 370; PLD 1993 SC 631; 1998 SCMR 1618; PLD 1982 Kar.245 para. 10 at page 433; PLD 1976 SC 435; SBLR 2007 SC 88; PLD 2007 SC 427; PLD 1968 Kar.222; PLD 2003 SC 345; Jawad Mir Muhammad v. Haroon Mirza PLD 2007 SC 472 at 482; Messrs Multiline Associates v. Ardeshir Cawajee PLD 1995 SC 423; PLD 1999 SCMR 233; PLD 1999 SC 2098; 1979 CLC 282 and PLD 2007 SC 426 ref.

Abdur Rehman for Applicants.

Mansoor-ul-Arfin, Kamal Azfar, M. Aminullah Siddiqui and Tasawar Hussain for Respondents.

2008 Y L R 767

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

ABDUL WAHID BANDUKDA and another---Applicants

Versus

THE STATE---Respondent

Special Criminal Bail Applications Nos.56 and, 57 of 2006, heard on 9th January, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Customs Act (IV of 1969), Ss.32 & 32-A---Bail, grant of---While examining the contents of the F.I.R. and interim challan, certain contradictions were found which indicated that the consignment in question was not in conformity with D. T. R. E. approval---Was yet to be deter-mined, whether it was mis-declaration on the part of the accused by wrongly terming the goods of cut pieces Chadar/Dupata instead of Shawls and it was also to be determined by a competent Court as to whether the goods declared were different from the actual consignment---Entire case being based on documentary evidence which had already been collected by the prosecution, there was no likelihood of tampering with the prosecution evidence at all---Trial court was yet to examine as to whether the accused had mis-declared the consignment or any violation had been made of the Rules---Rules provided to avoid baseless seeking refunds and duty drawbacks fact that as to whether accused had evaded duty/tax of the alleged amount and committed the offence under sections 32 & 32-A of the Customs Act, 1969 read with Duty and Tax Remission on 'Export Rules was not yet determined---Trial Court had not yet determined as to whether some changes in the description of the goods were made which were of cosmetic nature and were approved by the buyer, therefore some amendment was made in the description of the consignment and it was yet to be determined whether 99 defiances/non performances of Rules entailed any criminal liability---Accused had already furnished guarantee and in case any claim was found against him, Adjudicating Authority could levy such amount---Trial Court had not yet decided as to whether accused had committed offence under section 32 of the Customs Act, 1969 which carried maximum punishment of three years, whereas section. 32-A of the said Act had been applied simultaneously to make the case graver---Co-accused as Clearing Agent, had not played any role except that he processed the documents as directed by the exporter---Accused having made out case for grant of bail, they were granted bail.

Manzoor v. The State PLD 1972 SC 81: Messrs Anchor Clearing Services v. The Collector of Customs (Appraisement) 2005 PTD (Trib.) 196; Muhammad Shafiq v. State 1999 PCr.LJ 830; Bail No.410 of 2004-Sohail Qureshi v. The State; Cr. Bail No.515 of 2004 Rahan Iqbal v. The State; Cr. Bail No.615 of 2005 Tabir Malik v. The State; Cr. Bail No.776 of 2004 Riyat Muhammad v. State; Cr. Bail No.1148 of 2004 Muhammad Rafiq v. State; Spl. Cr. Bail No.62 of 2006 Arshad Yakub v. The State and Hussain Hakani v. The State 2000 PCr.LJ 161 ref.

Rasheed A. Rizvi, Salahuddin Ahmed and Muhammad Jameei for the Applicants.

Akhtar Ali Mehmood, A.A-G. for the State.

Date of hearing: 9th January, 2007.

2008 Y L R 776

[Karachi]

Before Mrs. Yasmeen Abbasey, J

MUHAMMAD QASIM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.93 of 2007, decided on 15th June, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 148 & 149---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Bail, grant of---Further inquiry---Accused was behind bars since 28-3-2005 but according to report of the Trial Court neither any progress had been made in the case nor same was likely to be decided in near future because of absconsion of complainant and witnesses and having no knowledge of their whereabouts in criminal cases pending against them---Enmity was admitted between the parties---Out of 'six persons, three had been granted bail though on different grounds---Pistol recovered from accused and empties secured from place of incident had not been sent to the Ballistic Expert to obtain his opinion as to whether the shot resulting in death of deceased was fired from the pistol recovered from the possession of accused---Medical report showed that six injuries were received by the deceased and one injury was shown to be sufficient to cause death of the deceased---Specific role was not attributed against accused and it was yet to be determined as to who caused fatal injury to the deceased--Case being of further inquiry, accused was allowed bail.

Jaffer and others v. The State and 1980 SCMR 784 and Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765 rel.

Imdad Ali Awan for Applicant.

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

Date of hearing: 15th June, 2007.

2008 Y L R 785

[Karachi]

Before Arshad Noor Khan, J

REHMATULLAH and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.451 of 2004, decided on 11 February, 2008.

Foreigners Act (XXXI of 1946)---

----S. 14(2)---Foreigners Order 1951, Ss. 3/2 (a)---Appreciation of evidence---Complainant in his statement under S.154, Cr. P. C. had not mentioned the place from where he had apprehended both the accused and where he was searching for the foreign nationals---Had the complainant been really searching the foreign nationals and had apprehended accused, it was incumbent upon him to disclose the place where he was searching them and had apprehended the accused---Complainant, in his statement before the lower court, had narrated entirely different story in derogation to his statement under S.154, Cr. P. C.-Search of foreigners as stated by complainant in his statement under S.154, Cr. P. C. appeared to be false, fabricated and fallacious and accused had been arrested by him for certain motive---Accused had produced their CNICs which had been issued on the basis of their N.I. Cs. and had also produced their birth certificates, which had shown their birth in Pakistan, which evidence had shown that at the time of their birth they were residing in Pakistan and since they were Pakistani, their N.I. Cs. and CNICs were issued by NADRA---Allegations of prosecution having not been substantiated properly, court below was not justified in convicting the accused---Documentary evidence including CNICs issued in favour of accused by NADRA, duly confirmed by them, had shown that accused neither entered in Pakistan illegally nor they were foreigners and court below, without any sufficient reason, had discarded documentary evidence produced by both the accused---Judgement passed by court below was set aside and accused was acquitted of the charge.

Fazlur Rehman Awan for Appellants.

Abdul Samad Memon, for the State.

Date of hearing: 11 February, 2008.

2008 Y L R 795

[Karachi]

Before Mrs. Yasmeen Abbasey and Syed Mehmood Alam Rizvi, JJ

AZAM SOLANGI---Petitioner

Versus

THE STATE through National Accountability Bureau---Respondent

Constitutional Petition No.2327 of 2007, decided on 12 December, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), Ss.9 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bail, refusal of---Cross-cheques issued in the names of account holders, later on were altered by accused himself and after putting his initials he encashed the same and even the bill was duly passed by the accused---Reasonable grounds existed for believing that accused was involved in the case---Accused being not entitled to the concession of bail, his bail application was dismissed.

Haseebur Rehman for Petitioner.

Ainuddin Khan, ADPGA NAB for Respondent.

Date of hearing: 28th November, 2007.

2008 Y L R 800

[Karachi]

Before Mrs. Yasmeen Abbasey and Syed Mehmood Alam Rizvi, JJ

Haji ALLAH DINO ZINDPUR---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU SINDH through Director General and another---Respondents

C.P. No.D-1510 of 2007, decided on 10th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---National Accountability Ordinance (XVIII of 1999), Ss.9 & 10---Constitution of Pakistan (1973), Art.199--Constitutional petition---Bail, grant of----Further inquiry---Evidence on record had established that accused on. the relevant date was posted at place other than the one mentioned in F.I.R.---Available signatures of accused and signatures found on Form-H, the impugned document, were not sent to the Handwriting Expert to ascertain the truth---Land in question was duly cancelled vide order by the Deputy Commissioner and entry to that effect was also made on Form-II---National Accountability Bureau failed to cite a single witness who had deposed that on the relevant date accused was posted at other place of working---Accused, who was an old man, was retired in the year 2000 and the land was still in possession of the Government---Case against accused requiring further inquiry, he was entitled to concession of bail.

M. Islam Laghari for Petitioner.

Ainuddin Khan, ADPGA NAB for Respondent.

Date of hearing: 12th December, 2007.

2008 Y L R 816

[Karachi]

Before Syed Mehmood Alam Rizvi and Mrs. Qaiser Iqbal, JJ

MUHAMMAD KAUKAB SABAHUDDIN AHMED---Petitioner

Versus

THE STATE through Director General, National Accountability and another---Respondents

Constitutional Petition No.2357 of 2007, decided on 15 February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), Ss.9 & 10---Constitution of Pakistan (1973), Art.199--Constitutional petition---Bail, grant of---Allegation was that accused had made investments in the name of his ex-wife while she had failed to show her own source of income---Accused had full knowledge of said investments, but besides the investments, prosecution had failed to ascertain other moveable or immovable properties of accused---Accused never transferred investments which his ex-wife retained in order to prove that she had earned the same-Accused, in circumstances, was admitted to bail subject to deposit of amount in question.

Hakim Ali Zardari v. NAB 2007 MLD 910; Muhammad Hayat v. the State PLD 2002 Peshawar 118 and Ch. Tanveer Khan v. Chairman NAB PLD 2002 SC 572 rel.

Aamir Raza Naqvi for Petitioner.

Shafat Nabi Sherwani, DPGA for NAB.

2008 Y L R 844

[Karachi]

Before Zafar Ahmed Khan Sherwani, J

SALEH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-159 of 2007, decided on 22nd November, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34--Bail, grant of---Further inquiry--Both accused were found innocent by Investigating Officer during reinvestigation conducted on orders of D.I. G. (Operation) and S.P. (Investigation) but police showed names of accused in the challan, though no material evidence was available against them connecting them with the commission of the offence---Trial Court while rejecting bail application of accused did not consider said aspect of the case and rejected the bail application on flimsy ground that names of accused were mentioned in the F.I.R.---Accused were admitted to bail, in circumstances.

Khadim Hussain D. Solangi for Applicants.

Muhammad Azeem Panhwar, State Counsel.

Date of hearing: 22nd October, 2007.

2008 Y L R 847

[Karachi]

Before Syed Sajjad Ali Shah, J

SAWAN alias KHALID---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-23 of 2007, decided on 27th February, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.398 & 401/34---Bail, grant of---Further inquiry---Contention of accused was that he had been roped in due to enmity with local zamindar, which fact found support from the fact that F.I.R. was lodged under S.401 P.P.C. and after having found no previous record, while filing challan, S.398 P.P.C. was inserted---State Counsel was not able to controvert such position which had made the case of accused of further inquiry--Accused was admitted to bail, in circumstances.

Muhammad Waseem Shah for Applicant.

Riazuddin Siddiqui for the State.

2008 Y L R 902

[Karachi]

Before Mushir Alam and Ali Sain Dino Metlo, JJ

Mrs. DOROTHY HINGANDU---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.D-145 of 2007, decided on 2nd July, 2007.

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

----S.9---Appreciation of evidence---Accused who was foreigner, attempted to smuggle out from Pakistan 458.8 grams of heroin powder---Accused having pleaded guilty the Trial Court convicted and sentenced her to suffer R.I. for one and a half years and to pay fine of Rs.50,000---Accused in her appeal had challenged only the legality of the sentence awarded to her---Section 9 of the Control of Narcotic Substances Act, 1997, from punishment point of view, had divided the offence relating to narcotics into three categories depending on their quantity---If quantity was 100 grams or less, the punishment of imprisonment could extend to two years, if the quantity exceeded 100 grams, but did not exceed one kilogram, imprisonment could extend to seven years; and if the quantity was more than one kilogram, the punishment could be death or imprisonment for life---Except for said general categorization, the statute did not prescribe any mathematical formula for awarding sentence in a particular case nor it made distinction between different kinds of narcotics such as heroin and Charas---Punishment for trafficking in Charas and heroin of equal quantity, could not be the same as there was vast difference between their value and consequently the benefit which could be derived from their illicit trade---Value of one kilogram of heroin could be much more than that of 100 kilograms of Charas---Accused attempted to export nearly half kilogram of heroin capable of fetching a big profit its punishment, in circumstances needed to be commensurate with its prospective profit---Trial Court having already taken lenient view, appeal was dismissed.

1999 MLD 1354; 2005 PCr.LJ 1985; 2006 MLD 1519; 2003 PCr.LJ 811; 1993 SCMR 785; 2005 PCr.LJ 1958 and 2003 PCrL.J 811 rel.

Abdul Razzak for Appellant.

Ashfaq Hussain Rizvi; Special Prosecutor ANF for Respondent.

Date of hearing: 2nd July, 2007.

JUDMENT

ALI SAIN DINO METLO, J.---On 7-2-2007 Mrs. Dorothy Hingandu, a Zambian national attempted to smuggle out from Pakistan 458.8 grams of heroin powder, contained in 34 capsules, which she had swallowed. She was arrested at International Departure Hall, Jinnah International Airport, Karachi, and the capsules were excreted from her alimentary canal.

1. On 26-5-2007, she pleaded guilty and the trial Court i.e. the special Court for the Control of Narcotic Substances-I, Karachi, convicted and sentenced her to suffer rigorous imprisonment for one and half year and pay fine of Rs. 50,000 and in default to undergo simple imprisonment for three months more. Benefit of section 382-B of the Code of Criminal Procedure, 1898, was also extended to her and the period which she had remained in custody as under-trial prisoner was directed to be deducted from her substantive sentence. By this appeal, she has challenged only the legality of the sentence.

2. Learned counsel for the appellant argued that the punishment is not proportionate to the quantity of heroin and relied upon the cases reported in 1999 MLD 1354 (Karachi), 2005 PCr.LJ 1985 (Peshawar), 2006 PCr.R 730 (Lahore) and 2003 PCr.LJ 811 (Karachi).

3. From punishment point of view, Section 9 of the Control of Narcotic Substances Act, 1997, divides the offence relating to narcotics into three categories depending on their quantity. If the quantity is 100 grams or less the punishment of imprisonment may extend to two years, and if the quantity exceeds 100 grams but does not exceed one kilogram, the imprisonment may extend to seven years, and if the quantity is more than one kilogram the punishment may be death or imprisonment for life or imprisonment for a term which may extend to 14 years, further providing that the punishment shall not be less than imprisonment for life if the quantity exceeds 10 kilograms.

4. Except for the above general categorization, the statute does not prescribe mathematical formula for awarding sentence in a particular case nor it makes distinction between different kinds of narcotics such as heroin and Charas. Indeed, it confers a vast discretion upon the Court in the matter of awarding sentence by providing that the imprisonment may extend to two years, seven years etc. keeping in view all the relevant circumstances of a particular case. Besides quantity of a narcotic, its kind will be a very important factor to be taken into consideration while passing the sentence. In the cases of trafficking in narcotics, benefit obtained or attempted to be obtained by a convict, which is the most relevant factor to be taken into consideration while awarding sentence, very much depend upon their kind. Thus, punishment 'for trafficking in Charas and heroin of equal quantity cannot be the same, there being vast difference between their value and consequently the benefit which can be had from their illicit trade. Value of one kilogram of heroin may be much more than that of 100 kilograms of charas.

5. Under the Prohibition (Enforcement of Hadd) Order, 1979, which has not been repealed, by the Control of Narcotic Substances Act, 1997, a distinction has been made in punishment for different kinds of intoxicants and imprisonment for life is prescribed for heroin or cocaine exceeding 10 grams and raw opium or coca leaf exceeding one' kilogram. The Control of Narcotic Substances Act, 1997, has not even impliedly, repealed it by providing, under section 73, that it shall not affect validity of any law for the time being in force prescribing greater punishment for dealing in narcotics.

6. It will be thus seen that the statutory law also makes distinction of kind and the Courts are required to make distinction in the award of punishment for different kinds of narcotics keeping in view inter alia their market value. The appellant attempt to export nearly half kilogram of heroin capable of fetching a big profit. Therefore, its punishment needs to be commensurate with its prospective profit. The other important factor to be considered while determining the sentence will be the damage resulting from the act. Heroin is one of the most injurious narcotics. Its addiction has destroyed lives of many useful members of the society particularly the young generation. As rightly observed by the Supreme Court of Pakistan (1993 SCMR 785), its smuggling has also the effect of damaging image of the country in the comity of nations.

7. In the precedents cited by the appellant's counsel no hard and fast rule or mathematical formula has been prescribed and the different Courts have awarded different sentences keeping in view the facts and circumstances of each case. In 1999 MLD 1354 (Karachi) a learned' single Judge of this Court dismissed convict's appeal by observing that the trial Court, in awarding imprisonment for two and half years for possessing 1300 grams of heroin, had already taken a lenient view. In 2005 PCr.LJ 1958 (Peshawar) punishment of imprisonment for five years for possessing three kilograms of heroin was reduced to imprisonment for three years mainly on the ground that a meagre quantity was sent to the chemical examiner for opinion. In 2006 MLD 1519 Lahore, imprisonment of 12 years for possessing five kilograms of heroin was reduced the imprisonment for seven years and in 2003 PCrL.J 811 (Karachi) imprisonment for 14 years for possessing six kilograms of heroin was reduced to imprisonment for eight years.

2008 Y L R 908

[Karachi]

Before Khawaja Naveed Ahmed, J

WAJID SHAMSUL HASSAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.2166 of 1996, decided on 22nd November, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), S.409/34---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, cancellation of--Special Judge had sought direction for taking action against accused who, after grant of bail to him, had jumped the concession of bail and had gone abroad and was not attending the court---If bail was granted by superior Court then the Trial Court could not cancel the same on merits and the Trial Court had to make reference to the court which had granted the bail for appropriate action according to law, but in cases where accused, after grant of bail from superior court, failed to attend the Trial Court or jumped the bail, the Trial Court was competent to cancel the bail for his non-attendance and issue non-bailable warrants in order to arrest him---Trial Court was also competent to issue notice to surety under S.514 Cr.P.C. for procuring the attendance of accused---In the present case Special Judge had informed that accused had furnished surety with the Nazir of the High Court---Nazir of the court was directed to immediately send the details and particulars of surety to he Special Judge who would issue notice under S.514 Cr.P.C. to the surety and would issue non-bailable warrant of the absconding accused---Earlier order granting bail to accused was recalled/cancelled on the ground of abscondance of accused.

Non Present.

2008 Y L R 914

[Karachi]

Before Dr. Rana Muhammad Shamim, J

SHAUKAT ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1139 of 2007, decided on 16th January, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XVL of 1860), S.392---Bail, grant of---Further inquiry--Investigation in the case had been completed, challan had been submitted---No recovery was effected/ from accused, who was arrested from the spot---No independent witness of locality, though present at the time of arrest of accused, had been cited as mashir and no explanation for non-compliance with provisions of S.103 Cr.P.C. was furnished by the prosecution---In absence of recovery of any weapon or any other connecting material from accused, his case had become a case of further inquiry---Accused, in circumstances, was entitled to grant of bail.

Muhammad Asif Mumtaz v. The State 1999 PCr.LJ 283 and Asif Raza v. The State 2006 PCr.LJ 1628 rel.

Hameedullah Dahri for Applicant.

Abdul Jabbar Lakho, A.A.-G. for the State.

2008 Y L R 920

[Karachi]

Before Khawaja Naveed Ahmed, J

KAMRAN AHMED QURESHI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1148 of 2007, decided on 7th January, 2008.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860) Ss.420, 421, 468 & 109---Pre-arrest bail, confirmation of---Name of accused was neither mentioned in the F.I.R. nor in the interim charge sheet---Role of accused was limited for referring a person for obtaining loan for the vehicle and the amount of commission involved was only Rs.8100---Case, in circumstances was fit where bail should be confirmed---Accused being on interim bail, his bail was confirmed on the same terms and conditions as were laid down in the interim order.

Applicant in person.

Rizwan Ahmed Siddiqui, D.A.-G. for the State.

2008 Y L R 926

[Karachi]

Before Agha Rafiq Ahmed Khan, J

LAL BUX---Applicant

Versus

THE STATE---Respondent

Criminal Application No.1161 of 2007, decided on 7th January, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324, 353 & 186/34---Bail, grant of---Further inquiry---No Police personnel had received injury in the alleged encounter and no private person had been made, witness though a Marriage Hall was very near to the place of incident---No explanation to that effect was available in police record---Case requiring further inquiry, accused was admitted to bail.

Ms. Abida Parveen Channer for Applicant.

Qasim Mirjat, A.A.-G. for Respondent.

Date of hearing: 7th January, 2008.

2008 Y L R 930

[Karachi]

Before Munib Ahmad Khan, J

ZUBAIR and others---Plaintiffs

Versus

REHMAT ALI and others---Defendants

Suit No.1469 of 2006, decided on 26th October, 2007.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of the contract---Claim of plaintiffs was that they had purchased suit property consisting of 24 flats out of which 12 flats were vacant and 12 flats were occupied by the tenants---Plaintiffs claimed that they had paid advance amount, while remaining amount was to be paid at the time of handing over the physical vacant possession of suit property to them in the terms of agreement---Plaintiffs' version was that defendants were avoiding and had demanded more amount which was not agreed---Defendants on their part admitted execution of agreement, receipt of advance amount, but they had asserted, firstly that the plaintiffs had failed to pay the balance sale consideration and secondly by notice plaintiffs had demanded vacant possession of 24 flats, which was contrary to the terms of the agreement---Defendants had further asserted that the condition of the limitation of time, was the essence of the contract, while the plaintiffs had never offered the agreed balance amount and had demanded more time than what was agreed between the parties---Defendants had denied that any extra amount as alleged by the plaintiffs was demanded by them---Suit was developed on the ground which was based on afterthought---Intentions and capacity of the plaintiffs towards compliance of the mandatory condition of the agreement was reflected from their own admission in cross-examination wherein they admitted that neither they had required sum in their bank account nor a pay order was prepared by the agreed date nor any arrangement was made towards execution of sale-deed---Written agreement being with specific condition making the time as the essence of the contract, the intention of the parties, was to be honoured---No where during entire period of contract it was demonstrated by the plaintiffs that they were ready to go by the terms of the contract, they had no merits in the case and were not entitled to specific performance.

PLD 1973 SC 39; 2007 YLR 992 and PLD 1986 SC 497 rel.

Muhammad Siddique Kaladia for Plaintiffs.

Khalil-ur-Rehman for Defendants.

Date of hearing: 26th October, 2007.

2008 Y L R 938

[Karachi]

Before Khawaja Naveed Ahmed, J

REHANA AFZAL ALI KHAN---Appellant

Versus

NOOR BAI and others---Respondents

IInd Appeal No.15 and C.M.A. No.522 of 2007, decided on 10th December, 2007.

Specific Relief Act (I of 1877)---

----S.12---Contract Act (IX of 1872), S.55--Suit for specific performance of agreement--Intention to make time the essence of the contract must be expressed in unmistakable language in cases of specific performance of contract of sale of immovable property---Mere mention of a specific period in an agreement for completion of sale was not to make the time the essence of the contract---Equity would not assist where there had been undue delay on the part of one party to the contract and the other had given him reasonable notice that he must complete the contract within a definite time---In the present case, it had been found as a matter of fact that plaintiff had issued timely notice to the defendants for performance of the contract, but defendants had neglected to perform their part of the contract---Defendants had failed to establish their case for interference in the orders passed by the courts below---Concurrent findings of fact were against defendants, which did not suffer from misconception of law or misconstruction of evidence---Both courts below having not erred in law, no scope existed for interference in the concurrent findings.

Amina Bibi v. Mudassir Aziz PLD 2003 SC 430 Noor Muhammad v. Muhammad Yousaf 2000 CLC 1138; Ali Gohar Khan v. Sher. Ayaz 1989 SCMR 130; Inam Ahmed v. Hakimuddin 2000 CLC 1140; Abdul Hamid v. Abbas Bhai Abdul Hussain PLD 1962 SC 1; Zaheer Ahmad v. Abdul Aziz 1983 SCMR 599; Bahawood-Deen v. B.G. Deesoouza PLD 1974 Quetta 36; Ghulam Nabi v. Muhammad Yaqub PLD 1983 SC 344; Essabhoy v. Saboor Ahmad PLD 1973 SC 93; Zaheer Ahmad v. Abdul Aziz 1983 SCMR 559; Muhammad Yaqub v. Muhammad Nasrullah Khan PLD 1986 SC 497; Mussarat Shaukat Ali v. Safia Khatoon 1994 SCMR 2189 and Sandoz Limited v. Federation of Pakistan 1995 SCMR 1431 rel.

Mustafa Lakhani for Appellants.

Rehman Aziz Malik and Muhammad Jamil for Respondents.

2008 Y L R 995

[Karachi]

Before Muhammad Afzal Soomro, C J

MUMTAZ ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.157 of 2008, decided on 28th February, 2008.

Criminal Procedure Code (V of 1898)---

---S.497(2)---Penal Code (XLV of 1860), S.302--Qanun-e-Shahadat (10 of 1984), Arts.38 & 39---Bail, grant of---Further inquiry---Name of accused was not mentioned in the F.I.R.---Accused had been arrested after 9 months of the incident, which too during interrogation when he allegedly confessed the offence, which was not admissible in Qanun-e-Shahadat, 1984---Other circum-stances of the case also had gone to favour accused and had suggested further inquiry into his guilt or innocence--Accused was admitted to bail; in circumstances.

Mohsin Nizamullah v. The State 1999 PCr.LJ 60; Zulfiqar Ali v. The State 1996 MLD 1457; Mst. Najma Bibi v. The State 1995 MLD 1457 and Mst. Khursheed Bibi v. The State 1997 PCr.LJ 1537 ref.

Ghulam Rasool Mangi for Applicant.

Fazlur Rehman Awan for the State.

2008 Y L R 1044

[Karachi]

Before Syed Pir Ali Shah, J

REHMATULLAH---Applicant

Versus

Mst. ZAHIDA and another---Respondents

Criminal Revision No.121 of 2006, decided on 29th February, 2008.

Illegal Dispossession Act (XI of 2005)---

----Ss. 5, 6, 7, & 8---Failure to conduct proper trial---Trial Court, without recording evidence to be produced by both the sides and without initiating trial of the ease, passed impugned order in haste---Trial Court neither referred to the relevant provisions of law nor discussed the same while passing impugned order---Trial Court while not adopting due legal procedure contained in the relevant law, had committed material irregularity and illegality---Impugned order, in circumstances could not be sustained as legal or speaking order on merits which was set aside and case was remanded to the Trial Court with direction that the proper investigation and procedure must be adopted as laid down in Ss. 5, 6, 7 & 8 of Illegal Dispossession Act, 2005.

Sarfraz Ahmed for Applicant.

Mukesh Kumar G. Karara for Respondent No.1.

Muhammad Iqbal Memon, State counsel.

2008 Y L R 1078

[Karachi]

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

RAMSHI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision Application No. S-126 of 2004, decided on 10th January, 2005.

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

---Ss. & 173---Investigation report, binding effect of---Investigation report submitted by the police under S.173 Cr.P.C. was not binding on the court and it was for the court to decide, whether sufficient material was available before it to join or not some accused to the case, whose name had been placed in column No.2 of the challan---Before summoning an accused, whose name appeared in column No.2 to face the trial, it was not requirement of law that, the Trial Court should first record evidence, but the court could directly summon him to stand trial---If consequent to the police report an accused had been discharged under S.63 Cr. P. C. , even in that case it would not mean that he could not be summoned by the court to stand the trial.

Inayatullah v. State 1999 Cr.LJ 731; Shaukat Ali v. State PLJ 1995 FSC 160; Muhammad Khan v. State 1996 PCr. LJ 99; Mukhtar Ali v. Sono PLD 1993 Kar. 342; Abdullah v. Edan 2001 PCr.LJ 1624; Waqarul Haq v. State 1988 .SCMR 1428 and Safdar Ali v. Zafar Iqbal 2002 SCMR 63 rel.

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

---S.302/34---Criminal Procedure Code (V of 1898), Ss.173, 190, 193 & 561-A---Joining applicant as co-accused---Incident of murder of deceased being an un-witnessed incident, prosecution had to collect bits and pieces of evidence to bring home case to culprits involved in the crime---When a Magistrate takes cognizance of the offence, he would take cognizance as a whole and not only against an offender found by the police to be involved in the offence as per their investigation---Court, after taking cognizance of the offence, would acquire jurisdiction over all the persons involved and not merely over the persons against whom the challan was submitted---Magistrate, in his discretion, could summon a person, whose name appeared in column No.2 of the challan to stand trial---Applicant was one of the persons, who had been specifically nominated by respondent in the complaint being involved in the murder of his daughter---Two prosecution witnesses examined during investigation had also supported the case of respondent--Case of applicant and other accused to that extent was at par---Mere fact that in his statement under S.164 Cr. P. C., other accused who was son of applicant, had taken the whole responsibility of the murder of deceased and confessed his sole involvement in the crime, would not mean that without recording any further evidence, the Trial Court was not justified in passing impugned order for joining applicant as co-accused in the crime.

Noor Nabi G. Memo, for Applicant.

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

Mumtaz Alam Leghari for Respondent No.2.

2008 Y L R 1087

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mehmood Alam Rizvi, JJ

NAJMA SWALEH SYED---Petitioner

Versus

THE STATE through National Accountability Bureau and another---Respondents

Constitutional Petition No. D-1383 of 2007, decided on 3rd March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498-National Accountability Ordinance (XVIII of 1999), Ss.9, 10 & 25--Pre-arrest bail, grant of---Besides accused, inquiry was conducted against other Chief Executive Officers who remained posted on different occasions---Prima facie, a case of embezzlement against lower staff, was detected by the audit department, but no iota of evidence was available to suggest, prima facie, that accused was involved in the embezzlement of funds nor NAB Authorities had produced such evidence for tentative assessment at the bail stage---Prima facie, letter pertaining to plea bargain appeared to be based upon mala fides as accused was involved on the basis of the embezzlement by subordinate staff for which a reference was pending adjudication before the competent court---Accused, was entitled to pre-arrest bail on the same terms and conditions as contained in interim pre-arrest order.

Amir Raza Naqvi for Petitioner.

Ainuddin Khan. A.D.P.-G. NAB.

2008 Y L R 1097

[Karachi]

Before Agha Rafiq Ahmed Khan, J

GULZAR AHMED alias GULZAR---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No.S-117 of 2008, decided on 19th March, 2008.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.343, 365-B & 496-A---Pre-arrest bail, confirmation of----Alleged abductee had stated that she had never been abducted by anybody, and that she being adult had contracted marriage with the accused---Alleged abductee had sworn affidavit in that respect before the Magistrate and she had also produced Nikah Nama---Interim bail granted to accused, was confirmed on the same terms, in circumstances.

Applicant in person.

Rasheed Ahmed Qureshi, Asst. A.-G. also present.

2008 Y L R 1132

[Karachi]

Before Muhammad Afzal Soomro, C J

ABDUL QAYYUM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.127 of 2008, decided on 29th February, 2008.

Criminal Procedure Code (XLV of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.397 398, 392 & 34---Bail, grant of----Further inquiry---Name of accused did not transpire in the F.I.R. and allegation of snatching of cash was against co-­accused---State Counsel had not been able to show any record of bank where prosecution witness in his statement under S.161, Cr.P.C., claimed withdrawal of cash amount---Statements of both the witnesses were contradictory to each other---Was yet to be determined as to from whom co-accused snatched the amount in question, which made the case of prosecution to be doubtful---Matter required further inquiry---Offences against accused did not fall within the ambit of prohibitory clause of S.497, Cr. P. C.--Accused having made out a case for grant of bail, was admitted to bail.

Ghulam Rasool Mangi for Applicant.

Fazlur Rehman for the State.

2008 Y L R 1179

[Karachi]

Before Ali Sain Dino Metlo, J

SHAMSULLAH alias HAWALDAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.974 of 2007, decided on 14th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Name of accused neither appeared in the F.I.R. nor in the statement of the eye-witnesses and the eye-witnesses declined to identify accused---Reasonable grounds, in circumstances, were not available to believe that accused was guilty of the offence---Matter required further inquiry as contemplated by subsection (2) of S. 497, Cr. P. C. --Accused was on bail, in circumstances.

Muhammad Nawaz for Applicant.

Haji Abdul Majeed, State Counsel along with S-I.P. Akhar Hameed.

2008 Y L R 1188

[Karachi]

Before Abdur Rahman Faruq Piriada and Syed Pir Ali Shah, JJ

MEHMOOD and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.571 of 2007, decided on 19th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365-A/337-H(ii)/344/148/149---Anti-Terrorism Act (XXVII of 1997), S.7---Bail, grant of---F.I.R. suffered from an unexplained delay of four days---Names or even description or features of accused were not mentioned in the F.I.R. despite the fact that they were well known to the complainant party much prior to the registration of the case being the residents of their village---Complainant, after ten months of the occurrence, implicated the accused in the case in a supplementary statement by disclosing their names without explaining such abnormal delay---Identification test of accused who were previously known to complainant party did not carry any weight in the eyes of law---Statements of the abductees were apparently contradictory to the contents of the F.I.R.--Accused were admitted to bail in circumstances.

Tahir Abbas v. the State 2003 SCMR 426; Muhammad Riaz Munna v. The State 1993 SCMR 1321; Ghulam Abbas alias Abbasi and others v. the State PLD 2005 Kar. 255 and Muhammad Jahangir Badar v. The State PLD 2003 SC 525 ref.

Syed Mustafa Hussain Shah along with Miss Rizwana Jabeen Siddiqui for the Applicants.

Nisar Ahmed Abro, State Counsel.

2008 Y L R 1194

[Karachi]

Before Mrs. Qaiser Iqbal, J

HAROON and 5 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.349 of 2004, decided on 28th October, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(c), 436, 435 & 148---Appreciation of evidence---Evidence produced by prosecution regarding the first part of the incident relating to the damages caused to the movable and immovable properties of the complainant as well as to the murder of the deceased; was all hearsay and contradictory---Mother and brother of the other deceased had categorically stated that they had no knowledge as to who had committed his murder----No direct or circumstantial evidence had been produced by the prosecution to prove the guilt of accused---Accused were acquitted in circumstances.

Ali Nawaz A. Channa and Sardar Muhammad Yousuf for Appellants.

Sardar Uddin Qureshi, State Counsel.

Date of hearing: 11th October, 2007.

2008 Y L R 1206

[Karachi]

Before Abdur Rahman Faruq Pirzada, J

GULSHER---Applicant

Versus

THE STATE---Respondent

Cr.B.A. No.21 of 2008, decided on 12th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/148/149/114/337-H(ii)---Bail, grant of---Further enquiry---F.I.R. showed that 38 accused persons had attacked the complainant party due to tribal dispute while armed with fire-arms---Shots fired by the accused did not hit. the deceased persons and he had only been assigned the role of ineffective firing---Question whether complainant party could or could not possibly identify each and every person from the large number of accused persons with their respective weapons, was yet to be determined---Possibility of exaggerating the number of accused in ' the background of. tribal enmity by the complainant could not be ruled out---Five accused had already been found innocent during investigation---Two accused who were actually assigned the role of firing effectively on the deceased were even let off by the police and the case of present accused was on better footing than that of the said two co-accused---Matter of vicarious liability of accused would be adjudicated upon properly at the trial and benefit of the same could be given to him at bail stage---Case of accused was fit for further inquiry as envisaged by S.497(2), Cr. P. C. ---Bail was allowed to accused in circumstances.

Muhammad Sadiq and others v. The State 1996 SCMR 1654; Muhammad v. The State 1998 SCMR 454; Muhammad Shahid v. The State 2006 PCr.LJ 1600; Ahmed v. The State 2007 PCr.LJ 987 and Parial v. The State 2006 PCr.LJ 1212 ref.

Shahbaz Ali Brohi for Applicant.

Nisar Ahmed Abro for the State.

2008 Y L R 1214

[Karachi]

Before Abdur Rahman Faruq Pirzada, J

MUHAMMAD FAIZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.20 of 2008, decided on 11th February, 2008.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 25---Police Order (22 of 2002), Art. 18(4)---Bail, grant of---S.H.O. of the police station had carried out the investigation in clear violation of the mandatory provisions of Article 18(4), Police Order, 2002, which he was not competent to do-.--Although, in view of S.25 of the Control of Narcotic Substances Act, 1997, the provisions of S.103, Cr. P. C. were not applicable in the case, yet the place of recovery and time of recovery had to be kept in view to prevent false implication of innocent people looking at the general conduct of police---Recovery of heroin had been effected from the accused from near a Chowk at noon time where several persons might have been present, but admittedly neither the police procured the attendance of any independent persons from the public, nor made any efforts in that regard---Heroin weighing 270 grams contained in five packets, as per F.I.R., was recovered from the accused, out of which 50 grams of heroin was sent to Chemical Analyser for report---Expert opinion, thus, would be available at the most regarding 54 grams of heroin pertaining to one packet of the case property and the case might even fall under S.9(a) of the Control of Narcotic Substances Act, 1997---Accused was allowed bail in circumstances.

Muhammad Farooq Khan v. State 2007 PCr.LJ 89; Nawaz v. State 2004 YLR 1118 and Noor Muhammad v. State 2007 YLR 1973 rel.

(b) Police Order (22 of 2002)---

----Art. 18(4)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Investigation-Extent and scope---Entrustment of investigation by the complainant to his own subordinate, being in clear violation of Article 18(4) of the Police Order, 2002, is patently illegal---Though it may not have the effect of vitiating the trial, it will certainly damage the fairness of investigation, one of the main objects sought to be achieved by the Police Order, 2002, as well as the credibility of the officer blatantly violating the law.

Muhammad Farooq Khan v. State 2007 PCr. LJ 89 ref.

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

----S. 25---Mode of making searches and arrest---Though private persons are not required to witness the recovery of narcotic substances as provided under the Control of Narcotic Substances Act, 1997, yet the place of recovery and the time of recovery have to be kept in view to prevent false implication of innocent people, looking at the general conduct of police.

Nawaz v. State 2004 YLR 1118 ref.

Gulbahar Korai for Applicant.

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

2008 Y L R 1217

[Karachi]

Before Khalid Ali Z. Qazi, J

MUHAMMAD HAROON---Plaintiff

Versus

MUHAMMAD HANIF and 2 others---Defendants

C.M.As.Nos.200 of 1998 and 2495 of 2001 in Suit No.578 of 1993, decided on 26th February, 2008.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Criminal Procedure Code (V of 1898), S. 476---Penal Code (XLV of 1860), Ss. 181, 191, 192, 193, 196, 463, 468 & 471---Suit for declaration, cancellation of power of attorney and injunction---Non-filing of appeal by defendants against decree in suit---Plaintiff's application for initiating criminal proceedings against defendants for having forged power of attorney and his witnesses for giving perjured evidence---Pendency of plaintiff's application at the time of passing of decree in suit---Effect---In normal course, Judge, who passed decree, should have taken cognizance of offence committed by defendants and their witnesses for committing forgery and perjury in preparation of false and forged power of attorney and using same in court proceedings in order to deceive court---Such action had not been, taken at appropriate time by court, thus, court refused to take cognizance of such matter at such belated stage---Validity---Criminal offence had been committed and sparing criminals at such stage would encourage others to enter into such type of criminal activities---Trial Court should take strict actions against wrongdoers once they detect them---Court disposed of plaintiff's application by directing him to lodge F.I.R. at concerned Police Station and directed S.H.O. to register case, investigate matter and submit charge-sheet in Court having jurisdiction to try case.

1992 MLD 1827; PLD 1992 Lah. 178; 1994 SCMR 1103; PLD 1991 Lah. 8; PLD 1989 Lah. 449; 1997 MLD 2097; 2006 MLD 1059; PLD 1965 Kar. 622; PLD 1992 Lah. 178; 1991 PCr.LJ 1337 and 1991 MLD 1759 ref.

Mubarak Ahmed for Plaintiff.

M. Ismail Kassim and Mubarik Ali and M.A. Kazi for the Defendants.

2008 Y L R 1223

[Karachi]

Before Mrs. Yasmin Abbasey, J

KAMRAN QURESHI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.31 of 2006, decided on 20th March, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Copyright Ordinance (XXXIV of 1962), S.66---Bail, grant of---Allegation against accused was that he had infringed the copyrights of complainant-company and under fake title of product belonging to complainant, he was selling his products---Question, whether the rights of complainant's company had been infringed and accused, along with his other companion, without consent and permission of complainant's company, had used it illegally for their benefits, needed evidence---Even otherwise the offence charged was punishable with 3 years, which did not fall within prohibitory clause of S.497 Cr. P. C. ---Accused was enlarged on bail, in circumstances.

Mahmood Alam Abbasi for Applicant.

Anwar Ansari for the State.

Date of hearing: 20th March, 2007.

2008 Y L R 1227

[Karachi]

Before Dr. Rana Muhammad Shamim, J

QAISER ZAMAN---Applicant

Versus

STATION HOUSE OFFICER, P.S. BRIGADE, KARACHI and

another---Respondents

Criminal Miscellaneous Application No.171 of 2007, decided on 4th February, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 154, 156 & 561-A---Recording statement of complainant and his witnesses---Trial Court, on application of complainant directed S.H.O. concerned to record statements of the complainant and his witnesses; and if found that cognizable offence was made out, S.H.O. could enter the information in the book kept under S.154, Cr.P.C. to record such statement and lodge F.I.R. accordingly, but that having not been done by S.H.O., complainant had filed application under S. 561-A, Cr. P. C.---Validity---Right of complainant to get report registered was guaranteed by the Constitution and concerned Police Station/S.H.O. was thus legally bound to reduce in writing the statement given by the complainant and his witnesses; and after reducing the same into writing S.H.O. /Officer concerned of the Police Station had to read out such statement verbatim and if the complainant disagreed with that on the ground that what he had stated was not written, he could refuse to sign the same and could agitate the matter before the court---Allowing application of complainant, S.H.O. concerned was directed to record statement of the complainant in writing and after going through the same, if cognizable case was made out, he could register the F.I.R. accordingly and commence the investigation of the case, if so required.

Jahangir Ahmed for Applicant.

Fazal-ur-Rehman for the State.

2008 Y L R 1231

[Karachi]

Before Nadeem Azhar Siddiqi and Dr. Rana Muhammad Shamim, JJ

SIRAJ AHMED KHAN---Appellant

Versus

Syed SHAKEEL HAIDER---Respondent

Election Appeals Nos.52 and 53 of 2007, decided on 7th December, 2007

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

----Ss.14 & 99---Rejection of nomination papers and disqualification of candidate--Reasons for rejection of the nomination papers of the candidate were that candidate was an employee of a bank in which the Government had 49% shares---Statement of the bank showed that the Government had only 19% shares---Mere share holding was not sufficient to debar the candidate from contesting the election---Bank Officer, present in the court had submitted that except nominating two directors, the Government had no other control over the day to day management of the bank---No evidence was on the record to the effect that the Government had controlling shares or interest in the bank---Returning Officer was directed to accept the nomination papers of candidate, if he otherwise was qualified to contest the election.

Ghulam Rasool v. Muhammad Hayyat PLD 1994 SC 385 and Sabiruddin v. Mushtaq Hussain Bhatti PLD 1994 SC 412 ref.

Shoaib Bukhari, Nawab Mirza, A. Iqbal Qadri, Saifullah and Zafar Ahmed Khan for the Appellant.

Agha Zafir, Assistant-General.

Atta-ur-Rehman, Assistant Election Commissioner.

Asif Fateh Shaikh for UBL.

2008 Y L R 1239

[Karachi]

Before Khilji Arif Hussain, J

ANWAR SAJJID---Plaintiff

Versus

ABDUL RASHID KHAN and another---Defendants

Suit No. 961 of 2002, decided on 27th March, 2007.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement of sale---Defendant in the case offered to sell his plot for consideration, which offer was accepted by the plaintiff, who made advance payment against a receipt---Plaintiff paid further amount and balance amount was to be paid on or before specified date and defendant was to deliver possession of the plot and all original title documents to the plaintiff and also to execute proper documents in favour of plaintiff for the transfer of the plot in his name---Evidence on record had fully established that plaintiff had failed to pay balance sale consideration amount, not only within stipulated period of time, but also in the extended period---Plaintiff, in circumstances had failed to perform his part of obligation---Plaintiff, in a suit for specific performance of agreement of sale, was to establish that he was always ready and willing to perform his part of obligation---Plaintiff having failed to per-form his part of obligation, suit for specific performance of agreement of sale filed by the plaintiff, was dismissed.

Mst. Amina Bibi v. Mudassir Aziz PLD 2003 SC 430; Shabbir Ahmad v. Zahoor Bibi and others PLD 2004 SC 790; Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala PLD 1962 SC 1 and Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 ref.

Muhammad Aziz Khan for Plaintiff.

Muhammad Aminullah Siddiqui for Defendant No.1.

Date of hearing: 28th February, 2007.

2008 Y L R 1251

[Karachi]

Before Muhammad Afzal Soomro, C.J.

SAJID---Applicant

Versus

THE STATE---Respondent

Cr. B. App. No.671 of 2007.

Criminal Procedure Code (V of 1898)--

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(3), 13 & 14---Bail, refusal of---Accused had. himself admitted that he had married with complainant three years ago--Accused had levelled the allegation of loose character against the complainant, alleging that she had illegal and unlawful contacts/relations with a series of males and on various occasions she left the house of accused without his permission, consent or knowledge; and he had been admonishing the complainant to correct her character for about more than three years---Such plea of accused was totally unbelievable for the reason that why the accused should have waited for more than three years and tolerated her loose activities---'Surah-e-Nisa' of Holy Quran in that regard, was clear that in case husband found his wife to be involved in unlawful activities or he suspected that his wife was of a loose character, then husband should admonish her firstly; if she would not obey the advice of her husband and continued the same, then husband would keep his bed separately for a period of one monthly course; in such situation too, if wife failed to refrain her previous activities, then the husband had right to pronounce her three Talaqs---In the present case accused himself admitted that he remained silent for a period of three years while looking at unlawful activities of his wife and he divorced the complainant on her demand---Allegation against accused was that he being husband sold out his wife/the complainant to one who along with other accused committed zina with her---No case for bail having been made out, bail application was dismissed.

Raza Muhammad and another v. The State 2005 YLR 1585; Roshan Lal v. The State and another 2005 MLD 1339 and Liaquat Ali v. The State 2005 MLD 1974 rel.

Muhammad Rafiq for Applicant.

Haider Shaikh for the State.

2008 Y L R 1256

[Karachi]

Before Khawaja Naveed Ahmed, J

ZUBAIDA KHALIQ and others---Petitioners

Versus

Mst. MEHMOODA SHARIF---Respondent

S.M.A. No.174 of 2006.

Succession Act (XXXIX of 1925)---

----Ss.273, 278 & 295---Issuance of Letter of Administration and grant of succession certificate---Objection to---Deceased was issueless and petitioners who being brothers and sisters were legal heirs of deceased, had claimed that deceased was married to respondent/objector in whose name deceased had purchased apartment in question and that thereafter she had gifted said apartment to the deceased---Petitioners had claimed that as deceased had divorced respondent/objector in his lifetime, letter of administration of property of deceased could be issued in favour of petitioners as deceased had died issueless---Respondent had claimed that intimation notice of her divorce having not been given to Chairman Arbitration Council, under S.7 of Muslim Family Laws Ordinance, 1961, she was not divorcee in the eyes of law as divorce had not become effective---Respondent had further contended that she had spent more than 40 years with the deceased as his wife and that deceased had pronounced divorce due to his old-age being issueless and under the influence of the petitioners and divorce was never acted upon by him---Matter being contentious one, under S.295 of Succession Act, 1925, same could only be adjudicated upon by converting petition into civil suit---Petition was converted into civil suit accordingly.

Mubarak Ahmed for Petitioners.

Chaudhry Muhammad Iqbal for Respondent.

2008 Y L R 1265

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mehmood Alam Rizvi, JJ

MUHAMMAD FAROOQ KHAN---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

C.P.No. D-1343 of 2007, decided on 8th February, 2008.

Penal Code (XLV of 1860)---

----Ss.420, 406 & 506(b)/34---Criminal Procedure Code (V of 1898), Ss.561-A & 265-K---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Challan submitted before the Trial Court had shown the involvement of petitioner/accused and thus allegations of his false implication could not be entertained in the petition---Determination of guilt or innocence of accused depended upon the totality of facts and circumstances revealed during trial---Inherent powers of High Court could be utilized to do real justice and to prevent abuses of process of court, but such powers could not be exercised so as to interrupt or divert the ordinary course of criminal procedure----Said inherent powers could be invoked, where it was established that proceedings against a person seeking quashing of his case were based upon mala fides, coram non judice or a clear violation of the procedure or such proceedings amounted to abuse of process of court---Best course available to accused in the case was to approach to the Court in the first instance for redress under S.265-K Cr. P. C.---Since alternative jurisdiction was available to petitioner/accused, he was not entitled to relief claimed by him---Constitutional petition was dismissed.

Syed Shoaid Ahmed Bukhari v. The State .PLD 2001 Kar. 279; Muhammad Hanif Pathan v. The State PLD. 1999 Kar. 121 and Muhammad Ali v. The State 1998 PCr.LJ 1323 ref.

Muhammad Zafar for Petitioner.

Abdul Jabbar Lakho, Assistant Advocate, General.

2008 Y L R 1274

[Karachi]

Before Khalid Ali Z. Qazi, J

Messrs ALLIED SERVICES---Plaintiff

Versus

CITY, DISTRICT GOVERNMENT KARACHI---Defendant

Suit No.542 and C.M.A. No.673 of 2007, decided on 12th February, 2008.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2-Interim relief---Application for---Tentative assessment of the material available on record revealed that applicant had no prima facie case---Balance of convenience was also not in favour of the applicant as great inconvenience would. be caused to the respondents in exercising their legal rights to deal as per law---No irreparable loss would be caused to the applicant, if the injunction was refused, because the loss, if any, could be compensated in the shape of damages---Relief of injunction was discretionary and court was not bound to grant it in every case and it was not to be granted, unless the court was satisfied as to its real need---Discretion was to be exercised in accordance with reason and sound judicial principles---Court, while dealing with application for grant of injunction, had to look and assess all the circumstances obtaining in suit and more so while granting equitable relief---Discretion vested in a court of law had to be exercised judiciously and equitably ensuring all the time that the twain of law and justice were adequately applied and administered.

2000 SCMR 780 rel.

Khalid Daudpota for Plaintiff.

Manzoor Ahmed for Defendant.

2008 Y L R 1287

[Karachi]

Before Nadeem Azhar Siddiqi, J

Major S.M. HAFIZ---Plaintiff

Versus

SHAFQAT ALI QURESHI and others---Defendants

Suit No.971 of 2006 and Civil Misc. App. No.143 of 2007, decided on 28th September, 2007.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Limitation Act (IX of 1908), Art. 91---Rejection of plaint---Scope---Plaint could be rejected only if it would come within the mischief of Rule 11 of O. VII, C.P. C. ---Rejection of plaint in the present case was sought on two grounds; firstly that the plaint did not disclose any cause of action and secondly that the suit was barred by Article 91 of the Limitation Act, 1908---Validity---For rejecting the plaint on the first ground, the contents of entire plaint and its annexures were to be considered and it could be treated as true and correct on its face value---Defence could not be looked into for rejecting the plaint on the ground that the suit was barred by any way---Plaint could only be rejected when the suit appeared from the statement in the plaint to be barred by law--Plaintiff, in order to avoid the implication of Art.91 of the of Limitation Act, 1908 had knowingly not challenged the declaration of gift---Factual controversy was involved in the case, which could only be resolved by allowing the parties to produce evidence in support of their respective claims---In presence of the allegation that the gift in question was not complete and same was without consideration, it could not be said that the plaint did not disclose a cause of action and Art.91 of Limitation Act, 1908 also did not provide the starting point of limitation from the date of execution of instrument---Application for rejection of plaint was dismissed in circumstances.

Muhammad Ali. A Hakro for Plaintiff.

Zamir Ghumro for Defendant Shafqat Ali Qureshi.

2008 Y L R 1299

[Karachi]

Before Mrs. Yasmin Abbasey, J

AL-NOOR FERTILIZER

INDUSTRIES LTD.---Appellant

Versus

PROVINCE OF SINDH and others---Respondents

Second Appeal No.33 of 2006, decided on 11th February, 2008.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Claim of plaintiffs was that they were lessees of Barani un-surveyed land measuring 150 acres and that on basis of their continuous possession of said land same had been allotted to them and they had invested huge amount for making said land suitable for the purpose of cultivation---Defendant had denied claims of plaintiffs alleging that plaintiffs were in unauthorized occupation of said land, whereas same was allotted to him---Both courts below in the light of evidence produced on record with supporting documents, were of the unanimous view that land belonging to defendant was different from the one occupied by the plaintiffs---Allotment in favour of plaintiffs was never challenged by defendant and plaintiffs had not raised any objection to the allotment of land to defendant---Main grievance of plaintiffs was that due to wrong measurement and demarcation, defendant was attempting to occupy their piece of land granted to them under valid allotment order on basis of their possession-Held, allotment order, was sufficient proof that land of plaintiffs was same which was in their possession and which was different from the land in possession of defendant---In absence of sufficient ground to set aside concurrent findings of two courts below, same were maintained.

Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304; Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676; Muhammad Anwar v. Muhammad Siddiq Hashim PLD 1992 SC 838; Sultan Ahmed v. Nadeem Raza 1996 SCMR 1729; Sirbland v. Allah Loke 1996 SCMR 575; 1988 CLC 224 and 2004 YLR 1928 ref.

Arshad Tayyab Ali for Appellant. Muhammad Ali Hakro for Respondents Nos.4 and 5.

Haider Shaikh for the State.

Zubair Qureshi for intervener.

Date of hearing: 28th January, 2008.

2008 Y L R 1352

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

TAUSIFA MURTAZA---Appellant

Versus

Syed RAZI AHMED HASHMI and 20 others---Respondents

H.C.A. No.146 of 2006, heard on 1st April, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Karachi Building and Town Planning Regulations, 2002, Regln. 17-3---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Interim Control Area---Proof---Single Judge of High Court, after protecting rights of plaintiff and imposing certain conditions did not restrain defendants from raising their building---Plea raised by plaintiff was that area in question was Interim Control Area, therefore, defendants could not raise any construction thereon---Validity---Shops of plaintiff from where she was claiming access was situated on one road while the other end of the building was" situated on another road, therefore, the building had two access from main roads---Provincial Government was competent to declare any specified area as Interim Control Area prohibiting raising of multi-storeyed building but for such purpose there should be a notification which had not been placed before the court----Defendants were not raising any construction in any Interim Control Area---Plaintiff failed to point out any illegality or irregularity in order passed by Single Judge of High Court, and the same did not call for interference---High Court appeal was dismissed in circumstances.

Muhammad Usman v. KBCA 1999 YLR 1170; Suleman Mala V. KBCA 1990 CLC 448; Abdul Waheed Butt v. Mrs. Asma and others 1989 CLC 1936; Muhammad Umer Beg v. Sultan Mahmood Khan PLD 1970 SC 373; Asma Jilani v. Government of Punjab PLD 1972 SC 139; State v. Nasimur Rahman PLD 2005 SC 270; Nazar Ali v. K.B.C.A. 2002 CLC 1464 and Abdul Rank v. K.B.C.A. PLD 1994 SC 512 distinguished.

Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 4.23; Ardeshir Cowasjee v. K.B.C.A. 1999 SCMR 2883; Abdur Rahman Mughal v. Abdul Wahid 1984 SCMR 791; Noor Hassan v. Tufail Ahmed 1980 SCMR 144 and Mst. Zarina v. Province of Sindh 2004 CLC 767 ref.

Naeemur Rahman for Appellant.

Kh. Shamsul Islam and Raheed Ahmed Rizvi for Respondents.

Dates of hearing: 25th and 26th March and 1st April, 2008.

2008 Y L R 1472

[Karachi]

Before Khalid Ali Z. Qazi, J

Messrs TRADING CORPORATION OF PAKISTAN (PVT.) LTD.---Plaintiff

Versus

Messrs AL-NOOR (PVT.) LTD. ---Defendant

Suit No.564 of 1997, decided on 7th February, 2008.

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

---Ss. 151, 152 & 176--- Contract for storage. of rice---Shortage of rice and bags---Burden of proof---Duty of bailee would be to take all reasonable precautions to obviate risks, which either actually accrued or might reasonably be apprehended or foreseeable---Onus to prove proper discharge of such duty would initially lie on bailee and not on bailor--- In case of bailee's failure to discharge such onus, he would be liable to pay bailor's claim---Principles.

Messrs Master Sons v. Messrs Ebrahim Enterprises and another 1988 CLC 1381 and Q.B.E. Insurance Ltd. v. The Trustees of the Port of Karachi through Chairman and others 1992 CLC 904 ref.

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

----Arts.113 & 133---Shortage in bailed stock of rice and bags---Proof---Shortage of rice claimed by plaintiff admitted by defendant during his cross-examination and in his letter addressed to plaintiff---Shortage of rice, quantity of bags and value thereof mentioned in plaint and affidavit-in-evidence of plaintiff was not shaken during his cross-examination by defendant---Effect---Such shortage would be deemed to be admitted by defendant, thus, same stood proved and would not require any further proof---Principles.

Mst. Farooq Bibi v. Abdul Khaliq and others 1999 CLC 1358; Central Bank of India v. Syed Muhammad Abdul Jalil Shah and others 1999 CLC 671 and Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 rel.

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

----O. VIII, R. 6 & O. XX, R. 16---Suit for accounts on basis of contract---Security amount plus retention money held by plaintiff as per terms of contract---Defendant's counter-claim for refund of such money and interest/profit thereon--Maintainability-Plaintiff as per terms of contract was entitled to retain such money until finalization of accounts after performance of contract by defendant---Retention of such money by plaintiff could not be described as illegal, thus, question of payment of any interest/profit thereon would not arise---Counter­claim of defendant was dismissed with costs.

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

----S.148---Contract for bailment of rice---Enquiry report regarding shortage of rice---Validity---Such report could not legally be described as illegal and ineffective in ab­sence of proof to the contrary.

Syed Mamnoon Hussain for Plaintiff.

Agha Faquir Muhammad and Agha Zafar for Defendant.

Date of hearing: 27th November, 2007.

2008 Y L R 1493

[Karachi]

Before Muhammad Afzal Soomro, C.J., Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

Dr. FAHMIDA MIRZA---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.P. No. D-2499, 2500 and 2501 of 2007, decided on 27th December, 2007.

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

----Ss. 14 & 67---Constitution of Pakistan (1973), Art.199---Constitutional petition---Acceptance of nomination papers of contesting candidates---Nomination papers had been accepted by the Returning Officer after rejecting the objections of petitioner and appeals thereagainst was also rejected by the Election Tribunal---Objection of the petitioner was that B.B.A. and B.A. degrees filed by the respondents were fake and bogus---Degree produced by one respondent had been issued by and American University and no proof was filed by the petitioner before the Election Tribunal that said degree was forged or fabricated---B.A. degree produced by the other respondent had tentatively been verified by the Election Tribunal---Validity---Disputed facts as contented by the petitioner, required detailed examination of the educational testimonials of respondents and no further probe could be made in the constitutional jurisdiction and conveniently be adjudicated upon in an election petition---Proper, though long procedure, had to be adopted to make scrutiny regarding the verification of the B.B.A./B.A. degrees of respondents, which could not be thrashed out in constitutional jurisdiction---Both respondents were allowed to contest the elections by the High Court, however, the case was remanded to the Election Tribunal for holding an inquiry about the genuineness or otherwise of B.B.A./B.A. degrees of the respondents and to decide the same after recording the evidence of all the parties within specified period---Constitutional petition was disposed of accordingly.

Najaf Abbas Siyal v. Khawaja Hassan Wali 2003 CLC 1068; Nawabzada Mir Baluch Khan Mari v. Mir Mahabat Khan Mari PLD 2003 Quetta 42; Khan Muhammad Yousaf Khan Khatak v. S.M. Yaqoob and 2 others PLD 1973 SC 160; Election Commission v. Javed Hashmi PLD 1989 SC 396; Najaf Abbas Sial v. Hassan Wali Khan 2003 CLC 1068; Ch. Nisar Ali Khan v. Ghulam Sarwar Khan 2003 CLC 442; Aftab Shaban Mirani v. President of Pakistan 1998 SCMR 1863 and Muhammad Safdar Abbasi v. Amir Yar Malik and 3 others 2004 SCMR 1602 ref.

Anwar Mansoor Khan and Bashir Ahmed Khan for Petitioner.

Ali Ahmed Junejo for Respondents.

Agha Zafar, A.A.-G. Atta-ur-Rehman, Assistant Election Officer.

Date of hearing: 27th December, 2007.

2008 Y L R 1505

[Karachi]

Before Farrukh Zia G. Shaikh, J

KHAN MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. 623 and 373 of 2007, heard on 28th March, 2008.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Bail, grant of---Mere fact that the Bus from which 200 kilograms of "Charas" was recovered was carrying only two persons had pointed towards the innocence or at least lack of knowledge on the part of accused that "Charas" was concealed in the Bus---Any person could have concealed "Charas" in the Bus, as occupation of the accused was only that of a cleaner and the owner of the Bus was shown to be an absconder in the Challan---Accused, therefore, at this stage could not be said with certainty that he had concealed the "Charas" in the Bus or had any knowledge about its presence therein---Case of further inquiry into the guilt of accused, thus, was made out and he was allowed bail accordingly.

Ashraf Ali v. The State 2005 SLJ 351 ref.

Mumtaz Ali Khan Deshmukh for Applicant.

Habibur Rehman Shaikh, Asstt. A.-G. along with Fazal Muhammad Khokhar, SPP for Narcotics.

2008 Y L R 1508

[Karachi]

Before Sarmad Jalal Osmani and Azizullah M. Memon, JJ

Mian MUNWR AHMED---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.P. No.D-91 of 2005, decided on 3rd May, 2005.

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

----S. 2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Placing name in the Exit Control List---Name of petitioner was placed in the Exit Control List on the ground that certain criminal and civil cases were pending against him---Validity---Mere pendency of civil/criminal cases against a citizen was no ground to deny him fundamental right of freedom to travel within or outside Pakistan---No reason had been given in the notification whereby petitioner's name was put in Exit Control List, which meant that petitioner had been condemned unheard---Government, though could, in exercise of power available under S.2 of the Exit from Pakistan (Control) Ordinance, 1981, place the name of a citizen on the Exit Control List, but such power could not be exercised arbitrarily or without giving right of fair hearing to a citizen against whom action was proposed to be taken---Constitutional petition was allowed to the extent that the petitioner could go abroad and return to Pakistan freely.

Abdul Hafiz Prizada v. Government of Pakistan 1989 CLC 79; Wajid Shamas-ul-Hassan v. Federation of Pakistan PLD 1997 Lah. 617; Arshad Sami Khan v. Federation of Pakistan 1998 MLD 490; Saleem Akhtar v. Federation of Pakistan PLD 1999 Kar. 177; Major (Retd) Mir Mazhar Qayyum v. Federation of Pakistan 1999 YLR 111; Munawar Ali Sherazi v. Federation of Pakistan PLD 1999 Lah. 459; Babar Khan Ghori v. Federation of Pakistan PLD 1999 Kar. 402; Sikandar Hayat Khan v. Government of Pakistan PLD 2003 Pesh. 102; Mehtab Ahmed v. Federation of Pakistan 2003 CLC 246 and Hashmat Ali Chawla v. Federation of Pakistan PLD 2003 Kar. 705 rel.

Hasan Akbar for Petitioner.

S. Mehmood Alam Rizvi, D.A.-G.

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

2008 Y L R 1516

[Karachi]

Before Dr. Rana Muhammad Shamim, J

KHADIM HUSSAIN and another---Applicants

Versus

THE STATE---Respondent

Cr. Bail Application No.80 of 2008, heard on 24th March, 2008.

Criminal Procedure Code (V of 1898)---

----S.498---Pre-arrest bail, grant of---No objection having been raised by the State Counsel for confirmation of interim pre-arrest bail, a case was made out for grant of pre-arrest bail to accused---Accused had, inter alia, established that they were prevented from approaching the concerned lower Court for the relief of bail before arrest and thus they were justified in directly approaching High Court for getting the said relief and their bail application was directly entertained by High Court accordingly---Interim pre arrest bail granted to accused was confirmed in circumstances.

Jam Sadiq Ali v. State 1999 PCr.LJ 1910; State v. Mukhtar Ahmed Awan 1991 SCMR 322; Dr. M. Shoaib Saddal v. State 1997 SCMR 1234 and Riaz Ahmed Gohar Shahi v. The State 2000 PCr.LJ 6 ref.

Imdad Ali Awan for Applicants.

Muhammad Iqbal Memon for the State.

2008 Y L R 1523

[Karachi]

Before Nadeem Azhar Siddiqi, J

SHARJEEL YOUNUS---Plaintiff

Versus

SALAHUDDIN MIRZA---Defendant

Civil Suit No.1197 of 2004, decided on 2nd January, 2008.

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

----O.VII, R.11---Specific Relief Act (I of 1877), S. 12---Rejection of plaint---Suit for specific performance of agreement---While considering an application under O. VII, R.11, C.P.C. only contents of the plaint were to be seen and defence could not be considered---Plaint could only be rejected if it would come within the mischief of O. VII, R.11, C.P.C.-Plaintiff in the present case had not claimed any declaration and for claiming specific performance disclosing of legal character was not a requirement of law---Question whether at the time of entering into agreement, the defendant had title of the property or not was a question of fact and same could not be decided without allowing the parties to lead evidence---Issue with regard to controversy had been framed---Application under O. VII, R.11 C.P.C. appeared to be frivolous and not maintainable and was dismissed accordingly.

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

----S. 10---Stay of suit---Application for---Main purpose of S.10, C.P.C. appeared to prevent courts of concurrent jurisdiction from adjudicating and proceeding with the trial of two suits in which the matter in issue was directly and substantially the same between the same parties---Object of S.10, C.P.C. was to avoid multiplicity of proceedings and conflict of decisions---Matters in the two suits were already consolidated, there was no question of parallel, multiplicity of proceedings and conflict of decision/opinion---Application under S.10, C.P.C. having been filed just to waste the time of the Court, application having no merits was dismissed with costs.

Muhammad Khalid and Aga Faquir Muhammad for Plaintiff.

Salahuddin Mirza, Defendant in person.

Date of hearing: 24th December, 2007.

2008 Y L R 1530

[Karachi]

Before Dr. Rana Muhammad Shamim, J

RASHID AHMED and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 389 of 2003, decided on 6th February, 2008.

Penal Code (XLV of 1860)---

----S. 398---Appreciation of evidence---Raiding party on having received specific information about the presence of accused duly armed with the intention to commit dacoity at a particular place, arrested the accused on the spot, who had failed to explain their presence at odd hours of the night---One mauser and three hatchets had been recovered from the possession of accused and the mashirnama of recovery of arm was prepared in the head lights of police mobile van which was not challenged Allegation of enmity made by accused against the members of raiding party was not at all proved on record---Complainant police officer had offered explanation for non-availability of independent witnesses of recovery during odd hours of night----Non production of weapon in Court was not fatal to the prosecution case, as the mashirnama of the recovery of weapons had already been exhibited on record---Prosecution witnesses had deposed that the said weapons were in the possession of accused at the time of their attempt for robbery and they had been apprehended with the arms which were recovered in the presence of prosecution witnesses---No illegality, infirmity, misreading or non-appraisal of evidence in the impugned judgment was pointed out---Conviction and sentence of accused were upheld in circumstances.

Ali Nawaz and two others v. The State PLD 1996 Kara 146; Hameer and others v. the State 1992 PCr.LJ 2030; Sarfraz v. The State 2007 SCMR 830; Malik Aman v. The State 1986 SCMR 17; Mohammad Shah v. The State 1984 SCMR 278; Mohammad v. The State PLD 1981 SC 635; Rehan v. The State 1976 SCMR 72; Emperor v. Santa Singh AIR 1944 Lahore 339; Ahmed v. The State PLD 1963 SC 737 and Khadim alias Khooni v. The State PLD 1971 Lah. 776 ref.

A. Shakoor A. Abbasi for Appellants.

Abdul Jabbar Lakho, Asstt. A.-G. for the State.

Date of hearing: 16th January, 2008.

2008 Y L R 1536

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

MUHAMMAD ASLAM MIANOOR and another---Appellants

Versus

Messrs PAKISTAN CABLES LTD. and another---Respondents

H.C. Appeal No. 66 of 2007, decided on 13th February, 2008.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1, 2 & 4---Specific Relief Act (I of 1877), Ss. 42, 54 & 55---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Injunction, grant of---Appellants had assailed order passed by the Single Judge whereby he had allowed application under O.XXXIX, Rr.1 & 2, C.P.C. and dismissed application filed by the appellants under O.XXXIX, R.4, C. P. P.C. ---Validity---Equitable remedy by way of injunction, whether mandatory or interlocutory, was discretionary in nature, and could never be granted as a matter of right---Court had to consider prima facie whether balance of convenience lay in granting the injunction or not and whether justice would be served by an order of injunction-Respondent had failed to make out a prima facie strong case---Scale of balance was in favour of the appellants rather than the respondent---Impugned order was not sustainable in law as Single Judge had not exercised his discretion judiciously in granting temporary injunction against the appellants---Impugned order was set aside and appeal was disposed of accordingly.

Muhammad Sharif v. Additional District Judge Lahore and others 1991 SCMR 1996; Shahzada Muhammad Umar Beg v. Sultan Mehmood Khan and another PLD 1970 SC 139 and Pakistan International Air Lines Corporation v. Messrs Hazir (Pvt.) Ltd. and another PLD 1993 Kar. 190 rel.

Mushtaq A. Memon, along with Shahid Ail Ansari for Appellants.

K.A. Wahab for Respondent No.1.

Abdul Mubeen Lakho for Respondent No.2.

2008 Y L R 1544

[Karachi]

Before Dr. Rana Muhammad Shamim, J

MUNIR AHMAD alias FAZALULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Pre-arrest Bail Application No.S-164 and M.As. Nos. 654, 655 of 2008, decided on 31st March, 2008.

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

----S.498---Penal Code (XLV of 1860), Ss. 302/337-H- (2)/34---Pre-arrest bail, refusal of---Specific role was attributed to the accused of catching hold of the deceased, which had facilitated co-accused to hit direct fire upon him which caused his death---Eye-witnesses had fully implicated the accused by describing the role performed by him in the occurrence--Involvement of accused, prima facie, in commission of offence could not be ruled out---No apprehension was shown on account of motivation on the part of police---Right of pre-arrest pail was limited to certain conditions which were lacking in the case of accused---Pre-arrest bail was declined to accused in circumstances.

Sukhio v. The State 2002 YLR 3663; Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66; Muhammad Sadiq and another v. The State 1999 SCMR 1654; Abdul Rehman v. Javed and 2 others 2002 SCMR 1415; Akhtar Hussain v. The State 1996 PCr.LJ 1816; Haji Maa Din and another v. The State and another 1998 SCMR 1528; Qasim v. The State 2001, YLR 214; Muhammad Afzal v. The State 2005 YLR 1812; Zia-ul-Hassan v. The State PLD 1984 SC 192; Muhammad Azam v. The State 1996 SCMR 71; Muhammad Sarwar v. The State 1972 SCMR 57; Muhammad Yaqub v. Muhammad Ramzan and another PLD 1987 Lahore 99; Abdul Ghani v. The State 1996 SCMR 555 and Muhammad Sabtain Shah v. The State 1978 SCMR 403 ref.

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

----S.498---Pre-arrest bail---Scrape---Court has no power to grant bail before arrest unless all the conditions laid down by superior Courts from time to time are satisfied, most essential of them being the intended arrest of the accused tainted with mala fides, which must be specifically stated and also irreparable injury by motivated police.

Zia-ul-Hassan v. The State PLD 1984 SC 192 ref.

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

----S.498---Pre-arrest bail, grant of---Essentials---Person seeking pre-arrest bail has to establish that case was mala fide and he was being involved to be disgraced---Where none of such facts exist, concession of pre-arrest bail cannot be extended to the applicant.

Muhammad Yaqub v. Muhammad Ramzan and another PLD 1987 Lahore 99 ref.

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

----S. 498---Pre-arrest bail---Scope---Question involved inquiry into factual matters---Such matters cannot be undertaken while deciding pre-arrest bail applications.

Muhammad Sabtain Shah v. The State 1978 SCMR 403 ref.

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

----Ss. 497/498---Bail---Assessment of evidence----Evidence of parties cannot be assessed or tested in depth at bail stage, purpose being to avoid conflict of opinion one way or the other on the merits of the case.

Abdul Ghani v. The State 1996 SCMR 555 ref.

Zubair Ahmed Rajput for Applicant.

Muhammad Mehmood and S. Yousfi, Asstt. A.-G. for the State.

2008 Y L R 1550

[Karachi]

Before Muhammad Afzal Soomro, C.J.

MUHAMMAD SHAHID---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 977 of 2006, decided on 7th December, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 392 & 397/34---Bail, refusal of---Case of accused was not at par with the case of co-accused who had been granted bail earlier---Accused was caught red handed by the complainant with the help of others---Pistol of .30 bore with loaded magazine containing two bullets was recovered from the accused---Other mohalla people and nearby shopkeepers had also gathered at the spot who beat accused and when the police came he was handed over to the police---Co-accused was granted bail on the ground that neither his name appeared in the F.I.R nor any recovery was effected from him, and name of said co-accused was disclosed by accused---Bail on the ground of rule of consistency would attract when there appeared same role and same allegations, but in present case facts and circumstances were quite different to the facts and circumstances of co-accused who had been granted bail by the Trial Court---Contentions with regard to violation of S.103 Cr.P.C. and false implication of accused, had no force for the reasons that accused was caught at the spot by the complainant with the help of his salesmen and handed over to police---No proof in respect of enmity of accused with the complainant had been furnished---No case for grant of bail having been made out, his bail application was dismissed.

Ghazi Darban Hisbani for Applicant.

Mrs. Shahida Jatoi for the State.

2008 Y L R 1560

[Karachi]

Before Muhammad Moosa K. Leghari and Mrs. Yasmin Abbassey, JJ

SHAHID HUSSAIN and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. D-20 of 2007, decided on 18th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of---Further inquiry---Prosecution story, revealed that accused, duly armed with weapons, had fired at the Excise Officials to cause their murder, but no such case was registered by the Excise Officials at any Police Station---Authority of Excise Officials to secure the licensed weapons of accused persons required to be legally examined---Inspite of the fact that the Excise Officials had prior information, they did not make any effort to associate a public witness to witness the recovery and seizure, of narcotic substance coupled with the fact that alleged recovery was effected at 5-00 p.m. and that too at the Bus Stand where the passengers were found available all the time---In view of the pendency of a murder case filed by one of accused persons against the Excise Officials, the possibility of registration of a false case in retaliation could not be ruled out---Case of accused persons, in given circumstances called for further inquiry entitling them to the concession of bail---Accused were admitted to bail, in circumstances.

Muhammad Sharif Siyal for Applicants.

Anwar H. Ansari for the State.

2008 Y L R 1565

[Karachi]

Before Azizullah M. Memon, J

WAHID BUX and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.166 of 2007, decided on 31st May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.392---Bail before arrest, refusal of---Names of all three accused persons appeared in the F.I.R and according to the complainant they were clearly seen by him and identified them in the head light of the motor vehicle---Cash amount with a mobile phone set were robbed from the pocket of complainant by accused persons with two other culprits---Merely because civil litigation was pending before the competent court of civil jurisdiction or that the suit had been decided by it, same would be no ground to record a finding that accused were not involved in the alleged incident---Enmity was a double edged weapon which cuts both ways and the investigation was yet to be got completed to see whether, due to the said civil litigation between the parties, the complainant could have possibly filed the said F.I.R falsely or not---For the purpose of bail before arrest, accused had to prove mala fides at the hands of the investigation police to allege that on the basis of any such mala fides they were entitled to the grant of bail, but no mala fides had been alleged by accused at the hands of the investigation police---When the investigation had not yet completed, at such premature stage of the case, accused did not appear to have made out any case for grant of bail before arrest---Bail application was dismissed---Interim order of grant of bail, stood recalled.

Nasir Rizwan Khan for Applicant.

Agha Zafir Ali for the State.

2008 Y L R 1568

[Karachi]

Before Khilji Arif Hussain, J

Mst. TANVEER FATIMA---Plaintiff

Versus

Commander MUHAMMAD AKRAM KHAN and another---Defendants

Civil Suit No.28 of 2003, decided on 24th September, 2003.

Specific Relief Act (I of 1877)---

----S. 12---Limitation Act (IX of 1908), Art.113--Suit for specific performance of contract---Defendant in the case agreed to sell and plaintiff agreed to purchase the suit property for sale consideration---Defendant had received entire sale consideration mostly by pay orders---Plaintiff was holding original sub-lease of the property in question in her possession and defendant had admitted and acknowledged receipt of entire sale consideration---Defendant had handed over possession of the property in question to the plaintiff---One of the paras of agreement of sale though had provided that defendant would execute sale-deed in favour of the plaintiff within six months from the date of the agreement, but said period prescribed in the agreement of sale had not been made essence of the contract so as to attract first part of Art.113 of the Limitation Act, 1908---Defendant had not refused to perform his part of the obligation under agreement till the suit had been filed---Plaint was on oath, duly supported with necessary documents and defendant had failed to contravene the contents of plaint---Suit was decreed as prayed for.

Mirza Sarfraz Ahmed for Plaintiff.

Nemo for Defendants.

Date of hearing: 24th September, 2003.

2008 Y L R 1575

[Karachi]

Before Muhammad Afzal Soomro, C.J.

KHALILUR REHMAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1123 of 2007, decided on 30th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of--Accused was behind the bars since 2005---Fair and expeditious trial being right of an accused, where accused was able to show that there was unexplained delay on the part of the prosecution to proceed with the case and conclusion of the trial was unexplained, court could enlarge him on bail---Entire quantity of charas not sent for chemical analysis and weighment etc. to confirm the weight of alleged recovered charas---Enmity existed between accused, complainant and his subordinate--Proceedings against the Investigating Officer for false involvement, of persons were also on record---For granting benefit of doubt to accused, it was not necessary that there should be many circumstances creating doubts, if a simple circumstance would create reasonable doubts in the prudent mind about the guilt of accused, then he would be entitled to such benefit not as a matter of grace and concession, but as a matter of right--Accused, in circum­stances was entitled to the grant of bail.

Noor Muhammad v. The State 2007 YLR 1973; Nadeem v. The State 2007 MLD 1092; Hussain Abid Jaffary v. The State 2006 PCr.LJ 58; David Dufaur v. The State SBLR 2001 SC 132; Anwar Ali and another v. The State 2002 PCr.LJ 186 and Muhammad Aslam v. The State 1999 SCMR 2147 rel.

Adnan A. Karim for Applicant.

Pervez Memon for the State.

2008 Y L R 1586

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

UNITED BANK LTD. through Attorneys---Appellant

Versus

MUHAMMAD IRFAN---Respondent

First Appeal No. 62 of 2004, decided on 21st April, 2008.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Plea of fraud and misrepresentation---Provisions of S.12(2), C.P.C. could only be imported when there was misrepresentation, fraud played upon the court or upon a party in the legal proceedings for non-adherence to the proper jurisdiction which was missing in the case---Impugned order was set aside, case was remanded to the Trial Court for fresh adjudication of application filed under S.12(2), C.P.C. after notice to respondent.

Malik M. Riaz for Appellant.

Nemo for Respondent.

2008 Y L R 1587

[Karachi]

Before Munib Ahmad Khan and Syed Pir Ali Shah, JJ

SHAHZAD YOUSAF---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

C.P. No.D-281 of 2006, decided on 18th January, 2008.

Sindh Urban State Land (Cancellation of Allotment, Conversion and Exchange) Ordinance (III of 2001)---

----S. 4---Constitution of Pakistan (1973), Arts. 199, 23 & 24---Constitutional petition---Petitioner was stated to have been granted land on 99 years' lease at the rate of Rs.100 per square yard for residential/ commercial purpose by the Authority vide allotment order---Case of petitioner was that prior to promulgation of Sindh Urban State Land (Cancellation of Allotment, Conversion and Exchange) Ordinance, 2001 he had repeatedly approached the authorities concerned for issuance of challan for payment of 25% lease money, but same could not be materialized due to change of government---Said challan was not issued by the authorities due to any fault on the part of the petitioner---Documents and material available on record were the concrete proof that petitioner was vigorously pursuing his matter consistently---Petitioner could not, in any case, be termed as negligent, irresponsible or defaulter while performing his legal obligations---On the contrary authorities seemed to have ignored and neglected while issuing challan to the petitioner to enable him to make payment of differential amount duly assessed and fixed by the Enquiry Commission---Authorities did not apply the rule of consistency and acted otherwise, resulting in violation of legal and valid rights of the petitioner vested in him under the Constitution which compelled him to file constitutional petition which was accepted---Authorities were required to issue challan of occupancy charges/lease money of land in question to the petitioner for payment in accordance with the price determined and approved by the Commission and after its payment, regularize land in question and issue necessary N. O. C. in favour of the petitioner in accordance with the Sindh Urban State Land (Cancellation of Allotment, Conversion and Exchange) Ordinance, 2001---Authorities, in circumstances, were restrained from alienating, interfering, transferring and/or leasing out land in question to any one else---Constitutional petition was allowed.

Mushtaq A. Memon and Muhammad Ali Hakro for Petitioner.

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

Date of hearing: 18th January, 2008.

2008 Y L R 1595

[Karachi]

Before Dr. Rana Muhammad Shamim and Farrukh Zia G. Shaikh, JJ

Mst. SEEMA JOTOI---Petitioner

Versus

PROVINCE OF SINDH through Secretary Home Department and 2 others---

Respondent

Constitutional Petition No.D-50 C.M.A. No.202 of 2008, decided on 1st April, 2008.

(a) Maxim---

----Actus non facit reum nisi means sit rea--Meaning---Deed does not make a man guilty unless his mind is guilty.

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

----Arts. 177 & 120---Offence---Onus to prove---Prosecution or complainant, as the case may be, bears an extremely heavy onus of proof, to prove beyond reasonable doubt every element of offence with which accused was charged.

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

----Ss.365-B & 452---Child Marriage Restraint Act (XIX of 1929), S.2 (a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of

F.I.R.---Age of marriage---Petitioner contracted marriage without consent of her parents and had obtained Free Will Certificate from the court of Judicial Magistrate---Father of petitioner lodged F.I.R. on the ground that she was abducted and was a minor at the time when Nikah was performed---Medical examination of the petitioner was performed on direction of High Court---Medical Board declared petitioner to be of about 17 years of age, having fully developed secondary sexual character breast, axillary hair and pubic hair---Medical Board also noted that petitioner had started menstrual cycle since 3/4 years and the same were regular---Effect---Petitioner had reached age of puberty at the time of her marriage and under S.2(a) of Child Marriage Restraint Act, 1929, child meant, a person, if a male, under 18 years of age and if a female, under 16 years of age---Entire case of the petitioner and her husband was false and no case was made out under Ss.365-B and 452, P.P.C.-High Court restrained the parents of petitioner from interfering in peaceful matrimonial life of petitioner and her husband---Petitioner was never abducted and She married of her own free will and the F.I.R. was quashed---Petition was allowed accordingly.

Mst. Aziz Mai v. S.H.O. Police Station Jalalpur Pirwala, District Multan and another PLD 1977 Lah. 432 and Mst. Sughran Mai v. The State PLD 1980 Lah. 414 ref.

Abdul Haleem Qureshi for Petitioner along with petitioner in person.

Manzoor Ahmed.Junejo for Respondent No.3 (with Respondent No.3 in person).

Habibur Rehman Shaikh, Asstt. A.-G., Sindh for Respondents.

2008 Y L R 1620

[Karachi]

Before Khawaja Naveed Ahmed, J

MAJEED and another---Appellants

Versus

THE STATE Respondent

Criminal Appeal No.S-89 of 2007, decided on 5th May, 2008.

Penal Code (XLV of 1860)---

----S. 302/34-Setting aside conviction and sentence of accused persons and re-construction of destroyed record---High Court received letter from the Trial Court in which Trial Court had submitted that all pending cases as well as record and proceedings of disposed of cases had been burnt or taken away by mob; during disturbances which had occurred on account of assassination of `Mohtarma Benazir Butto'; that nothing had been left unburnt/unlooted in' the office of the Trial Court; that paper book could not be prepared; that copies of the evidence recorded by the Trial Court during the trial were not available and that as record could not be reconstructed, it was not possible to decide appeal on merits---State Counsel conceded to the request of the counsel for accused that conviction and sentence could be set aside and case be remanded to the Trial Court for fresh proceedings---Validity---Only course, in circumstances was to set aside the conviction and sentence awarded to accused by the Trial Court and remand the case to the Trial Court for re­trial---Conviction and sentence of accused were set aside and case was remanded to the Trial Court for proceeding afresh.

AIR (30) 1943 Madras 391(2) rel.

Asif Ali Abdul Razak Soomro for Appellants.

Nisar Ahmed G. Abro for the State.

Date of hearing: 5th May, 2008.

2008 Y L R 1634

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD ZAMAN, EDUCATIONAL MEMORIAL SOCIETY through S. Rizwan Ahmed---Plaintiff

Versus

CITY DISTRICT GOVERNMENT, KARACHI through City Nazim and another---Defendants

Suit No. Nil of 2006, decided on 16th May, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction against government--Scope---Suit for declaration against government could be filed in respect of right to any property and it was not necessary that plaintiff should possess title of the same---Removal of encroachment was the obligation and public duty of the government and the plaintiff could ask the government to discharge their public duty by filing suit---Relief which had not been claimed, could be given to the plaintiff by moulding the relief which was available to the plaintiff under the circumstances of the case---Authority concerned was directed to take all possible measures for removal of encroachment from the adjoining area of the plot of plaintiff.

Hyderabad Municipal Corporation v. Messrs Fateh Jeans Ltd. 1991 MLD 284 ref.

Shahenshah Hussain for Plaintiff.

Manoor Ahmed Defendant No.1 along with Syed Jameel Ahmed, DDO, Amenity Plot Cell (LM-I), KDA Wing, CDGK.

2008 Y L R 1641

[Karachi]

Before Azizullah M. Memon and Munib Ahmad Khan, JJ

MUHAMMAD YASIN and 4 others---Petitioners

Versus

III-ADDITIONAL DISTRICT JUDGE, KARACHI SOUTH and others---Respondents

Constitutional Petitions Nos. D-991 and S-460 of 2002, decided on 11th June, 2007.

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

----S. 15-Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Bona fide personal need of landlord---Contention of the tenant was that an earlier application of the landlord for ejectment having been dismissed upto the Supreme Court, present application for ejectment was hit by principles of res judicata---Validity---Facts and circumstances of the earlier decided ejectment application were not identical with the present one for the simple reason that the earlier one was not dismissed on merits---Fact that earlier ejectment application stood dismissed, would not come in the way of the landlord to file the fresh one on the ground of personal bona fide use---High Court, in circumstances, allowed the constitutional petition, set aside the judgment/order passed by the two courts below and remanded the case to the Rent Controller with direction that further evidence of both the parties be recorded on the said point within a specified period and then to hear the parties afresh to decide the ejectment application according to law.

Abid Masood and others v. Dilshad Khan 1995 SCMR 146; Haroon Kassam and another v. Azam Sulleman Madha PLD 1990 SC 394; Muhammad Yousaf and another v. M. Ibrahim Khandwani PLD 1991 Kar. 226; Shahid Nadim and others v. Muhammad Shafi 2000 SCMR 542; Muhammad Inayat v. Saleh Muhammad 2001 SCMR 599; Mst. Zohra Bibi v. Additional District Judge and others 1990 SCMR 1243; Mst. Anwari Begum v. Noor Hassan 1984 CLC 265; Muhammad Sanaullah v. Mehran Feed Industries Ltd. and other 1994 CLC 2141; Pir Bakhsh and others v. Chairman Allotment Committee and others PLD 1987 SC 145; Muhammad Tufail v. Atta Shabir and others PLD 1977 SC 220; Ch. Rehmat Ali and others v. Custodian Evacuee Property Lahore and others PLD 1966 (W.P.) Kar. 31; Muhammad Sulleman and another v. Settlement Authorities and others 1969 SCMR 163; Abdul Majeed and another v. Muhammad Riaz Hashim and another 1968 SCMR 816; P.I.A. Corporation v. Mst. Safooran Khanam 1981 CLC 1636; Messrs Eveready Pictures Ltd. v. Chaman Begum PLD 1982 Kar. 770; Mst. Toheed Khanam v. Muhammad Shamshad 1980 SCMR 593; Muhammad Yasin v. Shabbir Ahmad 1985 CLC 2111; Haji Abdullah Jan v. Anwar Khan PLD 2000 SC 787; Mst. Saira Bai v. Syed Anisur Rahman 1989 SCMR 1366 and Allies Book Corporation v. Sultan Ahmed and others 2006 SCMR 152 ref.

Abdul Aziz Khan and Abdul Qadir Khan for Petitioners.

Muhammad Sher Awan for Respondents.

Dates of hearing: 22nd and 23rd May, 2007.

2008 Y L R 1688

[Karachi]

Before Muhammad Afzal Soomro, C J

AZHAR AZIZ KHAN through his Sub-Attorney and others---Appellants

Versus

SHAFAAT RASOOL JANJUA and 2 others---Respondents

Second Appeal No.36, C.M.As. Nos.3063, 3064 of 2007 and 72 of 2008, decided on 7th March, 2008.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O. VII, R.11(d)---Limitation Act (IX of 1908), S.3 & Art.22---Suit for specific performance of sale agreement and damages---Limitation---Suit filed on 1-3-2002 regarding agreement executed on 9-2-1992---Application for rejection of plaint for being barred by Limitation---Validity---Limitation for reliefs of specific performance and damages expired on 9-2-1993; after expiry of limitation prescribed by law, there could be no revival of cause of action---Suit filed on 1-3-2002 was barred by limitation, thus, its pendency would amount to abuse of process of law---Plaint of such suit was rejected under O. VII, R. 11, C. P. C.

2004 SCMR 1611; 2002. SCMR 134; 2001 SCMR 159; 2001 SCMR 424; 2000 SCMR 440; 1999 CLC 1905; PLD 2003 Kar. 253; 1996 SCMR 696; 2003 SCMR 1261; 2001 MLD 1615 and PLD 2006 Kar. 593 ref.

Messrs Matin Corporation v. Messrs Plastic Rafters (Pvt.) Ltd. PLD 2006 SC 621 fol.

Mirza Sarfaraz Ahmed for Appellants.

K.A. Wahab for Respondents Nos.1 and 2.

Abdul Wajid Wayne for Respondent No.3.

2008 Y L R. 1696

[Karachi]

Before Nadeem Azhar Siddiqi, J

ABDULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.579 of 2007, decided on 8th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 337-H(ii), 114, 148 & 149---Bail, grant of---Further inquiry---Abscon­dence---Allegation against accused was his presence on the place of incident armed with rifle---No other overt act had been alleged against accused except general allegation of firing on the complainant party---Complainant and prosecution witnesses had filed their affidavits exonerating accused, which had made the case doubtful and fit for further inquiry into the guilt of accused---Accused though remained absconder and absconder would lose some of his rights and was not entitled to concession of bail, but the rule that fugitive should not be allowed bail was not absolute and was open to exception---Inspite of abscondence of accused the rule of consistency demanded that bail should be. allowed to accused as his case was on better footing than accused persons who had been granted bail---Due to filing of the affidavits by the complainant and prosecution witnesses, a case of further inquiry had been made out and irrespective of abscondence of accused he was entitled to grant of bail---From the affidavits filed in the case it appeared that no reasonable grounds existed for believing that accused had committed a non-bailable offence---Bail was granted.

S. Amanullah Shah v. The State PLD 1996 SC 241; Manzoor Ahmed v. State PLD 1972 SC 81; State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322 and M. Sadiq v. State PLD 1985 SC 182 ref.

Asif Ali Abdul Razzak Soomro for Applicant.

Naimatullah Bhurgri for the State.

2008 Y L R 1701

[Karachi]

Before Khalid Ali Z. Qazi, J

Mrs. ZUNAIRA KHAN through attorney---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Petroleum and

Natural Resources and others---Defendants

Suit No.55 of 2008, decided on 25th April, 2008.

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

----Ss.42 & 54---Sindh Buildings Control Ordinance (V of 1979), S.4---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Suit for declaration and injunction---Residential plot---CNG Filling Station, installation of---Temporary injunction against installation of CNG Station, application for---Validity---All residential plots including suit plot had been converted from residential to commercial on payment of commercialization fee---Suit plot was already in commercial use---Commercial activities including CNG Filling Station were being carried out on suit road---Plaintiff had not objected to other plots located on suit road--- Plaintiff had got no legal character, right or status in suit plot---Defendant had obtained "NOC" and license to install CNG Station---Official acts in present case could be presumed to have been performed regularly---CNG was environment friend, safe and economical fuel source in market---CNG Stations and Petrol Pumps were found in every residential/commercial/industrial areas---Plaintiff had no prima facie case in his favour---Plaintiff's pleas would require deeper appreciation of evidence at the time of trial---Granting of injunction would cause greater inconvenience to defendant in exercising his legal (ownership) rights over suit plot---Refusal of injunction would not cause to plaintiff irreparable loss, which, if any, could be compensated in terms of damages---Application for temporary injunction was dismissed in circumstances.

PLD 2007 SC 472; 2008 SCMR 133; 2004 CLC 767; 1984 CLC 340; Rehmat Petroleum Service's case PLD 2006 Lah. 339 rel.

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

----O.XXXIX, Rr.1 & 2---Temporary injunction, grant or refusal of---Discretion by Court, exercise of---Principles.

Relief of injunction is discretionary and Court is not bound to grant it in every case and it is not to be granted unless the Court is satisfied as to its real need. The discretion is to be exercised in accordance with reason and sound judicial principles. Court, while dealing with application for grant of injunction, has to look and assess all the circumstances obtaining in suit and moreso to equitable relief. Discretion vested in a Court of law has to be exercised judicially and equitably ensuring all the times that the twain of law and justice are adequately applied and administered.

2000 SCMR 780 rel.

Saadat Yar Khan for Plaintiff.

Tahawar Ali Khan for Defendant No.2.

Asim Iqbal for Defendant No.3.

Muhammad Iqbal Memon for KBCA Defendant No.4.

Raja Qasit Nawaz for Defendant No.5.

2008 Y L R 1717

[Karachi]

Before Nadeem Azhar Siddiqi, J

RAJIB ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-7 of 2008, decided on 4th April, 2008.

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---State Counsel raised no objection to the grant of bail on the grounds that offence did not attract prohibition contained in S.497(1), Cr.P.C. and the police party had failed to associate independent person, though they were having knowledge well in advance---Alleged recovery was made from the dickey of the car and not from the exclusive possession of accused who was allegedly captured while running away from the car---Investigating Officer had not examined the owner of car so as to find out the truth regarding the plea taken by accused during investigation---Investigation appeared to have not been conducted in a proper way, in such a situation, it could not be safely said that it was accused who was actually possessing and transporting the wine---Offence did not carry punishment, which could cover the prohibition contained in S. 497(1), Cr.P.C. coupled with the fact that despite information well in advance the complainant did not associate any independent person to witness and attest the alleged recovery though the same was made in day time---Case against accused needing further inquiry, he was allowed bail, in circumstances.

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

Abid Hussain Kalhoro for Applicant.

Nisar Ahmed G. Abro for State Counsel.

2008 Y L R 1721

[Karachi]

Before Nadeem Azhar Siddiqi, J

KHAWAR alias FAHAD---Applicant

Versus

ASIF ALI and another---Respondents

Criminal Misc. Application No.23 of 2008, decided on 9th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324, 337-H(ii), 147, 148 & 149---Bail, cancellation of---Application for---Trial Court had granted bail to accused after tentatively assessing the material available on record---Bail granting order of the Trial Court, could not be said to be arbitrary and perverse---Once bail was granted, exceptional grounds were required for cancellation of the same---No material was available on record to show that accused had misused the concession of bail---Application for cancellation of bail was rejected.

Miran Bux v. The State PLD 1989 SC 347 rel.

Aligul Shaikh for Applicant.

Nisar Ahmed Abro, State Counsel.

2008 Y L R 1733

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD BACHAL alias BACHAL CHANDIO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.595 of 2007, decided on 11th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 452 & 504/34---Bail, grant of---Further inquiry---State Counsel after going through the record had submitted that no recovery had been made from accused as well as from the place of incident and had also confirmed the delay in recording statement of the prosecution witnesses under S.161, Cr.P.C.---Plea for bail was the plea of alibi---Accused had contended that on the date of incident he was admitted to hospital where he was under treatment---Police recorded the statement of Doctor concerned who confirmed that accused was under his treatment on the day of occurrence---Plea of alibi coupled with delay in lodging F.I.R. and recording the statements of prosecution witnesses, had created reasonable doubt about the involvement of accused---Case of further inquiry into the guilt of accused had been made out---In absence of reasonable grounds for believing that accused had committed a non-bailable offence, accused was released on bail.

Ajmal Khan v. Liaquat Hayat PLD 1998 SC 97; Syed Amanullah Shah v. The State PLD 1996 SC 241 and Manzoor Ahmed v. State PLD 1972 SC 81 ref.

Taj Muhammad for Applicant.

Nisar Ahmed' G. Abro, for the State.

2008 Y L R 1739

[Karachi]

Before Nadeem Azhar Siddiqi, J

AIJAZ ALI---Applicant

Versus

THE STATE---Respondent

Crl. Bail Application No.609 of 2007, decided on 9th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 353, 412, 148 & 149---Bail, grant of---Further inquiry---Allegation against accused was indiscriminate firing upon the police party, but in the firing none got any injury---Accused was allegedly apprehended on the spot alongwith weapon after cross firing, but the police was not able to recover any empty from the place of vardat---Mashirnama of vardat was prepared after one day of the incident and the reasons of such delay were not supplied---Police had not sealed the recovered weapon at the spot nor any material was on record to show that same was sent to ballistic expert for his opinion--From non-recovery of empties coupled with delayed preparation of mashirnama and non sealing and sending the crime weapon to expert, had created doubts regarding the involvement of accused in the commission of offence---Since they doubt was created, a case of further inquiry had been made out---Accused, in circumstances was released on bail.

S. Amanullah Shah v. The State PLD 1996 SC 2412 rel.

Ahsan Ahmad Qureshi for Applicant.

Nisar Ahmed Abro, State Counsel.

2008 Y L R 1747

[Karachi]

Before Muhammad Athar Saeed, J

HIDAYAT ULLAH alias HIDOO---Applicant

Versus

THE STATE---Respondent

Crl. Bail Application No.S-147 of 2007, decided on 12th June, 2007.

Criminal Procedure Code (V of 1898)---

---Ss. 497(2) & 103---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Further inquiry---Name of accused having not been mentioned in F.I.R., it was essential that identification parade should have been held---Where accused had not been nominated in the F.I.R then non-holding of identification parade, after the arrest of accused person, would bring his case within the purview of S.497(2), Cr.P.C.-Holding of test identification parade could not be dispensed with simply for the reason that accused had subsequently been found in possession of robbed goods; and further inquiry was also needed to determine whether the provisions of S.103, Cr.P.C. were fully complied with by the Investigating Officer in its letter and spirit---Accused, in circumstances was entitled to grant of bail.

Muhammad Suleman v. Riasat Ali 2002 SCMR 1304 and Allah Wasaya v. The State 2004 PCr.LJ Lah. 1659 rel.

Rasool Bux Soomro for Applicant.

Muhammad Ismail Bhutto, State Counsel.

2008 Y L R 1753

[Karachi]

Before Dr. Rana Muhammad Shamim, J

MUKHTIAR---Applicant

Versus

THE STATE---Respondent

Cr. Bail Application No.233 of 2007, decided on 9th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---No specific role was attributed to accused and deceased were succumbed to injuries on the firing of co-accused and not by the aerial firing of accused---Presence of accused though was shown at the place of incident but only aerial firing had been attributed to him---Allegation against accused seemed to be vague, ill-founded and general in nature---Counsel for accused had succeeded in making out a case of further inquiry---Bail was granted to accused, in circumstances.

Maqbool Ahmed Awan for the Applicant.

Noor Hassan Malik for the Complainant.

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

2008 Y L R 1774

[Karachi]

Before Muhammad Afzal Soomro, C. J.

Major (R.) ZAKAUDDIN KHAN and others---Appellants

Versus

S.M. ABDUL FETOUH through LR's---Respondent

F.R.A. No.12 of 2002, decided on 2nd May, 2008.

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

----Ss. 2(g) (j), 17(2) (i) & 24---Appeal---Ejectment of tenant on ground of default in payment of rent---Relationship of landlord and tenant---Existence of---Determination of---Appellant who claimed to be owner/ landlord of premises in question filed case against tenant on ground of default in payment of rent as well as for non-payment of utility charges---Tenant in his written statement denied relationship of landlord and tenant between the parties---Tenant had claimed that his wife had purchased premises in question from appellant and that appellant having refused to transfer and convey premises in question in her name, she filed a suit for specific performance of contract against appellant which was pending adjudication before the civil court---Dispute in respect of premises in question was subject matter of litigation before the court of law and until civil court would give its finding, Rent Controller was unable to determine whether relationship of landlord and tenant existed between the parties---Ejectment application filed by landlord was rightly rejected by the Rent Controller---Order of the Rent Controller which did not suffer from any illegality or infirmity, would need no interference---Appeal was dismissed.

Rehmatullah v. Ali Muhammad and others 1983 SCMR 1064 ref.

Nemo for the Appellant.

Ghulam Akbar Jatoi for the Respondents.

2008 Y L R 1785

[Karachi]

Before Dr. Rana Muhammad Shamim, J

ALI MUHAMMAD alias RUSTAM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.428 of 2007, decided on 5th May, 2008.

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---F.I.R. in the case was lodged after the delay of seven hours without any plausible explanation---Eye-witnesses had not supported the version of complainant and the victim in their statements recorded under S.161, Cr.P.C.-Evidence, if any, was hearsay in nature which was not admissible---Both prosecution witnesses were related inter se---Allegation against accused as spelt out in the F.I.R. were vague, ill-founded and general in nature---Story as set up in the F.I.R. was not believable which was also not supported by the eye-witnesses---No mark of violence was found on the body of the victim, no semen was found in the vaginal swabs and same were not sent to Chemical Examiner; it would, in circumstances, be very difficult to connect accused with the alleged incident---No independent evidence was available against accused whose case for the purpose of bail was arguable---Enmity existed between accused and the complainant party---Case of accused requiring further inquiry, he was admitted to bail.

Iftikhar Gul and 2 others v. The State 1996 SCMR 1130 rel.

Noor Hassan Malik for the Applicant.

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

2008 Y L R 1801

[Karachi]

Before Bin Yamin, J

Messrs ALAM EDUCATIONAL SOCIETY (REGD.)---Applicant

Versus

Mst. JAMILA and another---Respondents

C.P. No.S-348 of 2007, decided on 12th May, 2008.

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

----Ss. 15(2) (ii) (vii) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant was sought on ground of default in payment of rent and personal bona fide need---Rent Controller allowed application of landlady on ground of her personal bona fide use but rejected her claim with regard to default in payment of rent by tenant---Appellate Court on appeal rejected ground of personal bona fide need of premises of landlady but allowed ejectment on ground of default in payment of rent---Validity---Landlady in her statement before the Rent Controller had clearly stated that her family consisted of 6 sons, 2 daughters and her husband; she had further stated that premises in their possession being not sufficient for their personal use, she required the premises bona fide for her personal use---Landlady had explained that 2 of her sons were married and third one was engaged; and that nothing was available on record to show that area in their possession was sufficient to meet their requirement---Appellate Court could record its finding even with regard to ground not taken by landlady by way of filing appeal or cross-­objection---Counsel for tenant had not pointed out any fact to show that Appellate Court had committed any illegality by misreading or non-reading the evidence/material available on record---Findings of Appellate Court below were quite correct and according to law, which did not warrant any interference by the High Court in its constitutional jurisdiction---In absence of any merit in constitutional petition, same was dismissed.

2008 SCMR 521; 1991 MLD 776; PLD 1966 (W.P.) 572 and 1986 CLC 955 rel.

Khalilur Rehman for the Petitioner.

Munawar Malik for the Respondent.

2008 Y L R 1819

[Karachi]

Before Muhammad Afzal Soomro, C J

MUHAMMAD ASLAM KHAN and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1151 of 2007, decided on 27th December, 2007.

(a) Police Order [22 of 2002]---

----Art.18(4) (6)---Transfer of investigation--Investigation would not be changed except after due deliberation and recommendation by a Board headed by an officer not below Senior Superintendent of Police, one being incharge of the concerned District---Proviso to sub-clause (6) of Art.18 of Police Order, 2002 had further provided that final order for the change of Investigation would be passed by head of investigation in the general area who would record reasons for change of investigation---Transfer of investigation from one Police Station to another could not have the effect of vitiating the trial, but would disrupt and jeopardize entrenched principle of law which might reflect adversely on the credibility of officer concerned.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 364, 342, 201 & 202/34--Anticipatory bail, grant of---Further inquiry---Deep and detailed discussion of evidence at bail stage so as to prejudice the merits of the case of either party at the trial, could not be permitted---Court should be conscious not to cross the barrier of possible limits while making tentative assessment of the evidence at bail stage---Case was that of no evidence---Star witness, who was examined by the Trial Court, having not supported case of prosecution at all, nothing was left in the case of the prosecution---Prosecution had failed to produce a single piece of evidence against accused---Case of accused requiring further inquiry, bail application was allowed.

1995 SCMR 1730; 2006 PCr.LJ 47; 2007 YLR 694, 1996 SCMR 1845, 2005 PCr.LJ 2004; 1997 PCr.LJ 762 and Suba Khan v. Muhammad Ajmal and others 2006 SCMR 66 ref.

Aamir Mansoob Qureshi for Applicants.

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

2008 Y L R 1829

[Karachi]

Before Dr. Rana Muhammad Shamim and Farukh Zia G. Shaikh, JJ

KHUDA BAKHSH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. D-10 and Confirmation Case No.2 of 2005, decided on 9th April, 2008.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 337-F(iii)---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Appreciation of evidence---Material contradictions appeared in the deposition of eye-witnesses---Ocular evidence had not been corroborated by medical evidence---Prosecution evidence was not inspiring­ confidence---In view of such material contradictions of the eye-witnesses and weakness in the case, it appeared that the incident had not taken place in the manner as set up by the prosecution---Conviction could only be recorded on strong, direct, cogent and unambiguous evidence on record---When the prosecution had failed to prove its case beyond reasonable doubt, conviction so recorded could not be sustained---Impugned judgment passed by the Trial Court was set aside, accused was acquitted and ordered to be released.

Imdad Ali Awan for Appellant.

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

Date of hearing: 9th April, 2008.

2008 Y L R 1843

[Karachi]

Before Nadeem Azhar Siddiqi, J

GULZAR---Appellant

Versus

THE STATE---Respondent

Criminal Bail Application No.76 of 2007, decided on 4th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(ii), F(i) & 504---Bail before arrest, confirmation of---Accused had claimed that the brother of complainant was serving as constable at the Police Station where F.I.R. was lodged and he apprehended humiliation, harassment and irreparable loss and injury to his reputation and liberty in case he was arrested---Since the brother of complainant was in police and posted in the same Police Station where the F.I.R. was lodged, possibility of false implication of accused coupled with harassment and humiliation at the hands of police, could not be ruled out---Punishment in offence against accused was up to ten years and the award of punishment was dependent upon the circumstances of each case---Matrimonial dispute existed between the parties---Interim pre-arrest bail granted to accused was confirmed, in circumstances---In case accused was found misusing the concession of bail, the Trial Court would be at liberty to take action against accused, in accordance with law.

Ali Nawaz Ghanghro for Applicant.

Nisar Ahmed Abro for the State.

2008 Y L R 1851

[Karachi]

Before Munib Ahmad Khan, J

MIR MUHAMMAD alias MIROO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.539 of 2007, decided on 26th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 109 & 34---Bail, grant of---Further inquiry---Repeater allegedly had been used and after two shots deceased fell down while injury had been caused on his abdomen---Was to be seen as to from which distance accused had fired with his repeater and what was .the gravity of injuries---Only two shells of 12 bore gun had been recovered while there were allegedly 3 shots as per version of accused---Co-­accused had been placed in column No.2 which had clearly shown that even the version of the complainant had not been relied upon by the Investigating Officer---Case of accused needed further inquiry---Accused being behind the bars for the last 2 years, some concession should have been given to him---Accused was admitted to bail, in circumstances.

Muhammad Aslam H. Jatoi for Applicant.

Nisar Ahmed G. Abro for the State.

2008 Y L R 1855

[Karachi]

Before Nadeem Azhar Siddiqi, J

ABDUL GHAFFAR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.792 of 2005, decided on 2nd July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 353, 412, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, refusal of---Accused were arrested just after the incident and the police had recovered illegal arms and robbed articles from Them---Sufficient material was available on record to connect accused persons with the offence which fell under the prohibitory clause of S. 497, Cr.P.C.---No malice had been shown towards police for falsely implicating accused persons---In presence of incriminating material available on record, it could not be said that no reasonable grounds existed for believing that accused persons had not committed an offence falling under the prohibitory clause of S. 497, Cr. P. C. ---Accused persons having failed to make out a case for grant of bail, their bail application was dismissed.

Jai Jai Veshnu Mange Ram for Applicants.

Nisar Ahmed Abro for the State.

2008 Y L R 1865

[Karachi]

Before Ali Sain Dino Metlo, J

Messrs SAMTA SILVER TRADING (PVT.) LTD. through Attorney and another---Applicants

Versus

Messrs CHINIOT ENTERPRISES (PVT.) LTD.---Respondent

R.A. No.146 of 2007, decided on 3rd April, 2008.

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

----O. VII, R.2 ---Limitation Act (IX of 1908), S.12(5)---Suit for recovery of amount for short delivery of goods---Appeal, limitation for---Exclusion of time---Suit had been decreed---Appeal having been dismissed by the Appellate Court being time-barred by three days, defendants had filed revision against judgment of the Appellate Court---Appellate Court had found period of eleven days between the date on which copies of judgment and decree of the Trial Court were made and date of supply of stamps could not be excluded as part of the time requisite for obtaining copies---View taken by the Appellate Court below was not tenable as provisions of S.12(5) of Limitation Act, 1908 had made it clear that the date of making the copy ready for delivery would be relevant only when said date was actually intimated to the person applying for copy---Time requisite for obtaining copy could be limited to the date of making the copy ready for delivery only if such date was actually intimated to the applicant---In absence of such intimation, time requisite for obtaining copy could be extended to the date of delivery, unless the applicant was shown to be grossly negligent in obtaining the delivery---Nothing was available to show that defendants were negligent in obtaining the delivery, they obtained the delivery within 11 days for which they could not be held to be negligent in the circumstances of the case, particularly when they had no intimation about preparation of the copies---Impugned order was set aside and the matter was remanded to the Appellate Court below for deciding appeal on merits.

1975 SCMR 157; PLD 1973 SC 222; 1983 CLC 1235 and 2002 MLD 39 ref.

(b) Act of Court---

----No person should be made to suffer on account of any act or omission of the court or its officers.

Shahzad Siddiqui for Applicants.

Mazhar Lari for Respondent.

Date of hearing: 3rd April, 2008.

2008 Y L R 1871

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD KHALID---Plaintiff

Versus

Mst. MEHMOODA KHANUM and 9 others---Defendants

Suit No.267 of 1997 and C.M.A. No.7045 of 2005, decided on 24th June, 2008.

Civil Procedure Code (V of 1908)---

----O. XVI, Rr.1 & 2---Sindh Chief Court Rules (O.S.), R.209---Specific Relief Act (I of 1877), Ss.42 & S4---Suit for declaration, permanent injunction and administration---Failure of plaintiff to file list of witnesses---Application for production of witnesses---Plaintiff who failed to file list of witnesses in the court in accordance with provisions of R.1 (1) of O.XVI, C.P.C., within prescribed period of seven days after settlement of issues, had filed application praying that he might be allowed to produce witnesses named in the application---Order. XVI, R.1, C.P.C. had provided that a list of witnesses was to be filed not later than seven days after the settlement of issues---Order XVI, R. 2, C.P.C. had provided that a party would not be permitted to call witnesses other than those contained in the said list, except with the permission of the court and after showing good cause for the omission of the said witnesses from the list---If the court would grant such permission, it would record reasons for so doing---Purpose of filing list of witnesses was to obtain summonses from the court for appearance of witnesses--Plaintiff/applicant had submitted that list of witnesses could not be submitted due to innocent slip and lack of proper advice---Innocent slip could not be treated as sufficient cause---Filing of list of witnesses under O.XVI, R.1, C.P.C. did not fall within the purview of sheer technicalities but it was a provision strictly in accordance with principles of natural justice---Plaintiff/applicant having failed to show any sufficient cause for not presenting list of witnesses within prescribed period according to law, his application was dismissed---Plaintiff, however, was at liberty to examine any number of witnesses, who appeared in the court voluntarily.

Mian Muhammad Hafiz v. Aziz Ahmad 1980 SCMR 557; Messrs Naeem Engineering Corporation v. Government of The Punjab 1988 SCMR 1167 and Mst. Musarrat Bibi v. Tariq Mahmood Tariq 1999 SCMR 799 rel.

Iqbal Kazi for Plaintiff.

Mansoor-ul-Arfin for Defendants Nos.1 to 9.

None present for Assistant City Survey Officer/Defendant No.10.

2008 Y L R 1882

[Karachi]

Before Muhammad Afzal Soomro, C J

ABDUL NAEEM KHAN DURRANI and another---Petitioners

Versus

DOST ALI through Attorney and 2 others---Respondents

Constitutional Petition No.S-75 and C.M.As. Nos. 444, 445 of 2008, decided on 7th May, 2008.

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

----Ss. 15(2) (ii) (iv) (vii), 18 & 21---Constitution of Pakistan (1973), Art.199--Constitutional petition---Ejectment of tenants on grounds of default in payment of rent, damage to the property and personal bona fide need---Change of ownership---Notice of change of ownership---Respondent/ landlord, after purchasing property in question, served petitioner with a notice under S.18 of Sindh Rented Premises Ordinance, 1979 and informed him of change of ownership---Landlord demanded payment of rent, vacation of possession of premises as he required the same for his personal use---On failure of tenant to pay the rent, landlord filed ejectment application on ground of damage to the premises by making alteration, addition without the consent of landlord and for personal use---No contradiction was found in respect of issue with regard to wilful default of tenant in payment of rent as landlord proved before the Rent Controller that petitioner had not paid bills of certain amenities---Rent Controller had discussed that point in detail and had done so rightly---Tenant was duly intimated about the change of ownership, but he failed to pay the rent---No permission was obtained by tenant from Building Control Authority and from landlord for alteration in the property---Rent Controller had discussed point of damage to property in detail and finding of Rent Controller in that respect could not be interfered with---Rent Controller, after examining evidence of the parties, had rightly held that premises in question was required by landlord personally and it was also rightly observed by the Rent Controller that in case premises in question was not used for landlord for his personal use then punishment and penalties in the rent laws together with revival of possession to the' tenant was provided---Constitutional petition of tenant was dismissed accordingly.

Anwar Hussain for Petitioners.

Mirza Sarfraz Ahmed for Respondent No.1.

2008 Y L R 1898

[Karachi]

Before Munib Ahmad Khan, J

NIAZ HUSSAIN and others---Applicants

Versus

THE STATE---Respondent

Criminal Revision A. No.S-70 of 2007, decided on 22nd April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 227 ---Penal Code (XLV of 1860), Ss.302 & 319---Amendment of charge---Application for---Revision against the order passed on application filed by accused under S.227, Cr.P.C. for amendment of charge---Allegations against applicants who were Police Officials, were that they took the son of alleged wanted person and threw him with force in the police mobile despite his resistence and request of other persons present; and when he refused, they inflicted butt blows on the body of deceased including his temporal region---1n such a situation, the court was at liberty to frame the charge and to deviate from the finding of the police---All four accused persons being Police Officials, a lenient conduct and a civilized behaviour was expected from them, but they had not done so and had inflicted serious injuries on the victim---Keeping in view the evidence which had been recorded so far whereby all the prosecution witnesses had involved the accused persons, revision of accused persons was dismissed.

Ishrat Ali Lohar for Applicants.

Jawaid Ashraf Leghari for the Complainant.

Mumtaz Alam Leghari for Asstt. A.-G.

2008 Y L R 1900

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mehmood Alam Rizvi, JJ

Syeda ABIDA SULTANA---Petitioner

Versus

SUB-REGISTRAR T. DIVISION and 5 others---Respondents

Constitutional Petition No.D-1084 of 2007, and Miscellaneous Nos. 3678, 3679 of 2007 and 3362 of 2008, decided on 28th April, 2008.

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

----S.215---Power of attorney---Executing any document in favour of power of attorney holder---Scope---Power of attorney is required to be construed strictly in accordance with averments contained therein---Power of attorney cannot be interpreted on other assumption under such circumstances expressly or by necessary implications---Holder of power of attorney requires double capacity, one is as his person and other as attorney---Both the positions cannot be intermingled by attorney holder by executing any document in his favour.

Munir Hussain v. Muhammad Aslam PLD 2003 Azad J&K 16 rel.

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

----S.215---Board of Revenue, Sindh---Notification No.IGS/BOR/99-878, dated 5-8-1999---Constitution of Pakistan (1973), Art.199---Constitutional petition---Principal and agent---Transfer in favour of attorney holder---Petitioner was aggrieved of registration of sale-deed by Sub-Registrar executed by power of attorney holder of petitioner, in his own favour, on the basis of Notification No.IGS/BOR/99-878, dated 5-8-1999, issued by Member Board of Revenue, Sindh---Validity---Notification issued by Board of Revenue was not in accordance with law and dictum laid down by the highest Court in the hierarchy of judicial system---High Court in exercise of constitutional jurisdiction, set aside the Notification and directed the authorities to delete the entries from their registration of sale-deed, after issuing notices to the concerned parties---Petition was allowed accordingly.

Mst. Ghulam Fatima v. Muhammad Din 2004 SCMR 618; Jamil Akhtar v. Las Baba PLD 2003 SC 494 and Haji Faqir Muhammad v. Pir Muhammad 1997 SCMR 1811 ref.

Sami Ahsan for Petitioner.

Mrs. Haleema Khan, Additional Advocate-General.

Nemo for Respondent No.6.

2008 Y L R 1919

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

Messrs Haji ABDUL BAQI and others through Fazal Muhammad Mando Khail---Petitioner

Versus

MANAGING DIRECTOR, KW&SB and 6 others---Respondents

Civil Petition No. D-535 of 2008, decided on 21st April, 2008.

Constitution of Pakistan (1973)----

----Art.199---Constitutional petition---Tender, bidding in---Qualification---Joint venture---Grievance of petitioner was that authorities did not issue him tender document as he was not found qualified to participate in tender---Plea raised by petitioner was that it was a joint venture and any disqualification in him could be met by his venture partner---Validity---Petitioner and his joint venture partner were both individually disqualified under Pakistan Engineering Council Regulations---Petitioner was disqualified on the ground of lacking financial limit, while his partner was lacking field specialization---Two disqualified persons even in cases of joint venture tender would not be qualified by joining hands---Each contractor must be qualified in his own right before forming a partnership to tender for a joint venture project---Petitioner being disqualified was not entitled to be issued tender documents---Petitioner himself was at fault and by filing constitutional petition, he had delayed execution of project in question---Petition was dismissed in circumstances.

Mrs. Rukhsana Ahmed for Petitioner.

Qazi Majid Ali for Respondents Nos.1, 2, 4, 5, 6, and 7.

Khalid Javed Khan for Respondent No.3.

2008 Y L R 1933

[Karachi]

Before Mrs. Yasmin Abbasey, J

HASSAN NOOR ALI and 2 others---Petitioners

Versus

PAKISTAN STATE OIL COMPANY LTD. and 3 others---Respondents

Constitutional Petition No. S-526 of 2004 decided onl9th May, 2008.

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

----Ss. 2(j) & 15(2)(vii)---Transfer of Property Act (IV of 1882), S.111---Bona fide personal need of landlord---Tenancy for fixed term authorized tenant to let out premises to any dealer or agent without consent of landlord---Sub-lease by tenant in favour of its dealer---Landlord's demand for handing over vacant possession of premises to him after expiry of term of tenancy was conceded by tenant---Plea of sub-lessee/dealer was that he could not be ejected without the process of law---Validity---Neither there was any under-taking between sub-lessee/dealer and landlord nor was sub-lessee/dealer bound by any agreement to pay rent of premises to landlord---Sub-lessee was in possession of premises through tenant as his dealer within required time---If tenant conceded to hand over vacant possession of premises to landlord, then a person in occupation under shadow of main tenant had to go along with him---No person could be allowed to authorize or delegate powers, which he himself did not possess after expiry of stipulated period---After expiry of term of tenancy, sub-lessee/dealer was not entitled to retain premises as with termination of tenancy, sub-lease, if any, granted in favour of any person would come to an end---Ejectment petition was accepted in circumstances.

Pakistan Sate Oil Company Ltd. v. Pirjee Muhammad Naqi 2001 SCMR 1140 and Muhammad Anwar v. Muhammad Shafi 1986 SCMR 1638 rel.

(b) Power of attorney---

----No person could be allowed to authorize or delegate powers, which he did not possess himself after expiry of stipulated period.

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

----S. 111(a)---Termination of lease by efflux of time fixed thereby---Effect---Such termination would not give any right to lessee to import any right of renewal at his own imagination.

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

----S.111(c)---Sub-lease by lessee under lease for fixed term---Effect---Person could not grant to another a larger interest in property than what he himself possessed.

Abdul Qadir Khan for Petitioners.

Muhammad Sadiq for Respondent No.1.

M.G. Dastagir for Respondent No.2.

Date of hearing: 12th May, 2008.

2008 Y L R 1958

[Karachi]

Before Nadeem Azhar Siddiqi and Dr. Rana Muhammad Shamim, J

SAMUEL XAVIOUR and another---Appellants

Versus

PROVINCIAL ELECTION COMMISSIONER (SINDH) and 34 others---Respondents

Election Appeal No.62 of 2007, decided on 15th December, 2007.

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

----Ss.14(5) & 14(5-A)---Election of Provincial Assembly---Appeal against acceptance of nomination papers of candidate---Maintainability---Plea of appellant (non-contesting candidate) that degree of respondent-candidate was forged and thus, he was not qualified to contest election---Validity---Only a candidate in election could file appeal under S.14 (5) of Representation of the People Act, 1976---Mere issuance of notice of appeal would not be sufficient compliance of provision of S.14 (5-A) of Representation of the People Act, 1976---Issuance of show-cause notice to respondent was necessary for substantial compliance of S.14 (5-A) of the Act, which in the present case, could not be issued due to short time given to Election Tribunal for disposal of appeals---Appeal was dismissed in circumstances.

Haji Khuda Bux Nizamani v. Election Tribunal 2003 MLD 607 rel.

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

----Ss. 14(5) & 14 (5-A)---Election of Provincial Assembly---Appeal against acceptance of nomination papers of candidate--- Maintainability--- Plea of appellant (non-contesting candidate) the degree of respondent-candidate was forged, thus, he was not qualified to contest election---Validity---Appeal under S.14(5-A) of Representation of the People Act, 1976 would be decided summarily---Election Tribunal must exercise such powers cautiously after satisfying itself that candidate was actually a defaulter or otherwise disqualified from contesting election---Record of University showed that degree was issued to respondent, but appellant contended that form of other student had been replaced with form of respondent---Such dispute appeared to be reasonable, but same could not be decided summarily without allowing parties to lead evidence---Parties could agitate such dispute in regular proceedings---Election Tribunal could not annul degree in summary proceedings of appeal under S.14(5-A) of Representation of the People Act, 1976---Appeal was dismissed in circumstances.

Abdul Khaliq v. Maulvi Muhammad Noor PLD 2005 SC 962; Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan, Islamabad PLD 2005 SC 52; Muhammad Qasim v. Duty District Returning Officer, Additional District Judge, Muzaffargarh 2006 CLC 1490; Malik Muhammad Taj v. Shabbir Badshah 2004 CLC 842 and Nawabzada Mir Balach Khan Marri v. Mir Mohabat Khan Marri PLD 2003 Quetta 42 ref.

Ch. Nisar Ali Khan v. Ghulam Sarwar Khan 2003 CLC 442 rel.

Dr. Muhammad Faroogh Naseem for Appellants.

Atta-ur-Rehman, Assistant Election Commissioner, Sindh for Respondent No.1.

Shahenshah Hussain and Noor Muhammad Dayo for Respondent No.2.

Agha Zafir Ali, Asstt. A.-G., Sindh for Respondent.

Kishan Chand for Respondent.

Shabbir Hussain Hashmi for Respondent.

2008 Y L R 1970

[Karachi]

Before Bin Yamin, J

MUHAMMAD YOUNUS BALOCH through Attorney---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, KARACH-SOUTH and 2 others---Respondents

Constitutional Petition No.S-119 of 2007, decided on 16th May, 2008.

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

----S.15---Constitution of Pakistan (1973), Art.199---Constitutional petition against orders passed in case under Sindh Rented Premises Ordinance, 1979 Guiding

principles for decision of such petition stated.

In the Constitutional petition filed in cases under Sindh Rented Premises Ordinance, 1979, High Court has to see whether the lower Court, which has passed the orders, had the jurisdiction to pass such order.

The other guiding principle for decision of such application is that High Court has to see that lower Court properly gone through the material on record and have not committed the error of misreading or non-reading of the material/evidence available on the record.

The Majlis-I-Intizamia. Jamia Masjid, Ghulam Muhammad Abad Colony. Lyallpur v. The Secretary to Government of -West Pakistan, Communication and Works Department, Lahore PLD 1963 SC 109; Muhammad Hanif v. Mumtaz Ahmad PLD 1986 Karachi 16; Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338; Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 and Allied Book Corporation v. Sultan Ahmad and others 2006 SCMR 152 ref.

Faisal Kamal for Petitioner.

Amanullah Khan for Respondent No.2.

2008 Y L R 1996

[Karachi]

Before Ghulam Dastagir A. Shahani, J

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN---Petitioner

Versus

BILZ (PVT.) LTD. and 7 others---Respondents

Judicial Miscellaneous No.27 of 2002, decided on 26th April, 2008.

Constitution of Pakistan (1973)---

----Art. 204(2)---Contempt of Court Act (LXIV of 1976), Ss.3 & 4---Contempt of Court Ordinance (V of 2003), Ss.3, 5 & 6(c)---Civil Procedure Code (V of 1908), S.151---Application for taking action for contempt of Court---Maintainability---Contempt application, in the present case, was moved against all the respondents, without specifying their names, assigning them their respective role and particularizing the material allegations of disobedience, violations of any Court order and nature of contempt allegedly committed by them---Held, contempt application in the present form and facts, was not maintainable and merited no consideration, as mandatory require­ment of law had not been followed---Principles---Application was dismissed.

Arif Khan v. Federation of Pakistan 2002 CLC 601 and Ghulam Sarwar v. Ghulam Rabbani PLD 1992 Pesh. 13 ref.

Mrs. Safia Saeed Shah for Respondent No.3.

Jam Asif Mehmood for Respondent No.8.

2008 YLR 2007

[Karachi]

Before Munib Ahmad Khan, J

PEERAL alias PEER BUX---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No.746 of 2006, decided on 1st June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.337-J---Bail, grant of---Further inquiry---Factual position narrated in the F.I.R. needed further scrutiny as allegedly five persons were in the house including the parents of the complainant/alleged victim---Complainant lady as well as her parents could resist any move, but that had not been done nor any explanation in that respect had been given---F.I.R. had been registered after about one month and six days from alleged occurrence, whereas same could be registered on the very day of the alleged occurrence---Medical report had also revealed that no harm had been caused to the complainant; and nature of injury was to be ascertained after further investigation for application of S.337-J, P.P.C.---Accused was admitted to bail, in circumstances.

Sarfaraz Khan Jatoi for Applicant.

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

2008 Y L R 2016

[Karachi]

Before Dr. Qamaruddin Bohra, J

MUHAMMAD ARSHAD and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.512 of 2008, decided on 5th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Sub-stances Act (XXV of 1997), Ss. 6 & 9---Bail, refusal of---Huge quantity of 79, K. G. Charas was recovered from the secret cavities of vehicle which was driven by accused and there was no probability of foisting such huge quantity on the accused---As vehicle in question was without any passenger, there was no question to take any passenger as a Mashir---Bail way refused in circumstances.

Sohail Muzaffar for Applicant/accused.

Muhammad Bux Awan A.A.-G. for the State.

2008 Y L R 2023

[Karachi]

Before Ghulam Dastagir A. Shahani, J

FAIZ MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.36 of 2008, decided on 15th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.395, 397 & 511---Bail, grant of---Further inquiry---F.I.R. was registered about fifteen days after the incident---Nothing had been robbed, despite accused persons were armed with Kalashinikovs, guns, hatchets and Lathies--Complainant and prosecution witnesses were said to be related to each other and others were said to be private servants of the complainant and were thus interested persons---Enmity was also alleged with the complainant---Accused had been assigned a role of causing Lathi injuries to prosecution witness, declared as Shajjah-i-Khafifah under S.33 7-A (i), P.P.C. which was punishable only for two years---Accused was not previous convict---Benefit of doubt always would go in favour of accused, whereas tentative assessment was to be made at bail stage---Case requiring further inquiry, accused was admitted to bail, in circumstances.

Manzoor Ali alias Mumtaz v. The State 2001 PCr.LJ 344 ref.

Zulfiqar Ali Snagi for Applicant.

Ghulam Sarwar Korai for the State.

2008 Y L R 2028

[Karachi]

Before Dr. Qamaruddin Bohra, J

Mian NASIR ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.432 of 2008, decided on 2nd June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Customs Act (IV of 1969), S.156---Bail, grant of---Accused, who was aged 70 years, was suffering from Ischemic heart disease and he underwent coronary angiography---In view of his serious illness as well as his advance age, accused was entitled to concession of bail on humanitarian grounds---Accused was granted bail, in circumstances.

Syed Imran Mehdi for Applicant.

Imran Ahmed D.A.-G. is Present.

2008 Y L R 2031

[Karachi]

Before Amir Hani Muslim and Mrs. Yasmin Abbasey, JJ

Moulvi IQBAL HAIDER and another---Petitioners

Versus

CHIEF CONTROLLER, KARACHI BUILDING CONTROL AUTHORITY and 4 others---Respondents

Constitutional Petition No.D-1527, decided on 27th March, 2007.

Karachi Building and Town Planning Regulations, 2002---

----Regln. 17.3 & Sched. 17-A---Constitution of Pakistan (1973), Art.199--Constitutional petition---Raising 17 storeyed building, objection to---Respondent who owned two plots applied for approval for raising 17 storeyed building, which was allowed with the amalgamation of both plots as one having main number---Respondent started construction thereon, said construction was impugned by petitioners 'by raising certain objections---Ambiguous prayers of petitioners with baseless allegations, prima facie, appeared to be mala fide act as both the petitioners were not residents of the area where disputed building was being constructed---None of the residents and inhabitants of area had come forward to object to said construction---No material establishing illegality had been placed by the petitioners before getting the NOC for amalgamation of two plots and in seeking approval of building plan---Respondent did all in legal manner---Karachi Building Control Authority had also not supported the allegations of the petitioners contained in the petition and had taken stand that construction was in accordance with the completion plan---Constitutional petition was dismissed in limini in circumstances.

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

Manzoor Ahmed for Respondents Nos.3 and 4.

Khawaja Shamasul Islam for Respondent No.5.

2008 Y L R 2035

[Karachi]

Before Munib Ahmad Khan, J

Syed BAQAR RAZA---Petitioner

Versus

Messrs SHAHINDA BAQAR and 2 others---Respondents

Constitutional Petition No.315 of 2005 and C.M.A. No.3028 of 2006, decided on 22nd September, 2006.

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

----S. 7---Civil Procedure Code (V of 1908), S.115---Divorce---Revision---Concurrent findings of two courts below---Contentions of the petitioner (husband) was that both the lower courts had failed to appreciate that there was no matrimonial relation between the parties, but there was specific issue on the point which could have been decided by the courts below---Petitioner had failed to point out that he had made an application in respect of the said issue for its amendment before the lower courts or that actually he had divorced his wife in accordance with Muslim Family Laws Ordinance, 1961---No notice of Talaq was available on the file as required by S.7, Muslim Family Laws Ordinance, 1961, even in the grounds of appeal there was nothing in respect of the contention of the petitioner that Trial Court, despite request, failed to frame issue on the subject nor the Appellate Court was requested about the same---High Court declined interference with the concurrent judgments of lower courts, in revision.

Jamil Ahmed Virk for Petitioner.

2008 Y L R 2039

[Karachi]

Before Mrs. Yasmin Abbasey and Dr. Rana Muhammad Shamim, JJ

RUTH SAMI AHMAD---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Local Government and 4 others---Respondents

Constitutional Petition No.D-2116 of 2006 and C.M.A. Nos.9161, 3540 of 2007, decided on 24th April, 2008.

Constitution of Pakistan (1973)---

----Preamble, Arts.4, 25 & 199---Constitutional petition---Abolition of VVIP Society---All citizens of the country were to be considered at par---Court could not allow forming a VVIP Society---If the facility was provided to any VVIP or high dignitaries, the other citizens of Pakistan were also entitled for the same---Tine had come to abolish VIP culture to give the principle of equality, which was one of the factors of preamble of Constitution of Pakistan, its practical effect.

S. Sami Ahmed for Petitioner.

Fareed Ahmed A. Dayo, Addl. A.-G. for Respondent No.1.

Manzoor Ahmed for Respondent No.2.

Ghulam Mohiuddin for Respondent No.3.

Qazi Majid Ali for Respondent No.5 along with Misbahuddin Fareed, Coordinator Water Tanker Service and Ghulam Arif Khan, Managing Director, KW&SB.

I.mran Ahmed, D.A.-G. along with Col. Ali Zulqarnain Taqvi, Director Administration Pakistan Rangers.

2008 Y L R 2043

[Karachi]

Before Mushir Alam and Mrs. Yasmin Abbasey, JJ

Khawaja MUHAMMAD RAFI and 7 others---Petitioners

Versus

NAUMAN and 3 others---Respondents

Constitutional Petition No.D-1647 of 2005, decided on 8th Mach, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Laches---Unauthorized construction--Regularization of---Petitioners/ complainant had impugned the regularization of building in question which allegedly was constructed unauthorizedly---Petitioners slept throughout the period of construction and when the building had been completed in all respects, and after regularization for ground plus two floors only for the residential purposes, possession of the building had been handed over---Counsel for the petitioners had not been able to explain the laches and delay in approaching the court to object such construction---High Court declined to interfere in the matter in exercise of its constitutional jurisdiction---Petition which was without any just cause and result of some animosity, was dismissed with costs.

Muhammad Iqbal Khanzada for Petitioner.

Manzoor Ahmad for Respondents.

Sarwar Khan, Additional Advocate-General.

2008 Y L R 2048(1)

[Karachi]

Before Mushir Alam and Muhammad Afzal Soomro, JJ

ALI BRIGHT CAREER EDUCATIONAL SOCIETY (REGISTERED) through Authorized General Secretary---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others---Respondents

Constitutional Petition No.D-605 of 2004 and C.M.A. No.414 of 2006, decided on 22nd February, 2007.

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

----Ss. 3 & 6---Constitution of Pakistan (1973), Art.199---Constitutional petition--Disposal of plot through open public auction---Application for contempt of Court--- Constitutional petition was disposed of on statement of counsel for Authority that plot in dispute was still available with the Authority which would be disposed of strictly in accordance with the provisions of Sindh Disposal of Urban Land Ordinance, 2002 by way of open public auction---Application for contempt of court alleging that property had not been auctioned, but it was being privately sold---Validity---Advertisement had appeared in the newspapers, whereby cancellation of the plot was notified---Apparently, no contempt was committed---If the auction purchaser would fail to deposit the amount within the stipulated period, the property was to be put for re-auction, which exercise was undertaken strictly in. accordance with law.

Siddique Mirza for Petitioner.

Manzoor Ahmed for Respondents.

2008 Y L R 2053

[Karachi]

Before Amir Hani Muslim and Mrs. Yasmin Abbasey, JJ

Messrs K.M. ENTERPRISES---Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI and 2 others---Respondents

Constitutional Petition No.D-1869 of 2006, decided on 22nd May, 2007.

Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchange) Ordinance (III of 2001)---

----Ss. 3, 4 & 6---Constitution of Pakistan (1973), Art.199---Constitutional petition--Allotment of plots-Regularization of---Plots in question originally allotted to P.T.C.L., subsequently were cancelled and later on were allotted to predecessor of the petitioner---Subsequently predecessor of petitioner had sold said plots to the petitioner and Authority transferred said plot in the name of the petitioner---P. T. C.L., after alleged cancellation, had never approached any Authority or forum impugning said order of cancellation---Petitioner after allotment of plots in its name approached the Authority to pay regularization fee as determined by the Committee and seeking regularization of plots in question, but the Authority refused to take regularization fee for extraneous consideration---Validity--- Once the Authority had allotted plots to the petitioner and pocketed the allotment fee and other requisite fee, could not turn around and hold brief of P.T.C.L. in the given circumstances---Petitioner was directed by High Court to deposit amount which Committee had determined as regularization fee under Sindh Urban State Land (Cancel­lation of Allotments, Conversions and Exchange) Ordinance, 2001, within speci­fied period.

Arshad Tayabaly for Petitioner.

Manzoor Ahmad for Respondents.

Sarwar Khan, learned A.A.-G.

2008 Y L R 2058

[Karachi]

Before Amir Hani Muslim and Mrs. Yasmin Abbasey, JJ

SARDAR KHAN---Petitioner

Versus

CITY NAZIM and 2 others---Respondents

Constitutional Petition No.D-1261 of 2004, decided on 10th April, 2007.

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

----Art. 199---Constitutional petition---Non­compliance with the direction of High Court---Contemptuous---Commercialization of building---Depositing commercialization fee---High Court passed order directing the Authority to provide the challan to the petitioner of commercialization fee---Counsel for Authority, filed a statement on behalf of Authority along with a letter in which it was stated that challan as directed by the High Court would be issued to the petitioner after subsequent approval of the case by competent Authority, subject to Codal formalities---Said letter, ex facie, was contemptuous as the High Court had clearly directed the Authority to issue challan to the petitioner---Order of the High. Court having not been appealed against had attained finality, but officers of the Authority had wilfully violated said order---Once the challan was directed to be issued no further formalities were required, especially when no objection of any nature had been raised by the Authority to the approval of the commercialization plan---Petitioner was directed to deposit amount of commercialization fee with the Nazir of the Court within the specified period.

Capt. S.M. Aslam v. K.B.C.A. 2005 CLC 759 ref.

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

----Arts. 189 & 185(3)---Decisions of superior Courts---Binding effect of---Supreme Court in the case had granted leave to appeal, but had not granted any stay in the matter--Leave granting order of the Supreme Court was not a decision or judgment in terms of the Art.189 of the Constitution---Article 189 of the Constitution provided that decision of the Supreme Court was binding on all the courts, however in various authorities of the Supreme Court it had been held that leave granting order was not a decision/judgment in terms of Art.189---Law declared by the High Court would bind the parties, unless such decision of the High Court was set aside by the Supreme Court in appeal.

Muhammad Farogh Naseem for Petitioner.

Manzoor Ahmed for Respondents.

2008 Y L R 2067

[Karachi]

Before Dr. Rana Muhammad Shamim, J

Messrs CAPTAIN PQ CHEMICAL INDUSTRIES (PVT.) LTD. Through Authorized Officer---Appellant

Versus

ROMANA AMJAD and another---Respondents

First Rent Appeal No.7 and C.M.A. No.1243 of 2007, decided on 26th May, 2008.

(a) Cantonments Rent Restriction Act (IX of 1963)---

----Ss. 17 & 24---Ejectment application--Limitation---Plea of tenant was that said application was time barred---Validity of plea---Nowhere the tenant's witness had stated that the application in question was time barred, even otherwise not a single word had been said by the tenant either in his reply or evidence on the basis of which the period of limitation had been calculated---Inference, in circumstances, could be drawn that such plea was an afterthought and unproved being not supported by material available on record.

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

----O. VI, R.2---Pleadings---If the Court is of the opinion that averments stated in the written synopses were not relevant, the same may not necessarily be discussed---If whatever written in the synopses were taken as a must to be discussed, litigant would use it as a tool to complicate the matter which would result in a protracted litigation.

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

----Ss. 17 & 24---Ejectment of tenant on the ground of bona fide personal need of landlady---Where the record failed to establish a case calling for setting aside the impugned judgment of the Rent Controller, first rent appeal was dismissed with direction to the tenant to hand over the vacant physical possession of the tenant in question to landlady within sixty days so also to pay monthly rent and utility bills regularly.

Haji Mal and another v. Devi Ditta Mal and others AIR 1924 Lahore 107; Kamran Butt v. Lt. Col. Syed Iftikhar Ahmad PLD 1991 Karachi 417; Muhammad Yousuf v. Nisar Ahmad 2002 CLC 526; Ghulam Haider v. Abdul Hafeez Khan 1991 MLD Lah 1477 and Barkat Ali v. Muhammad Nawaz PLD 2004 SC 489 not relevant.

Mst. Khair-ul-Nisa v. Malik Muhammad Ishaque PLD 1972 SC 25 ref.

Saadat Yar Khan for Appellant.

Muhammad Tasneem for Respondent No. 1.

2008 Y L R 2071

[Karachi]

Before Rahmat Hussain Jafferi, J

ZARAR ALI and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 20 and 245 of 2005, decided on 6th February, 2007.

(a) Licence---

----Concept---"Licence", under the law, was 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 the licensor and was not assignable--Licence was not a contract between the licensor and licensee, but a mere personal permit---Licence 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 ascertainable claim, enforceable before the court and administrative agencies---Legal right had to be understood as any advantage or benefit conferred upon the person by a rule of law.

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

----Ss. 425 & 430---Mischief---Mischief by injury to work of irrigation or by wrongfully diverting water---For attracting punishment under section 430, P.P.C., the provisions of S. 425, P.P.C. were required to be proved first which were that accused caused the destruction of some property or some change in such property or in the situation thereof; that the above act destroyed or diminished value or utility of such property, or affected it injuriously; that accused did so intending on knowing that he was likely to cause loss or damage to the public or to any persons; and that the causing of such damages or injury was wrongful---After proving the above facts the prosecution was further required to prove the fact to attract the provisions of S.430, P.P.C., which were that the mischief in question caused, or was likely to cause, diminution of the supply of water; that such supply of water was for the purpose of agriculture; or for food or drink for human being; or for animals; and that such mischief was done with knowledge that it would, or was likely to cause such diminution of the supply of water.

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

----Ss. 23 & 430---Wrongful gain---Mischief by injury to work of irrigation or by wrongfully diverting water---Appreciation of evidence---Prosecution was required to, prove wrongful loss or damage which was defined in S.23, P. P. C. ---Person should have some legal right in the property---Prosecution however, was not required to necessarily prove actual loss---Where nothing was available to show that the complainant had any legal right to the water intercepted by accused, complainant's loss was not wrongful and the offence of mischief was not established--Under the law it was required to establish that the damage or loss had been caused to any person---Was not necessary that such damage or loss should be caused to the owner of the property---In the present case complainant or his uncle being not the owner of the water course in question, they would not come within the definition of "any person "---Where the complainant had no lawful right in the thing damaged, accused could not be held guilty of any damage, he might have done to it---Original owner of the water course did not complain any damage to the complainant who otherwise had no legal right with watercourse---Damage caused to the complainant, if, any, could not attract the provision of S. 430, P.P.C.-Prosecution, in circumstances, had failed to prove the charge of offence punishable under S.430, P.P.C. against accused---Conviction and sentence awarded to accused by the Trial Court, were set aside, they were acquitted and set at liberty in circumstances.

Banwari Karmarkar v. Gasto Behary Karmarkar AIR 1920 (C) 835; (1881) I weir 503 and Tun Aung's case 7 Cr.LJ 448 ref.

M.M. Aqil Awan for Appellants.

Shahadat Awan for the Complainant.

Arshad Lodhi, A.A.-G.

Date of hearing: 4th December, 2006.

2008 Y L R 2080

[Karachi]

Before Abdur Rahman Faruq Pirzada, J

JAN MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.554 of 2007, and M.A. No. 1177 of 2008, decided on 23rd May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 21---Bail, grant of---Complainant was Assistant Sub-Inspector of Police who carried out the search of accused, recovered the case property and arrested accused, whereafter the F.I.R. was lodged by him---Validity---Under provisions of S.21 of Control of Narcotic Substances Act, 1997, it was pre-requisite that an officer not below the rank of Sub-Inspector of Police or equivalent authorized in that behalf by the Federal Government or the Provincial Government, should take action regarding the alleged offence---Said mandatory provision of law had been violated by the complainant---Case being fit for grant of bail, accused was allowed bail, in circumstances.

2007 YLR 439 and 2004 YLR 1973 ref.

Zulfiqar Ali Sangi for Applicant.

Liaqat Ali Shar, Addl., A.-G. for the State.

2008 Y L R 2086

[Karachi]

Before Khawaja Naveed Ahmed, J

RAMZAN and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Bail Application No.568 of 2007, decided on 5th May, 2008.

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

----S.497---Penal Code (XLV of 1860), Ss. 302/201/148/149---Bail---Abscondence of accused---Effect---Fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law---Unexplained noticeable abscondence disentitles an accused to the concession of bail notwithstanding the merits of the case, because he, by his conduct, thwarts the investigation qua his person in which valuable evidence like recoveries etc. is simply lost or is made impossible to be collected and he cannot thus seek a reward for such a conduct of having because a fugitive from law.

2008 SCMR 249; Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Rais Khan v. Said Hanif and another 1979 SCMR 90, Rao Qadeer Khan v. The State PLD 1981 SC 93, Hayat Bakhsh and others v. The State PLD 1981 SC 265; Kh. Azhar Hussain and others v. The State 1983 SCMR 978 and PLD 1985 SC 182 ref.

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

----S.497---Penal Code (XLV of 1860), Ss. 302/201/148/149---Bail---Abscondence of accused---Cases, in which bail may be granted to an absconding accused---Notwithstanding his abscondence accused may be released on bail, when the accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr. P. C. and/or the (so-called) abscondence is satisfactorily explained by him to establish that in reality it did not amount to abscondence.

PLD 1985 SC 182 ref.

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

----S.497 (2)---Penal Code (XLV of 1860), Ss.302/201/148/149---Bail, grant of---General allegation had been made against fourteen person applying section 149, P.P.C. for. vicarious .liability---Police during investigation had exonerated eight persons and had put their names in column No.2 of the Challan---No cogent reasons had been given by the Investigating Officer in the challan as to how he had distinguished the case of present accused from that of co-accused placed in column No.2 of the challan---Case against accused, thus, needed further inquiry on such ground alone under section 497 (2), Cr. P. C. ---Accused were admitted to bail in circumstances.

2008 SCMR 249; Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Rais Khan v. Said Hanif and another 1979 SCMR 90; Rao Qadeer Khan v. The State PLD 1981 SC 93, Hayat Bakhsh and others v. The State PLD 1981 SC 265; Kh. Azhar Hussain and others v. The State 1983 SCMR 978; PLD 1985 SC 182; Juma Gul v. Surat Khan and others; 1986 SCMR 166; Bacha Said v. The State PLD 1978 SC 102; 1992, PCr.LJ 392; PLD 2000 Quetta 72; 2000, PCr.LJ 1508, 1991, PCr.LJ 2229; 1993, PCr.LJ 683 and 1992, PCr.LJ 409 and The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322 ref.

Ali Nawaz Ghanghro and Jai Jai Veshno Mauge Ram for Applicants.

Nisar Ahmed G. Abro for the State Counsel.

2008 Y L R 2101

[Karachi]

Before Dr. Qamaruddin Bohra, J

MUHAMMAD YASIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.468 of 2008, decided on 2nd June, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)---Bail, grant of---State counsel, despite stating that accused had better case on merits and that the case was of further inquiry, had suggested that accused should withdraw his bail application and should file a fresh application before the Trial Court on merits---Validity---Said suggestion of State Counsel would be harsh as accused, on a technical ground, was directed to withdraw bail application, when the case of accused was better on merits---Less than 1 K.G. of allegedly recovered Charas was sent to Chemical Examiner as sample---Accused was not driving the vehicle from which Charas in question was recovered and no driving licence had been recovered from the accused---Accused was taken into custody while he was standing at a Bus stop and he was falsely involved in the case---Case of accused was almost on similar grounds as those of co-accused who had been bailed out by the High Court---Accused, in circumstances was entitled for grant of bail on the principle of consistency---Accused was admitted to bail, in circumstances.

2005, PCr.LJ 1080 ref.

Badar Munir for Applicant.

Imran Ahmed D.A.-G. along with Naib Sobedar of Coastguard Shamim is present.

2008 Y L R 2107

[Karachi]

Before Mrs. Yasmin Abbasey and Dr. Rana Muhammad Shamim, JJ

Messrs SULTANABAD COOPERATIVE HOUSING SOCIETY through Attorney---Petitioner

Versus

PROVINCE OF SINDH through Senior Member, Board of Revenue, Pakistan

Secretariat, Karachi---Respondent

Constitutional Petition No. D-1863 of 2007, decided on 24th June, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---When the controversy of disputed facts was already pending for adjudication, High Court could not exercise its constitutional jurisdiction under Art.199 of the Constitution---Where in a constitutional petition it was pleaded that the attorney was misusing the power against its principal and certain civil litigations were pending adjudication as well, such disputed question of fact required detailed enquiry, which in constitutional jurisdiction of High Court could not be resolved-,--Constitutional petition, in circumstances, was not maintainable.

Umair Mujahid for Petitioner.

Ahmed Pirzada, Addl. A.-G. for Respondent.

Faisal Kamal for Sultanabad Cooperative Housing Society.

Dates of hearing: 24th and 25th April, 2008.

2008 Y L R 2116

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

OXFORD UNIVERSITY PRESS through Managing Director---Petitioner

Versus

Messrs FEROZESONS (PVT.) LTD. through Messrs Khalid Anwer & Co. Advocates and 3 others---Respondents

H.C.A. No. 199 of 2006, decided on 13th May, 2008.

Civil Procedure Code (V of 1908)---

---O.XXIII, R.1 & O.XLVII, R.7---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Withdrawal of suit---Duty of Court---Scope---Contention that opposite party had practised fraud in withdrawal of the suit was repelled as the single judge had allowed the withdrawal of suit and consequently dismissed the review application filed on behalf of the appellant---In the absence of express authority in favour of counsel appearing for the appellant, the withdrawal could not be held as null and void---Appellant having failed to make out a case warranting interference in the impugned order, High Court appeal was dismissed.

A suit can be disposed of by withdrawal as indicated in Order XXIII, C.P.C. and the Court having control over the proceedings is not even required to pass an order on the withdrawal application after exercise of power by the Court, as it becomes functus officio. It is not open to the party to back out of it until brought to its notice that the withdrawal has not been acted upon. On withdrawal, certain order may be passed by the Court but they are not for giving effect to the withdrawal but to give effect to consequences arising out of withdrawal.

After the withdrawal of the suit by the plaintiff, the Court ceased to have jurisdiction over his suit and thus became functus officio, but that a fresh suit could again be 'filed in the Court with jurisdiction over it. As far as the withdrawal suit was concerned, that is at an end, and no further proceedings can be taken in it. As the suit after withdrawal did not exist, no application for revoking the withdrawal can be made in the suit, nor can such application be entertained.

Appellant need not apply for withdrawal nor does he need permission from the Court for withdrawing his suit, neither an order allowing recognizing or confirming the withdrawal necessitated. The plea that the opposite party had practised fraud in withdrawal of the suit, was repelled as the single Judge allowed the withdrawal and consequently, dismissed the review application filed on behalf of the appellant. In the absence of express authority in favour of counsel appearing for the Appellant, the withdrawal cannot be held as null and void.

Order XLVII Rule-7, C.P.C., is a special provision relating to review and prevails over the general statute of section 3, of the Law Reforms Ordinance, 1972, being based on the principle/premise that Special Law will prevail over the general law.

Smt. Raisa Sultana Begum and others v. Abdul Qadir and others AIR 1966 All. V 53 C 94 quoted.

Yashwant Goverdhan v. Totaram Avasu and others AIR 1958 Bombay (28 V 45 C 11); S. Anthony Muthu and another v. State of Kerala and others AIR 1973 Kerala 141 (V 60 C 49); Thomas George v. Shariah Joseph and another AIR 1973 Kerala 140 (V 60 C 48); 1986 SCMR 1478; AIR 1992 Gauhati 787; 1979 CLC 823i 2002 CLC 1584; 2005 YLR 1292; 1996 SCMR 826; 1999 MLD 30; PLD 2002 Karachi 83; 2001 MLD 568; AIR 1930 PC 158; AIR 1975 SC 2002; AIR 1969 Bombay 20 ref.

Saadat Yar Khan for Appellant.

Rashid Anwar for Respondents Nos. 1 and 2.

Faisal Siddiqui for Respondents Nos.3 and 4.

2008 Y L R 2125

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

MUHAMMAD JAN AFRIDI and another---Petitioners

Versus

RETURNING OFFICER and 16 others---Respondents

Civil Petition No.D-2335 of 2007, heard on 31st March, 2008.

Sindh Local Government Elections Rules, 2005---

----Rr. 67, 72 & 70---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election of Nazim and Naib Nazim---Allegations of corruption and corrupt practices---Election Tribunal had not taken into consideration recounting of cast votes for determination of the pleas of corruption and corrupt practices, collusion and connivance and excess use of authority---Record showed that contestants, who applied for the review of the order, did not participate in the recounting of votes---Results of the recounting proved the allegations of corruption and corrupt practices---No hard and fast rule existed to determine the acts and omissions of the parties in election process--Benefit of doubt, therefore, could only be extended to the returned candidate---Election Tribunal, on the face of the record, had overlooked the recounting statement, and dismissed the election petition on flimsy grounds--Judgment passed by the Election Tribunal, in circumstances, being not in consonance with law was liable to be set aside---High Court, remanded the matter to the Election Tribunal with a direction, to hold recounting of votes of relevant polling stations secured by all the contesting candidates for, the office of Nazim and Naib Nazim and thereafter announce the result of successful candidates---Constitutional petition was disposed of accordingly.

Mirza Sarfaraz Ahmed for Petitioner.

Nome for Respondent.

Date of hearing: 31st March, 2008.

2008 Y L R 2134

[Karachi]

Before Sarmad Jalal Osmany, J

Mst. KULSOOM and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.684, 1254 and Constitutional Petitions No.245 of 2002, decided on 18th October, 2002.

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

----S. 497---Penal Code (XLV of 1860), Ss.395, 171 & 34---Interim pre-arrest bail, confirmation of---Enmity existed between the parties as one of the parties had agitated her complaint much before lodging of the F.I.R.---Complainant had submitted apology on the date when the F.I.R. was lodged---No explanation had been given by the complainant as regards the delay in the lodging of the FIR which, in circumstances, also created doubt in the matter---Interim pre-arrest bail already granted to the accused persons was confirmed by High Court on the same terms and conditions.

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

----Art. 199---Constitutional petition---Allegations of unlawful confinement and sexual harassment to the lady at the hands of three persons, one of them being SHO of the Police Station---Petitioner lady had prayed that FIR be registered against the accused persons---Very serious allegations had been made against the accused including rape of the petitioner in a police station where she was unlawfully confined for 9 days---High Court referred the matter to Town Police Officer who shall summon the parties before him, give them a proper hearing before reaching his conclusions and submit a report to the High Court within a period of two weeks--Constitutional petition was disposed of accordingly.

Mian Sarfraz Ahmad for Petitioner (in C.P.S-245 of 20G2 and for the Applicant in Crl. Bail Application No.684 of 2002).

Zakir Hussain Khaskheli for Applicant (in Crl. Bail Application No.1254 of 2002).

Ch. Muhammad Rafiq, Addl. A.-G.

Fazalur Rehman Awan for the State.

2008 Y L R 2157

[Karachi]

Before Amir Hani Muslim and Mrs. Yasmin Abbasey, JJ

Mst. PARVEEN ARA---Petitioner

Versus

PROVINCE OF SINDH and 8 others---Respondents

Constitutional Petition No. 2109 of 2006, decided on 30th May, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Apprehension of danger to property during proposed construction---Petitioner had apprehended danger to her residential building due to construction being raised in adjoining plot of respondent---Nazir of the Court was asked to inspect the site who would take photographs of the status of residential building of the petitioner---Nazir after spot inspection had reported that proposed construction would not affect residential building of the petitioner---No objection had been filed to said report of Nazir of the court---Authority concerned had also filed comments in which it. was stated that construction was being raised in accordance with the approved plan with minor violations which appeared to be condonable---By consent of the petitioner, petition was disposed of with reservation by the petitioner that in case, if any damage was caused to the residential building of the petitioner on account of the proposed construction raised on the adjoining plot by respondent, the petitioner would be at liberty to file suit for damages and/or recovery of the same.

Raja Qureshi for Petitioner.

Ahmad Ali Pirzada, H.H.-G. for Respondents Nos. 1 and 5.

Shahid Jamiluddin and Arshad Mubin Khan for Respondent No.2.

Manzoor Ahmad, EDO for Respondent No.3.

Kashir Paracha for Respondents Nos. 6 to 9.

Mansoorul Arfin for Abdullah Haroon Waqf.

2008 Y L R 2160

[Karachi]

Before Mushir Alam and Muhammad Afzal Soomro, JJ

FAQIR MUHAMMAD and 3 others---Petitioners

Versus

GOVT. OF SINDH through Chief Secretary and 4 others---Respondents

Constitutional Petition No. D-1187 of 2005, decided on 2nd February, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petitioner who claimed to be lessee of the property in question had placed on record copy of the judgment of the High Court wherein it had already laid down formula and criteria for different categories of persons including lease holder, encroacher and or allottee under any authority---Petitioner had prayed that he could be paid compensation and be dealt with under due process of law---Counsel for respondents made a statement at the Bar that petitioner would also be dealt with accordingly---Petition was disposed of in pari materia of judgment recorded by the High Court.

Nemo for Petitioner.

Manzoor Ahmed for Respondent (CDGK).

2008 Y L R 2164

[Karachi]

Before Amir Hani Muslim and Mrs. Yasmin Abbasey, JJ

ZAFAR HUSSAIN FARIDI---Petitioner

Versus

CHAIRMAN, EVACUEE TRUST PROPERTY BOARD and 22 others---Respondents

Constitutional Petition No.D-82 of 1988, decided on 17th May, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petition was disposed of with the consent of the parties---Allegation was that petitioner in terms of order passed in constitutional petition did not deposit the requisite amount, but had deposited a part of it---High Court would not entertain application filed by the petitioner to dispose of matter raising the issues which were collateral in nature---Petition was disposed of accordingly.

Mirza Saeed Baig for Petitioner.

Raja Qasit Nawaz for Respondents.

Manzoor Ahmed.

2008 Y L R 2165

[Karachi]

Before Gulzar Ahmed, J

ABDUL RAZZAK---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No. 106 of 2007, decided on 27th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324, 337-H(ii), 504, 148 & 149---Bail, grant of---Injury attributed to accused was that of "Jurh Ghayr Jaifah Mutalhimah" and in terms of S.337-F(iii), P. P. C. carried maximum punishment of three years---Accused was behind the bars for more than two years and almost 13 prosecution witnesses were to be examined with three reserve witnesses---Co-accused, who were attributed similar role as that of accused, had been let off---Accused was admitted to bail, in circumstances.

Altaf Hussain Surahio for Applicant.

Nisar Ahmed G. Abro for the State.

2008 Y L R 2184

[Karachi]

Before Syed Mahmood Alam Rizvi, J

JAMIL AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.510 of 2008, decided on 16th June, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.392/34---Bail, refusal of---Street crime---Evidence of prosecution witness---Scope---Case of robbery in which after scuffle, medical doctor was arrested from the spot by police, as he was involved in street crimes---Although accused claimed that he had been falsely implicated in the case but neither officials of the hospital ever stood up for his redressal, nor any protest was made by his colleagues as to his being involved in a false case--One prosecution witness exonerated the accused in court by saying that due to darkness he could not identify the accused---Effect---At 6-00 p.m. (time of occurrence) in the city, on the date of incident there was no darkness---It was alarming that even highly educated persons were involved in street crimes---Case of accused could not be equated with the cases of those accused persons who were jobless or illiterate or belonged to families having no means---Bail was refused in circumstances.

Muhammad Asif Mumtaz v. The State 1999 PCr.LJ 283; Ghulam Akbar v. The State 2004 PCr.LJ 271; Khair Muhammad v. The State 2005 MLD 572; Atta Hussain and another v. The State PLD 2002 Kar. 113; Allah Diwaya v. The State 2001 PCr.LJ 948; Khalid Hussain v. Raja Kala Khan and 2 others 2004 PCr.LJ 1080; Faisal Muhammad Hassan and 2 others v. The State 2004 PCr.LJ 266 and Darya Khan v. The State 2004 YLR 201 distinguished.

Ms. Noor Naz Agha for Applicant.

Asadullah Baloch for the State.

2008 Y L R 2204

[Karachi]

Before Syed Mahmood Alam Rizvi, J

AMJAD TAQI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.508 of 2008, decided on 17th June, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, refusal of---Recovery of 11-1/2 kilograms of Charas---Complainant as Investigating Officer---Illegal custody---Proof---Affidavits in defence---Accused sought bail on the ground that complainant himself investigated the case whereas he had already been in custody of authorities, at least for 36 hours prior to the recovery---Accused produced affidavits of many persons in proof of his illegal detention---Validity---Complainant could investigate the case particularly when it was a case of recovery---Persons who executed affidavits could appear for accused at the stage of her defence and the same could not be entertained at the bail stage, when no other document was available to show that accused was in illegal custody---Neither any report nor complaint was preferred about his illegal detention---Bail application was dismissed in circumstances.

PLD 1997 SC 408 fol.

Aziz-ur-Rehman Akhund for Applicant.

Syed Ashfaq Hussain Rizvi, Spl. Prosecutor A.N.F.

2008 Y L R 2217

[Karachi]

Before Mrs. Yasmin Abbasey and Syed Mahmood Alam Rizvi, JJ

NOOR ALI SHAH---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, (PAKISTAN) KARACHI---Respondent

Constitutional Petition No.D-2549 of 2007, decided on 19th May, 2008.

National Accountability Ordinance (XVIII of 1999)---

----S.9(a) (iii) (iv) (vi) (xii)---Constitution of Pakistan (1973), Art.199---Constitutional petition----Bail, refusal of---Ghost/fake employees of school---Accused was headmaster of a school and embezzled a sum of Rs.9.54 million by bogus bills of General Provident Fund encashed in the name of ghost/fake employees of the school--Validity---Such was a white collar crime and accused was prima facie involved in the case, hence he was not entitled to be enlarged on bail---High Court directed the trial Court to record evidence of material witnesses within three months and if any case was made out in favour of accused, he might move a fresh bail application---Bail was declined in circumstances.

Afzaal Ahmed v. State 2003 SCMR 573; Muhammad Siddique v. Imtiaz Begum 2002 SCMR 442; Abdul Waheed v. State 2004 SCMR 319; Mehrban Ali v. State 2004 SCMR 229; Imtiaz Ahmed v. State PLD 1997 SC 545; Maqsoom Hussain Shah v. State 2007 PCr.LJ 171 and Sher Dil Khoso v. State 2000 PCr.LJ 1748 ref.

Ghulam Rasool Soho for Petitioner.

Ainuddin Khan, A.D.P.G.A., N.A.B. for Respondent.

Date of hearing: 21st April, 2008.

2008 Y L R 2229

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, J

ZULFIQAR ALI ABBASI---Petitioner

Versus

THE STATE through Chairman NAB---Respondent

Constitutional Petition No. D-2483 of 2007, decided on 17th April, 2008.

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

-----S. 498---National Accountability Ordinance (XVIII of 1999), Ss. 9(a)(iv), 9(a) (vi) & 9(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Pre-arrest bail, grant of---Illegal pecuniary advantages and misuse of authority---Commission of offence---Proof---Accused was alleged to have made entries in Revenue Record which were illegal and against the facts---Plea raised by accused was that neither he made any illegal entry nor he gained any illegal benefit---Validity---Prima facie it was established that accused, prior to making entries in the register, had sent letters for verification and only, after verification, he had made the subject entries, which fact was supported by letters annexed with petition---Persons with specific role regarding verification of document in question were exonerated, which was a discrimination on the part of prosecution---Although through letters annexed with petition, it was prima facie established that accused did not commit any illegality and he should have been exonerated like others too, nevertheless factor regarding involvement of accused could only be assessed after recording of evidence of prosecution---Without deeply scrutinizing the evidence, which was yet to be recorded by trial Court, it could not be ascertained during Constitutional proceedings as to whether allegations were without any foundation or not---Accused had made out a case for grant of pre-arrest bail on the basis of tentative assessment of material on record---Petition was allowed in circumstances.

Choudhry Shujjat Hussain v. The State 1995 SCMR 1249; Hisamuddin v. The State Bail Application No.181 of 1999; Saeed Ahmed v. The State 1994 SCMR 170; Saeed Ahmed v. The State 1996 SCMR 1132; Agha Talat Mehmood v. The State 1983 PCr.LJ 2144; Murad Khan v. Fauzia Subhan and others PLD 1983 SC 82; Jamalauddin v. The State 1985 SCMR 1949; Miran Bux v. The State PLD 1989 SC 347 and Abdul Aziz Niazi v. NAB PLD 2003 SC 668 ref.

Muhammad Ashraf Qazi for Petitioner.

None Present for NAB.

2008 Y L R 2235

[Karachi]

Before Arshad Noor Khan, J

MUHAMMAD PUNHAL CHACHAR---Appellant

Versus

THE STATE and 7 others---Respondent

Criminal Acquittal Appeal No.31 of 2007, decided on 26th May, 2008.

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

----Ss. 395/337-H(2)/34---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Accused party, despite having come to the land of the complainant on a donkey cart duly armed with lethal weapons to teach him a lesson for helping their enemies, did not beat him and his son, nor caused any fire-arm injury to them and instead of teaching a lesson to the complainant they took away a water machine and a drum full of diesel belonging to him and escaped from there on the donkey cart---Such evidence did not inspire confidence---Aerial firing allegedly made by accused was not established as admittedly no crime empty was secured by police from the place of occurrence--Previous enmity between the parties was established on record---Even the water machine was not admittedly recovered from the accused and the recovery witness as well as the Investigating Officer had not supported the prosecution case in this regard---Complainant had even not proved his ownership of the said water machine, which was commonly and freely available in the market and was used by the agriculturists---Testimony of the complainant was tainted with mala fides and prosecution case was not free from doubt---No illegality was apparent on the face of judgment of trial Court---Innocence of accused had become double after their acquittal, which could not be brushed aside lightly in absence of any strong evidence---Appeal against acquittal of accused was dismissed in circumstances.

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

----S.417---Appeal against acquittal---Principles---Innocence of accused becomes double after acquittal---Acquittal of accused, therefore, cannot be set aside lightly in absence of any strong evidence.

Ashique Illahi N. Sundhrani for Appellant.

Muhammad Iqbal Maher, Asstt: A.-G. for Respondents Nos.2 to 8.

Date of hearing 26th May, 2008.

2008 Y L R 2248

[Karachi]

Before Syed Mahmood Alam Rizvi, J

Mst. PHAPHAN alias FATIMA---Applicant

Versus

THE STATE---Respondent

Crl. Bail Application No.606 of 2008 and M.A. No.2015 of 2008, decided on 17th June, 2008.

Criminal Procedure Code (V of 1898)---

----Ss.497 & 103 [as amended by Criminal Procedure Code (Second Amendment Ordinance) (XXXV of 2006)]---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, refusal of---Recovery of 11-1/2 kilogram of Charas---Illegal custody---Proof--Affidavits in defence---Female accused sought bail on the ground that provisions of S.103, Cr.P.C. were not complied with during recovery of narcotics whereas she had already been in custody of authorities, at least 36 hours prior to the recovery---Accused produced affidavits of many persons in proof of her illegal detention---Validity---Persons who executed affidavits could appear for accused at the stage of her defence and the same could not be entertained at bail stage, when no legal document was available to show that the lady was in illegal custody---Neither any F.I.R. nor complaint was preferred regarding alleged illegal detention of accused, particularly when she was a political activist and was an office-bearer of women wing of a popular political party---Provisions of S.103, Cr.P.C. were not applicable to recovery of narcotic under Control of Narcotic Substances Act, 1997---High Court refused bail to accused as apparently she with her cousin was arrested with a large quantity of narcotics and the same was substantiated by chemical report---Bail was declined in circumstances.

Khalida Akram v. The State 2007 YLR 875 and Zulfiqar Ali v. The State 2007 YLR 2620 ref.

Mrs. Saleha Naeem for Applicant.

Syed Ashfaq Hussain Rizvi, Spl. Prosecutor ANF for Respondent.

2008 Y L R 2255

[Karachi]

Before Mushir Alam and Muhammad Afzal Soomro, JJ

ALI NAWAZ---Appellant

Versus

PROVINCE OF SINDH through Secretary, (LU) Land Utilization

Department and 5 others ---Respondents

Constitutional Petition No. D-887 of 2006, decided on 23rd February, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Disputed questions of fact could not be decided in constitutional petition---Petitioner, if had any right, same could be established through proper forum, either before the Revenue Authority under the West Pakistan Land Revenue Act, 1967 or if circumstances so existed, before the civil court.

Syed Jamil Ahmed for the Petitioner.

nwar Tariq and Manzoor Ahmed for the Respondent.

A. Jabbar Lakho, A.A.G.

2008 Y L R 2265

[Karachi]

Before Khawaja Naveed Ahmed, J

ANWAR AHMAD---Appellant

Versus

JALALUDDIN---Respondent

F.R.A. No. 239 of 1992 and C.M.A. Nos.996 of 1999 and 1079 of 2003, decided on 19th February, 2008.

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

----S.17---Eviction of tenant---Bona fide personal need of landlord---Validity---Years old concept that "once a tenant is always a tenant" has vanished---Landlord has a right to use his property during his lifetime.

M.A. Quardi for the Appellant.

Nemo for Respondent.

2008 Y L R 2271

[Karachi]

Before Syed Mahmood Alam Rizvi, J

WAHID MUHAMMAD BAIG and another---Applicants

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No. 75 of 2008, decided on 18th June, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A(6) & 561-A---Inherent jurisdiction of High Court---Investigation, restraining of---Justice of Peace---Jurisdiction--- Justice of Peace restrained the Investigating Officer from further investigating the case; on application filed under S. 22-A (6) Cr.P.C. by respondent---Validity---Investigation could not be stopped by a court or Justice of Peace except for want of jurisdiction---Order passed by Justice of Peace was vague, illegal and was liable to be set aside---High Court directed Investigating Officer appointed by senior police officials to conclude re-investigation within fifteen days and to submit challan before Trial Court---Application was allowed in circumstances.

PLD 1971 SC 677; Brigadier Imtiaz's case 1994 SCMR 2124; Bhaitan v. State PLD 2005 Kar. 621 and Muhammad Yousaf v. State 2000 SCMR 453 fol.

Muhammad Riaz v. Muhammad Ansar 2006 MLD 1357 distinguished.

Mehmood A. Qureshi for the Applicants.

Mahfooz Yar Khan for Respondent No.2.

Farha Naz for the State.

Ch. Muhammad Bashir the real uncle of Respondent No.2, Zahiruddin Babar.

2008 Y L R 2275

[Karachi]

Before Syed Mahmood Alam Rizvi, J

MUHAMMAD GHAFOOR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 436 of 2008, decided on 18th June, 2008.

Criminal Procedure Code (V of 1898)---

----Ss.497 & 103---Penal Code (XLV of 1860), Ss.379/411---Bail, refusal of---Heinous crime---Scope---Recovery of stolen property---Violation of S.103 Cr.P.C.--Accused was caught by officials of Electric Supply Corporation, while he was carrying 35 kilograms of copper wire measuring 30 meters and F.I.R. was registered---Plea raised by accused was that it was a simple case of recovery of stolen property which was not a heinous crime and provisions of S.103 Cr.P.C. were not complied with---Validity---Admittedly wires were recovered from the possession of accused though it was claimed that same was violation of S.103 Cr.P.C. but from the area where recovery was made, it was practically impossible to collect witnesses particularly against a person carrying incriminating material---Electric Supply Corporation officials were roaming around in the city as there were series of such incidents occurring regularly as a result of which city was facing load-shedding even in winter season---Such act was a heinous crime as all of the society was suffering from such crimes---Grant of bail was not a right as the offences were not bailable---In minor cases bail was a rule and rejection was an exception but case of accused fell under the exception clause---Bail was declined in circumstances.

Kamran v. State PLD 1997 Kar. 484 and Iftikhar Khan v. State 2006 YLR 932(2) distinguished.

Ajmal Haider for the Applicant.

Asadullah Baloch State Counsel.

2008 Y L R 2283

[Karachi]

Before Syed Mahmood Alam Rizvi, J

MUHAMMAD TARIQ---Applicant

Versus

THE STATE---Respondent

Criminal Case No. 406 of 2008, decided on 18th June, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.365-B---Bail, grant of---Further inquiry---Delayed F.I.R.---Valid Nikah---F.I.R. was lodged after a delay of 14 days and no explanation had been given by complainant---Accused was on visiting terms with complainant family---Alleged abductee had stated in her statement before Court that Nikah was solemnized on 6-5-2007 and her signatures were obtained forcibly but even then she remained residing at her home for 30 days and left her house with her own free will on 4-6-2007 and remained residing with the accused along with his first wife and her children---Effect---Such circumstances had suggested that it was a case of further inquiry and a family issue had been converted into a criminal case---Witnesses of Nikahnama supported the contention of accused---Investigation did not show that alleged abductee had filed any case for jactitation of her marriage with accused hence prima facie she was still the wife of accused---Matter required further inquiry---Bail was granted in circumstances.

Sardar Sher Afzal for the Applicant.

Sabir Haider, A.A.-G. for the State.

2008 Y L R 2293

[Karachi]

Before Arshad Noor Khan, J

Mst. GUL KHATOON alias GUKKI and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 893 of 2007, decided on 11th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 147, 148, 149 & 34---Bail, refusal of---Second time arrival of accused at the house of complainant duly armed with arms was premeditated---Act of injuring deceased attributed to accused, had very clearly shown that they committed murder of the deceased intentionally--Specific roles had also been attributed to all accused persons---All accused persons, who came at the house of the complainant, in circumstances, were vicariously liable for the offence of murder whether they had played any role at the time of incident or not in view of S.34, P.P.C.-Medical evidence available on record had shown that deceased sustained two injuries which were inflicted with blunt weapon and the use of hatchet from back side at the time of incident could not be ignored or ruled out--Counter-version of accused party was also of no avail to enlarge them on bail in view of specific role attributed to each of them in the F.I.R.---Ocular evidence as well as medical evidence fully connected accused in the crime---No case for bail had been made out---Each case has its own particular circumstances in criminaladministration and could not be equated with any other reported case---Contention of counsel for accused persons that case of ladies/accused was protected under subsection (1) of S. 497, Cr. P. C. , was repelled for the simple reason that accused ladies had fully participated at the time of incident and they did not hesitate in committing murder of two young persons---Such benefit was not available to them, in circumstances---Case being not fit for further inquiry, Trial Court had rightly rejected bail application filed by accused persons---Bail application was dismissed.

Muhammad Aslam v. State reported in 1997 SCMR 215; Shoaib Mehmood Butt v. Ifitikhar-ul-Haq and others reported in 1996 SCMR 1845 and Inamul Haq v. State 2005 MLD 1312 ref.

Muhammad Arshad Tariq for the Applicants.

Syed Suleman Badshah for the Complainant.

Afsheen Aman, State Counsel.

2008 Y L R 2306

[Karachi]

Before Mrs. Yasmin Abbasey, J

JUMMA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 118 of 2008, decided on 25th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.316, 324 & 337---Bail, grant of---Even if case of prosecution that while deceased was chasing accused, he hit deceased's motorcycle on its right side with his vehicle, was taken as correct, motorcycle accident report reflected to the contrary; showing that it met accident from front side---Still that did not bring the case within proviso of S. 316, P.P.C. because of contradictory medical reports as to cause of death---In absence of post-mortem, report, applicability of S.316, P.P.C. became doubtful---Benefit of doubt, in such eventuality, would go to accused-- -Accused was admitted to bail, in circumstances.

Muhammad Bakhsh v. The State 1976, PCr.LJ 405 and 1976 and Abdul Latif v. State, 1972 Cr.LJ 1095 ref.

Mahmood A. Qureshi for the Applicant.

Qazi Wali Muhammad for the State.

2008 Y L R 2309

[Karachi]

Before Khawaja Naveed Ahmed, J

Syed ARIF ALI SABRI---Petitioner

Versus

ABDUL SAMAD through L.Rs. and 2 others---Respondents

Constitutional Petition No. S-42 and C.M.As. Nos.221 and 222 of 2008, heard on 7th February, 2008.

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

----Ss.8 & 15(2)(ii)---Ejectment petition---Fixation of fair rent on 20-2-2006 by Rent Controller with effect from 1-12-2005---Failure of tenant to pay such rent despite demand by landlord through legal notice dated 15-4-2006---Dismissal of tenant's appeal on 2-4-2007 filed against fixation of fair rent---Deposit of such rent in Court on 27-4-2007 by tenant after refusal of landlord to receive same on 24-4-2007---Validity---Default made by a tenant even for a short period of one month, whether technical or otherwise could not be condoned, unless there were extenuating circumstances justifying indulgence by Rent Controller--Courts in the present case, had been asking tenant to deposit rent at such rate, hut he withheld same till 27-4-2007 at his own whims and interpretation of law---Effect--Tenant had committed wilful default Ejectment petition was accepted in circumstances.

1992 MLD 1021 fol.

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

---Art. 199---Constitutional jurisdiction---Scope---Concurrent findings of courts below---Interference in such findings by High Court---Scope---High Court could interfere to such findings, if same were fanciful or based on misreading or non-reading of evidence, otherwise not.

Haseen Ahmed for the Petitioner.

Habib Jalib for the Respondent No.1.

2008 Y L R 2317

[Karachi]

Before Syed Mahmood Alam Rizvi, J

ALI RAZA---Applicant

Versus

THE STATE---Respondent

Bail Application No. 555 of 2008, heard on 18th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.489-A, 489-B, 489-C, 109---Bail, grant of---Prosecution case was that currency notes were recovered from the parcel which was being sent to Saudi Arabia and were concealed in shoes---Investigation report also suggested that some one had directed accused to dispatch the parcel to Saudi Arabia through courier service---Prosecution had invoked S.109, P.P.C.---Ingredients of S. 489-A & 489-B of P.P.C. were not applicable against accused in the case as no evidence had been collected by the prosecution to show that accused was either counterfeiting the currency notes or using the same---Prosecution had failed even to prove that accused had conscious knowledge that the counterfeited currency notes were lying in the parcel----Maximum case against the accused was regarding the constructive possession of the currency notes, which fell under S. 489-C, P.P.C., and was punishable with the imprisonment of either description for a term which could extend to seven years or with fine, which was bailable---Accused was admitted to bail, in circumstances.

Nayyat Ziauddin for the Applicant.

Imran Ahmed, D.A.-G.

2008 Y L R 2325

[Karachi]

Before Anwar Zaheer Jamali, J

Mir GHULAM AKBAR---Appellant

Versus

THE STATE---Respondent

Criminal Revision Application No. 16 of 2007, decided on 24th May, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 200, 435 & 436---Dismissal of direct complaint---Revision application was directed against order of the Trial Court whereby direct complaint filed by the applicant was dismissed---Trial Court, while passing the impugned order, had not taken into account the relevant admitted facts of the case and recorded reasons for dismissal of direct complaint which were not warranted by law---Filing of certified true copy of the counter affidavit containing allegations against the complainant which formed basis for filing of direct complaint by him, were sufficient to examine the merits of the grievance of the complainant--Passing of impugned order in a slipshod manner, could not be approved, in circumstances---Impugned order was set aside with directions to the Trial Court to proceed further with the direct complaint in accordance with law.

Hidayatullah Abbasi for the Applicant.

Anwar H. Ansari for the State.

2008 Y L R 2334

[Karachi]

Before Rehmat Hussain Jafferi and Munib Ahmad Khan, JJ

SHER KHAN and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 89 of 2005 along with Criminal Revision No. 18 of 2005, decided on 27th December, 2006.

Penal Code (XLV of 1860)---

---S. 302(b)---Appreciation of evidence--Incident took place during night time, but the prosecution did not show the source of light in which the prosecution witnesses saw the incident, though one of the prosecution witnesses had deposed that he saw accused in moonlight from a distance of half furlong---Silence of the witnesses on the point of source of light was very glaring, and without proof of such fact, the mistaking of identity of accused at the time and place of incident, could not be ruled out---Such fact, in circumstances had materially and adversely affected the prosecution case---Non-disclouser of names of the culprits to the police officer in the hospital, further supported the plea of accused that culprits were unknown, incident was unwitnessed by the prosecution witnesses and accused were involved after due consultations and deliberations---None of the neighbouring witnesses disclosed the presence of complainant at the place of incident---Ocular testimony in circumstances was not worth-relying with regard to identity of accused persons at the time and place of incident---Case of the prosecution was highly doubtful against accused persons---Appeal of accused persons was allowed and revision petition for enhancement of sentence was dis­missed.

Muhammad Arshad v. State PLD 1995 SC 475; Sajjad Hussain v. State 1997 SCMR 174 and Bashir v. State 1995 SCMR 276 ref.

A.Q. Halepota and M.R. Syed for the Applicant (in Criminal Appeal No. 89 of 2005).

Habib Ahmed, A.A.-G. for the State (in Criminal Appeal No. 89 of 2005).

Mst. Hameeda Bibi in person for Applicants (in Criminal Revision Application No. 18 of 2005).

Habib Ahmed, A.A.-G. for Respondent (in Criminal Revision Application No.18 of 2005).

A.Q. Halepota and M.R. Syed for other Respondent (in Criminal Revision Application No. 18 of 2005).

Date of hearing: 13th December, 2006.

2008 Y L R 2343

[Karachi]

Before Khawaja Naveed Ahmed, J

NAVAID HUSSAIN and others---Plaintiffs

Versus

JAWED NOOR MUHAMMAD and others---Defendants

Suit No.299 and C.M.A. No.2061 of 2007, heard on 21st April, 2008.

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

----Ss.39, 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for declaration, injunction and cancellation of lease and document---Application for temporary injunction---Case of plaintiff was that permission had been granted for change of land use and for construction of the plot to defendants and in that case no permission had been granted for conversion or change of land use to other defendants---Plaint had revealed that the residents of the area were greatly perturbed when they came to know that defendants had applied for change of land with others and construction of commercial plot on which nine storeyed building would be constructed---Plot in question was located in area which was not commercialized---Status quo order was passed by the court---Builders had taken permission from all concerned government departments--- Departments were compe­tent by law to grant such permission according to their own rules and regulations---Defendants which had sold the plot, had paid fee prescribed by the government---Builders had complied with all the legal formalities and were in possession of no objection certificates issued by almost all the departments, which mattered in that business---Third party interest had already been created and builders had received huge amount from general public and had already booked the shops/apartments/offices and had undertaken to raise the construction strictly according to approved plan---Passing of injunctive order at that stage would virtually amount to deciding the whole case, which would not be proper at such stage of the case---Entire evidence had yet to be led by the parties and each party had to prove its case by way of evidence, documents, laws and rules on merits---Injunction application was dis­missed and status quo earlier granted was vacated.

Basharat Ali v. Director Excise 1997 SCMR 1543; Chairman Regional Transport Authority Rawalpindi v. Pakistan Mutual Insurance Company Ltd. Rawalpindi PLD 1991 SC 14; Gadoon's case 1997 SCMR 641; Abu Bakar Siddiq v. Collector of Customs 2006 SCMR 705; Government of Pakistan v. Azizullah Memon PLD 1993 SC 341; 2006 YLR 2537; PLD 1988 Kar. 261; PLD 1954 Sindh 61; 1990 MLD 2232; PLD 1983 Kar. 387; 1999 YLR 1634; 1976 SCMR 393; 1990 CLC 448 and Captain S.M. Aslam and others v. K.B.C.A. and others 1005 CLC 759 ref.

(b) Precedent---

----Every case was to be seen in the light of its own facts and order passed in one case by the court could have persuasive effect for such orders in other cases and in many cases where facts were similar, it could also have the binding effect.

Naeem-ur-Rehman for Plaintiffs.

Mushtaq A. Memon for Defendants Nos.1 to 4.

Afsar Abidi for Defendants Nos.18 and 19.

Muhammad Iqbal Memon for Defendant No.13.

2008 Y L R 2357

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD YAQOOB---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.570 of 2007, decided on 7th August, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.376, 380, 457 & 506-B/34---Bail, grant of---Claimant, on clinical examination was not found vorgo intacta nor Chemical Analyzer's report was available on the record---After the lapse of more than 2 months accused along with absconding co-accused were connected in the commission of the crime---No independent evidence was available except the testimony of the complainant, which had left no room to create suspicion in the mind of a prudent man on account of the past events---Benefit of doubt at bail stage was extended in favour of accused in the absence of independent and cogent witnesses---Accused was admitted to bail in circumstances.

Abdul Sattar Abid for Applicant.

Ghulam Mustafa Lakho, learned A.A.-G.

2008 Y L R 2372

[Karachi]

Before Khawaja Naveed Ahmed, J

SOHAIL MASOOD---Plaintiff

Versus

KHATOON SHAHOOD and others---Defendants

Suit No.87 of 2003, heard on 10th March, 2008.

Specific Relief Act (I of 1877)---

----Ss.8, 39, 42 & 54---Suit for possession, declaration, cancellation of documents, injunction and mesne profit---Suit was filed by the plaintiff against his mother, sister and others---Claim of plaintiff was that he was residing in U.S.A. since 1975 where he owned Banking Firm; that he purchased a house in Karachi showing his mother as the ostensible purchaser, made her to enter into agreement to sell with the owner of said house/vendor and paid advance sale consideration through pay order; that sale-deed, however, was prepared in the name of plaintiff's mother in capacity of ostensible owner---Plaintiff had further submitted that house was renovated at his own cost; and that his mother had orally gifted the house in question to him which was reduced into declaration of gift which was duly registered---Plaintiff had further submitted that his sister who was living without family at Lahore, came to Karachi to meet her mother and she started living there---Plaintiff had taken no objection as she was looking after her mother---Case of plaintiff was that he used to send money to his mother through Banking Channel in the name of his sister, but his sister neither spent that money on his mother nor she was looking after his mother---When plaintiff confronted his sister with regard to said fact, she became aggressive and abusive towards plaintiff---Sister of plaintiff turned dishonest and got the house in question shifted in her favour by misrepresentation and fraud vide gift-deed---Plaintiff alleged that said subsequent gift deed was mala fide, illegal and without any lawful effect and was void---Payment for the purchase of house in question was proved to have been made from the plaintiff from his personal account and also that property which was purchased by the plaintiff through his mother as the ostensible purchaser, was gifted by his mother in favour of the plaintiff through registered sale-deed was also established---Sister of plaintiff could not lead any evidence with regard to subsequent gift in her favour by the plaintiff---Plaintiff having proved that he had purchased the house from his own funds in the name of her mother who subsequently gifted same to him, suit filed by the plaintiff as prayed for by him, except mesne profits was decreed as his mother before her death was entitled to live in the house of plaintiff and plaintiff could not claim mesne profits.

Mst. Khair un Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 ref.

Muhammad Ashraf Khan Mughal for Plaintiff.

Date of hearing: 10th March, 2008.

2008 Y L R 2403

[Karachi]

Before Ghulam Dastagir A. Shahani, J

Messrs AGRO LIVESTOCK DEVELOPMENT CORPORATION (PVT.) LIMITED---Plaintiff

Versus

Mst. FARIDA AKHTAR and 10 others---Defendants

Suit No.149 and C.M.A. No.938 of 2003, decided on 12th May, 2008.

Civil Procedure Code (V of 1908)---

---O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss.42 & 55---Application for injunction seeking direction to defendants to maintain same position in respect of possession of land and restraining them from transferring or alienating the land in question and creating third party interest during pendency of suit---Scope---Land in question was leased out in favour of plaintiff for 30 years and terms and conditions were signed by the parties and 30 years lease money had been transferred by the plaintiff---No personal service had been effected before cancellation of the lease---Plaintiff, in circumstances of the case; in all fairness, had made out a case for grant of an injunction, though at the present stage it was not necessary for the plaintiff to establish a good prima facie case but only arguable case was sufficient, as it would be inconvenient to the plaintiff and he would suffer irreparable loss, which could not be compensated in terms of money---High Court directed the defendants to maintain the same position in respect of the possession of the plot, and they were restrained from transferring or alienating the land in question and creating third party interest during pendency of the suit---Principles.

Mst. Hajiran Begum v. Muhammad Yousaf and legal heir 2005 MLD 592; Muhammad Munir v. Muhammad Yousaf and 7 other 2005 MLD 1797; Dr. Jalal Khan v. Qazi Naseer Ahmed, District Deputy Officer, (Revenue) Kharian, District Gujrat and 6 others 2005 MLD 814; Mian Muhammad Aslam and another v. Sher Afgan Additional Deputy Commission General Collector (City), Lahore and 5 others 2004 CLC 1320 and Anwar Club and another v. Muhammad Sarwar PLD 1992 Lah. 63 distinguished.

Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 and Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 180 ref.

Qamar Abbas for Plaintiff.

Muhammad Ali Hakro for Defendants Nos.1 to 3.

Ahmed Pirzada Addl. A.-G.

2008 Y L R 2418

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD ZARKHAIZ---Applicant

Versus

NIAZ KHALID and another---Respondents

C.M. As. Nos.1955, 1956, 3384 and Review Application No.16 of 2007 in Second Appeal No.25 of 2004, decided on 14th February, 2008.

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

----S.12---Civil Procedure Code (V of 1908), S.100---Suit for specific performance of agreement to sell---Sale agreement by Chief Executive on behalf of company regarding its property---Dismissal of suit by courts below on the ground that Chief Executive did not have authority to sell property of company---Plea of ignorance of indoor management of company raised by plaintiff for first time in second appeal---High Court declined to entertain such plea at very late stage.

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

----S.12---Civil Procedure Code (V of 1908), S.100 & O.I, R.10---Specific performance of agreement to sell---Sale agreement by Chief Executive on behalf of company regarding its property---Company not impleaded as defendant in suit---Dismissal of suit by courts below on the ground that Chief Executive was not shown to be authorized by company to sell its property---Application under O.I, R.10, C.P. C. filed by plaintiff in second appeal for impleading company as necessary party in suit---Validity---Such being a case of non joinder of necessary party, High Court at such stage could not allow such application as new party could not be introduced in second appeal---High Court with a view to meet ends of justice and provide fair opportunity to appellant to contest his case on merits, set aside impugned judgments / decrees and remanded case to Trial Court for its decision on merits, where appellant could move such application.

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

----S.100 & O.I, R.10---Second appeal---Application for impleading of new party---Maintainability---New party could not be introduced in second appeal---High Court declined to entertain such application.

Chaudhry Abdul Rasheed for Applicant.

Muhammad Anwar Tariq for Respondents.

2008 Y L R 2425

[Karachi]

Before Salaman Ansari, J

Mst. ZEENAT KHATOON and another---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.195 of 2007, decided on 29th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.365-B, 147, 148, 149 & 109---Quashing of F.I.R.---Alleged abductee had stated that she had married with co-accused with her own free-will, she being a major was not coerced or forced in any manner to enter into said marriage---In view of said statement of alleged abductee who was main witness of the case of kidnapping, abduction and inducing alleged abductee, was contrary to the facts as alleged in the F.I.R.-F.I.R. was based upon false grounds which had no support or value in the eyes of law---F.I.R. was quashed in circumstances.

Abdul Qadir Leghari for the Applicants.

Ms. Afsheen Aman, State Counsel.

2008 Y L R 2430

[Karachi]

Before Khawaja Naveed Ahmed, J

ABDUL RAUF KHAN---Applicant

Versus

MUHAMMAD HANIF MOOSA and another---Respondents

Criminal Miscellaneous Applications Nos.178 to 180 of 2007, decided on 26th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.489-F/506---Cancellation of bail, application for---Civil dispute between the parties stood resolved---Both cheques in question would not be used by the parties against each other---Upon deposit of amount in question with the Nazir of the Court by respondent, the criminal proceedings initiated against him in respect of both the cheques would be dropped---Criminal proceedings initiated against respondent were also stopped; however in case of default in payment of instalment of amount in question by the respondent with the Nazir of the Court, the entire amount would be payable in lump sum by respondent and the law would take its own course.

Saghir Ahmad v. State 2005 PCr.LJ 654; Talib Hussain v. State 2006 MLD 1439 and Muhammad Khan v. State 2005 PCr.LJ 1797 rel.

Muhammad Ilyas Khan Tanoli for Applicant.

Shahid M. Kaleem for Respondent No.1.

Ms. Shahida Jatoi for Respondent No.2.

2008 Y L R 2434

[Karachi]

Before Khawaja Naveed Ahmed, J

ABDUL KAREEM KHAN---Petitioner

Versus

Mst. ZAHIDA KHAN through Attorney and 2 others---Respondents

Constitutional Petition No. S-94 and C.M.A. No.638 of 2008, decided on 3rd April, 2008.

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

----S.15(2) (ii) (vii)---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan, (1973), Art.199---Constitutional petition---Ejectment---Grounds of default in payment of rent and personal bona fide need of landlady---Tenant neither filed written statement nor cross-examined witness of landlady--Order of ejectment passed by Rent Controller was upheld by Appellate Court---Plea of tenant that his suit for specific performance of sale agreement executed by landlady regarding demised premises was pending---Validity---Tenant had undertaken before Appellate Court to hand over possession of demised premises within one month's time---Tenant had not been paying rent to widowed-landlady---Neither any stay order was in field nor was there any restraint order passed in such suit to stop ejectment proceedings---No body would become owner of property merely by entering into sale agreement---Tenant would continue to be tenant till transfer of title in his favour under Transfer of Property Act, 1882---High Court dismissed constitutional petition of tenant in circumstances.

1994 SCMR 1487 ref.

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

----S.54--Sale agreement---Validity---Nobody would become owner of property by entering into sale agreement.

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

----S.15---Specific Relief Act (I of 1877), S.12---Transfer of Property Act (IV of 1882), S.54---Ejectment proceedings--Pendency of suit for specific performance of sale agreement---Effect---Nobody would become owner of property merely by entering into sale agreement---Tenant would continue to be tenant till transfer of title of demised premises in his favour under Transfer of Property Act, 1882---Principles.

1994 SCMR 1487 ref.

S.M. Iqbal for the Petitioner.

Muhammad Iqbal Chaudhry along with Ms. Shiraz Iqbal for Respondent No.1.

2008 Y L R 2441

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUHARRAM and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. S-266 of 2006, decided on 17th May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 367---Judgment---Counsel for the appellants had pointed out certain infirmities in the contents of judgment of the Trial Court pleading that the same was untenable---State Counsel frankly conceded that impugned judgment could not be maintained---Judgment passed by the Trial Court being poor in the form and content, could hardly be allowed to exist---By consent, impugned judgment was set aside---Case was remanded to the Trial Court for rehearing the arguments and passing a fresh judgment in accordance with law within specified period---Concession of bail had been extended to accused persons.

Hidayatullah A. Abbassi for the Appellants.

Anwar H. Ansari for the State.

2008 Y L R 2444

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD RIZWAN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.113 of 2006, decided on 22nd January, 2008.

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

----S. 13(d)-Sentence, reduction in---Accused, who was a young boy had stated that he was working as motorcycle mechanic and knew his job very well---Father of accused was an old man---Sending people to jail was basically not to punish them, but to reform them---In the present case, accused had served four months sentence in jail and had been fined Rs.10,000---If somebody could learn lesson with the punishment of four months, it was not necessary that he should continue to remain in jail for two years---Accused who was a young boy, keeping him in jail for a longer period, would adversely affect his outlook in his future life---Sentence of accused was reduced from two years to the one already undergone by him---Petition was dismissed with said modification.

Raza Hashmi for Petitioner.

Fazalur Rehman Awan for the State.

2008 Y L R 2457

[Karachi]

Before Khawaja Naveed Ahmed, J

Malik FAYYAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 729 of 2007, decided on 8th April, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 561-A-Control of Narcotic Substances Act (XXV of 1997), S.9(c)-Bail, grant of---Medical grounds---High Court had referred the accused who was in jail since 25-2-2006 to the Director National Institute of Cardiovascular Diseases for constituting a Board for proper report on the present condition of the accused/applicant---Board reviewed the case of accused and observed that he had coronary heart disease and gets efforts angina on mild exertion and his coronary angiography had revealed that he had Tripple Vessels Coronary Artery Disease and needed Surgery---High Court, in circumstances, granted bail to accused.

PLD 1995 SC 58; 2003 PCr.LJ 821; 1997 PCr.LJ 184; Muhammad Asghar Moghal v. State PLD 2006 Kar. 244; Malik Muhammad Yousufullah Khan v. State and another PLD 1995 SC 58 and Qadar Mand v. Muhammad Amgroze and 4 others 1998 SCMR 496 ref.

Shaukat Hayyat for the Applicant.

Syed Ashfaq Hussain Rizvi, Special Prosecutor, A.N.F.

2008 Y L R 2464

[Karachi]

Before Azizullah M. Memon and Ali Sain Dino Metlo, JJ

Mst. FEROZE BEGUM and 2 others---Petitioners

Versus

GOVERNMENT OF SINDH and 7 others---Respondents

Constitutional Petition No. D-399 of 2005, decided on 5th September, 2007.

Sindh Kachi Abadies Act (II of 1987)---

----Ss. 19, 20 & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Entitlement to allotment of huts in Kachi Abadi---Petitioners claiming to be in possession of separate huts situated on a plot of about 80 square yards in colony concerned, had challenged act of authorities of using the land of their huts for constructing Lyari Express Way without giving them compensation and alternate plot of same size---Petitioners had stated that the plot, which was in their possession in portions, was situated within the limits of Kachi Abadi and they were entitled to its allotment under Sindh Kachi Abadies Act, 1987---Additional Advocate-General stated that claims of the affectees of the Lyari Express Way were being scrutinized and in case the petitioners filed their claims they would be scrutinized like all others by the concerned authority---Counsel for the petitioners was satisfied with the said statement and did not press the petition, which was disposed of accordingly, with liberty to the petitioners to file their claims before the concerned authority who would decide the same within specified period and it could not be said that said Authority by not paying compensation and allotting alternate plots separately to each of the petitioners had committed any contempt, particularly when he was not ordered by the court to do so---Petition was disposed of as not pressed.

Attaullah Khan for the Petitioners.

Manzoor Ahmed for the C.D.G.K.

2008 Y L R 2469

[Karachi]

Before Amir Hani Muslim and Mrs. Yasmin Abbasey, JJ

FAIR TRADE CORPORATION---Petitioner

Versus

KARACHI BUILDING CONTROL AUTHORITY and 3 others---Respondents

Constitutional Petition No. D-1041 of 2004, decided on 10th April, 2007.

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

----S. 7---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Removing unauthorized construction---Petitioner, who claimed to be tenant of a room of Karachi Chamber of Commerce and Industries, had alleged that his right of privacy, air and light had been infringed on account of illegal construction of room made by the respondent by converting the open duct into a room and a wall had been erected in such a manner that it had blocked the ventilation and window of the petitioner's tenement---Nazir of the Court, who was appointed as Commissioner to ascertain the factual position with regard to the nature of construction alleged to have been raised by the respondent, had reported that illegal construction of a room had been raised by the respondent on account of which the ventilator and window on the northern side of petitioner's tenement was closed---Even respondent in counter affidavit did not deny unauthorized construction of room covering the open space/duct under the garb of repairs on account of which the window and the ventilation of the tenement of the petitioner had been completely blocked---Counsel for respondent, had conceded that room in question was unoccupied---Two reports of Nazir of the court as well as counter affidavit of Karachi Buildings Control Authority were clear that room in question was constructed unauthorizedly and had blocked the ventilation and light of petitioner's tenement---Validity---Held, it was obligation of Karachi Buildings Control Authority to remove said unauthorized construction raised without approved plan---Sindh Buildings Control Authority was directed by` High Court to remove said unauthorized construction.

Muhammad Tasnim for Petitioner.

Dilawar Hussain and Arshad Mubeen Khan for K.B.C.A.

Manzoor Ahmed for C.D.G.K.

Ahmed Pirzada, Additional Advocate-General, Sindh for Respondent No.4.

2008 Y L R 2479

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD KASHIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.52 of 2007, decided on 22nd January, 2008.

Penal Code (XLV of 1860)---

----S. 392/34---Appreciation of evidence---Sentence, reduction in---Accused had served out his sentence, including the remission for three years, five months and nine days and remaining sentence was more than three and half years---Conduct of accused in the jail was found satisfactory as per jail roll---State counsel had stated that offence against accused fell under S.392, P.P.C. and not under S.398, P.P.C. --Conviction of accused was modified from S. 398, P.P.C. to S. 392, P.P.C. and reduced the sentence from seven years to four years.

Usman Ghani Adil for Appellant.

Fazalur Rehman Awan for the State.

2008 Y L R 2484

[Karachi]

Before Amir Hani Muslim and Mrs. Yasmin Abbasey, JJ

Mst. AZRA YASMEEN---Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI (K.D.A. WING) and another---Respondents

Constitutional Petition No.D-132 of 2007, decided on 8th May, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Encroachment---Charging of non-utilization fee--Non-utilization fee was chargeable from the date when possession was handed over to the party---Occurrence report had revealed that petitioner's plot was also encroached upon and encroachment was removed and possession was handed over to the petitioner on 20-7-2005---In view of such fact non-utilization fee was chargeable from the date of the possession, which, in the case of petitioner, would be reckoned from the date of occurrence report as the possession of the plot was handed over to the petitioner on the same date at site---Petition was allowed with the direction that the City District Government would charge the non-utilization fee from the petitioner from 20-7-2005.

Ch. A. Rasheed for the Petitioner.

Manzoor Ahmed for the C.D.G. K.

2008 Y L R 2495

[Karachi]

Before Amir Hani Muslim and Mrs. Yasmin Abbasey, JJ

ZAFAR ALI---Petitioner

Versus

GOVERNMENT OF SINDH and 7 others---Respondents

Constitutional Petition No. D-769 of 2005, decided on 25th April, 2007.

Constitution of Pakistan (1973)---

----Art. 199--- Constitutional petition---Demolishion of premises---Compensation for---Petitioner claimed that his mother owned a double storey premises which had been demolished and that in terms of the judgment of the High Court, he was entitled for two plots and Rs.1,00,000---Validity---One plot and Rs.50,000 had been paid to the petitioner---If petitioner was still aggrieved and claimed one more plot "and Rs. 50,000, he could file a suit for recovery of the same or take any other appropriate proceedings as in exercise of constitutional jurisdiction, High Court could not entertain a petition which was based on disputed facts---Constitutional petition was dismissed.

Attaullah Khan for the Petitioner.

Manzoor Ahmed along with Kazi Khalil Mohsin, Director (Lands) for Respondents Nos.1, 2, 4, 6 and 7.

Dilawar Hussain for the K.B.C.A.

Ahmed Pirzada, Additional Advocate-General.

2008 Y L R 2513

[Karachi]

Before Mushir Alam and Mrs. Yasmin Abbasey, JJ

MUHAMMAD TAQI and 4 others---Petitioners

Versus

CIVIL AVIATION AUTHORITY and 2 others---Respondents

Constitutional Petition No. D-510 of 2003, decided on Ist March, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Construction of Squash Complex and Recreational Club---Petitioners had impugned inaction on the part of the Civil Aviation Authority to construct the Squash Complex and Recreational Club---Counsel for respondent submitted that dispute was pending in court and otherwise subject plot was allotted to a foreign consulate and had submitted that the project was under active consideration of the respondent---Constitutional petition having served out its purpose, which was accordingly disposed of in terms of the order passed---Claim of respondent in the suit pending in the Court was to be decided in accordance with law accordingly.

Faisal Kamal Alam for Respondent No.1.

Manzoor Ahmed for C.D.G.K.

2008 Y L R 2528

[Karachi]

Before Khawaja Naveed Ahmed, J

WAHEEDULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.271 of 2007, decided on 30th January, 2008.

Penal Code (XLV of 1860)---

----Ss. 392 & 394---Appreciation of evidence---Sentence, reduction in---Accused present in court repented on his act and promised that he would not repeat that crime again---Father of accused had died and his mother, who was an old lady, had recently met with an accident and had lost her fingers--In view of the repentness of accused, his young age and his promise not to commit the crime again, his sentence was reduced to the one already undergone, while amount of fine was also reduced from Rs.10,000 to Rs.500.

Appellant produced in custody by the jail authorities.

Fazalur Rehman Awan for the State.

2008 Y L R 2532

[Karachi]

Before Muhammad Afzal Soomro, CJ

WASEEM SHAHZAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.314 and 324 of 2006, heard on 13th February, 2008.

Penal Code (XLV of 1860)---

---Ss. 395/34---Appreciation of evidence---Sentence, reduction in---Accused persons having already undergone four years' imprisonment, by considering the evidence produced by the prosecution, it would be in the interest of justice, if their appeals be disposed of by modifying their conviction/sentence---Sentence of imprisonment of seven years awarded by the Trial Court to accused persons, was reduced to 3 years and 6 months and fine of Rs.50,000 to Rs. 25,000.

Mirza Sarfraz Ahmed for Appellant (in Criminal Appeal No.314 of 2006).

Sathi M. Ishaque for Appellant (in Criminal Appeal No.324 of 2006).

Aga Zafar A.A.-G for the State.

Date of hearing: 13th February, 2008.

2008 Y L R 2544

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD SHAHID---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.18 of 2008, decided on 19th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 353/34---Bail, grant of---Further inquiry---Accused was in custody since June, 2007---Firing made by accused upon the police party proved to be ineffective and nobody was injured from the police side---Case was that of ineffective firing---Matter was one of further inquiry under S.497(2), Cr.P.C. in circumstances---Pending inquiry, accused was granted bail.

Muhammad Saleem for Applicant.

Ms. Naheed Naz for the State.

2008 Y L R 2553

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD ISMAIL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.51 of 2008, decided on 31st January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Further inquiry---Allegation was that 136 rods of Charas were recovered from accused, but the sample had been taken only from 5 rods---Accused was in custody for the last one year without trial---Car allegedly used in occurrence, was not owned by accused and no evidence was available in the hands of the prosecution to prove that accused had any knowledge regarding the hidden contents of the car---Was yet to be determined by way of evidence, whether accused had any knowledge of Charas hidden in the car and whether he had shared common intention with co-accused, who was driving the car---Case required further inquiry under S.497(2), Cr.P.C. and during pendency of inquiry accused having made out a case for grant of bail, bail was granted to accused.

Muhammad Hashim v. The State PLD 2004 SC 856 rel.

Abdullah Khan Kakar for Applicant.

Muhammad Bux Awan for the State.

2008 Y L R 2565

[Karachi]

Before Khawaja Naveed Ahmed, J

BADSHAH MIR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.316 of 2008 and Special Case No.12 of 2008, decided on 11th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Sub-stances Act (XXV of 1997), Ss.9(c), 12, 13 & 15---Bail, grant of---Further inquiry---Accused was father of absconding accused persons---Nothing incriminating had been recovered from the possession of accused persons---Alleged recovery had been made from the house of absconding accused persons which was a joint family living---Two male members of the family of accused persons had absconded, while two remaining male members had been arrested and no male member was left in the family to look after the women and children---Case of accused was distinguishable from that of absconding co-accused---Allegation of firing on Anti-Narcotic Force was on the absconding accused person, but still Ilaqa Police was not attracted at the place of incident---No body was injured, no empties were found at the place of incident and no one from the Mohallah had heard the fire shots---Colony where incident allegedly occurred was a very thickly populated area where shops and sufficient light was available at the night time---No possibility of abscondence of any one on foot when officials were on vehicle existed---Case against accused persons, requiring further inquiry under S. 497(2), Cr.P.C., they were granted bail.

Zar Gul v. The State 2000 PCr.LJ 1392; Qadir Bakhsh and 5 others v. The State 2006 PCr.LJ 1251; Hussain Abid Jaffary v. The State 2006 PCr.LJ 58; Shankar v. The State 1996 PCr.LJ 651; Jameel Khan v. The State 2003 PCr.LJ 1139; 2003 PCr.LJ 821; 2001 SCMR 299; 1998 SCMR 496 and Gul Zaman v. The State 1999 SCMR 1271 rel.

Akhtar Ali Mastoi for Applicant.

Syed Ashfaq Hussain Rizvi, Special Prosecutor A.N.F.

2008 Y L R 2578

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD NAEEM QURESHI---Applicant

Versus

THE STATE---Respondent

Special Criminal Bail Application No.9 of 2008, decided on 12th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Customs Act (IV of 1969); Ss.156(1) (9), (14), (14-A), (43), (47), 16, 32(1)(2), 32-A, 78, 80 & 178---Bail, grant of---Further inquiry---Role of accused throughout was that of a Clearing Agent and at no stage he had been shown as main beneficiary---Accused was arrested on the statement of co-accused---Entire case rested upon documentary evidence, which had already been collected by the prosecution---Present was a financial crime based on documentary evidence---Importers and other government officials who connived with accused had not been arrested; on the contrary, efforts were being made to exonerate them from the charge---Accused, who had been remanded to jail custody, was no more required by the prosecution for further investigation or recoveries---Entire evidence in the case was that of documentary nature---Case of accused being one of further inquiry, accused was admitted to bail, in circumstances.

Gul Sher v. The State 2000 MLD 961; 2001 SCMR 14; Abdul Majed alias Majeed v. The State 2007 YLR 3234; Arif Nawaz Khan v. The State PLD 1991 FSC 53; Soib Mahmood Butt v. Iftikharul Haq 1996 SCMR 1845; Muhammad Nawaz v The State PLD 2008 SC 438; Aftab Hussain v. The State 2004 SCMR 1467; Muhammad Rafiq v. State 1997 SCMR 412; Saeed Ahmed v. State 1996 SCMR 1132; Anum Shiraz v. The State 1999 MLD 844; Soni Khan v. The State NLR 1995 Cr.LJ 593; Safer Ali v. The State 1986 PCr.LJ 2571; Arshad Mahmood v. The State 1985 PCr.LJ 2048; Hussain Haqani v. The State 2000 PCr.LJ 161; Ijaz Akhtar v. The State 1978 SCMR 64; PLD 1997 SC 545; 2004 SCMR 319 ; 2003 MLD 1591 and 1996 SMR 1132 ref.

M. Ilyas Khan and Muhammad Jamil for Applicant.

Akhtar Ali Mehmood for Customs Authorities along with the Investigating Officer.

2008 Y L R 2612

[Karachi]

Before Azizullah M. Memon and Arshad Noor Khan, JJ

HABIBULLAH ENERGY LIMITED through General-Manager---Petitioner

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman WAPDA, Lahore and 5 others---Respondents

Constitutional Petitions Nos. D-439 and D-442 of 2006, decided on 7th May, 2008.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Matter involving contractual obligations---Availability of alternate remedy---Effect---Held, scope of judicial review was too wide and sweeping to be adopted in every case, availability of an alternate remedy for matter involving contractual obligations should not impose a hurdle in the exercise of powers of judicial review under Art.199 of the Constitution--If in a particular case both parties admit the factual aspects which gave rise to the dispute and the court felt that matter was of such urgent nature that the very remedy would get frustrated if the aggrieved party was directed to seek redress through an alternate remedy available under the law, in that case, it would be proper for the court to entertain the constitutional petition---If in a contractual matter (giving rise to enforcement of contractual obligations or a dispute) which could be redressed through other remedy available under the law, constitutional petition was entertained, then that would defeat the very purpose of law under which the competent courts were established and vested with jurisdiction under the law.

Petrosin Products (Pvt.) Ltd. v. Federation of Pakistan 2001 CLC 1412; Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police and others PLD 1992 Kar. 283; Amanullah Khan and others v. The Federation Government of Pakistan and others PLD 1990 SC 1092; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd. Rawalpindi PLD 1991 SC 14; Government of N.-W.F.P. and others v. Mejee Flour and General Mills (Pvt.) Ltd. Mardan and others 1997 SCMR 1804; Abid Hassan and others v. PIAC and others 2005 SCMR 25; Wattan Party v. Federation of Pakistan and others PLD 2006 SC 697; Meraj Din v. Noor Muhammad and others 1970 SCMR 542; Munshi Muhammad and another v. Faizanul Haq and others 1971 SCMR 533; Javaid Iqbal Abbasi & Company v. Province of Punjab and others 1996 SCMR 1433 and Rashid Mehmood v. Administrator, District Council PLD 1997 Lah. 407 ref.

(b) Discretion---

----Scope---Held, discretionary decision should be made according to rational reasons and there should be findings of primary facts based on good evidence, and the decisions about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasonable manner, and actions which did not make the threshold requirements as mentioned in discretionary decisions, the same become arbitrary and might be considered as misuse of power.

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

----Art.199---Constitutional petition---Auction of lease of power plant by government---Acceptance of highest bid---Validity---Department being a statutory body was to take decision on the matter of leasing its properties and in that behalf to decide as to which of the two competing bids was in the best interest of department and it was for the procurement agency to decide as to which of the two bids was to be accepted after appreciating the relevant rules and the relevant documents relating to evaluation of bids which was made basis for acceptance of offer which was found to be in the best interest of public/department---Constitutional petition, in the matter involving disputed questions of fact, which could not be resolved by High Court under its constitutional jurisdiction, was dismissed in circumstances.

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

----Art. 199---Constitutional jurisdiction---Scope---Disputed question of facts cannot be resolved by means of proceedings in petition under Art.199 of the Constitution.

Abdul Hafeez Pirzada, Senior Counsel assisted by Abdul Sattar Pirzada, Barrister-at-Law for Petitioners.

Shahid Hamid and Yawar Faruqui for Respondents.

Rizwan Ahmed Siddiqui, Deputy Attorney-General.

Dates of hearing: 14th March, 2nd April, 3rd April, 8th April and 22nd April, 2008.

2008 Y L R 2651

[Karachi]

Before Munib Ahmed Khan and Farrukh Zia G. Shaikh, JJ

Syed ROSHAN ALI SHAH---Petitioner

Versus

MUKHTIARKAR GADAP and 6 others---Respondents

C.P. No.2258 of 2006, decided on 12th February, 2008.

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

----Ss. 4, 10, 18, 19 & 24--Grant of government land---Rights and obligations of grantee of land---Extent---Land normally was granted under the Government Land Policy including the Colonization of Government Lands (Punjab) Act, 1912, for a specific purpose, like Poultry or on Wahi Chahi basis; and for a limited period extending from 10 years to 30 years etc., and that too on nominal charges---Such grant could be considered in the interest of public as well as country just to promote government policy and increase any kind of product and after completion of period said land reverted to the government---With such type of land certain terms and conditions remained attached and violation thereof could result in cancellation of grant---No ownership right was created in favour of the grantee in the granted land and grantee had no right to transfer the same to any person or to mortgage with any Authority or Bank etc.---Even the leasehold right could not be transferred to anybody as the original lease was being granted on certain terms and conditions keeping in view the specific qualification of the original applicant and undertaking to use the land for specific purpose---If a grantee would fail to comply with the conditions of grant, then he should return the land and on his failure the government should itself invoke agreed conditions and cause reversion of said land and thereafter could grant same to new applicant, but transfer inter, se between the individuals etc. should not be permitted otherwise the gist and very purpose of Scheme of grant would fail---Grantee having no right, he could not affect any mortgage or create charge over the land nor loan could be granted by the Bank etc., against such illegal mortgage; and if any such type of loan was granted, then it had no validity and it would not be binding on the lesser i.e. government and would not create any right in favour of mortgagee; in such a situation, the auction purchaser could resort to the Bank or Banking Court for return of amount and the Bank could seek remedy available under the given circumstances---Grantee had no vested right to take unusual and unnecessary benefits by getting the lease extended or the nature of the land converted.

Abrar Hassan for Petitioner.

Ahmed Pirzada, A.A-G. along with Ramesh Kumar, OSD Land Utilization and M. Yousuf Abbasi Mukhtairkar Gadap for Respondent No.1.

Ahmed Pirzada, A.A-G. for Respondent No.2.

Respondent No.3 in person.

Ahmed Pirzada A.A-G. for Respondent No.4.

Nemo for Respondents Nos.5 to 7.

2008 Y L R 2663

[Karachi]

Before Amir Hani Muslim and Mrs. Yasmin Abbasey, JJ

ABDUL MAJEED REHMANI---Petitioner

Versus

KARACHI BUILDING CONTROL AUTHORITY and others---Respondents

C.P. No.D-973 of 2006, decided on 1st June, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Construction of building---Plan of the property in question which had been impugned, had been regularized---Chief Controller of Buildings stated that the regularization was within the ambit of plot--Counsel for the petitioner, on the other hand, had stated that during the construction the wall and the floor of the petitioner's residence were damaged---Since the counsel of the parties were amicably settling the matter, counsel for respondents was directed to deposit a sum of Rs.150,000 with the Nazir of the Court which amount would be paid to the petitioner as compensation for the alleged damage of the floor and the wall---Respondents would continue with the construction strictly in accordance with the approved/revised plan---Respondents, however, would not be entitled to dispose of the property in units and instead would be entitled to dispose of the property as a whole---Interest of the petitioner was thus secured and even otherwise the construction was raised within the parameters of revised plan---Constitutional petition having achieved the purpose, same was disposed of accordingly---Amount would be deposited by the respondents with the Nazir of the Court within the stipulated period and petitioner would be entitled for withdrawal of the same.

Ms. Razia Danish for Petitioner.

Khawaja Shams-ul-Islam for Respondents Nos.2 to 5.

Shahid Jamaluddin Ahmed for K.B.C.A.

2008 Y L R 2668

[Karachi]

Before Azizullah M. Memon, J

MUHAMMAD TAHIR and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.411 of 2006, decided on 16th April, 2008.

Penal Code (XLV of 1860)---

----Ss. 395 & 411---Appreciation of evidence---Witnesses had deposed before the Trial Court that faces of the culprits were muffled and they were unable to state in clear terms if accused tried in the court were the same persons---None of accused persons, in circumstances stood connected with the actual commission of the offence of decoity---Recoveries of the different cash amounts from the possession of accused persons, however, stood proved through the prosecution witnesses---Accused persons had not produced any evidence whatsoever to say that they had falsely been involved in the case for the said recoveries of the different amounts from their respective possession---Accused persons in circumstances were found to be guilty of offence punishable under S. 411, P.P.C.---State Counsel also conceded that evidence produced before the Trial Court did not inspire confidence so far the establishment of identification of accused to be the actual culprits of incident of the case was concerned---Conviction recorded by the Trial Court against each of accused persons was converted into one under S.411, P.P.C. and sentence awarded to them was reduced to one already undergone by them, in circumstances; they were directed to be released.

Abdul Razzak for Appellants.

Haji Abdul Majeed for the State.

Date of hearing: 7th April, 2008.

2008 Y L R 2680

[Karachi]

Before Munib Ahmed Khan, J

Syeda TOUSIF ZOHRA---Petitioner

Versus

Syed ARIF HUSSAIN ZAIDI and 2 others---Respondents

C.P. No.S.101 of 2007, decided on 22nd April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 190---Penal Code (XLV of 1860), S.343---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cognizance of offences by Magistrate---Recording of statements and taking evidence, distinctive acts---Police had submitted its report and termed the F.I.R. registered under S.343, P. P. C. as false "B " class---Magistrate in his detailed order had disagreed with the finding and after taking the cognizance had referred the matter to the Sessions Judge---Magistrate had applied his mind and keeping in view the past history of the accused he had taken action---Validity---F.I.R. in the case was only registered after intervention of the Sessions Judge, but since the police officials were involved in the case, no proceedings could be taken---Magistrate for the purpose of taking cognizance, could examine the material and even could put questions to witnesses to verify the contents of the material before him---Recording of statements and taking evidence, were two different things---Magistrate, while taking cognizance had to record some statements and to scrutinize the allegation which was permitted keeping in view the gist and requirement of S.190, Cr. P. C., otherwise, the very purpose of Magistrate to have a check on the police report would fail---As far as the trial was concerned, the matter, after satisfaction of the Magistrate, was sent to the Sessions Judge, who would record evidence with an opportunity to the parties to cross-examine the witnesses in detail and to place certain documents as exhibits and to challenge them in accordance, with law.

Ishrat Ali Lohar for Petitioner.

Muhammad Qasim Rustmani holding brief for Muhammad Ali Rind for Respondents Nos. 1 and 2.

Mumtaz Alam Laghari, Assistant A.-G. for the State.

2008 Y L R 2686

[Karachi]

Before Munib Ahmad Khan and S. Pir Ali Shah, JJ

SAJJAD AHMED---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and 3 others---Respondents

C.P. No.D-266 of 2008, decided on 30th May, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.409, 420, 468, 471 & 34---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Bail, grant of---Further inquiry---Constitutional petition earlier filed by accused was disposed of with direction that two witnesses be examined and through that very order accused was allowed to repeat the petition for bail---Statements of said witnesses were to be scrutinized by the Trial Court to put a certainty of the liability upon accused, while the Trial Court had also to see as to whether the procedure had been followed or not; and in such a situation what would be liability of accused---Two other accused persons had been enlarged through bail---Case of accused being of further inquiry, he was admitted to bail, in circumstances.

Mirza Sarfraz Ahmed for Petitioner.

Ch. Muhammad Iqbal for NAB.

2008 Y L R 2693

[Karachi]

Before Khawaja Naveed Ahmed, J

NOOR MUHAMMAD---Petitioner

Versus

STATION HOUSE OFFICER and 5 others---Respondents

Constitutional Petition No.S-320 of 2008, decided on 5th August, 2008.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Harassment---Civil dispute---Petitioner was aggrieved of the complaint filed by her mother alleging that petitioner had sold her residential flat and usurped the sale proceeds---Validity---High Court directed Investigating Officer to take action in accordance with law---High Court advised Investigating Officer not to settle civil dispute regarding money/sale proceed of the flat at the police station but if a cognizable offence was made out, he should not spare anyone whoever was responsible for cutting the hair of old lady and dispossessing her from the flat where she resided for sixty years---Constitutional petition was dismissed accordingly.

Badrul Alam along with Noor Muhammad for Petitioner.

Muhammad Bux Awan for the State.

Saleem Akhtar, Additional Prosecutor-General.

A.S.-I. Syed Imtiaz Hussain of Arambagh Police Station along with Respondents Nos.3, 4 and 5 present in person.

2008 Y L R 2699

[Karachi]

Before Bin Yamin, J

ABDUL SATTAR through his L. Rs. ---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.49 of 2008, decided on 7th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 514---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Forfeiture of surety bond---Applicant stood surety for accused and executed surety bond in the sum of Rs.5,00,000---Accused having failed to appear in the court on date of hearing, the Trial Court issued notice to applicant/surely under S.514, Cr. P. C., but prior to service of notice, applicant/surety died---Widow of the surety appeared before the court submitted that her husband had died and she was a poor lady and requested for return of the bond amount deposited by her deceased husband in the court, but the Trial Court did not agree with the submission of the widow and imposed penalty of half the amount of surety bond viz. Rs.2,50,000---Trial Court. further ordered that the remaining half amount along with interest be returned to the 'widow of the applicant/surety---Validity---Impugned order passed by the Trial Court was not sustainable on two grounds; firstly that order of forfeiture of. surety bond was passed when surety was no more alive and same having been passed in violation of S.514(6), Cr.P.C., was not sustainable; secondly, penalty could be imposed upon the surety only when it was proved that absence of accused from the court was intentional and was not for the reason beyond the control of accused---In the present case it had come on record that accused was taken to U.S.A. and was detained there and he could not attend the court---Absence of accused being for the reason beyond his control, no penalty could have been imposed upon applicant/surety, even on that count---Impugned order was set aside with the direction that bail amount of Rs.5,00,000 lying in the court be paid to widow of the surety on production of succession certificate from the competent court of law.

Naseer Ahmed for Applicant.

Naheed Naz for the State Counsel.

2008 Y L R 2707

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD ISRAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.570 of 2008, decided on 4th August, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, refusal of---Heroin filled capsules weighing 690 grams were recovered from the stomach of accused through medical process---Trial Court had rightly disallowed bail to accused on cogent reasons vide impugned order---Accused being in custody for the last eight months without any progress in the case, Trial Court was directed to record evidence of the complainant and one Mashir within two months, whereafter accused would be at liberty to repeat his bail application in the Trial Court, if so advised---Bail application was dismissed with the said observation.

Muhammad Masood Faiz for. Applicant.

Ashfaq Rizvi, Special Prosecutor, A.N.F. for the State.

2008 Y L R 2710

[Karachi]

Before Nadeem Azhar Siddiqi, J

LAZAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. S-304 of 2006, decided on 25th July, 2008.

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

----S.426---Suspension of sentence---Unexpired portion of sentence of accused was still 16 years and ten months, which was a substantial period of sentence---Appeal was also not an old one---Contentions raised on behalf of accused going to the root of the case could only be appreciated at the time of hearing of appeal, when the entire evidence available on record would be thrashed out--Petition for suspension of sentence of accused was dismissed in circumstances.

Pir Mukkram-ul-Haq v. State 2006 SCMR 1225 distinguished.

Muhammad Saleem v. The State PLD 2006 SC 483 ref.

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

----S.426---Suspension of sentence---Principles---Bail, pending appeals in the offences falling under the prohibitory clause of S.497, Cr. P. C. cannot be granted unless the conviction is shown to have been based on no evidence or inadmissible evidence and ultimately not sustainable---Grant of bail without considering or ascertaining the question of guilt or innocence on merits through appraisal of evidence is not justified.

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

----S.426---Suspension of sentence---Assessment of evidence---Principles---While considering an application under S.426, Cr.P.C. only tentative assessment of the evidence is to be made and deeper appreciation of evidence is not permissible.

Muhammad Saleem v. The State PLD 2006 SC 483 ref.

Anwar H. Ansari for Appellant.

Bahadur Ali Baloch for the State Counsel.

2008 Y L R 2717

[Karachi]

Before Nadeem Azhar Siddiqi, J

ABDULLAH and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-232 of 2008, decided on 25th July, 2008.

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

----S.497---Bail in non-bailable offences---Extent and scope---Section 497, Cr.P.C. divides non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment for life or imprisonment for ten years, and (ii) offences punishable with imprisonment for less than ten years---Grant of bail in non-bailable offences falling in the second category punishable with imprisonment for less than ten years is a rule and refusal an exception---Bail in cases falling in the second category will be declined only in extraordinary and exceptional cases, e.g., (i) where there is likelihood of abscondence of accused; (ii) Where there is apprehension of the accused tampering with the prosecution evidence; (iii) where there is danger of the offence being repeated if the accused is released on bail; and (iv) where the accused is a previous convict.

Tariq Bashir v. State PLD 1995 SC 34 ref.

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

----S.498---Penal Code (XLV of 1860), Ss. 337-A(ii)/337--F(v)/337-L(vi)/504/34---Pre-arrest bail, grant of---Pre-arrest bail could be granted where the arrest of accused was imminent with ulterior motive, mala fides or due to their false implication apparent on the face of record---Enmity between the parties was admitted---Offence charged against accused did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Delay in lodging the F.I.R. was not explained---Accused apprehended that police wanted to arrest them in order to humiliate and disgrace them---Interim pre-arrest bail granted to accused was confirmed in circumstances.

Gul Muhammad v. The State 2001 PCr.LJ 1534; Ashir Wasim Babar v. The State 2006 SCMR 407; Masood Ahmed alias Muhammad Masood v. The State 2006 SCMR 933; Aftab v. The State 2004 PCr.LJ 722 and Tariq Bashir v. State PLD 1995 SC 34 ref.

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

----S. 498---Pre-arrest bail---Principles----Pre-arrest bail can be granted where the arrest of accused is imminent with ulterior motive, mala fides or due to his false implication apparent on the face of record.

Basharat Ahmed Jatt for Applicants.

Wali Muhammad Khoso for the Complainant.

Muhammad Azeem Parhwar for the State Counsel.

2008 Y L R 2721

[Karachi]

Before Khawaja Naveed Ahmed, J

AYUB SHAHID---Applicant

Versus

THE STATE---Respondent

Bail Application No.810 of 2008, decided on 4th August, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 353/392/337-A(i)/147/148/149---Bail, grant of---Two co-accused in the case had already been granted bail by the Trial Court---Case of accused at this stage required further inquiry as contemplated under S.497(2), Cr. P.C.---Bail was allowed to accused in circumstances.

Imdad Khan and Khan Muhammad for Applicant.

Saleem Akhtar, Additional Prosecutor-General for the State.

2008 Y L R 2724

[Karachi]

Before Bin Yamin, J

HAMOOD UR REHMAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.589 of 2008, decided on 7th August 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 395 & 353/34---Bail, refusal of---Nothing was on record to show that complainant had any reason to falsely implicate accused with the commission of the offence---Accused along with his companions was arrested on the spot and he was found duly armed with .30 bore pistol--Such type of incidents took place off and on in the city, accused therefore, was not entitled to the concession of bail on technical ground---No case for grant of bail to accused having been made out his appl­ication for bail was rejected.

Abdul Fateh H. Kazi for Applicant.

M. Iqbal Kalhoro, Addl. Prosecutor-General for the State.

2008 Y L R 2728

[Karachi]

Before Ali Sain Dino Metlo, J

ALLAH BUX---Applicant

Versus

THE STATE---Respondent

Criminal Bail- Application No.S-534 of 2006, decided on 1st August, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 324---Bail, grant of---Complainant failed to produce any witness in support of his complaint and despite making all possible efforts the Trial Court failed to secure attendance of the complainant and his witnesses, who were reported to have shifted to some unknown place and were not available---Effect---It was the right of every accused to be put to trial within a reasonable time or to be released on bail---Accused could not be kept in custody for an indefinite period without trial---No concept of punishment before conviction existed in system of criminal administration of justice---Accused remained in custody for about seven years, which was substantial part of his life, without trial and he was not at fault in causing the delay---To keep accused further in custody, would amount to abuse of process of law, particularly when the witnesses were not traceable---Accused was released on bail, in circumstances.

A.R. Farooque Pirzada for Applicant.

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

2008 Y L R 2732

[Karachi]

Before Khawaja Naveed Ahmed, J

MUREED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.756 of 2008, decided on 5th August, 2008.

(a) Precedents---

----Every case of criminal nature is to be looked on its own facts and circumstances and rule of universal application cannot be deduced from the decision in a particular case.

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

----S.497---Bail---Assessment of evidence---Scope---Court, at bail stage, should not enter into deeper appreciation of evidence and should look tentatively upon the evidence collected by the prosecution in order to ascertain whether a prima facie case is made out against the accused or not.

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

----S.497---Penal Code (XLV of 1860), S.302/504/109/337-A(i)/34---Bail, refusal of---Sufficient evidence was available on record to hold that prima facie case punishable with death or imprisonment for life was made out against accused---High Court had refrained from making any observation at the present stage of the case as the same might prejudice the case of either party at the trial---Bail was declined to accused in circumstances.

Mehmood Ahmed v. State 1995 SCMR 127 ref.

Muhammad Yousaf v. State 2002 PCr.LJ 293 and Ghulam Haider v. State 2000 PCr.LJ 440 differentiated.

Miss Kaneez Fatima Shaikh for Applicant.

Farah Naz Kazi for the State.

2008 Y L R 2763

[Karachi]

Before Munib Ahmad Khan and Farrukh Zia G. Shaikh, JJ

FEROZE SHAMSI and 2 others---Petitioners

Versus

PROVINCE OF SINDH, MINISTREY OF COOPFRATTON, through Secretary Cooperation and 2 others-Respondents

C.P. No.D-288 of 2006, decided on 27th February, 2008.

(a) Cooperative Societies Act (VII of 1925)---

----S.17-B---Housing Society---Transfer of membership---Principles---Transfer of membership from a member to another person has been legalized by S.17-B of Cooperative Societies Act, 1925, without any restriction---Immediately after transfer, the transferee becomes entitled to membership of society as under S.17-B of Cooperative Societies Act, 1925, transferor ceases to be a member after transfer of his interest in the immovable property, therefore, shares of transferor in the society which are also an interest of transferor and are attached to the plot and / or prerequisite for acquiring the plot is naturally to be transferred to the member acquiring property through transfer from past member.

(b) Cooperative Societies Act (VII of 1925)---

----Preamble---Object and scope---Housing society---Intention of government appearing from Cooperative Societies Act, 1925, is to promote cooperative business in the shape of acquiring land, then allotting plots and keeping its record and maintaining comfortable system and tranquility in the society including use of individual and joint amenities without causing problems for others---All such can be achieved when there is cooperation and consensus amongst the members of society as adverse situation would create not only serious problems but law and order situation as well.

(c) Cooperative Societies Act (VII of 1925)---

----Ss.17-B & 19---Cooperative Societies Rules, 1927, R.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Housing Society---Membership of society---Right of vote to transferees of property---Dispute between parties was with regard to giving membership to transferees of properties situated in the said society---Point of dispute was that although transferees were owners of properties purchased by them, yet they could not be given right of vote as they did not fulfil requirements of bye-laws of the Society---Validity---Intention of basic members forming a society might be sacrosanct till they had themselves maintained that 'situation by selling plots only to persons fulfilling criteria of a member---When care had not been taken and members themselves chose to transfer their all interest to a person without having membership qualification of a buyer then new owner acquiring all interest of a seller could not be denied membership---Order passed by government was an invalid order, which was set aside---High Court declared that S.17-B of Cooperative Societies Act, 1925, had an overriding status over Cooperative Societies Rules, 1927, as well as bye-laws of cooperative societies---High Court also declared that person acquiring property from a past member also acquired membership of Society besides property purchased, irrespective of any limitation which had been imposed in such respect under the bye-laws of Society---Restrictions under bye laws could be valid only till the time when S.17-B of Cooperative Societies Act, 1925, was not introduced but thereafter it was to prevail---Constitutional petition was allowed accordingly.

PLD 1993 S.C. 210; AIR 1972 Patna 455; AIR 1997 Bombay 289; PLD 2001 Kar. 52; PLD 1996 Kar. 1; PLD 1990 SC 295; AIR 1970 SC 245; AIR 1939 Allahabad 466; 1898 2 Q.B. 91; PLD 2003 SC 430; Syed Abdul Alam Modoodi, PLD 1964 SC 673; PLD 2002 Karachi 414; 2004 MLD 1962; 1991 CLC 1917; PLD 1960 Kar. 325 and 2005 CLD 303 ref.

Amir Aziz Khan for Petitioners.

Fareed Ahmed Dayo, A.A.-G. for Respondent No.1.

Syed Iqbal Haider and Khalil A. Siddiqui for Respondents No.2.

Imran Mehdi Memon D.O. Cooperative Societies, present in person for Respondent No.3.

Ishrat Alavi Intervenor.

2008 Y L R 2779

[Karachi]

Before Bin Yamin, J

Mst. SALMA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.38 of 2008, decided on 12th August, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 195---Penal Code (XLV of 1860), Ss.182 & 506-B---Quashing of order---Petition for---Record had shown that concerned officer who submitted challan in the court before the Magistrate, had neither sought permission nor himself stated that he had initiated proceedings under S.182, P.P.C., against complainant; on the contrary it was the Magistrate who directed him to initiate proceedings under 5.182, P.P.C.---Validity--It was only the public servant to whom the false complaint was made and who could have initiated proceedings under S.182, P.P.C. against complainant---Magistrate had no authority to direct the police to initiate proceedings against complainant under S.182, P. P. C.-Order passed by the Magistrate directing for initiation of criminal proceedings was in violation of the provisions of S.195, Cr.P.C., and not sustainable under the law.

Mst. Rani Begum v. Murad Bibi 2002 MLD 459; Qutab Dib v. The State and another 2002 PCr.LJ 366; Maulana Muhammad Ilyas Qadri v. Superintendent of Police, Haripur District and 3 others 2005 PCr.LJ 623; Muhammad Juman v. The State 2005 YLR 1785 and Sajid Tufail alias Abuzar and another v. The State 2002 MLD 462 ref.

Ashiq Ali Anwar Rana for Applicants/Complainant.

M. Ayaz Khan, State Counsel.

2008 Y L R 2787

[Karachi]

Before Farrukh Zia G. Shaikh, J

MUMTAZ ALI SHAH and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.433 of 2008, decided on 11th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, refusal of---Accused persons were named in the F.I.R., Charas was recovered from their possession and chemical report was in positive---No deeper appreciation of evidence could be undertaken at bail stage and only its tentative assessment could be made---No case for grant of bail to accused having been made out, his bail application was dismissed.

Syed Zaffar Ali Shah for Applicants.

Muhammad Iqbal Mahar, Assistant Advocate-General for the State.

2008 Y L R 2791

[Karachi]

Before Nadeem Azhar Siddiqi, J

NAZAR alias NAZAR AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-414 of 2008, decided on 25th July, 2008.

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

---S.497---Penal Code (XLV of 1860), Ss. 459/457/380/337-H(ii)--- Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Bail, refusal of---Accused was nominated in the F.I.R. with the specific role of having caused a fire-arm injury to the father of the complainant by direct firing---Ocular evidence and medical evidence were available on record---Deeper appreciation of evidence was neither permissible nor warranted at bail stage and it could not be determined that the said injury was not caused by the accused---Reasonable grounds were available for believing that the accused had committed an offence falling under the prohibitory clause of S.497, Cr. P. C. ---Bail was refused to accused in circumstances.

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

----S. 497---Bail---Assessment of evidence---Principle---Deeper appreciation of evidence is neither permissible nor warranted at bail stage.

Abdul Rasool Abbasi for Applicant.

Mukhtar Ahmed Khanzada for the State Counsel.

2008 Y L R 2811

[Karachi]

Before Khawaja Naveed Ahmad, J

MUHAMMAD AKRAM---Applicant

Versus

THE STATE---Respondent

Bail Application No.785 and Miscellaneous No.2831 of 2008, decided on, 21st July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Prevention of Corruption Act (II of 1947), S.5(2)---Penal Code (XLV of 1860), S.161---Bail, grant of---Further inquiry---Bail, in cases which were not covered with prohibitory clause of S.497, Cr.P.C., could be refused only when exceptional circumstances existed---In the present case, the exceptional circumstance was an attempt on the part of accused to resist his arrest by attempting to take out his official pistol in order to kill the raiding Magistrate and raiding party---Said allegation, however was denied by accused---Such conduct of accused at the time of arrest required further inquiry---Accused was granted bail, in circum­stances.

2000 SCMR 1797 rel.

Muhammad Arshad Tariq for Applicant.

Saleem Akhtar, Additional Prosecutor-General.

Haji Abdul Majeed State Counsel.

2008 Y L R 2815

[Karachi]

Before Dr. Qamar-ud-Din Bohra, J

MUHAMMAD WAKEEL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-256 M.A. No.663 of 2008, decided on 18th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Further inquiry---Quantity of Charas was firstly stated to be recovered by the Assistant Jail Superintendent and then it was handed over to concerned officer who, after keeping it for 19 days with him, sent same for the Chemical Analysis without any explanation regarding said delay---All that made the case of accused of further enquiry---Accused was admitted to bail, in circumstances.

Faiz Muhammad Larik for Applicant.

Nisar Ahmed G. Abro for the State.

2008 Y L R 2821

[Karachi]

Before Syed Mahmood Alam Rizvi, J

MUHAMMAD FAISAL---Petitioner

Versus

THE STATE---Respondent

Criminal Appeals Nos.316 and 162 of 2005, heard on 18th June, 2008.

Foreigners Act (XXXI of 1946)---

----S. 14---Foreigners Order, 1951, Ss.3 & 2(a)---Appreciation of evidence---Accused, though by appearance seemed to be Bangalies, but they had produced documents, which were duly verified by the concerned Government Departments/ Agencies to be genuine, which supported their plea that they were Pakistanis---Pakistani need not have a citizenship certificate and it was for the prosecutor to prove its case that accused or their parents had entered illegally into Pakistan after 1972, but the prosecution had failed to prove its case through any document or the evidence---Prosecution had relied upon the statements of accused persons while they were in custody, which statements had no value---Contrary to the provisions of Qanun-e-Shahadat, 1984, the Trial Court had based its judgment on presumption and surmises and failed to discuss the evidence adduced during the trial---When the Trial Court had sent for verification the documents produced by accused persons in proof of their being Pakistani nationals; and when the same were declared to be genuine, in such a situation, instead of convicting accused persons on the basis of surmises and conjectures and the bare statement of accused persons made by them while being in custody, they should have been straightaway acquitted---Impugned judg­ment, being not sustainable in law, was set aside and accused persons were acquitted.

Muhammad Mushaffay Ahmed for Appellant.

Jamil Ahmed Virk for Appellant.

Ms. Farah Naz for the State.

2008 Y L R 2824

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

MUHAMMAD AMIN---Applicant

Versus

M. ILYAS DADOO---Respondent

Criminal Revision Application No.129 of 2007, decided on 24th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 247, second proviso---Penal Code (XLV of 1860), Ss.419/420/409---Dismissal of complaint---Restoration of---On date fixed for the statement of complainant and his witness, complaint was dismissed under S.247, Cr.P.C. for non-prosecution but upon filing of application by the counsel for complainant, order of dismissal of complaint was set aside and complaint was restored to its original stage for proceedings on merits---Petitioner/accused had contended that impugned order whereby complaint was restored was without jurisdiction as after dismissal of the complaint for its non-prosecution, it could not be restored---Validity---Second proviso to S.247, Cr.P.C. laid down that the complaint would not be dismissed in absence of complainant and accused could not be deemed to be acquitted after he was charged with cognizable and non-compoundable offence---Course adopted by the Trial Court for restoring complaint, by way of exercising inherent jurisdiction per se did not require any interference.

PLD 1995 Pesh. 103; 2003 SCMR 59 and 2003 YLR Lah. 2211 rel.

Khaleeq Ahmed for Applicant.

Mushtaq for Respondent No.1.

M. Sarwar Khan, Addl. A.-G. for the State.

2008 Y L R 2836

[Karachi]

Before Khawaja Naveed Ahmed, J

RAZA AHMED and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.53 & 8 of 2007 and 405 of 2006, decided on 31st January, 2008.

Penal Code (XLV of 1860)---

---S. 392---Appreciation of evidence---Sentence, reduction in---In all the cases robbed property/car was the same, date of arrest of both accused persons was the same and set of accused persons was the same, but jurisdiction of the Trial Court was different---Both the cases were outcome of same incident, though had been committed at different times---Effect---Held, sentences awarded to accused persons were to run concurrently which were reduced to one already undergone and amount of fine was also reduced in circumstances.

Abdul Razzak for Appellants.

Shaikh Haider for the State.

Date of hearing: 24th January, 2008.

2008 Y L R 2845

[Karachi]

Before Munib Ahmad Khan and Syed Pir Ali Shah, JJ

FAIZAN-E-HARAM HAJJ SERVICE (PVT.) LTD. and another---Petitioners

Versus

MINISTRY OF RELIGIOUS AFFAIRS and another---Respondents

C.P. No.D-1560 and 1561 of 2007, decided on 28th May, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Allotment of Hajj quota---Cancellation of said quota along with the registration and the licence---Allegation against petitioners was that they had facilitated some Hajjis of Afghan origin to perform Hajj on Pakistani documents and in that respect an F.I.R. was registered against them under Ss. 3(2) (a) (b), 5, 13 & 14 of Foreigners Act, 1946 and Ss. 420/468/471/109, P.P.C.---Petitioners, however had been acquitted by the Trial Court under S. 265-K, Cr. P. C.---State Counsel had submitted that pros and cons of the case of the petitioners would be considered by the Ministry including their acquittal in the criminal case and that allotment of quota would rest on the final decision of the Committee duly constituted in the criminal case and that allotment of quota would rest on the final decision of such Committee---Petitions were disposed of by the High Court with the direction that the Committee so constituted should consider the petitioners' allotment of Hajj quota keeping in view their acquittal as well as the proof of allegations, available against them.

Shaukat Hayat for Petitioner.

Imran Ahmed, D.A.G. for the State.

2008 Y L R 2848

[Karachi]

Before Dr. Qamar-ud-Din Bohra, J

ZULFIQAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-376 of 2008, decided on 8th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-H(ii), 201, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Common allegation of firing was against 41 persons in the F.I.R. and the police challaned 38 persons and out of those one was admitted to bail by the Trial Court and another one was admitted to bail by the High Court and others were still absconders---After arrest of accused no weapon had been recovered from accused nor he was put to identification---Certificate already produced had shown that on the alleged date of incident accused was not in the city and was posted in Pak Army---Accused was admitted to bail, in circumstances.

Jai Jai Veshno Mange Ram for Applicant.

Naimatullah Bhurgri for the State.

2008 Y L R 2863

[Karachi]

Before Mrs. Yasmin Abbasey and Ghulam Dastagir Shahani, JJ

RASHEEDULLAH YAQOOB---Petitioner

Versus

NAB, REGIONAL HEADQUARTER---Respondent

C.P. No.D-137 of 2008, decided on 15th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---National Accountability Ordinance (XVIII of 1999), Ss.9 & 10---Bail, grant of---Further inquiry---Present Reference was not the only Reference filed against accused, but on an earlier occasion also a Reference was filed against him in which he had admitted to have entered into plea bargain---Accused though had made out an arguable case for the grant of bail, but allegations made in present/fresh Reference were in addition to those made in earlier Reference, which required further. investigation as no one could be allowed to misappropriate the public funds---Bail, however was granted to accused on medical ground taken by him that he was heart patient and of old age.

Ilyas Khan and Shaukat Hayat for Petitioner.

Siddique Mirza, DPGA NAB.

Iqbal Hashmi for LC NAB.

Date of hearing: 29th March, 2008.

2008 Y L R 2910

[Karachi]

Before Dr. Rana Muhammad Shamim and Ghulam Dastagir A. Shahani, JJ

MUHAMMAD ARIF---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.238 of 2006, decided on 2nd July, 2008.

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

----S. 409--Appreciation of evidence---Accused had failed to explain as to why private witnesses who specifically involved accused in offence of embezzlement, had deposed against him---No mala fide or enmity was pleaded against said witnesses--Plea of accused that the witnesses, who were given up by the prosecution, were not ready to give false statements, was not substantiated as accused could not produce any witness in his defence---Merely pleading that no one dared to depose against his superior was not a cogent explanation in view of fact that prosecution had examined 8 witnesses in support of his case---Accused had himself admitted in his statement on oath that 2 or 3 persons had filed complaint that the amount of their utility bills had not been credited to the concerned department---Such was sufficient to prove that accused used to receive the amount of utility bills and was involved in the embezzlement as duty of accused was on utility bills counter---Record showed that accused had agreed to pay back the embezzled amount---Admission on the part of accused was enough to maintain his conviction---Specific defence plea having not been taken by accused in his statement under S.342, Cr. P. C., Trial Court had rightly discarded defence plea to be not confidence-inspiring and afterthought---Prosecution had proved its case against accused beyond reasonable doubt on material particulars and same being the prosecution evidence was consistent, corroborative, direct, cogent, confidence-inspiring and not discrepant, creating dent in the prosecution case-Trial Court rightly appreciated evidence on record and conviction was recorded against accused acting upon the material available on record---No illegality/irregularity, infirmity or mis-appreciation of evidence was found while convicting accused, conviction awarded to accused by the Trial Court was maintained.

1996 PCr.LJ 2021; 2000 PCr.LJ1607; 1996 MLD 1286 and 1991 SCMR 2300 ref.

(b) Criminal trial---

----Defence plea---Law required that if accused had a defence plea, same should have been put up to the witnesses in cross-examination and then put up the same at the time of recording the statement under S.342, Cr.P. C.

Abdul Razzak for Appellant.

Badar Alam, Deputy Attorney-General for Pakistan for the State.

Date of hearing: 2nd July, 2008.

2008 Y L R 2921

[Karachi]

Before Arshad Noor Khan J

MUHAMMAD AHMED---Plaintiff

Versus

MUHAMMAD YOUNUS LAKHANI---Defendant

Suit No. 789 of 1992 decided on 21st August 2008.

Civil Procedure Code (V of 1908)---

----O. IX, R.6 & O.XX, R.16---Qanun-e-Shahadat (10 of 1984), Art.133---Rendition of accounts---Ex parte preliminary decree---Witness not cross-examined---Plaintiff was working with defendant as his agent on the basis of 50% commission on all business procured by him through sale and purchase of shares on business of stock broker---Plaintiff sought rendition of accounts and thereafter recovery of amount allegedly withheld by defendant---Despite issuance of process against defendant, he remained absent and was proceeded ex parte---Effect---Evidence led by party, if not challenged in cross-examination would be deemed to have been admitted by opposite party---Affidavit-in-evidence coupled with series of documents produced by plaintiff remained undisputed and unchallenged and evidence of plaintiff could not be brushed aside---Evidence of plaintiff showed that averments made by him in his plaint have been fully and substantially corroborated by him and there was nothing on record as an evidence to refute claim of plaintiff---In absence of any evidence, contrary to evidence of plaintiff, the evidence of plaintiff carried much weight---Sufficient evidence was available on record on all issues, to answer those in affirmative, whereas no evidence was available on record to substantiate the claim put forward by defendant regarding withholding of any money by plaintiff by way of embezzlement and misappropriation---As claim of plaintiff had gone un-rebutted and no evidence reflecting on his claim was available on record, therefore, plaintiff was entitled to decree in his favour---Preliminary decree was passed in circumstances.

Iftikhar Ahmed for Plaintiff.

Nemo for Defendant.

Date of hearing: 13th August, 2008.

JUDMENT

ARSHAD NOOR KHAN, J---The plaintiff has filed suit for rendition of accounts and recovery of Rs. 60,64,288.

The facts, as stated in the plaint, are that the plaintiff was working in Karachi Stock Exchange ('KSE') since 1987 with the defendant as an employee and thereafter the defendant appointed him as his agent on the basis of 50% commission on all the business procured by him through sale and purchase of shares of various companies at KSE. The defendant is a member of KSE and is carrying on the business of stock broker. The plaintiff worked with the defendant throughout the period since 1987 till filing of the suit as employee as well as an agent and through his efforts and hard work, the plaintiff generated tremendous amount of business by introducing various parties to the defendant, through which the defendant had received considerable amount of business and earnings, which is evident from the ledger books maintained by the defendant for the said purpose. The parties developed mutual trust and understanding. Moreover, it was customary in the business of stock exchange that on sale and purchase of stocks and shares most of the payments are made in cash, hence the plaintiff had also followed the same customary way of payments to the defendant and according to the calculations made by the plaintiff, the amount paid to the defendant comes to Rs. 15,30,000 the details of which have been given by the plaintiff in the plaint. The plaintiff procured the said business for the defendant and commission amount accrued to the plaintiff against the defendant is approximately Rs. 4,65,000. The plaintiff had paid to one Aziz Aqa for the loss claimed by him from the defendant and according to the instructions of the defendant the plaintiff had to pay Rs.19,000 to the said claimant on behalf of the defendant. Further an amount of Rs. 45,000 is still outstanding against the defendant from the accounts of partnership which the defendant has been maintaining. However, the defendant had been making some incorrect entries in the recording of the accounts and the mistakes are apparent on the face of the record maintained by him. Accordingly, the plaintiff claimed Rs.74,000 from the defendant in this respect. It is further stated in the plaint that the plaintiff had requested to the defendant to make corrections in the account books, but the defendant became deaf ear. However, if the mistakes pointed out by the plaintiff regarding the cash payment had been credited the balance of the account would show the credit amounting to Rs.11,81,903 the details of which have been mentioned by the plaintiff in the plaint. It is further stated in the plaint that the plaintiff demanded his commission as well as the amount paid by him to the various parties on behalf of the defendant from him, but he threatened him with dire consequences and did not pay the said Gins. The defendant also stopped the relationship in between them from the month of March, 1992. The defendant in spite of settlement of accounts sent legal notice through his counsel on 1-9-1992, a telegraphic urgent message claiming Rs. 25,26,172 from the plaintiff wherein the plaintiff was also threatened for criminal prosecution. The plaintiff immediately replied the said telegraphic notice and denied all the allegations and charges levelled in the said notice. Thereafter the plaintiff also served a legal notice on the defendant as well as claim of damages claiming an amount of Rs.50,46,288 in the, said notice from the defendant. The defendant, to defeat the claim of the plaintiff, lodged F.I.R. under sections 406/420, P.P.C. against him, stating therein false and fallacious allegations as well as claim of Rs.25,46,002, which was contrary to the legal notice sent by the defendant to the plaintiff. The plaintiff was arrested by the police on the false complaint of the defendant, therefore, the plaintiff filed the present suit.

A notice of the suit was served on the defendant, who appeared and filed written statement. In his written statement, the defendant has admitted the employment of the plaintiff with him since 1987 and has also admitted that he was permitted to work as commission agent for the defendant at 50% of admissible commission on the business procured by him. However from March, 1991, the plaintiff acted in the capacity of agent only on the aforementioned terms. The .defendant further alleged misappropriation of the plaintiff, therefore, his relationship has been terminated. He also stated about service of notice upon the plaintiff, lodging of the F.I.R. against the plaintiff and has further stated that he was arrested in that case and remained in custody for sufficient time. He has denied all the outstanding amounts and damages claimed by the plaintiff in this suit.

On the pleadings of the parties the following issues were framed:--

(1) Whether the plaintiff worked in dual capacity as employee and commission agent with the defendant ? If so, then on what terms and for which period ?

(2) Whether the plaintiff has not been paid his commission when earned ?

(3) Whether the plaintiff enjoyed the authority to act and deal as partner and trade decision on his own in the administrative matter of defendant's business ?

(4) Whether the plaintiff is withholding plaintiff's money and committed embezzlement and misappro­priation?

(5) What should the decree be?

After framing the issues the plaintiff filed his affidavit-in-evidence and has produced numerous documents in favour of his claim. He was not cross-examined by the defendant and the side of the plaintiff was closed vide order of this Court dated 15-8-2003.

The matter was thereafter fixed for the evidence of the defendant, but the defendant and his counsel remained absent without any intimation, as such repeated intimation notices were issued to him, who avoided to receive the same, as such a copy of the said notice was pasted on the outer door of the office where he is running the business, but he did not respond, therefore, the side of the defendant was closed vide order of this Court dated 29-9-2003. Thereafter the matter was posted for arguments. The defendant again opted to remain absent, as such the intimation notices were again repeated on him, but as usual he avoided to receive the intimation notice, as such vide order of this Court dated 29-4-2008, it was observed that the defendant avoided to receive the intimation notice and the notice was already pasted on the outer door of his office, therefore, no further notice was ordered to be issued for service on him.

I have, therefore, heard the learned counsel for the plaintiff, who vehemently contended that the claim of the plaintiff remained unrebutted by the defendant, who did not lead any evidence, as such there is nothing on record to controvert the claim of the plaintiff, as such sufficient evidence is available on record in support of the case of the plaintiff, as such the suit may kindly be decreed.

I have considered the arguments advanced on behalf of the plaintiff and have gone through the entire evidence available on record. It will be appropriate to consider the contentions advanced by the learned counsel for the plaintiff in the context of issues framed hereinabove.

My findings on the above issues are, therefore, as under:---

ISSUES NOS 1 TO 4:

Since all the issues are interlinked with each other and evidence is also common, as such I propose to decide all these issues simultaneously. The plaintiff has claimed that initially he was employed by the defendant as his employee and thereafter he was appointed as agent on the basis of 50% commission on all sort of the business procured by him. The defendant in his written statement has not denied the assertions of the plaintiff and has admitted that the plaintiff was appointed as commission agent at 50% of admissible commission on the business procured by him. It is, therefore, an admitted position that the plaintiff worked with the defendant since 1987 till March, 1991. The plaintiff in his evidence has also supported the allegations contained in the plaint and liabilities against the defendant which remained undisputed by the defendant in his cross-examination as the defendant chose to remain absent, as such there is nothing on record to use against the plaintiff as evidence to negate his claim. It is settled principle of law that the evidence led by the party, if not challenged in cross-examination, will be deemed that the opposite party has admitted the said piece of evidence. In the present case the affidavit-in-evidence coupled with the series of the documents produced by the plaintiff remained undisputed and unchallenged, as such the evidence of the plaintiff could not be brushed aside. The evidence of the plaintiff shows that the averments made by him in his plaint have been fully and substantially corroborated by him. There is, therefore, nothing on record as evidence to refute the claim of the plaintiff. In absence of any evidence, contrary to the evidence of the plaintiff, the evidence of the plaintiff, the evidence of the plaintiff carries much weight. On all the issues sufficient evidence is available on record to answer them in affirmative. Issues Nos. 1 to 3 are, therefore, answered in affirmative, whereas no evidence is available on record to substantiate the claim put forward by the defendant regarding withholding of any money by the plaintiff by way of embezzlement and misappro­priation, therefore issue No. 4 is answered in negative.

ISSUE No.5:

2008 Y L R 2926

[Karachi]

Before Dr. Rana Muhammad Shamin and Ghulam Dastagir A. Shahani, JJ

MUHAMMAD ASIF---Appellant

Versus

THE STATE---Respondent

Special A.T.A. No. 24 of 2007, decided on 30th June, 2008.

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

----S. 7(a) (e)---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 12---Appreciation of evidence---Delay of eight days in lodging the F.I.R. had satisfactorily been explained---Even otherwise there being threat of killing of the victim, delay would not create doubt in the prosecution case---Contradictions in the evidence of the prosecution witnesses as pointed out by the counsel for accused were not material in nature and impugned judgment could not be set aside on the basis of the same---Defence witnesses had not supported the plea of accused as to the enmity with the complainant party---Prosecution had proved its case against accused beyond reasonable doubt on material particulars, by corroborative, direct, and cogent confidence-inspiring evidence and no discrepancy, creating dent in the prosecution case was pointed out---Accused had failed to prove enmity as alleged against the police or the complainant party---Merely saying by accused that he had falsely been implicated was not sufficient to prove his innocence particularly in view of the fact that the evidence of the prosecution witnesses could not be shattered in cross-examination---Trial Court rightly appreciated the evidence on the record and conviction was recorded against accused acting upon the material available with it---Provisions of Juvenile Justice System Ordinance, 2000 had been taken into consideration by the Trial Court while awarding conviction of accused---No illegality/irregularity, infirmity or mis-appreciation of evidence having been found in the impugned judgment of the Trial Court, conviction awarded to accused was maintained.

Nasir Abbas v. The State 2007 PCr.LJ 497; Ghulam Rasool v. The State 2007 MLD (Kar.) 1203; Javed Sabir v. The State 2008 YLR (Lah.) 990; Muhammad Arshad v. State PLD 1996 SC 122 and Mukhtar Ahmad v. The State 2000 PCr.LJ 186 ref.

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

----S. 154---F.I.R. ---Nature---F.I.R. was neither a detailed narration of each and every fact nor it was substantial piece of evidence.

Said Muhammad Khan and Khadim Hussain for Appellant.

Mushtaq Ahmed Abbasi, A.A.-G. and Muhammad Iqbal, Additional Prosecutor-General.

Date of hearing: 30th June, 2008.

2008 Y L R 2936

[Karachi]

Before Bin Yamin, J

BASHIR AHMAD and 2 others---Applicants

Versus

THE STATE-Respondent

Criminal Bail Application No. 686 of 2008, decided on 20th August, 2008.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/337-H(ii)/148/149---Bail, grant of---Further inquiry---Counter case with regard to the same incident had been lodged by the accused party against the complainant party as in said incident two of accused persons and one person of their party also sustained injuries---Complainant party had not given the fact of sustaining injuries by accused persons in the said incident in the F.I.R. of their case which had shown that the complainant party had intentionally suppressed the material facts of causing injuries to accused party to avoid their liability---Complainant party had not even taken the plea that they had caused injuries to the members of accused party in their self-defence-As counter cases were registered by the parties against each other and complainant party had not explained injuries suffered by two accused persons and their one other companion, case of accused fell within the purview of further inquiry---Accused persons, in circumstances were admitted to bail.

1990 PCr.LJ 929; 1988 PCr.LJ 2317; 1986 PCr.LJ 205; 1990 PCr.LJ 1324; 1994 SCMR 1928; 1987 SCMR 861 and 1978 SCMR 346 ref.

Mahmood A. Qureshi for the Applicants.

Muhammad Iqbal, Additional Prosecutor-General for the State.

2008 Y L R 2939

[Karachi]

Before Arshad Noor Khan, J

Haji MOINUDDIN---Plaintiff

Versus

SHAFIQUDDIN QURESHI and 3 others---Defendants

Suit No.876 of 2002, C.M.As. Nos.3166 of 2005 and 1008 and 4877 of 2008, decided on 25th August, 2008.

Constitution of Pakistan (1973)---

----Art.204---Contempt of Court Act (XXIV of 1976), Ss.3 & 4---Civil Procedure Code (V of 1908), O.XXXIX, R.2 (3)---Contempt of court---Consent decree---Terms and conditions of agreement, violation of---Remedy---Parties to the suit entered into a compromise and suit was disposed of in terms of compromise---Grievance of applicant was that terms of compromise agreement had been violated---Validity--Consent decree could not be treated as an undertaking towards the court, thereby binding parties themselves for its enforcement---Terms and conditions of compromise decree could only be treated as agreement between the parties and, in case, if any terms and conditions of such agreement were violated, remedy for aggrieved party was not available in filing of contempt proceedings but remedy for enforcement of such terms and conditions of compromise decree was by way of filing of civil suit before civil court---Order disposing of the suit was not even a compromise decree in favour of either party and it was merely an agreement between the parties and, in case, if any violation was alleged, the aggrieved party should have approached civil court by filing the suit---Application was dismissed in circumstances.

Bilal Aziz Khilji for Plaintiff.

Mirza Adil Mustafa Baig for Defendant No.1.

2008 Y L R 2946

[Karachi]

Before Ghulam Dastagir A. Shahani, J

ZAHID HUSSAIN SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-320 of 2008, decided on 22nd July, 2008.

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

----S.497---Penal Code (XLV of 1860), S.324---Bail, refusal of---Accused had been attributed the role of direct firing at the injured witness with, repeated fires---Pistol had been recovered from the accused--Injuries sustained by the witness were through and through injuries caused by a fire-arm and though opined to fall under section 337-F(v), P. P. C. punishable for five years' R.I. were not covered by the prohibitory clause of section 497 (1), Cr.P.C, yet the same alone was not a ground for bail---Filing of affidavits before Trial Court amounted to tampering with evidence and the same could not be considered at bail stage---Pendency of civil suit between the parties had no bearing on the criminal proceedings, which had to be decided separately---Tentative assessment of evidence could be made at bail stage as deeper appreciation of evidence was not desirable---Looking to the intention of accused, prima facie, his participation in the crime at present stage could not be ruled out---Bail was declined to accused in circumstances.

Shammas-ud-Din v. The State PLD 1996 Kar 382; Jan Muhammad v. Noor Jamal 1998 SCMR 500; Allah Rakha v. The State 1993 SCMR 1994; Abdul Sattar v. The State 2001, PCr.LJ 1127; Ghulam Mustafa v. The State 2000 PCr.LJ 2053; Muhammad Muzaffar v. The State 1995 PCr.LJ 1345; Muhammad Pervaiz Akhtar v. The State 1986 PCr.LJ 1740 and Shmasuddin v. The State PLD 1996 Kar 382 distinguished.

Waqas Ahmad v. The State 2005 SCMR 1496; Ejaz Ahmed v. The State 2008 MLD 566; Muhammad Rafique v. The State 2008 SCMR 678 and Zahoor Illahi v. Shahzad Ahmad 2007 PCr.LJ 1056 and Naseer Ahmed v. The State (PLD 1997 SC 347) ref.

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

----S.497---Penal Code (XLV of 1860), S.324---Bail---Assessment of evidence---Scope---Tentative 'assessment of the material available with the prosecution is to be made and deeper appreciation of the same is not required at bail stage.

Ahsan Ahmed Qureshi for the Applicant.

Naimullah Bhurgri, State Counsel.

Ali Akbar Kalhoro for the Complainant.

2008 Y L R 2952

[Karachi]

Before Dr. Qammaruddin Bohra, J

MUHAMMAD YOUNIS---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-336 of 2008; decided on 12th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 353 & 412---Bail, grant of---Further inquiry---Allegation was that encounter took place which lasted for fifteen minutes, but no injury was caused to either side nor any private mashir was shown for the arrest and recovery of alleged robbed motorcycle and the weapons---Owner of the alleged motorcycle was not examined to identify the culprits---All such factors had made the case of accused as that of further inquiry---Accused was in jail for the last more than one year---Accused was admitted to bail, in circumstances---Co-accused was also admitted to bail on the principle of consistency.

Inayatullah Morio for the Applicant.

Nisar Ahmad. G. Abro, State Counsel.

2008 Y L R 2955

[Karachi]

Before Dr. Qamaruddin Bohra, J

IMRAN alias SAIFULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 487 of 2008, decided on 9th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.392 & 397/34---Bail, grant of---Further inquiry---Injured had alleged in the F.I.R. that five persons armed with T.T. Pistols had fired at him, but there was a single injury which was not attributed to the accused---Prosecution also failed to recover the weapon or any empty from the place of incident---All such facts had made case of accused as that of further inquiry--Accused was admitted to bail, in circumstances.

Fida Muhammad Khan and Shahid Khan Niazi Nawaz for the Applicant.

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

2008 Y L R 2957

[Karachi]

Before Bin Yamin, J

ALI NAWAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 703 of 2008, decided on 15th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 337-A(ii), 337-F(ii), 147, 148 & 149---Bail, refusal of---Specific role in the incident had been assigned to accused---Allegation of the complainant against accused also found support from medical certificate/post-mortem report issued by the doctor---Deep appreciation of evidence of prosecution witnesses, could not be undertaken at the time of decision of bail application---Present case was at preliminary stage and evidence of none of the prosecution witnesses had been recorded---Reasonable grounds existed on the basis of material available on record, showing that accused was guilty of offence punishable with death or imprisonment for life---Case of accused falling within the prohibitory clause of S.497, Cr. P. C., accused was not entitled to the concession of bail.

Muhammad Asif Malik for the Applicant.

Abdul Waheed Siddiqui for the State.

2008 Y L R 2960

[Karachi]

Before Arshad Noor Khan, J

ISLAMIC EDUCATION TRUST, through Official Assignee---Plaintiff

Versus

PROVINCE OF SINDH through Secretary, Education Department---Defendant

Suit No.373 of 2007, C.M.As. Nos.3084 of 2007 and 3175 of 2008, decided on 4th September, 2008.

Civil Procedure Code (V of 1908)---

----S.151, O. VI, R.17, O. VIII, R.5 & O.XII, R.6---Decree on the basis of admission in written statement---Amendment of written statement---Scope---Converting admission into denial---Effect---Plaintiff sought passing of decree on the basis of admission made by defendant in written statement whereas defendant sought amendment of written statement on the ground that in one paragraph word "not" was missed due to typographical error and it was converted into admission---Validity---Admissions contained in written statement were altogether different in nature with regard to amendment in pleadings as admission contained in written statement could not be allowed to resile by defendant---By allowing such type of amendment in written statement, the nature and complexion of written statement would wholly be changed and it might become controversial, as the same was not the spirit of law---Defendant not only made admission in one paragraph of written statement but had also made categorical admissions of the claim of plaintiff in various paragraphs of written statement---Amendment in one paragraph would neither brush aside the remaining admissions of defendant in written statement nor the defendant could be allowed to resile from his admission so as to convert admitted facts into controversial facts, which was against the spirit of O. VIII, R.5 C.P.C. ---High Court did not allow amendment of written statement as sought by defendant and decreed the suit in favour of plaintiff in terms of admissions made by defendant in his written statement---Suit was decreed accordingly.

Secretary to Government (West Pakistan) now N.-W.F.P. Department of Agriculture and Forests Peshawar v. Qazi Abdul Kafeel PLD 1978 SC 242 and Quaid Jauhar v. Hajiani Hajra Bai 2002 CLC 551 rel.

Abid S. Zuberi for the Plaintiff.

Khizr Askar Zaidi, A.A.-G. for the Defendant.

2008 Y L R 2965

[Karachi]

Before Nadeem Azhar Siddiqi, J

DANISH RAFIQUE---Plaintiff

Versus

Mst. NAFEESA SIDDIQUI and 10 others---Defendants

Suit No. 1279 of 2004, C.M.As. Nos.10017 and 10018 of 2007, decided on 3rd December, 2007.

Civil Procedure Code (V of 1908)---

----S.114 & O.XLVII, R.1---Specific Relief Act (I of 1877), S.12-Transfer of Property Act (IV of 1882), S.44---Review---Object and scope---Transfer of share by co-owner--Plaintiff, during trial, entered into compromise with two defendants who agreed to transfer their shares in favour of plaintiff and court had allowed application of compromise---Remaining defendants sought review of order on the ground that co-owners could not transfer their shares without consent of other co-owners---Validity---In absence of any statutory bar, co-owners could not restrain other co-owners from selling / transferring their respective shares in the property---Main object of power of review was to enable court to correct its own mistake and error to prevent injustice---Scope of review was very limited and grounds on which review could be sought were enumerated in O. XLVII, R.1 C.P.C.--Review could be filed where error of law or fact was apparent on the face of record and did not require any detailed inquiry or evidence to establish the same---Matter was compromised between plaintiff and two defendants with regard to their respective shares in suit property---Order was very clear with regard to right of remaining defendant and no compromise was accepted on their behalf and they were free to proceed with the suit---High Court declined to review its order whereby compromise was allowed---Application for review was dismissed in circumstances.

Ali Gohar Khan v. Sher Ayaz 1989 SCMR 130 rel.

Noor Rehman v. Muhammad Yousuf 2000 CLC 1138 distinguished.

Mustafa Lakhani for Defendants Nos. 1 to 3, 5, 7 and 9.

Anwar Muhammad Siddiqui for Defendant No.8.

2008 Y L R 2968

[Karachi]

Before Farrukh Zia G. Shaikh, J

GULZAREEN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.466 of 2008, decided on 8th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Bail, refusal of---F.I.R. was lodged on the very day of the incident---Accused duly armed with pistol accompanied co-accused and had shown his common intention with that of co-accused---Accused produced unlicensed .30 bore pistol along with four live bullets and claimed that it was the same pistol which was with him at the time of the commission of offence---Accused, in circumstances, was also vicariously liable for committing murder of deceased and causing injuries to minor---No case for grant of bail having been made out, bail application was dismissed.

Faraz Akram v. The State 1999 SCMR 1360 and Mumtaz Hussain and 5 others v. The State 1996 SCMR. 1125 ref.

Saeed Jamal Lund for Applicant.

Agha Ather Hussain, Asst. A.-G. Sindh for the State.

2008 Y L R 1

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD YASIN---Petitioner

Versus

Mst. ABIDA RAHIM and others---Respondents

Civil No. 634 of 2000, heard on 24th September, 2007.

Islamic Law---

----Gift---Transfer of possession, essential ingredient of gift---Petitioner claimed gift made and executed in his favour by his deceased father---No convincing evidence was on record about transfer of possession which was necessary for perfection of a valid gift---Petitioner failed to prove the lawful execution of gift hence property in question stood inherited in favour of parties in accordance with their legal shares.

Muhammad Arif Gondal for Petitioner.

Mian Ghulam Rasool for Respondents.

Date of hearing: 24th September, 2007.

2008 Y L R 6

[Lahore]

Before Hasnat Ahmad Khan, J

ALI SHER---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.2432 of 2006, decided on 26th April, 2007.

Criminal Procedure Code (V of 1898)---

---S.497(2)-Penal Code (XLV of 1860), Ss.302, 109 & 34---Bail, grant of---Further inquiry---Incident was a case of blind murder which was reported to the police through a report made under S.174, Cr. P. C. by one who had found dead bodies of two persons-Accused and his co-accused were involved in the case on the basis of statement recorded under S.161, Cr.P.C., whereby it was claimed that accused and his co-accused had made extra judicial confession of murdering both deceased---Said extra judicial confession recorded by the police was in the form of a joint statement of all accused---Gun alleged to have been recovered at the instance of accused was not sent to Fire-arm Expert---Evidentiary value of recovery of gun would be open to serious criticism---Case of further inquiry within the meaning of S.497, Cr.P.C., in circumstances, had been made out in favour of accused---Co-accused had already been released on bail and case o accused was at par with that of said co-accused---Accused, who was undergoing incarceration since 18-4-2005 was entitled to bail on the principle of rule of consistency.

Altaf Ibrahim Qureshi for Petitioner.

Sh. Imtiaz for the State.

2008 Y L R 8

[Lahore]

Before Tariq Shamim, J

Mst. SUMAIRA SHAHEEN and others---Petitioners

Versus

SESSIONS JUDGE and others---Respondents

Writ Petition No.12588 of 2006, decided on 12th January, 2007.

Criminal Procedure Code (V of 1898)--

----S.491(1-A)---Constitution of Pakistan (1973), Art.199-Constitutional petition---Recovery of alleged detenue---Counsel for petitioners the alleged detenue had contended that Sessions Judge had no jurisdiction to issue warrants for recovery of petitioner who having contracted marriage with the other petitioner was happily residing with him---Female petitioner had attained the age of puberty and had contracted marriage with the other petitioner of her own free will and accord---Fact of marriage between the petitioners was not denied by the Investigating Officer---Criminal case registered against male petitioner and others for the abduction of female petitioner, stood cancelled---Petition was accepted and the proceedings emanating from the petition of respondent pending before the Sessions Judge were quashed.

Haji Khalid Rehman for Petitioners.

Ch. Jamshed Hussain, Deputy Prosecutor-General with Altaf Hussain, S.-I. for Respondents.

Nazir Ahmad for Respondent No.2.

2008 Y L R 16

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD IQBAL and 3 others--- Petitioners

Versus

THE STATE and another---Respondents

Crl. Misc. No.3862-B of 2006; decided on 10th January, 2007.

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

----S.498---Penal Code (XLV of 1860), Ss.302, 148 & 149---Pre-arrest bail, refusal of---F.I.R. in which accused were specifically named was lodged very promptly---Counsel for accused could not point out any solid material on the basis of which it could be held that accused had been named in the F.I.R. due to the mala fide of the police or the complainant---In absence of such mala fides, pre-arrest bail could not be granted to accused---All the eye-witnesses had supported the prosecution case during the investigation---Accused though were found innocent by the police and their names were placed in column No.2, but no solid material had been , pointed out on the basis of which accused were found innocent---Even otherwise. opinion of the police was not binding upon the courts-Accused remained fugitive from law for considerable period and after adopting all the legal formalities, accused were declared absconders-Long abscondance of accused, could be used against them as additional evidence and fugitive from law would lose some of their normal rights---Accused having not been found entitled to the extraordinary relief of pre-arrest bail, their bail application was dismissed.

Najeebul v. Khan, 1989 SCMR 899; Ibrahim v. The State 1985 SCMR 383; Murad Khan v. Fazal-e-Subhan PLD 1983 SC 82 and Zia-ul-Hassan v. The State PLD 1984 SC 192 rel.

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

---Ss. 498, 497, 496, & 91---Pre-arrest bail, refusal of---Counsel for accused had contended that after being declared as innocent and placed in column No.2 by the police, accused were not required to file application for pre-arrest bail and were only required to submit surety bonds---Contention was repelled as provisions of S.91, Cr.P.C., were to be read in conjunction with the provisions of Ss.496 & 497, Cr.P.C. and despite the fact that accused had put in their appearance before the Trial Court, provisions of Ss.496 & 497, Cr.P.C. had not been rendered ineffective---Accused, in? circumstances, were not entitled to automatic admission to bail.

Zia-ur-Rehman Sajid v. Muhammad Aslam and another 2005 PCr. LJ 1706 and Noor Nabi and 3 others v. The State 2005 PCr. LJ 505 rel.

Abdul Aziz Khan Niazi and Syed Nizam-ud-Din Shah for Petitioners.

Malik Muhammad Saeed for the Complainant.

Rao Atif Nawaz for the State.

2008 Y L R 18

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD TAHIR---Appellant

Versus

THE STATE---Respondent

Crl. A. No.1572 of 2003 and Crl. Rev. No.909 of 2003, heard on 15th May, 2007.

Emigration Ordinance (XVHI of 1979)---

----Ss.17 & 22---Appreciation of evidence---Allegation against accused was that he being a relative of complainant party introduced them to his co-accused claiming that he could make arrangements for sending son of the complainant abroad for employment, and under the garb of said pretext had received Rs.6,50,000 from the complainant party---Since accused and his co-accused failed to do the needful, upon the repeated demand of complainant party, accused handed over one cheque of amount in question issued by co-accused to the complainant, but said cheque was dishonoured by the Bank---Record did not show as to whether accused was the beneficiary of the alleged transaction or not, but the act of abetting the offence qua accused stood established from the circumstances of the case---Trial Court, in that backdrop of the matter, while awarding sentence to accused, had taken a bit harsh view--Ends of justice in circumstances would be met, if a lenient view was taken qua the quantum of sentence awarded to accused---While maintaining conviction of accused, his sentence was reduced to the period already undergone by him---Sentence of fine was also reduced from Rs.7,00,000 to Rs.1,00,000 accordingly.

Rai Tanveer Arshad Khan for Appellant.

Ch. Abdul Ghaffar for the State.

Date of hearing: 15th May, 2007.

2008 Y L R 22

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD TARIQ and another---Petitioners.

Versus

THE STATE---Respondent

Crl. Misc. No.4043-B of 2007, decided on 12th June, 2007.

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

----S.498---Penal Code (XLV of 1860), Ss.324, 337-F(i), 354, 148 & 149---Pre­arrest bail, refusal of---Both the parties were involved in criminal and civil litigation and claim of complainant was that accused party had come to the spot and opened firing on them---During the incident, injured person received fire-arm injury on his left leg which was attributed to co-accused, which was borne out from the Medico-legal Report---Said co-accused had failed to show any mala fide on the part of the complainant or the police for falsely attributing said injury to him---Prima facie offence under S.324, P.P.C. was made out in the case which fell within the ambit of prohibitory clause of S.497, Cr.P.C.---Bail application to the extent of said co-accused was dismissed.

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

--S.498---Penal Code (XLV of 1860), Ss.324, 337-F(i), 354, 148 & 149-Pre­arrest bail, grant of---Only role of ineffective firing was attributed to accused and no empty was recovered from the spot, despite the fact that seven persons were alleged to have made firing during the incident---Chance of false involvement of accused in the case by the complainant with mala fide intention and ulterior motive could not be ruled out by widening the net as the civil and criminal litigation was pending between the parties---Role attributed to accused was not supported by any connecting evidence---Accused could not be sent behind the bars merely for the reason that weapon of offence was to be recovered from him, which would not advance the prosecution case any further as no empty was recovered from the spot---Pre-arrest bail could be granted, if accused succeeded in making out a case of further inquiry---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

Ch. Abdul Ghaffar for Petitioners.

Arshad Ali Chauhan for the Complainant.

Saeed Ashraf Warraich, Add. Prosecutor-General for the State.

2008 Y L R 26

[Lahore]

Before Maulvi Anwarul Haq, J

BASHIR AHMED and another---Petitioners

Versus

ABDUL GHANI through L.Rs. and others---Respondents

Civil Revision No. 1705 of 1996, heard on 13th September, 2007.

Specific Relief Act (I of 1877)---

----S.42---Plaintiffs sought declaration to the effect that suit plot was originally allotted to them but defendant who had nothing to do with the same, illegally sold the said plot to another defendant---Written statement averred that plot in question was validly transferred in favour of the defendant who sold the same---Other defendant as witness took up a plea align with the written statement that disputed plot purchased by him was located in some other Khasra number however he was not cross ­examined---Suit was decreed by Trial Court and decree affirmed in first appeal---Validity---Plaintiff when appeared as witness stated that suit plot bore No.7/343---Not a single question was put to plaintiff to challenge said statement nor any suggestion was made that the plot bore some other Khasra number---Plea of defendant in circumstances, was not considered as it was well entrenched proposition that no party would be allowed to lead evidence in the absence of a plea.

Taffazul H. Rizvi for Petitioners.

Malik Muhammad Ashraf for Respondents.

Date of hearing: 13th September, 2007.

2008 Y L R 27

[Lahore]

Before Mian Hamid Farooq, J

KHURSHID BIBI---Petitioner

Versus

MUHAMMAD MUNIR---Respondent

Civil Revision No.2567 of 2001, decided on 3rd October, 2007.

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

-----O.XLIV, R.1 & S.149---Dismissal of application for exemption of court fee and the appeal through single. judgment---Validity---After dismissal of application for exemption to pay court fee the appellate court should have provided at least one opportunity to the party concerned to pay the court fee but no such opportunity was granted to petitioner in the present case---Case could not be dismissed on ground of non-payment of court fee until an opportunity was provided to the relevant party to make up the deficiency of court ­fee---Appellate Court acted in exercise of its jurisdiction illegally by dismissing petitioner's application for exemption of court fee and the appeal simultaneously through one judgment, in which the petitioner was not directed to pay the court ­fee-Appellate judgment to the extent of dismissal of application did not call for any interference, however, judgment regarding dismissal of the appeal was not sustainable in law hence order in that behalf was set aside.

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

----O. XLIV, R.1 & S. 149---Where an application for exemption of court fee is dismissed the court should have provided, at least, one opportunity to party concerned to affix or make up the deficiency of court-fee and the dismissal of the application does not ipso facto imply the dismissal of the appeal.

Syed Kaleem Ahmad Khurshid and Ghulam Rasul Chaudhary for Petitioner.

Niaz Ahmad Khan for Respondent.

2008 Y L R 30

[Lahore]

Before Syed Asghar Haider, J

AKBAR KHAN---Petitioner

Versus

MUHAMMAD KHAN---Respondent

Civil Revision No. 15 of 2006 and Civil Miscellaneous Nos. 242-C and 243-C of 2007, decided on 24th September, 2007.

Limitation Act (IX of 1908)---

----S.5---Civil Procedure Code (V of 1908), S.115---Revision petition---Dismissal of petition for non-prosecution-Application for restoration---Delay, condonation of---Petition having been dismissed for non: prosecution, application for its restoration was filed with delay of 8 days---Application for condonation of such delay was filed by petitioner contending that his absence was not deliberate or inten­tional---No date had been mentioned in application for condonation of delay as to when the petitioner discovered dismissal of petition---No explanation was provided as to why application for restoration was not filed within the period of limitation---Effect---Petitioner was required to explain delay of each day as a valuable right had accrued to the other party, which had not been done in the present case---Petition was dismissed.

Abdul Rauf Farooqi for Petitioner.

Sh. Naveed Shahryar for Respondent.

2008 Y L R 33

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. RAZIA BIBI---Petitioner

Versus

ALI SHER and others---Respondents

Civil Revision No. 2562 and Writ Petition No. 18173 of 2005, heard on 18th September, 2007.

Civil Procedure Code (V of 1908)---

----S.97---Partition Act (IV of 1893), Ss.2 & 4---Suit for partition of joint property---Appeal against final decree without filing appeal against preliminary decree--Plaintiffs filed suit against defendant in which a decree for separate possession by partition was prayed for---Trial Court dismissed the suit, but first appeal filed by plaintiffs was allowed by the Appellate Court, which had passed preliminary decree---No appeal was filed against said preliminary decree---First appeal filed by the defendant was dismissed---Validity---Apart from the fact that no denial was made of the title of plaintiffs in the joint property, neither remand order was challenged nor any appeal was filed against the preliminary decree passed by the Trial Court in compliance with the remand order----Effect---Section 97, C.P. C., which debarred a person from questioning preliminary decree in appeal from final decree, when no appeal against the preliminary decree had been filed, was fully attracted in the case---Revision being wholly frivolous, was dismissed.

Shahid Mobeen for Petitioner.

Nemo for Respondents.

Date of hearing: 18th September, 2007.

2008 Y L R 34

[Lahore]

Before Sh. Hakim Ali, J

ALLAH DITTA---Petitioner

Versus

MUHAMMAD AKHTAR---Respondent

Civil Revision No.263 of 2007, decided on 19th September, 2007.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of pro note---Plaintiff who filed suit for recovery of amount on basis of pro note produced his evidence, but defendant failed to produce his evidence on which, his right of production of evidence was closed---Counsel for plaintiff had submitted that he got no objection, if impugned order was set aside and defendant was granted one last and final opportunity to produce his evidence---Revision, in circumstances was accepted, impugned order was set aside with direction to the Trial Court to grant one last opportunity to petitioner to produce his evidence by fixing a specific date.

Javed Majeed Ansari for Petitioner.

Abid Hussain Bhutta and Malik Muhammad Tariq Rajwana for Respondent.

2008 Y L R 35

[Lahore]

Before Mian Hamid Farooq, J

SALEHA MAQSOOD---Petitioner

Versus

T.M.A. through Tehsil Nazim, Faisalabad and another---Respondents

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---Grant of temporary injunction, application for---Questions involved in the case were; as to whether plaintiff, who claimed to be owner of plot in question, was entitled to use it as commercial property without payment of conversion fee; and whether notification relied upon by authorities was attracted in the case of petitioner---Said questions were pending adjudication before the Trial Court and issues were framed in that respect---If at such stage, any findings were given by the High Court on said two controversies, that would, in fact, amount to deciding the suit and could prejudice case of either of the parties before the Trial Court, which would decide the issues involved in the suit in view of the evidence on record and law on the subject---Trial Court was directed to decide plaintiff's suit within specified period after hearing the parties in accordance with law.

Ch. Abdul Majeed for Petitioner.

N.A. Butt for Respondent No.1.

Nemo for Respondent No.2.

2008 Y L R 39

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD HABIB and another---Petitioners

Versus

BAKHSISH AHMED CHAUDHARY---Respondent

Civil Revision No.565 of 2007, heard on 21st September, 2007.

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

----S.54---Agreement to sell immovable property---Cancellation of agreement---Plaintiff filed suit against defendants (owners) for cancellation of agreement to sell on the ground that location of suit property had been concealed from him by the defendants/vendors---Defendants had admitted receipt of amount of earnest money, but had denied being guilty of any concealment of facts while entering into agreement of sale---Receipt of amount as earnest money from the plaintiff was admitted by the defendant, but suit house was not transferred to the respondent---Defendant had claimed that the earnest money stood. forfeited because of such condition in the agreement---Even if said condition was there, same being penal in nature, would not be enforceable and the damages for the breach of contract, would have to be determined in accordance with the provisions of the ; Contract Act, 1872---As all matters involved in the transaction had to be decided in the suit, prima facie case was in favour of plaintiff---Amount of security, however, having not been properly fixed, revision was partly allowed in as much as the defendant was directed to furnish a security in the sum of Rs. 25,00,000 as directed by the Trial Court.

Muhammad Shahzad Shaukat for Petitioner.

Kh. Amir Farooq for Respondents.

Date of hearing: 21st September, 2007.

2008 Y L R 42

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD IQBAL---Petitioner

Versus

AHMADAN BIBI and another---Respondents

Civil Revision No.784 of 2005, decided on 20th September, 2007.

Specific Relief Act (I of 1877)---

----Ss.12 & 15---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Suit for specific performance of agreement to sell land--Proof-Requirements and criteria---Agreement to sell is required under the provisions of Article 17 of Qanun-e-Shahadat, 1984 to be attested by the two witnesses---Such agreement has to be proved under Art.79 of the Qanun-e-Shahadat by the same numbers---Plaintiff had examined one of the attesting witnesses and there was no justification for non-examination of the other---Scribe of the document 'could have been taken to be the other attesting witness---Property agreed to be sold was not exclusively owned by defendants nor it was shown that share of defendants was larger than other co-owners of property and therefore was enforceable in terms of S.15 of Specific Relief Act (I of 1877).

Qasim Ali v. Khadim Hussain (deceased) through Legal Representatives and another PLD 2005 Lah. 654 ref.

Malik Amjad Pervaiz for Petitioner.

Ch. Wajahat Hussain for Respondents.

2008 Y L R 43

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD SABA---Petitioner

Versus

AKBAR ALI---Respondent

Civil Revisions Nos.265 and 274 of 2000, heard on 28th September, 2007.

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

----S.13---`Talb-e-Muwathibat'--Definition--Talb-e-Muwathibat is a declaration of intention to pre-empt a sale transaction, immediately in the 'Majlis' and at the place where a pre-emptor acquires knowledge of the disputed sale.

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

---S.13---Civil Procedure Code (V of 1908), O.VI, R.7---Suit for pre-emption---Suit was decreed but decree was set aside in appeal---Validity---Plaintiff averred that plaintiff acquired the knowledge of disputed sale on 19-4-1995 and exercised his right of Talb-e-Muwathibat on the same day---Plaintiff, when appeared as witness, deposed that he gained the knowledge of sale on 20-4-1995---Departure from pleadings was glaring---Held, what is not pleaded could not be proved and departure from pleadings could not be allowed---No legal infirmity, excess of jurisdiction, misreading or non-reading of evidence was pointed out---Petition was dismissed.

(c) Pleadings---

---What is not pleaded cannot be pressed.

(d) Pleadings---

---Departure from pleadings cannot, be allowed.

Ch. Arif Mehmood for Petitioner.

Mian Ghulam Rasool for Respondent.

Date of hearing: 28th September, 2007.

2008 Y L R 45

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD SHOAIB---Petitioner

Versus

AMIR---Respondent

Civil Revision No. 514 of 2007, decided on 28th September, 2007.

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

----S.115---Revisional jurisdiction---Scope--Appreciation of evidence by the superior Court of fact not shown to be based upon any misreading or non-reading of evidence, cannot be interfered in revisional jurisdiction.

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

----S.13--Performance of Talbs---Contention that informer of disputed sale failed to state the name of person to whom vendor was talking. about sale in question, had no force---Defendant/vendee should have examined vendor to show that the latter had not disclosed the sale to any one before informer, but this had not been done---Notice of Talb-e-Ishhad was received by the admitted employee of defendant in his presented---Postman should have served the notice specifically upon defendant, however, lapse on the part of the official could not be made vice of the plaintiff's case, to knock him out of the litigation.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 distinguished.

Pervaiz v. Muhammad Nawaz 2006 SCMR 4 ref.

Khizar Abbas Khan for the Petitioner.

Syed Muhammad Kalim Ahmad Khurshid for the Respondent.

2008 Y L R 51

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM QUTAB-UD-DIN and another---Petitioners

Versus

Mian KHIZAR HAYAT through legal heirs and others---Respondents

Civil Revision No. 1672 of 2005, heard on 17th September, 2007.

Specific Relief Act (I of 1877)---

----Ss.8, 42 & 55---Suit for possession, declaration and mandatory injunction---Plaintiffs in their suit had asserted that they never agreed to sell and had never sold suit-land to defendants---Plaintiffs had stated that they never appeared before Registrar and did not execute any sale-deed and that Tehsildar had illegally and fraudulently attested mutation in respect of suit-land in favour of defendants when there had been no sale in their favour by the plaintiffs---Declaration was accordingly prayed for by the plaintiffs along with joint possession---Defendants, in their written statement took the plea that father of the plaintiffs was duly certified guardian of the plaintiffs who had lawfully sold land---Both the Trial Court and Appellate Court had dismissed the suit---Validity---Record showed that plaintiffs were minors at the relevant time and they were not at all parties to the sale-deed on basis of which mutation was attested in favour of defendants---No evidence whatsoever was on record of a valid sale by or on behalf of the plaintiffs through sale-deed of any portion of the suit-land---Tehsildar had no jurisdiction whatsoever under any law to amend or rectify the registered sale-deed---Plaintiffs were not at all a party to the sale-deed on the basis whereof the mutation was attested and their names were included as vendors and included in the Revenue Record---Both impugned judgments and decrees passed by the Courts below were set aside by High Court and suit filed by the plaintiffs was decreed as prayed for.

Pir S.A. Rashid for Petitioners.

Shafqat Mahmood and Tahir Munir Malik, A.A.G. for Respondents.

Date of hearing: 17th September, 2007.

2008 Y L R 53

[Lahore]

Before Mian Hamid Farooq, J

BASHIR KHAN Petitioner

Versus

IDREES KHAN---Respondent

Civil Revision No. 400 of 2005, decided on 18th September, 2007.

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

----S.13---Suit for pre-emption---Performance of talb-i-muwathibat---Requirements---Mention of date, place and time of performance of talb-i-muwathibat in the plaint is mandatory---Plaintiff did not mention time and place of performance of talb-i-muwathibat which was contrary to the settled law---Courts below, after appreciation of evidence, rightly came to the conclusion that plaintiff had failed to establish that he had made talb-i-­muwathibat and talb-i-ishhad as required under the law---No misreading or non-reading of evidence was pointed out---Concurrent findings of Courts below based on evidence could not be interfered in revisional jurisdiction.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Abdul Rahim and another v. Mst. Janatay Bibi and others 2000 SCMR 346; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647 Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmed v. Muhammad Siddique PLD 2002 SC 293 ref.

(b) Pleadings---

----Litigant cannot be allowed to depart or improve upon his pleadings and lead evidence on the facts, which were not pleaded in the plaint.

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

----S. 115---Revisional jurisdiction---Scope---Findings on questions of fact or law recorded by Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless such findings suffer from jurisdictional defect, illegality or material irregularities.

Muhammad Rafique v. Aamer Shahzad and others 1999 YLR 610 ref.

Ch. Muhammad Hussain Naqshbandi for the Petitioner.

Nemo for the Respondent.

2008 Y L R 56

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD KASHIF and another---Petitioners

Versus

TALAT NAJEEB RANJHA---Respondent

Civil Revision Nos. 864 to 866 of 2007, heard on 28th September, 2007.

Civil Procedure Code (V of 1908)---

----S.20---Jurisdiction---Recovery suits based upon transaction which was negotiated and completed at place "L"---Suits had been filed at place "O" where one of the plaintiffs resided---Validity---Merely an offer made at "O" by any body on behalf of petitioners did not culminate into a part cause of action, as same was not even an offer envisaged by law of contract, necessary for the formation of contract---Agent of defendant through whom plaintiffs were persuaded at "O" was not impleaded as party, so as to confer the territorial jurisdiction upon the civil Court at "O" on the principle that one of the defendants resided at that place---All agencies of defendant were located at "L"---Suit, in circumstances, could only be adjudicated upon by civil Court at "Z" and Court at "O" had no jurisdiction.

M.M. Iqbal Bhutta for Petitioners.

Muhammad Asif Chaudhry for Respondent.

Date of hearing: 28th September, 2007.

2008 Y L R 57

[Lahore]

Before Sh. Hakim Ali, J

Mst. MEHVISH SHABBIER---Petitioner

Versus

CHIEF EXECUTIVE, NISHTE-R MEDICAL COLLEGE, MULTAN

and 3 others---Respondents

Writ Petition No. 3439 of 2007, decided on 19th September, 2007.

Educational Institution---

---Admission in Medical college---Petitioner was admitted in Dental Paramedical School in Medical college on basis of her qualification of Matriculation---After she having passed 1st year Examination in said course, an objection was raised by the authorities that petitioner was not eligible for 2nd year examination, because she had obtained 3rd Division in her Matriculation examination---Validity---Fault, if any, was lying with Admission Committee/Authority which should have shown the care and caution at the time when petitioner was admitted in the school---After the Authority had granted admission to petitioner and petitioner had passed her 1st year examination, it would be depriving the petitioner in the mid of her study course of two years out of which she had spent one year---Petitioner could not be deprived of her education at that stage---On the strength of principle of locus poenitentiae, objection raised by Authority, was declared illegal and unlawful-Petitioner was allowed by High Court to continue with her study.

Chairman, Selection Committee/Principal King Edward Medical College, Lahore and others v, Wasif Zamir Ahmad 1997 SCMR 15; Director General, Ordnance Services, General Headquarters, Rawalpindi v. Muhammad Abdul Latif 2003 SCMR 410 and Bashir Ahmad Solangi v. Chief Secretary, Government of Sindh Karachi and two others 2004 SCMR 1864 ref.

Muhammad Bila1 Butt for the Petitioner.

Zafarullah Khan Khakwani; A.A.-G. along with Dr. Shamsheer Ali, Principal Dental Paramedical School and Muhammad Rashid, Admin Officer.

2008 Y L R 59

[Lahore]

Before Maulvi Anwarul Haq, J

GULZAR AHMED---Appellant

Versus

MUHAMMAD INAYAT ULLAH---Respondent

Regular Second Appeal No. 71 of 2007, heard on 19th September, 2007.

Specific Relief Act (1 of 1877)---

----S.12---Contract Act (IX of 1872), S.55---Suit for specific performance of contract---Plaint averred that defendant had received total consideration but refused to perform his part of contract---Execution of agreement and receipt of earnest money was not disputed---Defendant only denied having received the balance amount---Possession of suit house had been delivered to plaintiff however payment of entire price had not been proved by plaintiff-Suit, in circumstances, could not have been dismissed as there was nothing on record to show that time was of the essence of the contract---Appellate Court accordingly directed the payment of said balance amount with a penalty of Rs.25,000 High Court enhanced amount of compensation to Rs.1,00,000 as the suit was brought almost on the last date of limitation available under the law.

Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430 ref.

Ghulam Haider Al-Ghazali for Appellant.

Sh. Naveed Sheharyar for Respondent.

Date of hearing: 19th September, 2007.

2008 Y L R 61

[Lahore]

Before Mian Hamid Farooq, J

ABDUL MAJEED---Petitioner

Versus

AMJAD FAROOQ---Respondent

Civil Revision No. 1181 of 2005, heard on 19th September, 2007.

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

----Ss.13 & 30(a)---Registration Act (XVI of 1908), S.60---Pre-emption suit---Sale of suit shop through registered deed---Performance of Talb-i-Muathibat by pre- emptor on coming to know about sale through informant after 42 days of Sale Deed---Notice of Talb-i-Isshad drafted through Counsel in presence of informants of sale---Proof---Suit shop was located on east of pre-emptor's house---Registered document would be notice to public and presumption under law would be that every member of public had knowledge thereof--Nothing on record was available to show that vendee had concealed sale or sale was secret---Statement of one informant-witness was full of contradictions---Second informant-witness was stated to be dead but his death had' not been proved---Pre­emptor, in absence of second informant witness, in order to prove Talb-i-Isshad; could have produced any other witness, who could recognize his signatures and depose that both informants had accompanied pre-emptor to office of his counsel, who drafted its notice---Counsel, who drafted such notice, could have been the best witness to prove that pre-emptor along with informants had come to his office and signed notice in his presence---Pre-emptor had failed to fulfil requirements of both Talbs---Suit was dismissed -in circumstances.

Arshad Mehmood and others v. Makhdoom Ahmad Ghaus 2006 CLC' 1046; Mst. Bhagay v. Mst. Fatima Bibi PLD 2004 Lah. 12; Wilayat Khan v. Muhammad Sharif through Mst. Irshad Bibi and others 2004 CLC 240; Muhammad Abdullah and another v. Muhammad Arshad, Ali Muhammad v. Ghulam Muhammad 2003 CLC 282; Nadir Khan v. Inayat 2005 YLR 1031; Malik Nazir Ahmed through his legal heirs v. Muhammad Yar 2004 SCMR 1377; Muhammad Khan v. Muhammad Aslam 2003 CLC 1555 and Mst. Mahmooda Begum v. Syed Hassan Sajjad and 2 others 2004 YLR 845 ref.

(b) Registration Act (XVI of 1908)---

----S. 60-Registered document---Effect---Such document would be notice to public and presumption under law would be that every member of public has knowledge thereof.

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

----Ss.96, 100 & 115---Judgments of Trial Court and Appellate Court at variance---Effect---Judgment of Appellate Court, if neither contrary to evidence on record nor in violation of principles of administration of justice, would ordinarily be preferred.

Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202; Illamuddin through legal heirs v. Syed Sarfraz Hussain through legal heirs and 5 others 1999 CLC 313 and Aasa v. Ibrahim 2000 CLC 500 rel.

Taki Ahmed Khan for Petitioner.

Muhammad Salem Rana for Respondent.

Date of hearing: 19th September, 2007.

2008 Y L R 69

[Lahore]

Before Syed Asghar Haider, J

NAZIM BUTT---Appellant

Versus

Dr. FAROOQ ASLAM and others:--Defendants

Regular Second Appeal No. 3 of 2007, decided on 12th September, 2007.

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

----O. VII, R.2 & S.100---Suit for recovery of amount---Plaintiff had claimed that he sold his car to defendant for stated consideration---Cheque issued by the defendant could not be encashed---Suit filed by plaintiff for recovery of amount had concurrently been decreed by the Courts---Validity---Defendant, who had failed to prove due payment, could not make out a case on parameters set in S.100, C.P.C.---Not necessary for the Appellate Court to give findings issue-wise, if it was cognizant of the proposition in dispute and gave finding on each point raised, which had been done in the impugned judgment---Appeal having no merits was dismissed.

Aziz Ullah Khan and others v. Gul Muhammad Khan 2002 SCMR 667 and Mst. Husna Bano and others v. Faiz Muhammad and others 2000 SCMR 1647 ref.

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

----S.100---Second appeal--- Parameters---Parameters of second appeal as contained in S.100, Cr. P. C., postulated that decision had to be contrary to law or usage having the force of law; that decision had failed to determine some material issue of law or usage having the force of law; and that a substantial error or defect in the procedure provided by C.P. C. or by any other law for the time being in force existed which could possibly have produced error or defect in the decision of the case upon the merits.

Aziz Ullah Khan and others v. Gul Muhammad Khan 2002 SCMR 667 and Mst. Husna Bano and others v. Faiz Muhammad and others 2000 SCMR 1647 ref.

Dr. Irfan Masood Sheikh for Appellant.

Shehzada Mazhar for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

2008 Y L R 71

[Lahore]

Before Mian Saqib Nisar, J

Mirza MUHAMMAD ASHRAF BAIG---Appellant

Versus

Rana ATTA MUHAMMAD---Respondent

Regular Second Appeal No. 66 of 2007, decided on 17th September, 2007.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement-Suit had concurrently been decreed by the Trial Court and Appellate Court had filed---Validity---Sale agreement between. the parties was admitted and also the receipt of amount' as advanced by the plaintiff---Terms of agreement to sell had been fulfilled by the plaintiff and no default was attributed to him in that behalf---Two Courts below had, given concurrent findings in favour of plaintiff based on true appreciation of evidence on record---Plaintiff, in circumstances, was entitled to grant of decree of specific enforcement of agreement---No error in reading of the evidence, i.e., or any other illegality contrary to the law, having been found calling for interference in the second appeal, same was dismissed, in circumstances.

Muhammad Islam Sheikh for Appellant.

Mian Muhammad Nawaz for Respondent.

2008 Y L R 77

[Lahore]

Before Muhammad Khalid Alvi, J

MEHBOOB HUSSAIN---Petitioner

Versus

ROSHAN---Respondent

Civil Revision No. 716 of 2001, decided on 25th September, 2007.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Trial Court decreed suit, but Appellate Court setting aside judgment and decree of the Trial Court, remanded case for decision afresh--Validity---No material deficiency in the record could be pointed out by Appellate Court requiring necessity of remand---Even if some lapse existed on the part of the Trial Court in not deciding the issue separately, since the material was available with the Appellate Court, which could have been proceeded to decide the appeal on merits---Impugned order was set aside by the High Court and appeal was deemed to be pending---Court concerned was directed to decide appeal within specified period.

Munawar Iqbal Gondal for Petitioner.

Mushtaq Ahmad Mohal for Respondent.

2008 Y L R 79

[Lahore]

Before Muhammad Sair Ali, J

GHULAM SHABBIR SHAH and others---Petitioners

Versus

IBRAR HUSSAIN SHAH and another---Respondents

Civil Revision No. 28 of 2004, heard on 13th September, 2007.

Civil Procedure Code (V of 1908)---

----O.XX, R.14 & O.XLI, R.23---Remand of case by Appellate Court---Appellate Court accepting appeal against judgment and decree passed by the Trial Court, set aside same and remanded case to the Trial Court to record the terms of the decree in accordance with the provisions of law---While specifying the terms of remand, Appellate Court restricted same only to the recording of the terms of the decree in accordance with the provisions of law----Decree would follow the judgment which had to be strictly in accordance with law and the judgment passed by trial Court in a suit---Restating the judgment was also required in order to frame an appropriate decree under provisions of R.14 of O.XX, C.P. C.-Appellate Court had failed to address itself to the grounds raised and accepted appeal on the sole ground that the decree was inappropriately framed---Ordinarily in the absence of decision on the grounds raised in an appeal, case should be remanded to the Appellate Court for re-decision of appeal---Impugned judgment of the Appellate Court had shown that same did not contain the terms mandatorily provided in R.14 of O.XX, C.P.C. in suit for possession---High Court upheld order of remand as made through, impugned judgment and decree, but the said judgment and decree was modified according to the terms of remand, with the direction that the Trial Court would rehear the parties and re-decide the suit in accordance with law---Judgment and decree of the Trial Court would conform with the mandatory provisions of law.

Khizar Abbas Khan for Petitioners.

Malik Hussain Ahmad Madni for Respondents.

Date of hearing: 13th September, 2007.

2008 Y L R 82

[Lahore]

Before Mian Hamid Farooq, J

AMIR ALI QURESHI ---Petitioner

Versus

SHAMIM AKHTAR and another---Respondents

Civil Revision No. 221.1 of 2005, decided on 24th September, 2007.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Plaintiff, who had filed suit for declaration, had also filed application for grant of temporary injunction praying therein that defendants be restrained from transferring property in question to any other person---Both courts, after concurrently finding that plaintiff had failed to establish three necessary and inseparable ingredients, namely prima facie case, balance of convenience and irreparable loss, which were sine qua non for the grant of temporary injunction, dismissed application filed by petitioner for grant of temporary injunction, to which no exception could be taken under the law---Findings of the courts below, being legal and in consonance with record of case, could not be interfered with, especially when both judgments were neither arbitrary nor fanciful nor suffering from any legal infirmity.

Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139; Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others 1999 SCMR 2874 and Mukhtar Baig and others v. Sardar Baig and others 2000 SCMR 45 ref.

Mobeen Ahmed Siddiqui for Petitioner.

Shaukat Ali Javed for Respondent No. 1.

Muhammad Shahzad Shaukat for Respondent No.2.

2008 Y L R 83

[Lahore]

Before Maulvi Anwarul Haq, J

REHMAT ALI alias REHMA and another---Petitioners

Versus

ABDUL MAJID alias MAJA---Respondent

Civil Revision No. 1721 of 1992, heard on 26th September, 2007.

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

----Ss.6 & 13---Suit for pre-emption---plaintiff/pre-emptor filed suit for pre- emption on ground of being a co-sharer as also a Shafi Jar and Khalit---Performance of "Talbs" was also pleaded---Defendant resisted suit with the plea that he was also a co-sharer in the suit-land---Trial Court found plaintiff to be a co-sharer in all the Khewats, while the defendant was also found to be a co-sharer in all. the Khewats except one---Performance of Talbs had been proved---Trial Court partially decreed the suit---Appellate Court, however, proceeded to hold that suit could not proceed in view of Said Kamal's case (P.L.D. 1986 SC 361) and that the saving clause of the Punjab Pre-emption Ordinance, 1990 was declared as repugnant to the Injunctions of Islam by the Federal Shariat Court and suit was dismissed---Validity---Appellate Court had not cared to read the pleadings, the. evidence and the judgment of the Trial Court while passing impugned judgment, had the Appellate Court done so, it would have been found that the Talbs were duly pleaded and right of pre-emption was available under the injunctions of Islam---Impugned judgment and decree passed by the Appellate Court was set aside---First appeals filed by both the parties would be deemed to be pending and would be decided after examining records and hearing the parties.

Said Kamal's case PLD 1986 SC 36 ref.

Ch. Nazir Ahmad Kamboh for the Petitioners.

Nemo for Respondents.

Date of hearing: 26th September, 2007.

2008 Y L R 85

[Lahore]

Before Mian Hamid Farooq, J

WAPDA through Chairman, Lahore and 3 others---Petitioners

Versus

MUHAMMAD AKRAM-Respondent

Civil Revision No. 253 of 2005, heard on 13th September, 2007.

Water and Power Development Authority Abridged Conditions of Supply---

----Cl. 14(1)---Electricity connection---WAPDA disconnected the connection for getting the same in an un-electrified area---Respondent, admittedly had applied for electric connection for his house situated in an tin-electrified area which application was allowed by the department---Authorities who had themselves supplied the electricity connection and received amount of demand notice for supplying the electric energy could not fall back upon to say that respondent obtained the electric connection in an un-electrified area---Authorities should have taken note of such fact when respondent's application for electric connection was under process with the department---Electricity was supplied and bills were paid whereafter authorities could not be permitted to say that electric connection was illegally given---Good prima facie case, irreparable loss and balance of convenience also existed in favour of respondent---Trial Court, in exercise of its discretion, had rightly directed the authorities to restore the electricity connection of respondent---Discretionary orders of subordinate Courts could not be interfered with, unless found fanciful and arbitrary.

Islamic Republic of Pakistan through Secretary Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508; Water and Power Development Authority and 2 Others v. Muhammad Saeed PLD 1992 SC 381; Qazi Inamul Haq v. Heavy Foundry and Forge Engineering (Pvt.) Ltd. and another 1989 SCMR 1855 and Umer Gul v. Malik Abdul Manan and others PLD 1992 Pesh. 76 distinguished.

Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 ref.

Mian Muhammad Mudassar Bodla for Petitioner.

Ijaz Ahmad Khan for Respondent.

Date of hearing: 13th September, 2007.

2008 Y L R 90

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

MUHAMMAD AZAM and 24 others---Appellants

Versus

Pir BAHA-UD-DIN and others---Respondents

Regular First Appeal No. 123 of 1998 and C.Ms. 1120-C, 1121-C of 2006, decided on 18th September, 2007.

Civil Procedure Code (V of 1908)---

----O. XLI, R.19---Dismissal of appeal for non-prosecution--- Application for restoration of appeal---Delay, condonation of---Appellants or their counsel having failed to appear in the court on date of hearing, appeal was' dismissed for non-­prosecution---Appellants were represented by two advocates-0n adjourned date of hearing one of the Advocates appeared in the proceedings and informed that other advocate had expired and that brief of case was not with him and he obtained short adjournment---Contention of appellants was that date fixation of appeal was not in their knowledge while their counsel having expired, their non-appearance was neither deliberate nor intentional---Pendency of the proceedings was in the knowledge of advocate on whose request proceedings were adjourned; his name was reflected in the cause list, but he did not appear, resultantly, proceedings were dismissed for non-appearance---No convincing reason had been made out for non-appearance of the counsel and also as to why was there such massive delay in filing application for restoration of appeal---No credible explanation was given as to how appellants gained knowledge of dismissal of appeal---Petition was dismissed, accordingly.

Malik Noor Muhammad Awan for Applicants.

Muhammad Ashraf Wahla for Respondents Nos. 1 and 2.

Tariq Kamal Qazi for Respondent Nos.3 and 4.

2008 Y L R 94

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

SAJJAD HAIDER and another---Appellants

Versus

Chaudhry MUHAMMAD ARSHAD and others---Respondents

Regular Second Appeal No. 55 of 2004, heard on 5th September, 2007.

Specific Relief Act (1 of 1877)---

----S.8---Suit for recovery on basis of agreement of refund of earnest money for breach of contract---Execution of agreement was not disputed---Agreement showed that the subsequent vendees, had to pay Rs.9,00,000 to plaintiff which the latter had paid to vendors as earnest money---Subsequent vendees claimed that plaintiff had not delivered them possession of suit land as per agreement hence was not entitled to get said amount---Vendors during cross-examination admitted that subsequent vendees were in possession of suit land through their tenant and that the their claim was baseless-Plaintiff's suit was therefore rightly decreed in circumstances---No illegality or infirmity in the impugned judgment was pointed out---Appeal was dismissed.

Zia Ullah Khan Niazi for Appellants.

Ch. Muhammad Jamil Zahid for Respondent No.1.

Respondents Nos. 2 to 6 ex parte.

Date of hearing: 5th September, 2007.

2008 Y L R 97

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL GHANI and 2 others---Petitioners

Versus

Ch. GHULAM ABBAS---Respondent

Civil Revisions Nos. 1134 of 1986 and 1770 of 2006, heard on 3rd October, 2007.

Civil Procedure Code (V of 1908)---

----Ss.47 & O.XXI, Rr.10, 23-A---Execution of decree---Objection to---Executing Court concluded that according to the judgment of the High Court, first a partition would have to be effected and then possession of the land found to be validly purchased by the respondent, was to be given---Appellate Court below allowed appeal filed by respondent holding that possession was to be given and was to be retained by the respondent till such time that the Khata was partitioned---Facts of the case were recorded in the decree prepared by the office and correctness thereof had not been questioned by any of the parties---Appellate Court below had very correctly interpreted the judgment, wherein land was held to be lawfully sold to respondent---Matter of retention of possession and the extent thereof was to be ultimately decided in a suit for partition which was the true spirit of the judgment.

Ch. Bashir Hussain Khalid for Petitioners.

Syed Kaleem Ahmad Khurshid and Mian Subah Sadiq Klasson for Respondents.

Date of hearing: 3rd October, 2007.

2008 Y L R 98

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD ANWAR through L.Rs. and another---Petitioners

Versus

GHULAM QADIR---Respondent

Civil Revision No. 2242 of 2002, decided on 12th September, 2007.

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

----S. 115---Revisional jurisdiction---Scope---Findings on questions of fact or law recorded by Court of competent jurisdiction cannot be interfered with in revisional jurisdiction unless such findings suffer from jurisdictional defect, illegality or material irregularities.

Muhammad Rafique v. Aamer Shahzad and others 1999 YLR 610 rel.

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

----S.5---Civil procedure Code (V of 1908), S.115---Suit for pre-emption---Plaint averred that actual transaction as a sale but to avoid right of pre-emption it was shown as exchange---Trial Court, after proper appreciation of evidence on record, found that questioned transaction was a sale---Findings of trial Court were affirmed in first appeal---Validity---No misreading or non-reading of evidence, illegality or irregularity in exercise of jurisdiction by Courts below was pointed out---Concurrent findings of facts, based on evidence, could not be interfered in the exercise of revi­sional jurisdiction.

Abdul Rahim and another v. Mst. Janatay Bibi and others 2000 SCMR 346; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmed' v. Muhammad Siddique PLD 2002 SC 293 rel.

Muhammad Hussain Naqshbandi for Petitioners.

Rai Muhammad Zafar Bhatti for Respondent.

2008 Y L R 101

[Lahore]

Before Syed Zahid Hussain, J

ABDUL QAYYUM KHAN---Petitioner

Versus

SARFRAZ KHAN and 4 others---Respondents

Civil Revision No. 2059 of 2005, decided on 6th September, 2007.

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

----S.13---Making of Talbs---Plaint was silent as to where and at what time the knowledge of sale was acquired by plaintiff from the informer who later on died---Talb-i-Muwathibat .was allegedly made in presence of two persons---One of said two persons appeared as witness but his testimony was not convincing---Non-­production of other person, without any explanation, was consequential and fatal to the cause of plaintiff---Petitioner, in circumstances, failed to prove performance of Talbs as warranted by S.13 of Punjab Pre-emption Act, 1991 resulting in extinguishments of his right of pre-emption.

Muhammad Zafar Chaudhry for Petitioner.

Zahid Hussain Khan for Respondent.

2008 Y L R 105

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD TARIQ and others---Appellants

Versus

TAHIR AMIN BUTT and others---Respondents

Regular First Appeals Nos. 183 and 401 of 2005, heard on 3rd September, 2007.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr. 1 & 2---Suit for recovery of amount was decreed in the sum of Rs.1,30,000 with mark-up---Plaintiff pressed his appeal on basis of agreement which evidenced on promise to pay Rs. 1,98,000---Plaintiff had himself introduced the matter of compromise/agreement between parties whereby ultimately Rs.1,30,000 were agreed to be paid---Documents regarding said agreements were also admitted in evidence without any objection from any side and execution thereof had not been denied by any of the parties---Trial Court relied upon the agreement which was the last agreement on the subject and according to which the dispute pertained to a sum of Rs.1,30,000---Decree having been passed in accordance with the evidence produced by plaintiff himself, appeal, had no force.

Malik Naveed Akram for Appellants.

Ch. Muhammad Iqbal-IV for Respondent.

Date of hearing: 3rd September, 2007.

2008 Y L R 107

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD ABBAS---Petitioner

Versus

MUHAMMAD TUFAIL---Respondent

Civil Revision No. 2105 of 2005 and C.M. No.382 of 2007, decided on 10th September, 2007.

Civil Procedure Code (V of 1908)---

----Ss.35-A & 148---Non-deposit of costs within time fired by Court---Application for enlargement of time---Impugned order revealed that time allowed to applicant for deposit of amount of costs with trial Court was 30 days from the date of receipt of certified copy of the order---Record showed that applicant had applied for the certified copy on 12-7-2006 which was supplied to him on 26-3-2007---After 5 days of getting the certified copy appellant filed application before trial Court seeking permission to deposit the amount of costs---Delay of furnishing the certified copy was caused due to the negligence of the office for which appellant could not be blamed---Applicant was neither negligent nor his conduct was contumacious---Applicant's application for enlargement of time was allowed in circumstances.

Mian Shah Abbas for the Petitioner.

Muzaffar Hussain for Respondent.

2008 Y L R 109

[Lahore]

Before Muhammad Sair Ali, J

AHMED ALI---Petitioner

Versus

MANZOOR HUSSAIN and 8 others---Respondents

Civil Revision No. 1277 of 2005, heard on 6th April, 2007.

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

----S.9---Jurisdiction of civil. court---Scope---Civil Court could examine exercise of powers by any special authority beyond its jurisdiction stated in law regulating special authority---Civil Court always retained jurisdiction to try a suit on basis of basic invalidity, allegation of mala fide, forgery and fraud etc.

(b) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----Ss.10 & 26---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), S.9, O.VI, R.10 & O. VII, R.11---Suit for declaration and injunction---Plaintiff alleged that consolidation proceedings, its confirmation order passed by Consolidation Officer, and then sale of consolidated land by his predecessor in favour of defendants were mala fide, fraudulent and result of conspiracy of Patwari (Consolidation), who was relative of defendants---Rejection of plaint, application for---Validity---Plaintiff had not challenged consolidation proceedings or its confirmation order before Appellate Authorities---Plaintiff had filed time-barred appeal, which was subsequently withdrawn unconditionally---Plaint contained general and vague allegations on question of mala fide, forgery, fraud and connivance---Plaintiff in plaint did not plead particulars of fraud---Plaintiff had not pleaded in plaint that he or his predecessor was not present before Consolidation Authorities at the time of proposal and confirmation of scheme---Plaintiff in plaint had not impleaded Consolidation Officer or concerned Patwari nor had he assailed confirmation order of Consolidation Officer in his plaint---In absence of particulars of fraud, forgery, mala fide and non-impleadment of Consolidation Officer and concerned Patwari in plaint, such matter would squarely fall within exclusive domain of Consolidation authorities---Plaintiff, by acceptance of consolidation scheme, had taken possession of land and obtained its incorporation in revenue record in his favour---Jurisdiction of Civil Court in such matter was barred by provision of S.26 of West Pakistan Consolidation of Holdings Ordinance, 1960---Plaint in such suit was rejected in circumstances.

Abdul Ghani through L.Rs. v. M.B.R.- (Consolidation) and others 1985 CLC 2572 and PLD 1995 SC 457 ref.

PLD 1995 SC 457; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Islamuddin v. Deputy Settlement Commissioner and others 1981 SCMR 835; Falak Sher and others v. Sharif and others 1989 SCMR 1096; Muhammad Bashir and 9 others v. Sultan and 3 others 1993 SCMR 1568 and Mst. Kaniz Fatima through legal heirs v. Muhammad Salim and 27 others 2001 SCMR 1493 rel.

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

----S.115---Revision---Limitation---Question of limitation not raised before Courts below---Effect---High Court refused to make any observation on such question.

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

----Ss.35 & 115---Revision, acceptance of---Appearance of young lawyer for respondent---High Court declined to pass order as to costs in view of the efforts made by such young lawyer.

Rai Muhammad Zafar Bhatti for Appellant.

Khawaja Omar Masood for Respondents Nos. 1 to 5.

Respondents Nos. 6 to 9 ex parte.

Date of hearing: 6th April, 2007.

2008 Y L R 114

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD YOUSAF---Petitioner

Versus

WAPDA through Chairman, Lahore and 3 others---Respondents

Civil Revision No. 1905 of 2005 decided on 14th December, 2005.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2 & S.115---Interim relief---Claim for---Detection bill (Electricity) was served upon the petitioner who was consumer WAPDA---Petitioner filed suit for declaration and permanent injunction challenging said detection bill---Petitioner, along with plaint, filed application for grant of temporary injunction, wherein it was prayed that WAPDA be restrained from recovering the disputed amount of the detection bill, which application having concurrently been dismissed by the Trial Court and Appellate Court petitioner had filed revision petition---Validity---Matter in dispute being pecuniary in nature, no irreparable loss and injury could be caused to the petitioner---Petitioner being not entitled to any interim relief without deposit of disputed amount, his application for grant of temporary injunction, was rightly dismissed by the courts below.

A.D. Nadeem for the Petitioner.

Ch. Faiz Ahmad Singhairah for the Respondents.

2008 Y L R 115

[Lahore]

Before Maulvi Anwarul Haq, J

SABIR HUSSAIN through legal heirs---Petitioners

Versus

GHULAM BIBI and 2 others---Respondents

Civil Revision No. 1603 of 2003, heard on 12th June, 2007.

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

----S.12---Civil Procedure Code (V of 1908), S.12(2)---Colonization of Government Lands (Punjab) Act (V of 1912), Ss.30 & 36---Specific performance of oral sale agreement, suit for---Conceding written statement by private defendant through her attorney praying for decreeing suit---Written, statement by Colony Department raising objections that private defendant was not granted proprietary rights in State land, rather she had purchased occupancy rights of another grantee, and her application for conferment of proprietary rights was tinder process; and that Civil Court had no jurisdiction to try suit---Case was fixed for plaintiff's evidence as a last opportunity, when Senior Civil Judge was on leave and District Judge withdrew case from Civil Judge and placed sane on his own file---District Judge on next date on plaintiff's application again passed order withdrawing case from Senior Civil Judge and placing same on his file---District Judge on next date proceeded ex parte against Colony Department, though its Pairokar was present in Court---District Judge recorded statement of attorney of private defendant in support of plaintiff's claim and passed decree---Application sunder S.12(2), C.P.C.; by private defendant for setting aside such decree on the ground that she had neither entered into any sale agreement nor had conceded the suit---Acceptance of such application by another District Judge with -direction to parties to appear before Senior Civil Judge for further proceedings in suit---Validity---Written statement of Colony Department gave rise to five issues---District Judge while writing judgment at request of plaintiff's Counsel had deleted name of Colony Department from array of defendants for being unnecessary---Record revealed collusion between plaintiff and District Judge to get suit decreed in any way---Statement of private defendant denying sale agreement and conceding written statement as well as non-proving of valid execution of power of attorney in favour of her attorney did constitute sufficient grounds for setting aside such decree---High Court dismissed revision petition with costs while fixing Counsel's fee at Rs.10, 000.

Sh. Naveed Shehryar for Petitioners.

Messrs Akhtar Masood Khan and Gohar Razzaq Awan for Respondents.

Date of hearing: 12th June, 2007.

2008 Y L R 119

[Lahore]

Before Syed Zahid Hussain, J

Mst. SHAHIDA HAKIM through General Attorney---Petitioner

Versus

TANVEER AHMAD KHAN through General Attorney and others---Respondents

Civil Revision No. 15 of 2007, decided on 12th September, 2007.

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

----S.42---Civil Procedure Code (V of 1908), S.12(2)---Suit for declaration decreed---Decree affirmed in appeal---Petitioner, a third person, claiming to be owner of suit land, filed an application under S.12(2), C.P.C. on ground of collusion between parties---Application dismissed summarily---Validity---Petitioner was closely related to the defendants in the shit---Petitioner was wife of one witness (defendant's) and sister in law of the other---Both of the defendants in their examination-in-chief had stated that they had no concern with the disputed land---Plea of petitioner laying claim to the suit property was beyond comprehension in view of stance of her husband and her brother­-in-law---Allegation of fraud, misrepresenta­tion or collusion in the matter was not convincing in circumstances-Application under S.120, C.P.C. was rightly dismissed without formulating issue and recording evidence of parties.

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

----S.12(2)---Application under S.12(2), C. P. C. ---Summary dismissal---Validity---Courts are not bound to frame issue and record evidence in every case when an application under S.12(2), C.P.C. is before the court.

Messrs Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 and Mst. Nasira Khatoon and another v. Mst. Aisha Bibi and 12 others 2003 SCMR 1050 ref.

Jehangir A. Jhoja for the Petitioners.

Syed Farooq Hassan Naqvi for the Respondent.

2008 Y L R 122

[Lahore]

Before Sardar Muhammad Aslam, J

Mst. HAYAT KHATOON and 2 others---Petitioners

Versus

ASIF NASRULLAH KHAN and 4 others---Respondents

Civil Revision No.1888 of 2005, Writ Petition Nos. 1404 of 2006, heard on 13th June, 2007.

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

----S.42---Declaration of title---Principal and attorney relationship---Concurrent findings of fact by the courts below---Plaintiff executed general power of attorney in favour of defendant, who, without permission of plaintiff, transferred suit land in favour of his minor son---Suit filed by plaintiff was concurrently decreed by Trial Court and Appellate Court---Validity---Sale made by defendant was in utter violation of law declared by superior courts and was rightly struck down---Concurrent judgments and decrees of both the courts below did not call for any interference in absence of any misreading or non-reading of evidence on record---Revision was dismissed in circumstances.

Fida Muhammad v. Peer Muhammad Khan, deceased through legal heirs PLD 1985 SC 341; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 and Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 rel.

(b) Court Fees Act (VII of 1870)---

----S.7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Court fee, non-deposit of---Effect---Trial Court decreed the suit in favour of petitioner and directed her to deposit court fee within thirty days---Both the courts below, though had declined to extend time for deposit of court fee but petitioner deposited the court fee stamps---Plea raised by petitioner was that court fees stamps provided by her be deemed to be valid---Validity---No consequence was provided in judgment and decree for failure of petitioner to supply court fee stamp within stipulated period of time---Matter in regard to recovery of court fee was between litigant and the exchequer---No prejudice was caused to judgment debtor more particularly when amount for supply of court fee was deposited---Delay in supply of court fee stamp was neither wilful nor contumacious and in absence of any condition and consequence, such delay had not frustrated the decree---Court Fees Act, 1870, was not to be interpreted strictly to arm litigants with weapon of technicalities against opponent to frustrate recovery of revenue for benefit of State---High Court set aside the orders passed by two Court below and declared that the Court fee stamps provided by petitioner were deemed to be valid---Petition was allowed accordingly.

Shah Wali v. Ghulam Din alias Gaman and another PLD 1996 SC 983 ref.

Siddique Khan and 2 others v. Abdul Shakoor Khan and others PLD 1984 SC 289; Abdul Quddoos v. Mst. Shabana Parveen and another 1990 MLD 68; Mst. Ghulam Fatima and 3 others v. Talib Hussain and 3 others 1990 MLD 1782; Muhammad Aril v. Additional' District and Session Judge Kasur and 2 others 2001 CLC 192; Noor Khan v. Khan Muhammad 2002 CLC 402; Syed Fazar Hussain and others v. Shaban and others PLD 2004 Lahore 577 and Rahim Khan through legal heirs v. Habib Khan and another 2004 CLC 1044 distinguished.

Malik Noor Muhammad Awan for Petitioners.

Saif ul Haq Ziay for Respondents.

Date of hearing: 13th June, 2007.

2008 Y L R 126

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SHAHID JAVED---Petitioner

Versus

ABDUL RAHIM and 4 others---Respondents

Civil Revision No. 136 of 2007, heard on 7th September, 2007.

Civil Procedure Code (V of 1908)---

----S.115---Revision---Material irregularity and illegality---Appeal decided without reference to the pleadings of parties, issues, evidence on record and decision of trial court---Appellate judgment and decree was set aside.

Rana Rashid Akram Khan for Petitioner.

Rao Abdul Jabbar Khan for Respondent No.1.

Ch. Muhammad Zafar Iqbal for Respondents Nos. 2 to 4.

Nemo for Respondent No.5.

Date of hearing: 7th September, 2007.

2008 Y L R 127

[Lahore]

Before Sardar Muhammad Aslam, J

SHAHBAZ AHMAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No. 9281 of 2007, decided on 23rd October, 2007.

Guardians and Wards Act (VIII of 1890)---

----S.25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Application for---Application for custody of minors having concurrently been dismissed by the Guardian Judge and Appellate . Court, petitioner had filed constitutional petition against said judgments---Both minors were in the custody of the mother of the minors---Male minor who was student of class-2, had a shining academic record---Mother of minors who was serving in a private department, had not gone for second marriage, but was looking after her minor son and daughter---Both minors aged 8-1/2 and 4-1/2 years. respectively, who were present in the court, were clad in clean, well-stitched clothes---Both were looking bright and happy with their mother---Minors were living with the company of their mother right from pronouncement of divorce to their mother by the petitioner---Decree for maintenance allowance passed against the petitioner was not honoured by him--No substitute was for love and affection bestowed b the mother on her children---Difference of income between father and mother had no over-riding consideration---Father was always bound to maintain the minors even if mother was jobless and had no source of her own independent income---Judgment of two courts below could not be interfered with by the High Court in exercise of its constitutional jurisdiction.

Shoaib Zafar for Petitioner.

Muhammad Fayyaz Butt for Respondent No.3.

2008 Y L R 129

[Lahore]

Before Mian Saqib Nisar, J

MURSALEEN---Petitioner

Versus

Mst. BASHIRI through L.Rs.---Respondents

Civil Revision No. 1105-D of 1989, heard on 22nd October, 2007.

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

----S.122---West Pakistan Land Revenue Act (XVII of 1967), S.53---Islamic Law---Gift, validity of---Challenging mutation on ground of fraud and misrepresentation---Defendant had claimed that plaintiff had gifted suit property to him through a mutation---Plaintiff in her suit had challenged said mutation on ground of fraud and misrepresentation---.Trial Court dismissed suit, but Appellate Court decreed the same holding that no proof was on record to the effect that valid gift had been made in favour of defendant and that possession under said gift was delivered to him---Alleged donor having challenged the validity of the gift, it was incumbent upon the defendant to have proved the factum of the gift in positive terms, such as the day, the date, the month, the time and the venue where the donor took a conscious decision to gift away his property and made offer, which was accepted .by donee/defendant---Defendant also had failed to prove delivery of possession of suit property to him---In a case of oral gift by a Muslim, delivery of possession was a sine qua non for the validity of transaction of gift which was not proved in the present case---In absence of any misapplication of law or misreading or non-reading of evidence on record by the Appellate Court, decree passed by it could not be interfered with.

Ch. Khalid Saeed Sandhu for Petitioner.

Zahid Hussain Khan for Respondents.

Date of hearing: 22nd October, 2007.

2008 Y L R 132

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AFZAL and 3 others---Petitioners

Versus

Haji MUHAMMAD SHARIF JAT and 7 others---Respondents

Civil Revision No. 292 of 2007, heard on 3rd October, 2007.

Canal and Drainage Act (VIII of 1873)----

----S. 68---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Exclusion of area, purchased by petitioners, in irrigation from Mogha in question---Respondents claimed an order of injunction on ground that on account of said area the irrigation time had been reduced and further prayed for transfer of their land to some other Mogha for irrigation---Temporary injunction was allowed---Validity---Record revealed that extra water to maintain the discharge requisite for said additional land had been duly provided by Canal Authorities and there was no question of any irreparable loss---Courts below acted without jurisdiction while granting injunction in favour of respondents who had no prima facie case and that other two essentials, of temporary injunction were answered in favour of petitioners.

Fakhar uz Zaman Akhtar Tarar for Petitioners.

Rana Zulfiqar Ali Khan for Respondents Nos.1 to 5.

Muhammad Iqbal Zildar Sargodha with records.

Date of hearing: 3rd October, 2007.

2008 Y L R 133

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD KAUSAR---Petitioner

Versus

RABIA KAUSAR and another---Respondents

Writ Petition No. 398 of 2007, heard on 20th April, 2007.

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

----S.5, Sched. ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage---Ex parte decree---Application for setting aside ex parte decree---Maintainability---Suit for dissolution of marriage filed by wife having been decreed ex parte by Family Court, husband filed application for recalling and setting aside the same---Judge Family Court without seeking reply from wife dismissed application through impugned order on the ground that there was no provision for review in special law---Said order of the Family Court had been challenged in the constitutional petition---Application filed for setting aside ex parte judgment and decree was clear in its terms and words---Application had sought setting aside and recalling of ex parte judgment and decree, but Family Court appeared not to have even read said application---Family Court selectively used the odd words "Nazar Sani" and rejected husband's application for setting aside ex parte judgment and decree in limine without even considering the assertions and pleadings contained therein---Superficial treatment of the matter by the Trial Court, had classically brought ' out the misapplication of law, non-consideration of the case and consequent non performance of the duty as a Judge who was minimally obligated to read, consider and then decide the matter---Requirements of law and justice had been overlooked---Justice, in circumstances had patently been traversed---Family Court had not only mis-exercised its jurisdiction, but had also failed to do its basic duty---Impugned order being patently without lawful authority, was declared to be of no legal effect---Petitioner's application would be deemed to be pending and would be decided strictly in accordance with law.

(b) Pleadings---

----Words and terms in the pleadings---Employment of inapt terms and superfluous words in the pleadings by the parties could not strip the parties of their vested rights and remedies---Words and terms in the pleadings should be read in the perspective of the case assertions to advance the adjudicating process rather than to stifle the vested rights.

Malik Muhammad Imtiaz Mahal for Petitioner.

Malik Zeshan Ahmed' Awan for Respondent No. 1.

Date of hearing: 20th April, 2007.

2008 Y L R 135

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

SULTAN AHMAD through General Attorney---Petitioners

Versus

MUHAMMAD NAWAZ and another---Respondents

Civil Revision No. 1941 of 2004, heard on 24th October, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Declaration of title---Fraud---Onus to prove---Concurrent findings of facts by the Courts below---Predecessor-in-interest of plaintiffs had executed general power of attorney in favour of a person who exchanged the suit-land with defendants and got mutation of exchange attested---Plaintiffs alleged that power of attorney was not executed for the purpose of exchange of land and attorney had committed fraud---Both the Courts concurrently dismissed the suit and appeal filed by plaintiffs---Validity---Plaintiffs did not deny execution of general power of attorney and it was for them to prove their case---No independent evidence was available to show that general power of attorney and exchange mutations were based on fraud---Plaintiffs failed to produce any worthwhile evidence in support of their case---Trial Court had rightly dismissed the suit filed by plaintiffs---No illegality or infirmity having been noted in judgments passed by both the Courts below, High Court declined to disturb concurrent findings of facts recorded by the courts below---Revision was dismissed in circumstances.

Muhammad Yousaf Khan for Petitioners.

Ch. Bashir Ahmad for Respondent.

Date of hearing: 24th October, 2007.

2008 Y L R 138

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD AFAQ---Petitioner

Versus

MUHAMMAD SARWAR---Respondent

Civil Revision No. 1374 of 2006, heard on 7th February, 2007.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---Both plaintiff and defendant were co-owners in the joint Khata---Suit for partition of Khata in question earlier fled by the defendant was pending in the court---Plaintiff without disclosing the fact of pendency of suit filed by the defendant, filed suit for declaration and injunction against the defendant---Plaintiff also filed an application seeking interim injunction to restrain the defendant from interfering in his possession and from cutting/damaging trees standing on said land---Both courts below concurrently allowed said application and defendant had impugned said orders contending that plaintiff was not entitled to discretionary relief because in revision as he had concealed material circumstances from the court---Counsel for the defendant had rightly argued that order, granting interim relief to the plaintiff was not justified---Concurrent orders for granting interim relief to plaintiff passed by' the-courts below, were set aside in circumstances.

Malik Muhammad Imtiaz Mahal for Petitioner.

Nemo for Respondent.

Date of hearing: 7th February, 2007.

2008 Y L R 144

[Lahore]

Before Muhammad Sair Ali, J

ALI AKBAR---Petitioner

Versus

SADAR DIN through L.Rs.-Respondent

Civil Revision No. 2015 of 2001, heard on 24th September, 2007.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Rejection of plaint---Non­payment of court-fee-Trial Court dismissed suit filed by plaintiff but in judgment plaintiff was directed to deposit court fee within one month, otherwise the plaint would stand rejected---Plaintiff did not deposit the court fee therefore, plaint stood rejected and judgment of Trial Court was maintained by Appellate Court-Plea raised by plaintiff was that before rejecting the plaint, Appellate Court should have provided hint one opportunity for deposit of court-fee-Validity-Plaintiff never made any request for suspension of operation of judgment and decree passed by Trial Court which otherwise mandated the plaintiff to make up deficiency in court fee within one month, which date had expired about four years ago prior to the pronouncement of judgment by Appellate Court---Decree of Trial Court showed that upon non-payment of court fee, plaint stood automatically rejected under O. VII, R.11, C.P.C. After expiry of period of one month, the plaint stood rejected because of non-compliance with the terms of decree by plaintiff---Appellate Court was not bound to either point out to plaintiff or to grant him one chance to pay deficient court fee when terms of decree were concise and clear and period fixed by Trial Court in decree for payment -of court fee had already expired and plaint, as per decree, stood rejected---High Court did not find any legal infirmity in the judgment and decree passed by Appellate Court---Revision was dismissed in circumstances.

Ch. Anwar ul Haq Pannu for Petitioner.

Muhammad Nazir Janjua for Respondent.

Date of hearing: 24th September, 2007.

2008 Y L R 147

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD BASHIR and others---Petitioners

Versus

SHER MUHAMMAD and 2 others---Respondents

Civil Revision No. 2542 of 2001, heard on 12th October, 2007.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 78 & 84--Agreement to sell---Proof---Denial of execution of agreement---Effect---Owner of suit property denied execution of agreement to sell and Trial Court dismissed the suit with direction to the owner to refund the amount received from plaintiffs---Appeal filed by plaintiffs was allowed by Appellate Court and suit was decreed in their favour---Validity---When there was clear and absolute denial .of execution of agreements by the owner, it was incumbent upon plaintiffs to have proved execution of agreements by following methodology provided in Arts. 78 and 84 of Qanun-e-Shahadat, 1984---In view of facts and circumstances of the case, pleadings and deposition of owner of suit property on oath, it was eminently necessary for plaintiffs to have proved execution of agreement, and signature/thumb impression thereon in accordance with law which was not done---View taken by both the Courts below was not consistent with pleadings, evidence and law applicable and on that account it had lost its worth---High Court set aside the judgments and decrees passed by both the courts below and remanded the case to Trial Court for decision afresh in accordance with law---Revision was allowed accordingly.

Shams-ud-Din through L.Rs v. Abid Hussain through L.Rs. 2006 CLC 571 and Muhammad Ramzan v. Saif Nadeem Electro (Pvt.) Ltd. through Chairman and others PLD 2006 Lahore 571 ref.

Hamid Qayyum and 2 others v. Muhammad Azeem through legal heirs and another PLD 1995 SC 381; Rehmat Ali Ismailia v. Khalid Mehmood 2004 SCMR 361 and Siraj Din v. Mst. Jamilan and another PLD 1997 Lah. 633 rel.

Malik Noor Muhammad Awan for Petitioners.

Hafiz Khalil Ahmed for Respondent No.1.

Date of hearing: 12th October, 2007.

2008 Y L R 150

[Lahore]

Before Maulvi Anwarul Haq, J

REHMAT ALI and 4 others---Petitioners

Versus

HAMEEDAN BIBI and 3 others---Respondents

Civil Revision No. 306 of 2003, heard on 31st October, 2007.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and permanent injunction---Predecessor-in-­interest of plaintiffs filed suit for declaration and permanent injunction against defendants in which he claimed that he had purchased suit property vide unregistered sale-deed, and its possession was delivered to him, but sale-deed was not got incorporated in the Revenue Record---Property, however being of urban nature in the excise and taxation records, plaintiff was recorded as the owner of said property---Defendants denied title of plaintiff on the ground that he had claimed ownership on the basis of unregistered documents, which could not be taken into consideration---Both courts below had concurrently decreed suit---Validity---Sale­-deed, though was unregistered, but execution of same had been proved by its marginal witnesses---Utility bills produced by the plaintiff also had shown connections in the name of plaintiff---Courts below, in circumstances had rightly concurrently decreed suit---In absence of any illegality, concurrent judgments and decrees could not be interfered, with in revision by the High Court.

Malik Mubarak Ali for Petitioner.

Muhammad Javaid Kasuri for Respondent.

Date of hearing: 31st October, 2007.

2008 Y L R 157

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD HUSSAIN and 12 others---Petitioners

Versus

Mst. ARIFA BEGUM and 2 others---Respondents

Civil Revision No. 1633 of 2007, heard on 26th September, 2007.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), S.10 & O. XX, R. 13---Suit for specific performance of sale agreement---Sale agreement by sister in favour of brother regarding her share in inherited property---Pendency of appeal filed by brother against dismissal of his suit---Subsequent suit by sister for administration and partition of inherited property---Application by brother for stay of sister's' suit---Validity---Suit property was part of estate left by parents of parties---Basic issue in brother's suit was as to who had defaulted in performance of sale agreement----Sister's suit could not be decreed in case of acceptance of brother's appeal, otherwise her suit would proceed considering suit property as co-owned by parties---Issue of specific performance being a pivotal issue in both suits would require determination first in pending appeal of brother and only thereafter sister's suit could be determined---Sister's suit was stayed in circumstances.

Syed Alauddin Ahmed v. Md. Mustafa PLD 1971 Dacca 286; Muhammad Arif v. Abdul Qayyum 1991 CLC 442; Attock Oil Company v. Ghaith Rashad. Pharaon and others 1996 CLC 1657 and Muhammad Yaqoob v. Behram Khan 2006 SCMR 1262 ref.

Sadaqat Mehmood Butt for Petitioners.

Kh. Muhammad Ashraf Jan for Respondent.

Date of hearing: 26th September, 2007.

2008 Y L R 159

[Lahore]

Before Mian Hamid Farooq, J

KANIZ BIBI---Petitioner.

Versus

MUHAMMAD ASHRAF and another---Respondents

Civil Revision No. 1411 of 2007, decided on 19th September, 2007.

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

----S. 54---Civil Procedure Code (V of 1908), O.XXVI, R. 9 & O.XXXIX, Rr. 1 & 2---Permanent injunction, suit for---Temporary injunction, application for---Appointment of Local Commission to ascertain as to who was in possession of suit property and for how long---Recording of evidence of parties by Local Commission and opining in report on matters/issues pending before court---Order of Trial Court dismissing such application was set aside by Appellate Court---Validity---Local Commission could not assume the role of a court---Local Commission had exceeded his jurisdiction by opining on matters/issues not referred to hint---Matters/issues going to the root of case were to be decided by the court itself after recording evidence---Trial Court had relied upon such report, which was not admitted in evidence nor Local -Commission was examined as witness---Trial Court had illegally dismissed such application---High Court dismissed revision petition while maintaining order of Appellate Court.

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

----Ss. 96, 100 & 115-Judgments of Trial Court and Appellate Court at variance---Effect---Judgment of Appellate Court, if not violative of principles of administration of justice or was not arbitrary or fanciful, would ordinarily be preferred.

Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202; Ilamuddin through legal heirs v. Syed Sarfaraz Hussain through legal heirs and 5 others 1999 CLC 313; Aasa v. Ibrhaim 2000 CLC 500 and Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 rel.

Fakhar uz Zaman Akhtar Tarrar for Petitioner.

Raja Muhammad Akhtar Zaman for Respondents.

2003 Y L R 161

[Lahore]

Before Maulvi Anwarul Haq, J

Dr. ABDUL HAMEED MIAN through General Attorney---Petitioner

Versus

Mian ABDUL WAHEED and another---Respondents

Civil Revision No. 1237 of 2007, heard on 25th September, 2007.

Civil Procedure Code (V of 1908)---

----S. 10---Specific Relief Act (I of 1877), S.12---Application for stay of suit, by a person, who was not a party---Two suits were filed by respondent and petitioner respectively against same vendor in separate courts---Respondent moved an application under S. 10, C.P.C. in petitioner's suit although he was not party in said suit application was allowed---Validity---Condition precedent for passing of an order in terms of section 10, C.P.C. did not exist hence impugned order was without lawful authority---Decree for specific performance passed with consent of vendor in the suit filed by petitioner subsequent vandee was of no use till the transfer of title had actually taken place and question of bona fide purchase was determined---Suits were consolidated and remanded to District Judge for necessary action in accordance with law.

Mehdi Khan Chauhan for Petitioners.

Taki Ahmad Khan for Respondents

Date of hearing: 25th September, 2007.

2008 Y L R 163

[Lahore]

Before Fazal-e-Miran Chauhan, J

SHER MUHAMMAD---Petitioner

Versus

Haji ABDUL GHAFFAR---Respondent

Civil Revision No. 1009 of 2007, decided on 7th September, 2006.

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

----S. 13---Suit for pre-emption---Non­-mentioning of time and place of knowledge of sale---Effect---Plaint wherein date, place and time of Talb-i-Muwathibat and date of issuing notice of performance of Talb-i-Ishhad in terms of S.13 of Punjab Pre-emption Act, 1991, was not provided, such omission would be fatal for the pre-emption suit---Plaintiff's suit for pre-emption-therefore, was rightly dismissed.

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

----Art. 189-Decision of Supreme Court binding on other courts---Scope---Interpretation given by Supreme Court would be deemed to be in existence from the time and date when the section or provision was enacted---However, decisions of Supreme Court would not affect other cases which were not sub judice before any forum or which had otherwise become final.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Fazal Subhan and 11 others v. Mst. Sohib Jamala and others PLD 2005 SC 977 ref.

(c) Interpretation of statutes---

----Court interpreting a particular section or a provision of statute---Scope---Such interpretation is supposed to exist right from time and date such section or provision was enacted.

Muhammad Ibrahim and 2 others v. Province of Punjab through Secretary (Rehabilitation) and 15 others PLP 1977 Lah. 399 rel.

Muhammad Shehzad Shaukat for Petitioner.

Syed Mukhtar Abbas for Respondent.

Date of hearing: 7th September, 2006.

2008 Y L R 168

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

NASRULLAH KHAN---Petitioner

Versus

GUARDIAN JUDGE and others---Respondents

Writ Petition No.59 of 2006, decided on 26th June, 2007.

Guardians and Wards Act (VIII of 1890)---

----S.25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minor---Welfare of minor---Respondent, who was real mother of minor daughters aged 5 and 3 years, filed application against petitioner/father of minors for custody of said two minor daughters which was concurrently accepted by two Courts below; and petitioner had filed constitutional petition against said orders---Scope---Petitioner had admittedly contracted second marriage---Courts below observed that it was in the welfare of minors that they should remain with their mother---Validity---Petitioner (father) had contracted second marriage, whereas respondent (mother) had not contracted second marriage---Courts below, in circumstances had rightly given custody of minor daughters to mother and dismissed application of father---In determining the question of custody of minor, the paramount consideration being welfare of minor, no illegality or infirmity was found in the impugned judgments of the two courts below.

Safdar Hussain and others v. Mst. Parveen Umar and others PLD 2004 SC 357 rel.

Ms. Faiqa Mirza for Petitioner.

Zahid Hussain Khan for Respondent No.3.

2008 Y L R 170

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

TARIQ MEHMOOD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.35, 50 and Criminal Revision No. 39 of 1995, heard on 5th December, 2006.

Penal Code (XLV of 1860)---

----S.302/34----Appreciation of evidence---Three co-accused in the case had already been acquitted by trial Court on the same evidence---Deep rooted enmity existed between the parties---Recovery of Churries and the carbine being highly doubtful was not reliable---Case of accused was not distinguishable front that of acquitted co-­accused---F.I.R. was recorded after due deliberation and consultation outside the police station in connivance with the police---Lye-witnesses were not present at the spot at the time of occurrence---Accused were acquitted in circumstances.

Sh. Zameer Hussain for Appellants.

Tanvir Iqbal, A.A.-G. for the State.

Nemo for the Complainant.

Date of hearing: 5th December, 2006.

2008 Y L R 188

[Lahore]

Before Iqbal Hameedur Rahman, J

MAQBOOL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2299/B of 2007, decided on 25th October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302/364/201---Bail, grant of---Accused had already been granted bail by Sessions Court which had subsequently been cancelled due to his non-appearance before the Court---Accused had established on record that he being a patient of pulmonary tuberculosis had been obtaining medical treatment in two different hospitals--Certificates of Government Hospitals in this regard could not be out-rightly rejected, which had fully supported the plea of non-appearance of accused for a period of twenty days before the Trial Court---Accused was also of advanced age---Accused was admitted to bail in circumstances.

Mehr M. Altaf Hussain for Petitioner.

Faiz Bakhsh Khan Langah for the Complainant.

Mian Bashir Ahmad Bhatti, D.P-G. Muhammad Ashraf A.S-I.

2008 Y L R 190

[Lahore]

Before Maulvi Anwarul Haq, J

GUL MUHAMMAD---Petitioner

Versus

Mst. SARDAR BEGUM and others---Respondents

Civil Revision No.545 of 1991, heard on 29th October, 2007.

Civil Procedure Code (V of 1908)---

----O.XLI, Rr.23, 25, 27 & 28---Additional evidence, recording of---Framing of additional issue---Claim of plaintiffs was that suit land was not allotted to defendants whereas defendants asserted that it was allotted to them---Supreme Court accepted appeal filed by defendants and directed High Court to first decided their application for producing additional evidence---In additional document there was no mention of any allotment---Effect---Held, it was necessary to decide after framing an appropriate issue as to whether suit land had been lawfully allotted to defendants---Question of extinguishment of equity of redemption would also be re-decided accordingly---Judgments and decrees passed by both the courts below were set aside and case was remanded to Trial Court for decision afresh after recording evidence on additional issue framed by High Court.

Mehdi Khan Chauhan for Petitioner.

Syed Muhammad Kaleem Ahmad Khurshid for Respondents.

Date of hearing: 29th October, 2007.

2008 Y L R 192

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD IQBAL and another---Petitioners

Versus

HASNAIN RAZA, CIVIL JUDGE, 1ST CLASS, SARGODHA

and 4 others---Respondents

Writ Petition No.749 of 2007, heard on 22nd October, 2007.

Civil Procedure Code (V of 1908)---

----O.II, R.2 & O. VII, Rr.11, 13---Rejection of plaint---Fresh suit---Scope---Rejection of plaint would not bar filing of fresh suit on same cause of action---After rejection of plaint, fresh suit could be filed and contested---Non-mentioning of rejection of plaint in earlier suit could not be considered a concealment of fact in fresh suit---Principles.

PLJ 2003 Lah. 1942 (sic) ref.

Mohy-ud-Din Qazi for Petitioner.

Ghulam Farid Sanotra for Respondent No.2.

Malik Imtiaz Hussain Baloch with Muhammad Mumtaz, Land Superintendent, T.M.A. Sargodha for Respondents Nos. 3 and 4.

Date of hearing: 22nd October, 2007.

2008 Y L R 194

[Lahore]

Before Muhammad Farrukh Mahmud and M.A. Shahid Siddiqui, JJ

WAHEED and another---Petitioners

Versus

THE STATE---Respondent

Criminal Appeal No.327 and Murder Reference No. 378 of 2002, heard on 4th June, 2007.

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

----S.302(b)/34---Appreciation of evidence--Ocular testimony was consistent, coherent and convincing---Eye-witnesses had corroborated each other on almost all material points and had plausibly explained their presence at the scene of occurrence---Promptness in recording the F.I.R. had further strengthened the said presence of the eye-witnesses at the spot---Medical evidence had fully supported the prosecution case---Motive for the occurrence had been proved against the accused---Accused had acted in a cruel manner by' firing repeatedly at the deceased and no mitigating circumstances was available in his favour---Conviction and sentence of accused were upheld in circumstances.

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

----S. 302(b)/34--Appreciation of evidence---Accused had only aimlessly fired in order to deter the witnesses from rescuing the deceased and he did not aim his pistol at any of the witnesses or the deceased---Allegation of firing was not supported by recovery of any crime empty from the spot---Pistol allegedly recovered from accused had not been sent to Forensic Science Laboratory---Accused had no motive to join hands with the principal accused---Accused was acquitted on benefit of doubt in circumstances.

Ch. Shahid Qayyum and Mian Riaz Hussain for Appellants.

Muhammad Yar Khan Daha for the Complainant.

Ch. Muhammad Aslam Sindhu, A.P.G. for the State.

Date of hearing: 4th June, 2007.

2008 Y L R 199

[Lahore]

Before Sardar Muhammad Aslam, J

MANZOOR ELLAHI---Petitioner

Versus

ZULFIQAR AHMAD---Respondent

Civil Revision No.2043 of 2001, heard on 22nd October, 2007.

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

----S. 13---Pre-emption suit--- Talib-i-Muwathibat---Proof---Concurrent findings of facts by the courts below---Pre-emptor, while appearing as witness, deposed knowledge of sale on 7-2-1998, in his house and claimed to have perforated Talb-i-Muwathibat there and then in presence of witnesses, who corroborated his version---Vendee produced report of Roznamcha to prove that pre-entptor received copy of mutation in question on 10-1-1998---Suit and appeal Pled by pre-emptor were concurrently dismissed by Trial Court and Appellate Court on the ground of non-performance of Talbs---Validity---Copy of mutation was issued on 10-1-1998, Talb-i-Muwathibat was made on 7-2-1998 and notice of Talb-i-ishhad was sent on 13-2-1998---Pre-emptor having obtained copy of mutation on 10-1-1998, failed to perform Talbs within prescribed period of limitation hence lost his right of pre­emption---Both the courts below recorded concurrent findings of fact holding that pre-emptor had knowledge of sale but failed to perform Talbs as prescribed by law within time---No misreading or non-reading of evidence was pointed out by pre-emptor and concurrent findings recorded by two courts below without any misreading or non-reading of evidence vitas not challengeable--High Court declined to interfere with the judgments and decrees, passed by two Courts below---Revision was dismissed in circumstances.

Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719 ref.

Malik Muhammad Nawaz for Petitioner.

Sh. Naveed Shehryar for Respondent.

Date of hearing: 22nd October, 2007.

2008 Y L R 201

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

FAZAL KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.314 and Murder Reference No.662 of 2001, heard on 7th December, 2006.

Penal Code (XLV of 1860)---

----S.302(6)---Appreciation of evidence---Sentence,' reduction in---Ocular testimony was. corroborated by medical evidence---Three crime empties secured from the spot had matched with the licensed pistol of the accused---Motive for the occurrence was mentioned in the F.I.R.---Wife of the accused had got registered a case against the deceased under section 354, P.P.C. three months prior to the occurrence for molesting her---Police, after investigation had recommended for cancellation of the said case, which had ignited the sentiments of the accused---Accused though had committed the murder of the deceased,- yet the case being one of family honour was not one of death sentence---Conviction of accused was consequently maintained, but his sentence of death was reduced to imprisonment for life in circumstances.

1987SCMR 1864; 1989 SCMR 165; 2003 SCMR 1568; 1998 SCMR 862 and 2000 SCMR 406 ref.

Sardar Muhammad Ishaq Khan for Appellant.

Tanvir Iqbal, Asst. A.-G. for the State.

Date of hearing: 7th December, 2006.

2008 Y L R 212

[Lahore]

Before Muhammad Farrukh Mahmud and Sh. Javaid Sarfraz, JJ

DIL MUHAMMAD alias BHUTTO---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal 162 and Murder Reference No.31 of 2003, heard on 21st May, 2007.

Penal Code (XLV of 1860)---

----Ss.302(b) & 302(c)---Appreciation of evidence----Sentence, reduction in---Eye­witnesses had given a very consistent account of occurrence and their relationship with the deceased was not enough to discard their testimony as none of them had any personal grudge or enmity against the accused---Ocular evidence was fully supported by medical evidence and corroborated by circumstances of the case---Prosecution case, thus, was proved against accused---Altercation between the parties appeared to have taken place over the turn of water when the accused in heat of passion gave a Sota, blow on the head of the deceased which proved fatal---Accused did not repeat the blow in order to ensure death of the deceased---It was not unusual for the accused to carry a Dang while watering his fields during the night---Parties had been liming peacefully in the village prior to the occurrence---Conviction of accused was altered from section 302(6), P.P.C. to section 302(c), P.P.C. and his death sentence was reduced to fifteen years' R.I. with benefit of section 382-B, Cr. P. C. in circumstances.

Sardar Ahmad Khan for Appellant.

Ch. Haq Nawaz for the State.

Nemo for the Complainant.

Date of hearing: 21st May, 2007.

2008 Y L R 217

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD IQBAL---Petitioner

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF INDUSTRIES AND

PRODUCTION DEPARTMENT OF EXPLOSIVE, RAWALPINDI CIRCLE and 4 others---Respondents

Writ Petition No.5289 of 2007, decided on 10th September, 2007.

Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction---Scope---Stance taken in the constitutional petition,' rested on disputed factual controversy, requiring determination through detailed inquiry/recording of evidence, which exercise could not be undertaken while discharging jurisdiction render Art.199 of the Constitution---Despite said constitutional handicap, District Coordination Officer (respondent) was overall incharge of his discipline and a person competent to take the remedial steps---Held, it was, in circumstances, appropriate that matter be brought to his notice---Petitioner could file a fresh application before the Officer who would decide sane expeditiously with a speaking order after hearing petitioner in accordance with law.

The Province of East Pakistan v. Kshiti Dhar Roy and others PLD 1964 SC 636 Muhammad Younas Khan and 12 others v. Government of N.-W.F.P. through Secretary Forest and Agriculture, Peshawar and others 1993 SCMR 618 ref.

Malik Muhammad Imtiaz Mahl for Petitioner.

2008 Y L R 218

[Lahore]

Before Sh. Hakim Ali, J

TAYYAB and others---Petitioners

Versus

FALAK SHER and others---Respondents

Civil Revision No.22 of 2004, decided on 6th September, 2007.

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

----S.24---Civil Procedure Code (V of 1908), S.148---Pre-emption suit---Non ­deposit of 1/3rd of sale price within 30 days from filing of shit---Extension of time for deposit of pre-emption money was allowed---Validity---Rule of "act of court", applicability---Provisions of S.24 of Punjab Pre-emption Act, 1991 provided that Court has to direct the deposit of Zar-e-Soam within such period as the Court may fix---Under proviso to. subsection (1) of S.24 of the Act, such period had been curtailed upto 30 days only from the date of filing of the suit---Courts have been debarred to extend the period after expiry of 30 days--- - In the present case order for deposit of Zar­-e-Soam was passed after three days of filing of the suit---Period fixed by court for deposit of the pre-emption amount was beyond 30 days from the institution of the suit and in circumstances it was incumbent upon plaintiff to deposit the amount of Zar­-e-Soam at least within the period fixed by the court but this was not done---Plaintiff's application for extension of time was allowed by Trial Court-Such `act of court' was without jurisdiction as period of 30 days had already expired---Plea set up in the application that pre-emption amount would be deposited when the crops of plaintiff would be harvested---Such plea could not be made a ground to extend the time---Plaintiff was not possessing, even Zar-e-Soam at the time of pre-emption-suit hence his bona fides in filing of the suit could not be considered in his favour---Order extending the time was clearly illegal and the exercise of power was in contravention of the provisions of law of pre-emption---Impugned order was ineffective upon the rights of the defendants who were not heard before passing of the order---Order affecting adversely the right of other parties' must be passed -after grant of opportunity of hearing to the other party otherwise it would be void and nullity in the eye of law---Role "act of court", was not applicable in the present case because the order of extension was obtained by plaintiff himself---Held, plaintiff could not be allowed to gain benefits of his own illegal deeds and acts.

M/s Mobbi Chemical Industries (Pvt.) Limited v. Habib Bank of Pakistan and others 2003 CLD 571 ref.

Mst. Said Bibi v. Addl. District Judge and 5 others 2005 CLC 375 and Muhammad Ilyas and 4 others v. Munshi Khan 2003 CLC 1815 distinguished.

Syed Mukhtar Abbas for Petitioners.

Hafiz Khalil Ahmad for Respondents.

2008 Y L R 222

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

NOOR MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.330 and Murder Reference No.615 of 2001, heard on 7th December, 2006.

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

----S.302(b)---Appreciation of evidence-Benefit of doubt---Police had taken the deceased in injured condition to hospital---Had the eye-witnesses who were closely related to the deceased been present at the spot, they must have accompanied the deceased in injured condition to hospital---Evidence had revealed that the F.I.R. was not recorded at the time shown by the prosecution---Allegation against the accused and his acquitted co-accused was the same---Pistol, no doubt, was got recovered by the accused at the time' of his arrest, but Fire-arm Expert was unable to give an opinion whether the jacketed bullet was fired from the said pistol or not---Ocular testimony of the eye-witnesses who were closely related to the deceased and were inimical towards the accused, was not corroborated by any independent evidence---Accused was acquitted on benefit of doubt in circumstances.

Muhammad Fazil v. The State 2004 SCMR 1185; Naik Muhammad alias Noata v. ' The State 1996 SCMR 317; Muhammad Ilyas and another v. The State 1993 SCMR 1602 and Farooq alias Farooqay and another v. The State 2003 SCMR 567 ref.

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

----S.302(b)---Appreciation of evidence---Acquittal of co-accused on some evidence---Effect---If on the same set of evidence one accused has been acquitted, his co-accused cannot be convicted unless there is some independent corroboration to support the ocular account, especially when the parties were inimical towards each other and the role of the accused was the scone.

Sheikh Ahsan-ud-Din for Appellant.

Tanveer, Asst. A.-G. Iqbal for the State.

Date of hearing: 7th December, 2006.

2008 Y L R 226

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD LATIF---Petitioner

Versus

TARIQ MUSTAFA and others---Respondents

Civil Revision No.511 of 2000, heard on 25th September, 2007.

Specific Relief Act (I of 1877)---

----S.8---Encroachment---Plaintiff, owner of the suit land, sought possession of disputed area allegedly encroached upon by defendant---Report of Local Commissioner and the encroachment plan appended with the report proved that defendant was in excess possession of 1-1/2 Marla which almost was equal to disputed area---Even fact of encroachment was admitted by defendant himself---Documents sought to be produced as additional evidence did not favour the case of defendant---Area in question had been encroached upon by raising a boundary wall and it was not the plea of defendant that he was using the disputed area as a passage---No factual or legal much-less jurisdictional defect was pointed out in the impugned judgments and decrees---Revision was dismissed.

Syed Kazim Bokhari for Petitioner.

Sittat Sahil for Respondents Nos.1 to 7.

Nemo for other Respondents.

Date of hearing: 25th September, 2007.

2008 Y L R 227

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

SUBAH SADIQ alias SUBA---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.142-J, 143-J and Murder Reference No. 219 of 2002, heard on 30th May, 2007:

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

----S. 302(b)/34---Appreciation of evidence---Presence of accused and the eye-witnesses at the spot at the relevant time had not been denied---Medical evidence had supported the prosecution case that all the three deceased had lost their lives due to the injuries caused by the accused---Absence or weakness of motive was of no consequence when killing was otherwise proved---Accused had admitted to have murdered both the parents and their son out of "Ghariat" under grave and sudden provocation to save the prestige and honour of their brotherhood, as the parents were living together without "Nikah "---Both the parents were living together as husband and wife for the last 28 years and in the presence of grown up children accused could not be said to have got a sudden provocation---Accused had committed the murder of three innocent persons in a heartless manner---No mitigating circumstance existed in their favour--Convicting and sentences of accused were upheld in circumstances.

Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

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

----S. 302(6)/34--- Sentence---Motive---Absence of motive or weakness thereof would be of no consequence when killing is otherwise proved.

Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

Shamsher Ahmad Usmani for Appellants.

Ch. Muhammad Aslam Sindhu, Addl. P.G. for the State.

Date of hearing: 30th May, 2007.

2008 Y L R 242

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

THE STATE---Appellant

Versus

MUHAMMAD ARSHAD and another---Respondent

Criminal Appeal No.102 and Criminal Revision No. 24 of 1994, heard on 5th December„ 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b)/34 & 324/34----Criminal Procedure Code (V of 1898), S.417---Appeal against acquitted---Appreciation of evidence---No background of enmity existed between the parties---Pistol had been recovered at the instance of accused---Occurrence had taken place in broad day light---Star witness in the case was the injured witness who had received injuries during the incident---Vital shot on the chest of the deceased was attributed to accused---Eye-witnesses were natural witnesses of the occurrence---Ocular testimony was corroborated by medical evidence and recovery evidence---Prosecution had proved its case against the accused beyond any shadow of doubt; however, occurrence had taken place sixteen years back and twelve years had elapsed when the impugned judgment of acquittal was announced and State had preferred the present appeal in the same year before High Court---Accused had fired a single shot without any premeditation---Incident had taken place over flying of kites and exchange of vulgar remarks---Acquittal of accused was not based on prosecution evidence and principles of safe administration of criminal justice---Accused was consequently convicted under section 302(b)/34, P.P.C. for causing death of the deceased and sentenced to imprisonment for life---Accused was also convicted under sec­tion 324/34, P.P.C. and sentenced to seven years' R.I. with fine for causing injuries to the prosecution witness---Both the sentences were directed to run concurrently---State appeal was accepted accordingly.

1982 SCMR 420; 1992 SCMR 96; 1997 SCMR 1964; 1998 SCMR 1513 and 2001 YLR 1410 ref.

Tanvir Iqbal, Asst. A.-G. for the State.

Tariq Azam Chaudhry for the Complainant.

Aftab Ahmad Gujjar for Respondents.

Date of hearing: 5th December, 2006.

2008 Y L R 246

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM MUHAMMAD---Petitioner

Versus

KHURSHID BIBI and others---Respondents

Civil Revision No.1972-D of 1998 and Civil Revision No. 253 of 1999, heard on 19th September, 2007.

Specific Relief Act (I of 1877)---

----S.12---Oral agreement to sell---Proof---Petitioners sought specific performance of oral agreement stated to have been entered into with them by deceased defendant---Witnesses produced by petitioners did not support the case of petitioners--'-Plaintiff's witness stated that matters were settled and consideration was paid to some other named person and not to the defendant, another such witness admitted that he saw the defendant for the first and last time on the day agreement was entered into---Sanction letter issued by the GHQ Army regarding the suit land did bear the name of plaintiffs-Explanation however given by the attorney of deceased defendant that deceased had obtained the sanction in the names of several persons and had intended to sell his land to those who gave him the highest offer, was found quite plausible---Merely possession of land in question with plaintiff's who were admittedly, tenants in the shit land, would not help them in the case.

Syed Muhammad Kaleem Ahmad Khurshid for Petitioner.

Nemo for Respondents.

Date of hearing: 19th September, 2007.

2008 Y L R 248

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

ABDUL WAHID---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.651 and Murder Reference No.247 of 2002, heard on 5th March, 2007.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses in the house of the deceased at the time of occurrence was belied by the evidence on record---Medical evidence did not support the ocular account of occurrence---Prosecution had failed to prove the motive against the accused---Accused lived in a different village at a distance of 12/14 Miles and no reason had been brought on record justifying the coning of accused at late hours in the night and killing the deceased in her own house---Recovery of licensed pistol from the house of accused was of no consequence as neither any crime empty was recovered from the spot, nor any' person from the locality had been associated with the recovery proceedings---Evidence of recovery was also contradictory on material points---Occurrence had been reported to the police after a delay of three hours at a Chowk, which had cast doubt on its veracity, as such like F.I.Rs. were usually recorded at the spot after due deliberations---Prosecution witnesses who lived in a different village appeared to have been summoned after the occurrence and the story was cooked up after due consultations---Prosecution case was replete with doubts---Accused was acquitted on benefit of doubt in circumstances.

Malik Mehmood Ahmad Rehan for Appellant.

Naeem Tariq Sanghera, Deputy Prosecutor General for the State.

Date of hearing: 5th March, 2007.

2008 Y L R 252

[Lahore]

Before Syed Asghar Haider, J

MUHAMMAD SHAFI and 4 others---Petitioners

Versus

GHULAM HASSAN and 6 others---Respondents

Civil Revision No.483 of 2007, decided on 22nd October, 2007.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Findings at variance---Plaintiffs sought specific performance of agreement to sell and claimed to be in possession of suit land but defendants denied possession of plaintiffs---Trial Court partly allowed stay application filed by plaintiffs and restrained defendants from interference into their possession---Appellate Court allowed appeal filed by defendants and set aside the order passed by Trial Court---Validity---Counsel for both the parties jointly concurred and agreed that a direction be issued to Trial Court to decide application under O. VII, R.11, C.P.C. within one moth---Both the parties agreed to maintain status quo and whosoever was in possession of suit land would be entitled to its use and benefit and would not be dispossessed otherwise than in due course of law.

M. Qamar uz Zaman for Petitioners.

Mirza Aamer Baig for Respondent No.1.

Syed Ahsan Jillani for Respondents Nos.2 to 5.

2008 Y L R 260

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

SAIF UR REHMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.367 of 2001 and Murder Reference No.685 of 2001, heard on 7th December, 2006.

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

----S.302(b)---Appreciation of evidence---Parties concealing the truth---Principles---Where the parties do not come out with the true story, Court rout not be deterred by the incomplete tale from drawing the inferences which properly flow from the evidence and the circumstances.

Syed Ali Bepari's case PLD 1962 SC 502.

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

----S.302(b)---Appreciation of evidence---Principles---Benefit of all favourable circumstances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not.

Muhammad Nawaz and another v. The State PLD 2005 SC 40 ref.

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

----Ss.302(b) & 302(c)---Appreciation of evidence---Both the parties were armed at the time of occurrence and were engaged in free fight---Parties, however, had suppressed their respective roles before the Investigating Officer as well as before the Trial Court---Accused had acted in exercise of his right of self defence during the occurrence---Conviction of accused under section 302(b), P.P.C. was consequently altered to section 302(c), P.P.C. and he was sentenced to 14 years' R.I. thereunder in circumstances---Accused having committed the murder while exercising the right of self-defence, sentence of compensation was set aside.

Syed Ali Bepari's ease PLD 1962 SC 502; Muhammad Nawaz and another v. The State PLD 2005 SC 40 and Mairaj Begum v Ejaz Anwer and others PLD 1982 SC 294 ref.

Asmat Ullah Khan, Zhaeer Ahmad Khan and Malik Abdul Qayyum for Appellants.

Mr. Tanvir Iqbal, A.A-G. for the State.

Date of hearing: 7th December, 2006.

2008 Y L R 263

[Lahore]

Before M. Bilal Khan, J

TARIQ NASEER and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.874/M of 2005, decided on 13th September, 2007.

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

----S. 561-A---Penal Code (XLV of 1860), S.324/34-Quashing of order of Session Court---Accused had been acquitted by the trial Court under section 249-A, Cr. P. C. after hearing the State, which was one of the mandatory requirements under the said provision of law---Sessions Court vide impugned order passed in the revision petition had set aside the order of acquitted of accused---Validity---Revision petition against an order of acquittal passed by the Judicial Magistrate was not maintainable in a case instituted by the police under section 173 Cr.P.C.---Right of appeal however was available to the complainant under section 417 (2-A) Cr.P.C. resultantly, impugned order passed by Session Court was set aside and the petition was allowed accordingly.

Mst. Mamoona Akhtar v. Magistrate Section 30, Wazirabad, District Gujranwala and 2 others 2005 MLD 896 ref.

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

----S. 439-A---Revision petition---Maintainability---Revision petition against an order of acquittal passed by a Judicial Magistrate is not maintainable in a case instituted by the police under S.173 Cr. P. C.

Mst. Mamoona Akhtar v. Magistrate Section 30, Wazirabad, District Gujranwala and 2 others 2005 MLD 896 ref.

Mazhar Iqbal Sidhu for Petitioners.

Muhammad Iqbal Chaudhry, Deputy Prosecutor-General Punjab for the State.

Ch. Riasat Ali for Respondent No.2.

2008 Y L R 265

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD IBRAHIM and 11 others---Petitioners

Versus

MUHAMMAD MALIK---Respondent

Civil Revision No. 178 of 2007, heard on 29th October, 2007.

Civil Procedure Code (V of 1908)---

----O.XVII, Rr. 2 & 3---Dismissal of suit--Non-production of evidence---Despite many opportunities, plaintiff failed to produce ex parte evidence, consequently Trial Court dismissed the shit---Appellate Court remanded the case to Trial Court for providing one opportunity to plaintiff for producing his evidence---Validity---In about more than 1-1/2 years, fourteen opportunities were afforded to plaintiff for producing his evidence and on the last date of hearing, he was given last opportunity to produce evidence but he failed to avail the same---On the last date even plaintiff himself was not in attendance to make statement as a witness for his own, therefore, Trial Court rightly proceeded under O. XVII, Rr. 2 and 3, C.P.C.-High Court in exercise of revisional jurisdiction set aside the order passed by Appellate Court and maintained that of Trial Court.

Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others PLD 2003 SC 180 rel.

Taj Muhammad Khan Awan for Petitioners.

Ex parte for Respondent.

Date of hearing: 29th October, 2007.

2008 Y L R 270

[Lahore]

Before Maulvi Anwarul Haq, J

Syed AMIR HUSSAIN SHAH and another---Petitioners

Versus

Syed FAHEEM ABBAS and another---Respondents

Civil Revision No. 595 of 2006, decided on 11th October, 2007.

Partition Act (IV of 1893)---

----S. 4---Civil Procedure Code (V of 1908), S.115---Partition of house---Denial of joint ownership---Proof---Plaintiff claimed to be owner of half share in house in question but defendant denied his share and claimed to have purchased the same from his father---Trial Court dismissed the suit but Appellate Court allowed the appeal and passed preliminary decree for partition of house---Validity---Trial Court had found as a fact and it was not questioned in Appellate Court or before High Court that defendant failed to prove the fact that defendant had purchased the share being claimed by plaintiff---High Court declined to interfere with the judgment and decree passed by Appellate Court---Revision was dismissed in circumstances.

M. Sana Ullah for Petitioners.

2008 Y L R 271

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

MUHAMMAD ISHFAQ JAMIL---Petitioner

Versus

THE STATE and 8 others---Respondents

Writ Petition No.10301 of 2007, decided on 24th October 2007.

Criminal Procedure Code (V of 1898)---

----S. 540---Penal Code (XLV of 1860), Ss.324/379/ 396/452/337-H(ii)/148/149---Anti-Terrorism Act (XXVII of 1997), S.7--Constitution of Pakistan (1973), Art.199---Constitutional petition---Summoning of additional witnesses and record---After recording entire prosecution evidence which took more than three years, complainant had filed an application for summoning more witnesses and record which had been dismissed by trial Court for the reason that the said evidence was irrelevant and not essential for a proper and just decision of the case---By the prosecution evidence comprised of twenty witnesses the purpose for which the additional evidence was required to be summoned already stood established---Further delay in the trial could prolong the agony of the accused who were going through the pains of the trial for the last more than three years---Trial Court had to determine as to which evidence was necessary and which `was not necessary keeping in view the facts, the surrounding circumstances and the intent of the parties---Trial Court had positively determined that the evidence sought to be produced had no bearing on determining the guilt or innocence of the accused---Discretion exercised by Trial Court was neither arbitrary nor fanciful---Constitutional petition was dismissed in limine in circumstances.

Muhammad Rafiq v. Muhammad Ashraf and others N.L.R. 1999 Cr. 707 and Abdul Latif Aasi v. The State 1999 MLD 1069 ref.

Abdul Razzaq Younas for Petitioner.

2008 Y L R 274

[Lahore]

Before Khawaja Muhammad Sharif, J

MARTHA BIBI---Petitioner

Versus

DISTRICT POLICE OFFICER, KASUR and 3 others---Respondents

Writ Petition No.5092 of 2007, heard on 31st October, 2007

Penal Code (XLV of 1860)---

----Ss.295-A, 295-B & 295-C---Criminal Procedure Code (V of 1898), S.196---Constitution of Pakistan (1973), Art,199---Constitutional petition---Quashing of F.I.R---F.I.R was registered against the accused tinder section 295-C, P.P.C---Contention was that according to section 196, Cr.P.C. Trial Court could not have taken cognizance of the case, that the case could be got registered only by a Federal or Provincial officer and not by a private person and that all the three sections i.e. 295-A, 295-B and 295-C, P.P.C. being in continuity with each other, should be read together---Held, embargo on prosecution of offences under section 196 Cr.P.C. was only relevant about the penal provisions mentioned therein, but sec­tion 295-C, P.P.C. did not figure at all in section 196, Cr.P.C.-Three different offences had been mentioned in sec­tions 295-A, 295-B and 295-C, P.P.C. and by reading the same together the wisdom of Legislature could not be challenged---Courts had to interpret the law and not to make deletions or additions in the law---Reading section 295-C, P.P.C. as part of section 196 Cr.P.C. would amount to interference in the spirit of Legislature---No case for quashing of F.I.R was made out---Constitutional petition was dismissed accordingly.

Qari Muhammad Younas v. The State 2001 YLR 484 and Ijaz Ahmad v. Muhammad Azam 2003 PCr.LJ 1458 distinguished.

Mehr Zulfiqar Ali Babu and others v. Government of The Punjab and others PLD 1997 SC 11 and Ghulam Farid Alias Farida v. The State PLD 2006 SC 53 rel.

Ezra Shujaat for the Petitioner.

Ch. Muhammad Hanif Khathana, A. A.-G. for the State.

Date of hearing: 31st October, 2007.

2008 Y L R 277

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD BAKHSH---Petitioner

Versus

HAKIM and others---Respondents

Civil Revision No.1332-D of 2005, decided on 3rd October, 2007.

Specific Relief Act (I of 1877)---

----S.12---Transfer of Property Act (IV of 1882), S. 52---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for specific performance of agreement---Temporary injunction, grant of---Plaintiff along with plaint filed application for grant of temporary injunction, which was dismissed by the Trial Court, but was allowed in appeal and order was issued restraining the defendant from further alienating disputed property in any manner during pendency of the suit---Validity---Impugned order of Appellate Court restraining the defendant from illegally interfering with the possession of plaintiff was maintained having been passed on the admission of the defendant, but Appellate Court while passing order restraining the defendant from alienating the property in dispute had failed to take notice of the fact that provisions of S.52 of the Transfer of the Property Act, 1882 had sufficiently safeguarded the interest of the plaintiff even in case the property was further alienated by the defendant during the pendency of the suit---Even otherwise, no prima facie case was made out in favour of the defendant for the grant of temporary injunction---High court set aside order of the Appellate Court to the extent of restraining respondent from alienating the property in dispute; however, in case of arty alienation by the defendant during the pendency of the suit, provisions of S.52 of Transfer of Property Act, 1882 would prevail.

Muhammad Aslam v. Muhammad Khan and another 1999 SCMR 2267 rel.

Muhammad Sher Chheena for Petitioner.

Ghulam Hussain Malik for Respondent No.1.

2008 Y L R 279

[Lahore]

Before M. Bilal Khan, J

SHAHID ABBAS---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.640 of 2007, heard on 1st November 2007.

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

----Ss.302/324/201/337-A (ii)/337-F(ii)/337F(v)/337-L(2)/382/148/149---Police Order [22 of 2002] Arts.155-C & 155-D---Criminal Procedure Code (V of 1898), Ss.204, 265-K & 439---Accused in response to the summoning order passed by Sessions Court in a private complaint appeared in the Court and moved an application under section 265-K, Cr. P. C. seeking his acquittal from the charge---Said application had been dismissed by Sessions Court on the ground that after appearance of accused no progress was made in the case, therefore passing any order on the application under section 265-K, Cr.P.C. would amount to recalling its earlier order whereby the accused had been summoned which was not permissible in law---Validity---Held, summoning order passed by Sessions Court under section 204, Cr. P. C. was not in the nature of a judgment and could be reviewed, recalled or revisited at any stage of the proceedings---Impugned order was consequently set aside with the direction to Trial Court to decide the application of accused under section 265-K, Cr. P. C. on merits in accordance with law---Revision petition was accepted accordingly.

Mst. Shabbana Naz Butt v. Mst. Hukam Jan and others 2000 SCMR 1480; Muhammad Ramzan v. Muhammad Azim and 9 others 1991 MLD 951; Muhammad Tufail alias Muhammad Yasin v. Muhammad Suleman and 6 others PLD 1995 Lah 293; Yasin Khan Batter v. The State 1995 PCr.LJ 1424 and Muhammad Anwar v. Mst. Shagufta Ahmad 2004 PCr.LJ 1071 rel.

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

----S. 204---Issuing of process---Order subject to review---Summoning order passed under section 204 Cr. P. C. is not in the nature of a judgment and can be reviewed, recalled or revisited at any stage of the proceedings.

Mst. Shabbana Naz Butt v. Mst. Hukam Jan and others 2000 SCMR 1480; Muhammad Ramzan v. Muhammad Azim and 9 others 1991 MLD 951; Muhammad Tufail alias Muhammad Yasin v. Muhammad Suleman and 6 others PLD 1995 Lah 293, Yasin Khan Baber v. The State 1995 PCr.LJ 1424 and Muhammad Anwar v. Mst. Shagufta Ahmad 2004 PCr.LJ 1071 rel.

Muhammad Masood Chishti for the Petitioner.

Aurangzeb Daha for Respondent No.2.

Muhammad Iqbal Chaudhry, Deputy Prosecutor General for the State.

Date of hearing: 1st November, 2007.

2008 Y L R 280

[Lahore]

Before Syed Hamid Ali Shah, J

ALAM ALI and others---Petitioners

Versus

KAFIAN BEGUM and another---Respondents

Civil Revision No.252 of 2006, heard on 10th October, 2007.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and permanent injunction---Plaintiffs to their suit had assailed mutation in respect of suit land on the ground that said mutation was result of misrepresentation as they were daughters of the deceased; and such fact was concealed at the time of attestation of said mutation---Trial Court dismissed the suit, but was decreed in appeal---Validity---One of the defendants in her statement before the Trial Court had stated that plaintiffs were her first cousins and that she was not willing to pursue the case against them---Appellate Court gave undue weight to such statement of one of the defendants and based its conclusion mainly, on her statement---Said defendant was not cross-examined---Statement of a witness or deponent of the affidavit, would carry weight only when such deponent/witness was cross-examined---Statement of one of the defendants without cross-examination had no legal value---Impugned judgment was set aside and it was left to the Appellate Court either to record cross-examination of said defendant itself or send the file to the Trial Court for recording of cross-examination---Appellate Court was directed to decide the matter afresh after considering all points involved in the case.

Rao Jalal-ud-Din for Petitioners.

Kanwar Saeed Ahmad and Ch. M. Saeed for Respondents.

Date of hearing: 10th October, 2007.

2008 Y L R 282

[Lahore]

Before Syed Shabbar Raza Rizvi, J

ASLAM MASIH alias Kala Masih--- Petitioner

Versus

ADDITIONAL SESSIONS JUDGE PATTOKI, DISTRICT KASUR

and 2 others---Respondents

Criminal Revision No.672 of 2007, decided 8th November, 2007.

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

----Ss. 423 & 439-Penal Code (XLV of 1860), S.377---Sessions Court in appeal after setting aside the conviction and sentence of accused awarded by Trial. Court had remanded the case with direction to examine the victim who was not examined as a witness by the Trial Court which was essential for the just decision as the victim was capable of recording his statement---Validity----Powers under S.423 Cr.P.C. read with S.439 Cr.P.C. were wide and covered marry aspects and areas---To remand a case to the Trial Court was one of such powers and direction for examination of the victim was an incidental order---Purpose of remanding the case to 'Trial Court was to rectify the errors made by trial Court such as non-appreciation of evidence, to avoid miscarriage or failure of justice and to give further chance to the parties to present their side of .the case, where failure of justice was noted by the Appellate Court---Order of retrial was not an order of second trial for the 'same offence, but continuation of the first trial result whereof had been set aside by Sessions Court---Impugned order had not caused any prejudice to the accused---Parties would be at liberty to advance their version during the course of trial in accordance with law to be supported by evidence---Trial Court was directed to decide the case on merits---Revision petition was dismissed with the said observation.

1975 PCr.LJ 1281 Kar. 1991 PCr.LJ 833 and Anwar and another v. The Crown PLD 1955 Federal Court 185 ref.

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

----S. 423---Order of retrial---Nature and scope---Order of retrial is not an order of second trial for the same offence, but is the continuation of the first trial.

Anwar and another v. The Crown, PLD 1955 Federal Court 185 ref.

Major (R.) Arshad Mehmood Sheikh for the Petitioner.

2008 Y L R 286

[Lahore]

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

MUHAMMAD AFZAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.4864/B, 7520/B of 2007, decided on 1st November, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences in Respect of Banks (Special Courts) Ordinance (10 of 1984), Sched. ---Penal Code (XLV of 1860), Ss.408/420/468/471/380-Bail, refused of---Offences with which the accused were charged were mentioned in the Schedule attached with the Offences in Respect of Banks (Special Courts) Ordinance, 1984, provisions of which had the overriding effect, by virtue of its section 5 making the offences non-bailable---Accused were, prima facie,. connected with the commission of heinous scheduled offences---Filing of the suits by the parties for recovery of finance availed by the accused and for rendition of accounts did not negatively reflect on initiation of criminal prosecution, which would continue---Trial Court had already taken cognizance of the challan which was ripe for trial/decision and at this juncture accused were not entitled to the concession of bail---Accused were refused bail accordingly.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 rel.

Ch. Ihsan-ul-Haq Bhalli for the Petitioner.

Rana Muhammad Arif for the Petitioner (in Criminal Miscellaneous No. 7520-B of 2007).

Hamid Abdullah for the Complainant.

Asif Mahmood Cheema, D.P.G. for the State with Zahid Mahmood D.I.-G. (Investigation), Faisalabad and Zulfiqar, S.I.

2008 Y L R 291

[Lahore]

Before Syed Zahid Hussain, J

GHULAM QADIR---Petitioner

Versus

ABDUL SATTAR and others---Respondents

Civil Revision No. 589 of 2000, heard on 24th October, 2007.

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

----Ss.6 & 13---Suit for pre-emption---Making of Talbs---Suit of pre-emptor was concurrently dismissed by the courts below on the ground that he had failed to perform the Talbs in accordance with law---Averments made in the plaint were silent as. to place, date and timing of acquiring knowledge about the sale of land---Version of pre-emptor that someone had informed him about the sale on a particular date, lacked essential particulars and the requirements for the, performance of Talbs in accordance with law---Pre-emptor, in circumstances had failed to fulfil the requisite conditionalities of making Talbs, as his mere assertion as to performance of Talbs and making some improvement in evidence was not enough---Due to non-performance of Talbs, his superior right to pre-empt the suit land, if any, stood extinguished in terms of S.13 of pre-emption Act, 1991.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Fazal Subhan and 11 others v. Mst. Sahib Jamala and others PLD 2005 SC 977; Fazal Din through L. Rs. v. Muhammad Anayat through L.Rs. 2007 SCMR 1; Nawab Din through LRs. v. Faqir Sain 2007 SCMR 401; Mst. Kharia Bibi v. Mst. Zakia Begum and 2 others 2007 SCMR 515; Mst. Lalan Bibi and others v. Muhammad Khan and others 2007 SCMR 1193 and Abdul Rehman v. Haji Ghazan Khan 2007 SCMR 1491 ref.

Abdus Salam for Petitioner.

Syed Muhammad Kaleem Ahmad Khurshid for Respondents.

Date of hearing: 24th October, 2007.

2008 Y L R 296

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD KHAN and 9 others---Petitioners

Versus

AMEER KHAN GADDI BALLOCH---Respondent

Civil Revision No. 2507 of 2006, heard on 21st September, 2007.

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

----S. 20---Equal rights of pre-emption---Distribution of land---Principle---When both the parties (vendee and pre-emptor) were co-sharers, tine matter was to be governed by S.20 of Punjab Pre-emption Act, 1991 and land had to be distributed among all parties on per capita basis.

Muhammad Hayat v. Faiz Ali and another 2002 MLD 938 fol.

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

----S. 13---Pre-emption suit---Talb-i-Muwathibat---Proof---Suit filed by pre-emptors was decreed in their favour by Trial Court but Appellate Court allowed appeal and dismissed the suit of the ground that Talb-i-Muwathibat was not proved---Validity---Persons who informed pre-emptors about sale appeared as witnesses and corroborated statement of pre-emptor---All pre-emptors were present when they received information and made first Talb immediately upon getting such information from witnesses---No dis­crepancies were found in the statements of witnesses produced by pre-emptors---One of the attesting witnesses of mutation was son of one of the pre-emptors, therefore, Appellate Court had wrongly assumed that all pre-emptors had knowledge of sale---No material was available on record to support the inference drawn by Appellate Court and it was only a guess work an its part---Appellate Court acted with material irregularity in exercise of its jurisdiction while interfering with the judgment of Trial Court---High Court in exercise of revisioral jurisdiction set aside the judgment and decree passed by Appellate Court and restored that of Trial Court---Revision was allowed in circumstances.

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

---Art. 77---Secondary evidence-Notice, proof of---Where document sought to be proved through secondary evidence is itself a notice, then there is no requirement to follow the procedure provided in Art. 77 of Qanun-e-Shahadat 1984.

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

---Art. 129(f)---Posting of letter---Presumption---Where letter is found to be correctly addressed and duly posted, presumption is that it had reached its destination.

Aamir Zahoor Chohan for Petitioners.

Hafiz Khalil Ahmad for Respondent.

Date of hearing: 21st September, 2007.

2008 Y L R 298

[Lahore]

Before Tariq Shamim, J

WAJEEH UL HASSAN SHAH, SUB-INSPECTOR, PUNJAB POLICE---Petitioner

Versus

SESSIONS JUDGE, SHEIKHUPURA and 3 others---Respondents

Writ Petition No. 11241 of 2007, decided on 22nd November, 2007.

Police Order (22 of 202)---

----Art.155-Criminal Procedure Code (V of 1898), Ss.22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Direction of Ex-officio Justice of Peace for registration of case---Petitioner had challenged orders of the Ex-officio Justice of Peace whereby registration of criminal case against petitioner was passed---Contention of petitioner was that orders of Justice of Peace were contrary to the provisions of Art. 155(2) of the Police Order, 2002---Validity---Contention was repelled as in the present case provisions of Police Order, 2002 were not attracted because petition filed under Ss.22-A and 22-B, Cr. P. C. had disclosed commission of cognizable offence punishable under P.P.C., whereas Art.155(2) of Police Order, 2002 was restricted in its application to cases calling for prosecution in terms of Art.155(1) of the Order---Word "prosecution" used in Art.155(2) of Police Order, 2002 implied institution and continuation of criminal proceedings after a formal charge had been framed and mere registration of F.I.R. could not be construed as "prosecution" in the context of Art.155(2) of Police Order, 2002-Ex­-officio Justice of Peace, in circumstances, had no option except to order registration of a criminal case, if commission of a cognizable offence was made out from the contents of the petition as was in the case---Impugned orders were in consonance with law and no illegality had been committed by the Ex-officio Justice of Peace.

Sakhawat Hussain Shah v. State and 3 others 2006 PCr.LJ 1564 and Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 ref.

Mian Pervaiz Hussain for the Petitioner.

2008 Y L R 300

[Lahore]

Before Maulvi Anwarul Haq, J

PROVINCE OF PUNJAB through Collector Sargodha and others---Appellants

Versus

MUHAMMAD ASGHAR through Mukhtar Khas ---Respondent

Regular Second Appeal No. 110 of 2005, heard on 17th September, 2007.

Arbitration Act (X of 1940)---

----Ss. 34 & 39-Civil-Procedure Code (V of 1908), S.100---Second appeal---Words any other steps in the proceedings"-Connotation-Setting aside of ex parte proceedings---Arbitration clause-Stay of proceedings---Authorities, after filing of suit, put in appearance an 15-9-1994 and sought adjournment for filing of written statement which was granted---Authorities were proceeded against ex parte which proceedings were subsequently- set aside---Adjournment was again sought for filing written statement on two occasions; it was ultimately on 22-9-1995 that application under S.34 of Arbitration Act, 1940 was filed but it was dismissed by Trial Court---Issues were framed and shit was decreed in favour of plaintiff---Judgment and decree passed by Trial Court was maintained by Appellate Court---Plea raised by authorities was that Trial Court could not have proceeded in presence of arbitration clause---Validity---Trial Court correctly dismissed the application on the ground that authorities had taken steps in proceeding within the meaning of S.34 of Arbitration Act, 1940, before filing of the application---Order passed under S.34 of Arbitration Act, 1940, was appealable under S.39 of the Act, and authorities did not file any appeal against the order---High Court did not find any ground. for interference with the order passed by Trial Court dismissing application of authorities---Authorities failed to point out any misreading and non-reading of evidence by Trial Court while recording its findings---There being no evidence on record to support award of damages by Trial Court, therefore, the sane was set aside---High Court modified the decree passed by Trial Court and deducted the amount of damages included by Trial Court in the decree---Second Appeal was allowed accordingly.

Tahir Munir Malik, A.A.-G: for Appellants.

Ch. Javed Bashir Cheema for Respondent.

Date of hearing: 17th September 2007.

2008 Y L R 302

[Lahore]

Before Iqbal Hameedur Rahman, J

Messrs MADINA JUTE MILLS LTD through Director---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Food, Lahore and 3 others---Respondents

Writ Petition No. 6543 of 2006, heard on 12th June, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Contractual obligation---Enforcement---Petitioner first supplied, 2907 bales of jute bags at the rate of Rs.51 per bag according to the specification and quantity mentioned in the contract within the due date---Authorities made payment to petitioner first at the rate of Rs.48.98 per bag and deducted balance amount on the ground that according to Purchase Manual, petitioner firm provided Price Reasonability Certificate and on verification it was confirmed that petitioner firm had supplied similar bags at the rate of Rs.48.98 per bag to another department---Plea raised by petitioner company was that authorities could not change contractual amount---Validity---Other department entered into agreement with petitioner firm in which it was agreed that petitioner firm would supply to that department 1000 jute bags at the rate of Rs.51 per bag---As the rate agreed through the agreement with other department was Rs.51 per bag, the fixation of reasonable price by the authorities at the rate of Rs.48.98 per bag could not sustain---High Court had jurisdiction to direct for payment of money in exercise of constitutional jurisdiction---High Court directed the authorities to clear outstanding balance amount as per contract made between the parties in accordance with law---Petition was allowed in circumstances.

Bayindir Insaat v. Pakistan through Ministry of Communications and 3 others PLD 2001 Lahore 426 and Mahmood Ali Butt v. Investigating Officer Police, Punjab and others PLD 1997 SC 823 rel.

Khalid Ibni Aziz for Petitioner.

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

Date of hearing: 12th June, 2007.

2008 Y L R 308

[Lahore]

Before Muhammad Jehangir Arshad, J

WAPDA through Chairman and 3 others---Petitioners

Versus

FAZAL KARIM and 5 others---Respondents

Civil Revision No. 136 of 2004, decided on 25th September, 2007.

Electricity Act (IX of 1910)---

----Ss. 24 & 26---Demand of amount from consumer on basis of audit report/objection without issuing show-cause notice to him or joining him with proceedings to justify audit report---Validity---Audit report would neither be binding on consumer nor could he be held responsible for fault of department.

Water and Power Development Authority and others v. Umaid Khan 1988 CLC 501 rel.

Aurangzeb Mirza for Petitioners.

Muhammad Ikhlaq Sulehri for Respondents.

2008 Y L R 310

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD TARIQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1106 of 2002 and Murder Reference No.459 of 2002, heard on 8th March, 2007.

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

----S.302(b)---Appreciation of evidence---Benefit of doubt---Despite the place of occurrence being a very busy place, not a single witness of the locality was either cited or produced before the Trial Court---Eye-witnesses were residents of the village at a distance of three or four Kilometers front the place of occurrence---Ocular testimony was against medical evidence, mutually destructive and replete with very material contradictions incapable of being reconciled---None of the prosecution witnesses had reported the matter to the police although police station was only two furlongs away from the place of incident---Non-registration of the case at the police station, had prima facie led to the prosecution that the story of firing had been prepared at the spot after due deliberations---Recovery of pistol at the instance of accused was inconsequential as no crime empty was recovered from the spot and recovery witnesses were not the residents of the locality---Motive for the incident was not proved by any independent evidence---Presence of eye-witnesses on the spot at the relevant tine was doubtful---Presumption or suspicion howsoever strong could not take the shape of proof---Accused was extended benefit of doubt and acquitted in circumstances.

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

----S.302(b)---Appreciation of evidence---Suspicion---Presumption or suspicion however strong cannot take the shape of proof.

Mirza Abdullah Baig for Appellant.

Naeem Tariq Sanghera, Deputy Prosecutor General for the State.

Date of hearing: 8th March, 2007.

2008 Y L R 315

[Lahore]

Before Muhammad Jehangir Arshad, J

ABDUL RASHID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2527-B of 2006, decided on 11th September, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.337-Bail, grant of---Accused alongwith his co-accused were behind the bars since 5-3-2006, challan had been sent to the concerned Court---Co-accused was below 18 years of age---Both accused persons though were involved in a heinous offence, but all the witnesses were police employees and case had been built up against accused on the basis of alleged confession by them before the police---No likelihood existed of conviction of accused---Both accused were admitted to bail, in circumstances.

Tariq Zulfiqar Ahmad Chaudhry for Petitioner:

Abdul Ghaffar Sayal for the State.

Mazhar Hussain, Inspector/S.H.O.

2008 Y L R 319

[Lahore]

Before Tassaduq Hussain Jillani, J

MASTA and 10 others---Petitioners

Versus

FATEH MUHAMMAD and 10 others---Respondents

Civil Revision No.136 of 1996, heard on 10th September, 2003.

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

----S.8(2)---Misl Haqiat, Wajibul Arz and Jama Bandi indicated that the land was situated in a Chak consisted of State Land on the basis of the entries in Revenue Record---District Judge had concluded that in the year 1905, the Abadkars were granted occupancy rights and in 1911-12, 52 grantees were given full proprietary rights---Land situated in a Colony Chak---Judgment and decree passed by District Judge being against the weight of evidence was set aside---Judgment and decree of the Civil Judge were restored.

Khushi Muhammad and others v. Bashir Ahmad and others 1994 MLD 791 rel.

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

----Preamble & S.13---Colonization of Government Lands (Punjab) Act (V of 1912), Ss.4 & 5---Operation of Punjab Pre-emption Act, 1913 was excluded from the colony areas till 1-3-1973 when by virtue of Notification No.662-73/447-LR-111 the earlier Notification (196-B, dated 28-2-1944) was withdrawn---Pre-emption---Suit instituted on 31-10-1972 was not maintainable and was rightly dismissed by the Trial Court.

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

----S.8(2)---Colonization of Government Lands (Punjab) Act (V of 1912), S.43--Exemption Notification No.196-B dated 28-2-1944---Sale in Colony Chak was exempt from pre-emption.

Khushi Muhammad and others v. Bashir Ahmad and others 1994 MLD 791 rel.

Khawaja Mushtaq Ahmad for Petitioners.

Muhammad Waheed Akhtar Mian for Respondents.

Date of hearing: 10th September, 2003.

2008 Y L R 323

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ASIF and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.376-J of 2001 and Murder Reference No.709 of 2001, heard on 28th May, 2007.

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

----S.302(b)---Appreciation of evidence---Sentence, reduction in---Complainant had no serious enmity with the accused so as to involve him in a false case---Delay in lodging the F.I.R. was duly explained--Complainant could not plausibly substitute the real killer with an innocent person merely because of business competition---Promptness in conducting the post-mortem examination of the deceased had left no room for any doubt and seat of injury mentioned therein was in accordance with the F.I.R.---Ocular evidence was reliable which was supported by medical evidence as well as by the circumstances of the case---Accused had not tried to repeat the fire after the first fire which did not hit on any vital part of the body of the deceased--Conviction of accused was maintained, but his sentence of death was reduced to imprisonment for life in circumstances.

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

----S.302(c)/34---Appreciation of evidence--Benefit of doubt---Accused admittedly was empty handed at the time of occurrence and he was alleged only to have made a "Lalkara" which was totally unnecessary as co-accused was armed with a pistol and needed no prompting---Possibility of the accused of having been roped in the case being a brother of the principal accused, could not be ruled out-Accused was given benefit of doubt and acquitted in circumstances.

Muhammad Ashfaq Fazal for Appellants.

Ms. Najma Pervin for the Complainant.

Date of hearing: 28th May, 2007.

2008 Y L R 328

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD ALI TARIQ---Petitioner

Versus

AFFAN AHMAD KHAN and another--Respondents

Criminal Miscellaneous No.3533/CB of 2007, decided on 1st June, 2007.

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

----S.497(5)---Cancellation of bail---Principles---Strong and exceptional grounds were needed for cancellation of bail---Bail could be cancelled when bail granting order was patently illegal; erroneous, factually incorrect; when some fresh facts or material had been collected by the police during investigation which could tend to establish or point out guilt of accused when accused had misused his liberty by indulging in similar criminal activities; when accused had interfered with course of investigation; when accused attempted to tamper with prosecution evidence; and when accused threatened witnesses or indulged in similar activity which would hamper smooth investigation and there was likelihood of his fleeing from the country; or accused made himself scarce by going underground or becoming unavailable to Investigating Agency.

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

----S.497(5)---Penal Code (XLV of 1860), S.489-F---Bail, cancellation of ---After transfer of investigation, the police, in the subsequent investigation, having declared accused as guilty, his case fell under sub-clause (ii) of S.497(5), Cr. P. C.---Complainant, who was necessary party, was not present at the time of granting bail to accused---Court confirmed bail before arrest of accused on the basis of statement made by the police officer to the effect that accused was found innocent and a compromise had also been effected between the parties, however, in the subsequent investigation accused was found guilty-After second investigation the police had collected record making out a reasonable ground for believing accused to be guilty of offence under S.489-F, P.P.C., which was sufficient ground to re-call the earlier order obtained by misrepresentation---Mere fact that offence against accused did not fall within prohibitory clause of S.497(1), Cr. P. C. bail could not be claimed as a matter of right---Bail granting order passed by the Court was recalled.

Qadir Mand v. Muhammad Amroze and others 1998 SCMR 496 and Abdur Razzaq v. Shah Nawaz and others 2003 YLR 1537 ref.

Ch. Abdul Ghaffar and Munawar Iqbal Gondal for Petitioner.

Junaid Razzaq for Respondent No.1.

Mrs. Farzana Khan, Asstt. P.-G. for the State.

2008 Y L R 330

[Lahore]

Before M. Bilal Khan, J

MUNEER AHMAD and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8410/B of 2007, decided on 20th November, 2007.

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

----S.498---Penal Code (XLV of 1860), Ss.302/337A (i)/337-L (ii)/109/148/149---Pre-arrest bail, grant of---Trial Court had admitted the accused to post arrest bail due to non-availability of prosecution witnesses in the case and adjourned the case sine die-After two years, on the application of the complainant, that prosecution witnesses had become available, Sessions Court cancelled the bail granted to accused under Section 497(5), Cr.P.C---Accused had sought pre-arrest bail---Validity---Consideration for grant of bail and for cancellation of bail once duly granted were entirely different-Pre-requisites required for invoking Section 497(5), Cr.P.C. were not present in the case---Mere fact that after two years the witnesses had become available, by itself, was not sufficient to recall the concession of bail allowed to accused, especially so when they were not alleged to have misused the said concession---Bail once granted could not be cancelled unless there were compelling circumstances or the bail granting order was void, illegal, absurd or fanciful---None of the said conditions were available to recall the bail order---Ad interim pre-arrest, bail allowed to accused was confirmed in circumstances.

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

----S.497(5)---Cancellation of bail---Pre-requisites---Bail once granted cannot be recalled unless there are compelling circumstances or the bail granting order is void, illegal, absurd or fanciful.

Zafar Iqbal Chohan for the Petitioners.

Muhammad Iqbal Chaudhry, Deputy Prosecutor General for the State.

Tanvir Hussain, A.S.-I. P.S. Satrah District Sialkot with record.

2008 Y L R 335

[Lahore]

Before Mrs. Fakharun Nisa Khokhar, J

DOST MUHAMMAD---Petitioner

Versus

FAUJ MUHAMMAD----Respondent

Writ Petition No.1576 of 2003, heard on 25th September, 2003.

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

---S.42---Civil Procedure Code (V of 1908), O. VI, R.17--Amendment in plaint--Suit for declaration and alternatively for specific performance of agreement to sell---Amendment of plaint was sought in respect of mentioning the Mauza and Tehsil although Khata and Khatooni had already been mentioned---Both the courts had failed to understand that if the amendment was not allowed in case of decree or dismissal of the suit vide judgment and decree as to which property would be mentioned and when the report of Local Commissioner which existed on the record subject to the objections of the parties which mentioned the Mauza remained unchallenged by the parties, there held, no occasion existed for disallowing the application to amend the body of the plaint.

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

---S.115 & O. VI, R.17---Amendment in plaint---Amendments, could liberally be allowed by the Court specially ones which did not alter the character of the suit neither changed the nature nor raised a new cause of action.

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

----O. VII, Rr. 1 & 3---Amendment of plaint---Immovable property, description of---Amendment sought to add name of Mauza and Tehsil in the head note of the plaint, was refused by Courts below---Validity---Both the Courts below had failed to understand that if the amendment was not allowed, then how in case of decree or dismissal of the suit property would be mentioned therein.

Khizar Abbas Khan for Petitioner.

Zafar Iqbal Chohan for the Respondent.

Date of hearing: 25th September, 2003.

2008 Y L R 338

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

THE STATE and others---Petitioners

Versus

MUHAMMAD KHAN alias MUHAMMAD BAKHSH alias MUMMI and 2 others---Respondents

Murder Reference No. 409 in Criminal Appeals Nos. 225-J, 1174 and 1183 of 2001, heard on 18th July, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 337-A(ii)---Appreciation of evidence---F.I.R. in which names of accused persons were duly mentioned with their roles, was not registered with inordinate delay---Medical evidence was not found in contradiction with the ocular account regarding receipt of injuries by the injured prosecution witness and deceased with blunt edged weapon---All eye-witnesses though were closely related inter se and with deceased, but mere said relationship was not sufficient to term them as interested witnesses as no previous enmity, ill-will or motive to falsely implicate accused in the case, existed between accused and complainant party---Eye-witnesses, in circumstances could not be termed as interested witnesses---Complainant had explained her presence with her deceased husband at the spot---Possibility of presence of witnesses at the place of incident could not be ruled out as prosecution witness was seriously injured along with deceased and their presence at the spot had been established through documentary evidence---Both eye-witnesses remained consistent regarding time, place of incident and the manner in which incident had taken place---Injuries had been correctly noted down by the Medical Officer on the same locale while examining both deceased and injured prosecution witness at the time of their medical examination---Both eye-witnesses remained consistent regarding the time, place of incident and the manner in which same had taken place---Said witnesses were neither inimical towards accused nor had any reason to falsely implicate them in the case---Witnesses were subjected to lengthy cross- examination, but except for the minor discrepancies in their statements, defence had not been able to shatter their confidence sufficient for discarding their evidence---Injuries on the person of injured witness could not be declared as self-­suffered---Presence of injured prosecution witness at the spot could not be ruled out and mere minor contradictions were not sufficient to discard his evidence, ocular account, in circumstances was independent and trustworthy---Both deceased and injured prosecution witnesses, though were alleged to be involved in many cases, but nothing was brought on record that they were convicted in any case---Mere involvement of a person in a criminal case, would not provide any licence to the other person to murder him---Trial Court had rightly relied upon the statements of the eye-witnesses---Medical evidence showed that injuries attributed to three accused were sufficient to cause death in the ordinary course of nature; it could not therefore, be said, in circumstances, that it was not a case of Qatl-i-Amd---Complainant had fully explained about the motive which was incorporated in the F.I.R.-Motive had been proved against accused beyond any shadow of doubt---Recovery of weapons of offence from accused, was inconsequential as said weapons were not sent to the office of Chemical Examiner or Serologist to ascertain that these were stained with human blood---If ocular account of unimpeachable character was available on the record mere non-recovery of weapon of offence or non proving of the same at the trial, was not sufficient to exonerate accused from commission of crime---Prosecution, in circumstances having succeeded in proving case against three accused persons, their conviction and sentences awarded by the Trial Court, were maintained.

Abdul Haq v. Muhammad Amin alias Munna and others 2004 SCMR 810 ref.

Muhammad Asghar Rokhari for Appellant in Criminal Appeals Nos. 225-J and 1174 of 2001.

Ch. Muhammad Inayat Ullah Cheema for Respondent (in Criminal Appeal No. 1183 of 2001).

Mirza Abdullah Baig for the State (in Murder Reference No. 409 of 2001).

Muhammad Sharif Cheema for the State (in Criminal Appeal No. 225-J of 2001).

Sheikh Asif Hussain for the State (in Criminal Appeal No. 1174 of 2001).

Ch. Muhammad Ahad Batalvi for the State in Criminal Appeal No. 1183 of 2001.

2008 Y L R 347

[Lahore]

Before Hasnat Ahmad Khan, J

Sh. MUNSAF ALI ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No. 506 of 2007, decided on 28th November, 2007.

Penal Code (XLV of 1860)---

----S.197---Criminal Procedure Code (V of 1898), Ss. 22-A(6), 243 & 439---Criminal Revision---Accused had filed an application under S.22-A(6), Cr. P. C. for registration of a case before the Additional Sessions Judge/Ex-officio Justice of Peace against some persons on the charges of committing fraud---Said application was dismissed and the accused filed yet another application before the same Ex-officio Justice of Peace for seeking the same relief by appending a false certificate claiming therein that previously no such application had been submitted by him---Opposite party contested the application on the ground of suppression of fact and appending of false note on the petition---Accused advanced the plea that the said alleged false note was not given by hint, rather the same was given and signed by his counsel without asking him---However, accused sought pardon from the court for submitting false note---Ex-officio Justice of peace being not satisfied with the reply of accused sentenced him to 10 days' R.I. and a fine of Rs.1000 or in default to undergo 3 days' S.I.---Validity---While passing the impugned order Ex-officio Justice of Peace had failed to mention the provision of law under which the accused was convicted and sentenced---Case of accused was, however, covered under S.197, P.P.C. according to which any person issuing or signing false certificate could be tried for such offence---Admittedly certificate in question was not signed by the accused himself, rather the same was signed by his counsel who had not clarified that he had given it under the instructions of his client---Penal provisions of law have to be construed and interpreted strictly and benefit of every doubt had to go to the accused---Accused had specifically stated that the certificate was not given by his counsel under his instructions--Lower court had failed to proceed against the counsel in this regard---No charge was even framed against the accused which was sine qua non for holding him guilty and he was seriously prejudiced in putting up his defence---No evidence was also recorded against the accused---Accused was mainly convicted on the ground that since he had tendered unqualified apology he had indirectly confessed his guilt within the meaning of section 243, Cr. P. C.---Requisite proceedings under S.243, Cr. P. C. having not been taken, conviction of accused could not be recorded thereunder---Ex-officio Justice of Peace while convicting the accused had failed to consider that while entertaining the first as well as the second application he was not performing or discharging any judicial function, rather he was performing administrative function and on this account also the impugned judgment was bad---Impugned judgment was set aside in circumstances---Revision petition was accepted accordingly.

Sharif Khan v. The State 1991 PCr.LJ 1761 and Khizer Hayat and others v. Inspector General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 ref.

Syed Zulfiqar Bokhari for the Petitioner.

Rana Iqbal Hussain, Deputy Prosecutor

General for the State.

Date of hearing: 16th August, 2007.

2008 Y L R 354

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MANSAB KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.189/J and Murder Reference No.394 of 2002, heard on 20th June, 2007.

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

----S.302(b)---Appreciation of evidence---Being conscious of the fact that darkness had fallen, complainant had introduced emergency light in his hand---Deceased had received two fire-arm injuries while sitting on the rear seat of the motorcycle, yet no blood-stain was available on the seat of motorcycle, which had cast doubt on the availability of the searchlight and the motorcycle at the time of the first visit of the Investigating Officer on the spot---Medical evidence had belied the prosecution version---No physical evidence of the presence of both the eye-witnesses. on the spot was available, as despite the fact that the deceased and the prosecution witness were sitting on the same motorcycle, neither the clothes of the prosecution witness nor those of the complainant were stained with blood--Recovery of pistol at the instance of accused could not be used against him, as no crime empty was recovered from the spot and the pistol was never sent to Forensic Expert---No independent witness was produced in support of motive---Liklihood of implicating adversaries could not be ruled out in an un-witnessed occurrence--Presence of eye-witnesses at the scene of occurrence was not free from doubt---Accused was acquitted in circumstances.

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

----S.302(b)---Motive---Motive is always considered to be a double edged sword, as it could be the reason behind the occurrence and it could be a reason for implicating the accused.

Muhammad Asghar Rokhari for Appellant.

Ch. Muhammad Aslam Sindhu, Addl. Prosecutor General for the State.

Malik Muhammad Suleman Awan for Complainant.

Date of hearing: 20th June, 2007.

2008 Y L R 362

[Lahore]

Before Muhammad Muzammal Khan, J

KHUSHI MUHAMMAD---Petitioner

Versus

MUHAMMAD YOUSAF---Respondent

Civil Revision No.482-D of 1998, decided on 15th, December 2003.

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

----Ss.13 & 14---Making of Talbs---Making of Talbs by guardian or agent---Plaintiff was employed abroad and in view of his inability to come all along to Pakistan to make statement in the suit, appointed his brother-in-law as his attorney, to make statement on his behalf---Attorney, while appearing as witness categorically deposed that plaintiff had exclaimed his intention to pre-empt the sale in question immediately on gaining of knowledge, in his presence---Such part of the statement of the attorney remained uncross-examined which created a-natural presumption that that part of the statement stood admitted by the defendants---Section 14 of the Punjab Pre-emption Act, 1991, authorizes even a duly appointed agent to make Talbs on behalf of his principal and thus it could not be said that by non-appearance of the plaintiff himself in the witness-box, performance of Talb-i-Muwathibat was not proved.

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

---S.13 (3) ---Talb-i-Ishhad---Pre-emptor, under the provisions of S.13 of Punjab Pre-emption Act, 1991 was required only to prove performance of Talb-i-Ishhad and if at all notice was not served as claimed by the defendant, that would not vanish right of the plaintiff---Performance of Talb-i-Ishhad under Islamic Law, in presence of two truthful witnesses was a condition precedent for maintaining a suit for pre-emption, but proof of dispatch of notice was not necessary---Notice attested by two truthful witnesses if at all was not delivered to the defendant, it was neither a requirement of S.13 of the Punjab Pre-emption Act, 1991 nor that of Islamic Law.

Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 199,4 SC 1; Haji Qadar Gul v. Moember Khan and another 1998 SCMR 2102; Abdul Malik v. Muhammad Latif 1999 SCMR 717 ref.

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

---O.XVIII, R.5---Record of evidence---Evidence recorded in one suit reproduced in other two suits with the concurrence of the parties and their counsel---Plaintiff could not point out any prejudice caused to his right by such mode of procedure---Defect, if any, was of procedural in nature which did not affect the findings of the Courts or trial of the suit---Plaintiff having acquiesced in the procedure adopted by Court was estopped to turn around and say that evidence in all three suits should have been recorded separately---Objection being of technical nature did not defeat the ends of justice.

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

---S. 30(b)---Pre-emption right, enforce­ment of----Limitation---Assertion was that sale in favour of defendant was completed in 1978 and possession was taken by him under it, thus suit of the plaintiff was barred by limitation---Provision of sec­tion 30 of the Punjab Pre-emption Act, 1991 by its sub-clause (b) gives period of four months for maintaining a suit for pre-emption from the date on which vendee took physical possession of the property if the sale was made otherwise than a registered sale-deed or a mutation---Sale in question was effected through sanctioning of mutation on 27-10-1994, thus according to S.30, sub-clause (b), Punjab Pre-emption Act 1991 the period of limitation would be four months from the date of attestation of mutation and the suit having been filed on 21-12-1994 could not be said to be barred by limitation.

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

---S. 115--- Revision--- Grounds---Where both the Courts below had taken a correct view of law and facts emerging out of evidence on file, no misreading or non-reading of evidence was proved, in absence of which no interference in revisional jurisdiction was permissible---Revision petition having no merit, was dismissed accordingly.

Amjad Pervaiz Malik for Petitioner.

Rana Habib ur Rehman Khan for Respondent.

Date of hearing: 8th December, 2003.

2008 Y L R 367

[Lahore]

Before Tariq Shamim, J

MUHAMMAD SHAMSHAD---Petitioner

Versus

DISTRICT POLICE OFFICER, PAKPATTAN SHARIF and 3 others---Respondents

Writ Petition No. 3625 of 2007, decided on 27th November, 2007.

Penal Code (XLV of 1860)---

----Ss.337-A(i)/337-A(ii)/337-A(iii)/337-F(i)/337-L(ii)/34---Police Order (22 of 2002), Art.18(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of investigation---Complainant had filed an application with the District Police Officer for transfer of investigation, whereupon the case was entrusted to Deputy Superintendent of Police (Investigation) with a direction' to personally ensure fair investigation---D.S.P. (Investigation) in the garb of the order passed by the District Police Officer had conducted a fresh investigation and had arrived at a conclusion other than the one reached by the first Investigation Officer---Such an exercise was definitely without lawful . authority---If at all, the D.S.P. had found any fault or illegality in the investigation already conducted by the Assistant Sub-Inspector, he should have brought the same to the notice of the Superintendent of Police (Investigation), who could then initiate proceedings as contemplated by Article 18(6) of Police Order 2002, for change of investigation---All -proceedings based on the investigation conducted by the D.S.P. (Investigation) being without lawful authority were quashed---Constitutional petition was

accepted accordingly.

PLD 2005 Lah. 470 rel.

PLD 2006 Lah. 95 and PLD 2006 Lah. 509 ref.

Arshad Ali Chohan for the Petitioner.

Amjad Ali Chattha, Asstt. A.-G. Muhammad Nawaz, Sub-Inspector with record.

2008 Y L R 369

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD IQBAL and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7930/B of 2007, decided on 21st November, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---F.I.R. had been registered after eleven months of the occurrence on the orders of Supreme Court---Sessions Court appeared to have shrunk from its responsibility to allude to the merits of the case and proceeded to dismiss bail application of accused on trivialities unrelated to the controversy involved, apparently for the reason that the case had been registered on the orders of Supreme Court---Directions issued by Supreme Court for registration of criminal cases were never meant to deprive or divest accused persons named therein of their legal rights and to close all avenues of relief to them---Such accused persons were fully entitled to their remedies provided to them under the law---Impugned order was conspious by the absence of any comment on the real merits of the case---Delay of eleven months in lodging the F.I.R. had not been properly explained-Complainant or her husband's case was not that police had refused to register the case---Cause of death of the deceased girl could not be determined---Accused had been found innocent by police during investigation---Case against accused was pre-eminently one of further inquiry within the meanings of subsection (2) of section 497, Cr. P. C.---Accused were admitted to bail in circumstances.

Muhammad Waseem for the Petitioners.

Saeed Ashraf Warraich, Addl. Prosecutor-General, Punjab for the State.

Muhammad Mushtaq, A.S.-I., P.S. Jauharabad, District Khushab with record.

2008 Y L R 372

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Sh. Javaid Sarfraz, JJ

Ch. MUHAMMAD TARIQ---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD through Chairman and 3 others---Respondents

Writ Petition No.4348 of 2005, decided on 30th May, 2006.

National Accountability Ordinance (XVIII of 1999)---

----Ss.18(c), (d), 19, 27 & 34-A---Rules of Business, 1973, R. 14(1)(c)---Criminal Procedure Code (V of 1898), S.537---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings-Petitioner and his co-accused allegedly embezzled huge amount by misusing their authority and caused loss to Government Exchequer---Reference was filed in Accountability Court---Application of petitioner filed under S.265-K, Cr.P.C. for his acquittal was dismissed by the Trial Court---Chairman NAB had delegate the powers of inquiry and investigation to Regional Accountability Commander--Contention of petitioner was that Chairman, NAB did not have the power to delegate the power of enquiry and investigation to Regional Accountability Commander and subsequent letter of said Commander directing. Anti-Corruption Establishment to investigate against petitioner and his co-accused were alleged to be without any legal authority---Special Prosecutor for NAB had submitted that Chairman had delegated his powers and functions under Ss.18(c) (d), 19 & 27 of National Accountability Ordinance, 1999 to Commander Regional Accountability who had ordered for initiation of investigation against petitioner and his co-accused to Anti-Corruption Establishment---No lacuna existed in the letter in which initiation of investigation was ordered against petitioner---Even otherwise case of petitioner was covered by S.537, C.P. C.-Error, omission, irregularity in the proceedings, if any, were not sufficient to quash proceedings against petitioner.

PLD 2005 SC 605; PLD 1994 SC 486; 2003 MLD 777 and Farzana Naheed v. The State 2006 SCMR 826 ref.

Navid Rasul Mirza for the Petitioner.

Asad Manzoor Butt, Special Prosecutor for the Respondents.

2008 Y L R 375

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

SAIF ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.172-J and Murder Reference No. 498 of 2000, decided on 25th April, 2006.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Benefit of doubt---Parties were very closely related to each other, but relations between them had become strained as daughter of accused who was married to a brother-in-law of deceased had left the house of her husband and had started residing with accused due, to some matrimonial estrangement---Both eye-witnesses produced were not only closely related to deceased, but were also chance witnesses being interested witnesses---Story of prosecution deposed by said witnesses was quite improbable---Medical evidence, instead of providing support to ocular account, had gone a long way in contradicting and discrediting eye-witnesses produced by the prosecution in the case---F.I.R., though was recorded promptly, but post-mortem examination was conducted on the next day of occurrence and no explanation was available on record for such delay---Said delay was generally suggestive of un­witnessed occurrence wherein time was utilized by complainant party and the police to procure and plant eye-witnesses and to cook up a story of the prosecution---Medical evidence for all said reasons was found completely destructive of ocular account furnished by prosecution in the case---No corroboration to the ocular account was forthcoming---Gun of .12 bore, though allegedly recovered from the possession of accused during the investigation of the case had statedly matched with two crime empties recovered from the place of occurrence, but such recoveries were legally inconsequential because the gun and the crime-empties had been sent to the Forensic Science Laboratory together---Report of Forensic Science Laboratory had confirmed that the gun and the crime empties had been received together after more than one month---No evidence was available on record to explain where said crime empties and gun remained during such period---Both eye witnesses produced by the prosecution in the case who were related inter se were chance and interested witnesses, had failed to receive any independent corroboration or support---Possibility of false implication of accused, after due deliberation by the complainant party, thus could not safely be ruled out---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 he was released.

Masood Sadiq Mirza for the Appellant.

Tehseen Irfan and Ijaz Ahmad Bajwa for the Respondent.

Date of hearing: 25th April, 2006.

2008 Y L R 385

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

GHUNCHA GULL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6680/B of 2007, decided on 31st October, 2007.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---"Charas" weighing ten kilograms was allegedly recovered from underneath the seat which was behind the seat of the accused who was driving the bus---Despite the lapse of eleven months challan had not been submitted in the Court---None from the passenger bus was cited as a witness of recovery of narcotics---Presence of passengers in the bus was not even mentioned in the F.I.R.---Although owner of the bus was shown as accused in the F.I.R., yet he was never arrested, rather the bus had been given to him on "Superdari "---Despite the bar contained in S.51 of the Control of Narcotic Substances Act, 1997, Court was competent to grant bail in cases found fit for bail after taking into consideration the overall facts and circumstances---Case being fit for grant of bail, accused was admitted to bail accordingly.

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

----S.51---Bar against grant of bail--Competence of Court to grant bail---Scope---Despite the bar contained in S.51 of the Control of Narcotic Substances Act, 1997, Court can grant bail in a case which it finds fit for bail after taking into consideration the overall facts and circumstances.

Khalid Jamil for Petitioner.

Muhammad Mazhar Sher Awan, Additional Prosecutor-General with Rafique, S.-I. for the State.

2008 Y L R 387

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD SHARIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1143 of 2005, decided on 5th November, 2007.

Penal Code (XLV of 1860)---

----S.295-C---Criminal Procedure Code (V of 1898), S.196---Appreciation of evidence---F.I.R. was not lodged by a competent duly authorized person of Central or Provincial Government and Trial Court was not 'competent to take cognizance of the case in view of S.196, Cr. P. C. ---Trial conducted by Sessions Court, thus, was without lawful authority---Even otherwise, the evidence led by the prosecution did not inspire confidence---Prosecution case was based upon the evidence of a solitary interested witness whose statement was not corroborated by any quarter---Evidence of other prosecution witness was not trustworthy---Police had conducted, investigation in a hasty manner without going into the depth of the gravity of the offence---Accused was acquitted in circumstances.

Qari Muhammad Younas v. The State 2001 YLR 484 ref.

M. Saleem Akhtar for the Appellant.

Rana Iqbal Hussain, D.P.G. for the State.

Date of hearing: 19th October, 2007.

2008 Y L R 396

[Lahore]

Before Tassaduq Hussain Jillani, J

DIN MUHAMMAD and 9 others---Petitioners

Versus

AHMAD and another---Respondents

Civil Revision No.1339 of 1996, decided on 7th October, 2003.

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

----S.115---Revision---Scope---Analysis of evidence---Concurrent judgments and decrees of Courts below not reflecting any misreading of evidence, illegality or material irregularity---Interference in revision was not warranted.

Abdul Hakeem v. Habibullah and 11 others 1997 SCR 1139 ref.

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

----Art. 3---Mutation of exchange---Validity---Statement of a witness---Competence of witness to testify---Statement of the witness was of no consequence as he was not even born when the mutation of exchange was effected.

Sardar Mashkoor Ahmad for the Petitioners.

Mehmood Ahmad Chaddar for the Respondent.

Date of hearing: 25th September, 2003.

2008 Y L R 400

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and Sh. Javaid Sarfraz, JJ

ZAFAR IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.346-J and Murder Reference No.20-T of 2005, decided on 13th November, 2006.

Penal Code (XLV of 1860)---

----Ss.302(b), 392 & 411---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Both complainant and prosecution witness were subjected to lengthy and searching cross-examination, but both remained steadfast and nothing was available in their evidence to doubt their credibility or to say that they had not seen the occurrence---No question regarding enmity with accused was put to witnesses nor any evidence had been brought on the record to show that complainant or witness had any malice against accused to falsely involve him in the case---Statements of both the eye-witnesses had provided very vivid and bright picture of occurrence---Post-mortem report had supported ocular account and affirmed the location, duration and nature of injuries as narrated by the eye-witnesses---Matter was reported to the police within few minutes of the occurrence, the police reached at the spot and apprehended accused---Such promptness in lodging F.I.R. as well as the arrest of accused at the spot, was another factor to strengthen prosecution case and it rendered ample corroboration and support to the prosecution case---Circumstances of the case were sufficient to create sense of terror and fear among the people of locality---Trial Court, in circumstances, had rightly taken the cognizance of the matter---Contention of counsel for accused with regard to the jurisdiction of Special Court to take cognizance of the matter, was repelled---Normally in the case of single accused, substitution by kith and kin of deceased was a rare phenomenon---Accused in the present case was sole accused who was apprehended on the spot along with crime weapon and was handed over to the police---Eye-witnesses who had no axe to grind, had supported prosecution case while giving all the minor details of the occurrence---Credibility of eye-witnesses whose presence at the spot was natural, and also stood established from the data available on the record, could not be doubted---Prosecution had proved its case to the hilt against accused---Death sentence awarded to accused by the Trial Court, was confirmed and murder reference was answered in the affirmative.

Sohail Tariq for the Appellant.

M.S. Shad, Special Public Prosecutor for the State.

Date of hearing: 13th November, 2006.

2008 Y L R 404

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

NOOR HASSAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1716 and Murder Reference No.718 of 2001, heard on 29th, May 2007.

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

----S.302(b)---Appreciation of evidence---Occurrence had taken place in the middle of night on the roof of the house of the deceased where he was sleeping on a cot, while his wife (complainant) was sleeping on another cot along with her daughter---Complainant and the other eye-witness had made dishonest improvements at the trial by stating that the accused had fired within their view at the deceased---Whole occurrence having ended within a minute or two eye-witness who was sleeping in his house, could not be believed to be able to climb over the roof and see the accused before causing fire---Seven hours delay in lot reporting the matter to the police was not explained, which led to logical conclusion that prosecution witnesses were not sure as to who had murdered the deceased---Daughter of the complainant who was the best witness of the case was not produced before Trial Court---Motive for the incident was not proved---No crime empty having been recovered from the spot and the licensed On recovered from the house of the accused having not been sent to Forensic Science Laboratory, evidence of recovery could not be used against the accused---Accused appeared to have been roped in the case after seven hours' deliberation merely on suspicion, which howsoever strong could not take the place of proof---Accused was acquitted in circumstances.

2005 SCMR 427 and 1987 SCMR 136 ref.

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

----S.302(b)---Appreciation of evidence---Suspicion to take place of proof---Suspicion however strong it may be, cannot take the shape of proof.

Munir Ahmad Bhatti for the Appellant.

Ch: Muhammad Aslam Sindhu, Addl. Prosecutor General for the State.

Zia Ullah Khan for the Complainant.

Date of hearing: 29th May, 2007.

2008 Y L R 414

[Lahore]

Before Rustam Ali Malik and Parvez Ahmad, JJ

Mst. KAUSAR NAWAZ---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and 3 others---Respondents

Writ Petition No.8423 of 2003, decided on 1st December, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Bail, grant of-Conversion of petition into bail application---Petitioner, through her constitutional petition, had prayed for declaring arrest of her husband as illegal, without lawful authority and had prayed for his release---Counsel for petitioner had submitted that as a regular reference had been filed against husband of petitioner, the alleged detenu would press his constitutional petition only to the extent of relief of bail---Validity---Admittedly at the time of filing of constitutional petition, no reference was pending against husband of petitioner; and that was why the petitioner had not prayed for release of her husband on bail; and as during the pendency of constitutional petition a reference had been filed against husband of petitioner, request of counsel for petitioner seemed to be genuine---High Court had ample powers under Art.199 of the Constitution to pass any order to meet the ends of justice---Constitutional petition was converted into bail petition and in view of controversial submission of counsel for parties coupled with tentative assessment of the record, petitioner had succeeded to make out a case for concession of bail to her husband---Husband of petitioner was admitted to bail, in circumstances.

Begum Riffat Ahad v. NAB through Chairman and 4 others 2003 PCr.LJ 87 ref.

Khawaja Haris for Petitioner.

Asad Manzoor Butt for Respondents.

Date of hearing: Ist December, 2003.

2008 Y L R 416

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

MUHAMMAD ASIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.357-J of 2003 and Murder Reference No.29-T of 2003, decided on 13th April, 2006.

Penal Code (XLV of 1860)---

----Ss.302, 364, 392 & 34---Appreciation of evidence---Absconsion of accused stood proved and no plausible explanation had been given by accused for his absence from the court---Such circumstance had lent support to the prosecution case---Medical evidence also furnished corroboration, Post-mortem report evidenced 16 injuries on the person of deceased out of which 13 injuries were caused by sharp edged weapon---Recovery of pistol and wrist watch after a long period of time did not inspired confidence, accused was not expected to keep said items for such long time to present to the police to be used as evidence against him---Recovery witnesses were not residents of the place---No respectable of the locality was associated--Argument of defence that recovery was not effected from accused had no substance---No previous enmity or ill-will existed between complainant and accused---Prosecution had established its case against accused beyond reasonable doubt---Conviction and sentence of death awarded to accused by the Trial Court, were maintained---Murder Reference was answered in affirmative.

A.H. Masud for the Appellant.

Bashir Abbas Khan for the Respondent.

Irum Sajjad Gull for the State.

Date of hearing: 13th April, 2006.

2008 Y L R 420

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ISMAIL---Petitioner

Versus

GHULAM SARWAR and another---Respondents

Civil Revision No.834-D of 1996 and Writ Petition No. 9238 of 1995, heard on 21st July, 2007.

(a) Registration Act (XVI of 1908)---

----S.17---West Pakistan Land Revenue Act (XVII of 1967), S.42---Mutation---Locus standi to question the mutation---Registered sale deeds, dated 24-1-1983---Corrigen-dums which were registered on 14-7-1987 were incorporated in the Revenue Record without objection from the original owners--Subsequent purchaser had no locus standi to question title of the plaintiffs in absence of any evidence that he had any title in the remaining land.

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

----S.8---Suit for possession---Both the parties were co-sharers in the suit land---Only manner in which the plaintiffs could get possession was by filing a suit for partition and separate possession.

M.M. Alam for Petitioner.

Shamim Abbas Bokhari for Respondents.

Date of hearing: 21st July, 2003.

2008 Y L R 424

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD SALEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.124 of 2002 and 581, Criminal Revision No.252 and Murder Reference No.241 of 2001; decided on 4th May, 2006.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence--Name of accused with the role played by him during the incident, had fully been mentioned in promptly lodged F.I. R.---Both the eye-witnesses were residents of the same locality as according to one prosecution witness, the Haveli possessed by both the prosecution witnesses was at a distance of 2 acres from the place of incident---Both the witnesses had explained their presence at the spot and they had no previous enmity or grudge against accused to falsely implicate him in the case by letting off real culprit, in the offence which was day-light occurrence and there was no possibility to misidentify real culprit---Motive as set up by prosecution, showed that some dispute existed between the parties over the land, but no civil suit was pending between the parties and they were not involved previously in criminal litigation with each other---Eye-witnesses, in circumstances could not be termed as interested witnesses only because of close relationship inter se and with deceased as accused was also related to them---Both eye-witnesses had made consistent statements regarding the time, place and the manner in which occurrence had taken place---Both eye-witnesses had categorically stated that accused alone while armed with hatchet had given hatchet blows on the person of deceased---Medical evidence had also fully supported ocular accounts and same could not be declared to be in contradiction with medical evidence-Both eye-witnesses were subjected to lengthy cross-examination, but nothing could be gained by defence to create any doubt in the prosecution story--Mere acquittal of co-accused was not sufficient to belie prosecution story as said co-accused had not caused any injury to the deceased and was attributed the role of Japha only, which was doubtful---Accused had caused successive blows with the hatchet and said injuries were sufficient to cause death in the ordinary course of nature---Occular account was sufficient to bring home charge against accused even without seeking corroboration from any independent piece of evidence---No inconsistency was found in the statement of the recovery witnesses---Hatchet allegedly recovered according to reports of Chemical Examiner and Serologist, was found stained with human blood---Said recovery of hatchet from accused and the reports, also provided corroboration to the ocular account, which otherwise was independent, natural and trustworthy---Prosecution having been able to bring home charge to accused beyond any shadow of doubt, he was rightly convicted and sentenced-In absence of any mitigating circumstances warranting award of lesser sentence, death sentence awarded to accused was confirmed.

Mirza Abdullah Baig for Appellant.

Imtiaz Ahmad Chaudhry, Masood Sadiq Mirza and Raja Akhtaar Nawaz for the State.

2008 Y L R 431

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD SALEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.125-J of 2004, decided on 13th May, 2006.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Case of single accused and promptly lodged F.I.R.---No question of substitution and neither could be expected from real brother of deceased that he would leave actual culprit and would falsely involve accused, who was armed with dagger and caused single blow on the left side of chest of deceased near heart, which proved fatal---Ocular account was fully corroborated by medical evidence---Trial Court had taken a very lenient view on the ground that prosecution failed to prove motive in the case---No question was of false implication of accused in the case---Court had to see the quality of evidence and not the quantity---Conviction and sentence recorded against accused by the Trial Court were maintained in toto.

Masood Sadiq Mirza for Appellant.

S.D. Qureshi for the State.

Date of hearing: 13th May, 2006.

2008 Y L R 433

[Lahore]

Before Mian Saqib Nisar, J

BASHIR HUSSAIN SHAH and 3 others---Petitioners

Versus

IMDAD HUSSSAIN SHAH and 2 others---Respondents

Civil Revision No.2053-D of 1997, heard on 27th October, 2003.

Specific Relief Act (I of 1877)---

----S.42---Qanun-e-Shahadat (10 of 1984), Arts.117 & 118---Suit for declaration challenging the power of attorney as also the sale-deed---Burden of proof---Execution of the power of attorney having been denied, the burden had shifted to the defendants to prove in positive terms, about the valid execution of the document---When the executant was admittedly of an advanced age and illitrate woman,. it must have been established that she, at the time of the alleged execution of power of attorney, had some independent advice of the male member of the family---Marginal witnesses were not produced, which would tantamount to withholding the best evidence---Identification before the scribe was through the witnesses and the two material witnesses were not produced, who identified the executant before the Sub-Registrar at the time of registration of the power of attorney---All such aspects and evidence was not considered by the Courts below---Case being of sheer misreading and non-reading of evidence, concurrent findings of fact could not be sustained---Revision petition was allowed and the findings of the Courts below on all the relevant issues were set aside with the result that the suit of the plaintiffs stood allowed with costs throughout.

Syed Ali Raza Rizvi for Appellants.

Taki Ahmad Khan for Respondents.

Date of hearing: 27th October, 2003.

2008 Y L R 436

[Lahore]

Before Muhammad Farrukh Mahmud and M.A. Shahid Siddiqui, JJ

GULZAR AHMAD BUTT---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.665 of 2002 and 232-J of 2003, Criminal Revision No.523 of 2002 and Murder Reference No.318 of 2002, heard on 6th June, 2007.

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

----Ss.302(b), 324, 337-F(i), 337-F(iii) and 337-D---Appreciation of evidence---Ocular account of occurrence was fully supported by medical evidence---Suggestion put to the prosecution witness about the previous quarrel amounted to the admission of motive, for which no further proof was needed---Plea of self defence taken by accused was neither supported by any evidence on record nor by the circumstances of the case and the same was rejected---Accused had repeatedly fired at the deceased and the prosecution witness who were both young boys, causing seven fire-arm injuries on the person of the deceased and four fire-arm injuries on the person of the prosecution witness---Accused had acted in a very cruel and heartless manner and no mitigating circumstances existed in his favour---Convictions and sentences of accused were maintained in circumstances.

1993 PCr.LJ 133 and 2001 SCMR 51 ref.

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

----S.302(b)---Appreciation of evidence---Benefit of doubt---Accused had no motive to join the occurrence---One single injury with hammer on the head of the deceased was attributed to accused---Both the doctors had stated that the said injury could be the result of fall at a hard surface---Accused had no enmity with the complainant party and he could not risk his life by getting out of his shop in the presence of firing and causing injury to the deceased, who had already received fire-arm injuries---Benefit of doubt was extended to the accused and he was acquitted accordingly.

Sardar Shahbaz Khan Khosa for Appellant (Gulzar Ahmad).

Shahid Qayyum Chaudhry for Appellant (Salman).

Muhammad Afzal Siddiqui for the Complainant.

Ch. Muhammad Aslam Sindhu, Addl. Prosecutor-General for the State.

Date of hearing: 6th June, 2007.

2008 Y L R 444

[Lahore]

Before Muhammad Sayeed Akhtar, J

MUHAMMAD HUSSAIN---Petitioner

Versus

Syed NAZIR SHAH---Respondent

Civil. Revision No.1065-D of 2003, heard on 31st October, 2003.

Malicious Prosecution---

----Defamation--- Damages--- Suit for recovery of Rs.25,000 as damages for defamation wherein it was averred that the defendant filed a baseless writ petition in the High Court and the plaintiff spent Rs.25,000 in defending the same---Suit was dismissed by the Trial Court but was decreed in appeal to the extent of Rs.15; 000---Validity---None of the essentials was present in the suit---Writ petition was disposed of on the statement of police official that he did not interfere in the matter' nor he intended to do so and plaintiff was directed to approach the Civil Court if he wanted to get the office of "Khateeb"---No documentary evidence was produced to show that plaintiff had incurred Rs.25,000 as expenses in defending the writ petition---Findings of Appellate Court on issue of damages was perverse and unsustainable in law---Judgment of the Appellate Court was set aside and that of Trial Court was restored in circumstances.

Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 quoted.

Ch. Muhammad Jamil Zahid for Petitioner.

Mian Maqbool Alam for Respondent.

Date of hearing: 31st October, 2003.

2008 Y L R 459

[Lahore]

Before Muhammad Farrukh Mahmud, J

RIAZ HANIF RAHI---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.256 of 2005, heard on 25th April, 2007.

Penal Code (XLV of 1860)---

----S.228---Criminal Procedure Code (V of 1898), Ss. 480 & 482---Contempt of Court---Accused, an Advocate had been sentenced to three months' S.I. with a fine of Rs.1000 under section 228, P. P. C., for having uttered a contemptuous sentence in Sessions Court---Contemptuous words had been addressed by the accused to the opposing counsel and not to the Court---Import of the sentence appeared to be that the accused meant that the opposing counsel should not continuously keep interfering during his arguments and should also give a chance to him to address the Court---Trial Court, after issuing notice to the accused, proceeded against him in its own jurisdiction under section 480, Cr.P.C., under which the Court could only detain the accused till rising of the Court on the same day and could impose fine not exceeding Rs.200---If the Court was of the opinion that the accused deserved more harsh sentence, then it should have resorted to the provisions of section 482, Cr. P. C. ---Accused was acquitted in circumstances.

Irshad Ahmad v. The State 1992 SCMR 1229 ref.

Appellant in person.

Syed Shaheen Masood Rizvi, A.A-G. and Ch. Haq Nawaz, DDPP for the State.

Date of hearing: 25th April, 2007.

2008 Y L R 462

[Lahore]

Before Asif Saeed Khan Khosa, J

FAZAL KARIM---Petitioner

Versus

THE STATE and 10 others---Respondents

Writ Petition No. 2106 and Civil Miscellaneous No.2 of 2007, decided on 4th May, 2007.

Illegal Dispossession Act (XI of 2005)---

----S.3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appreciation of evidence---Complaint, maintainability of---Petitioner and respondent/complainant were co-sharers in the same Khewat---At the time of institution of the complaint under S.3 of Illegal Dispossession Act, 2005, civil court had already seized of the dispute between the parties regarding property in issue; and the matter of possession of the relevant property was being regulated by the civil court through a stay order---Complaint under the Illegal Dispossession Act, 2005, was not maintainable regarding dispute over possession of property between co-sharers; and also in cases where the matter of possession of the relevant property was being regulated by an order of a civil court---Complaint filed by respondent under S.3 of Illegal Dispossession Act, 2005, was not maintainable and proceedings undertaken by the Trial Court in that regard were without lawful authority and of no legal effect---Order passed by the Trial Court, was set aside with direction to pass a formal order dismissing complaint filed by respondent No.4.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 ref.

Mushtaq Ahmad Mohal for Petitioner.

Mrs. Salma Malik, Asstt. A.-G with lbrar Khan, A. S-I. with record for Respondent Nos.1 to 3.

Ch. Imtiaz Elahi for Respondent No.4.

Muhammad Munawar for Respondents Nos.5 to 11.

Date of hearing: 4th May, 2007.

2008 Y L R 467

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD MANSHA through legal representative and another----Petitioners

Versus

HAMID SHAH alias ABDUL HAMID SHAH and others---Respondents

Civil Revision No.448-D of 1998, heard on 30th September, 2003.

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

----S.42--- Civil Procedure Code (V of 1908), O. VI, Rr.2 & 4---Qanun-e-Shahadat (10 of 1984), Art.95---Suit for declaration, with consequential relief---Power of attorney--- Bona fides---Alternate pleadings---Vague pleas---Plaintiff executed power of attorney in favour of his wife, which was written on 7-4-1975 and registered on 16-4-1975---Wife sold the land of the defendants through a registered sale-deed---Plaintiff filed suit for declaration and consequential relief after three years claiming that he had not appointed his wife as his attorney, but in the alternative if she was so appointed she had knowingly or unknowingly had defrauded him---Possibility was also expressed that the defendants might have produced some other lady for the purpose of getting the power of attorney and sale-deed registered---Plaintiff produced witnesses to prove that he was present at the place of his job on the dates of writing. and registration of the power of attorney, and that his wife was fraudulently induced in the execution and the registration of the sale-deed---Stances of the plaintiff were contradictory which seriously reflected upon the bona fides and veracity of his claim---Wife, of the plaintiff was impleaded as defendant but she did not file written statement nor she appeared as a witness to support her husband---Husband and wife were living together, still she was not arrayed as plaintiff to challenge the transaction of sale---Plaintiff though was shown to be present at his, job on the relevant dates, but possibility could not be ruled out that power of attorney was executed by him on some other date, whereas the date on which he was at the place of his job was put to defraud the prospective buyers of the property---Onus to disprove power of attorney thus was on the plaintiff and he had not produced marginal witnesses and the local commission---Safe inference could be drawn against the plaintiff and in favour of the defendants that the deed of power of attorney was genuine.

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

----O.XLI, R.27---Additional evidence---Concurrent findings were that the wife of the plaintiff had not executed the sale-deed as attorney---Wife was summoned in the Court, her thumb impressions on the simple paper and those on the sale-deed, were found identical by expert who was examined as witness---Such fact alone was sufficient to hold that the plaintiff in collusion with his wife was trying to hide the truth from the Court and knowing fully all that the sale-deed bore her thumb-impression, she avoided to appear at the trial---Findings of the Courts below were set aside and suit filed by the plaintiff was dismissed in circumstances.

Ch. Arshad Mahmood for Petitioners.

M. Khalid Chaudhry, Mian Mehmood Aslam Arian and Ras Tariq Chaudhry for Respondents.

Date of hearing: 30th September 2003.

2008 Y L R 487

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmed Chaudhry, JJ

SHAHBAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.376 and Murder Reference No.332 of 2002, heard on 26th February, 2007.

Penal Code (XLV of 1860)---

---S.302(b)---Appreciation of evidence---Benefit of doubt---Hostility existed between the parties over share in property---Non­-reporting of the matter to the police for two days had cast doubt on the presence of prosecution witnesses at the scene of occurrence, when admittedly facility of telephone and the transport was available and police station was at a distance of four miles---Explanation that all the three witnesses remained busy in the hospital was not appealing---Eye-witnesses had made material contradictions in their statements---Medical evidence was not in consonance with ocular account of incident---Accused appeared to have been involved in the case due to enmity---Presence of eye-witnesses on the spot at the time of occurrence was doubtful---Benefit of doubt was extended to the accused in circumstances and he was acquitted accordingly.

Dr. Muhammad Akmal Saleemi, Asif Bashir Mirza and Muhammad Siraj-ul-Islam for Appellant.

Ch. Muhammad Hussain Chhachhar, Additional Prosecutor-General for the State.

Sheikh Fazal Ilahi Shahid for Complainant.

Date of hearing: 26th February, 2007.

2008 Y L R 497

[Lahore]

Before Sardar Muhammad Aslam, J

GHOUS MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.430 of 2007, decided on 15th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of bond---Counsel for petitioner did not press the petition on. merits, but had prayed that amount of surety be reduced on account of poor financial position of the petitioner; that he did not stand surety for any profit or gain or had any relation with accused; that petitioner stood surety on humanitarian grounds---Counsel for petitioner had rightly elected not to press the petition as accused was fugitive from law and petitioner stood surety on humanitarian grounds without any profit or gain---Case being that of reduction of amount of penalty, amount of surety was reduced from Rs. 50,000 to Rs. 25,000.

Muhammad Amir Khan Niazi for Petitioner.

Ch. Muhammad Zafar, Advocate/ D.P.G., on Court's call.

2008 Y L R 499

[Lahore]

Before Asif Saeed Khan Khosa, J

AZMAT HUSSAIN SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.319-M of 2007 in Criminal Revision No.184 of 2007, decided on 17th April, 2007.

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

----S.7---Penal Code (XLV of 1860), Ss.302, 324, 148, 149 & 109---Declaring accused as juvenile---Trial Court having declared two accused persons as juveniles to be tried by a Juvenile Court, petitioner/complainant had impugned said order---Accused persons had been medically examined by a Special Medical Board which found one of accused about eighteen years of age and other one about seventeen years of age---Such opinion regarding the ages of said accused persons had been rendered by the Special Medical Board on basis of physical, radiological and dental examination of the accused persons---Petitioner was not possessed of any material/evidence to even suggest that opinion given by the Special Medical Board about the ages of accused was incorrect or unreliable---Provisions of S.7 of Juvenile Justice System Ordinance, 2000 had shown that no stage had been mentioned therein at which an inquiry about the age of an accused was to be conducted for the purpose of declaring him juvenile or otherwise---No jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning on the part of the Trial Court had been pointed out by the counsel for the petitioner so as to warrant an interference in the matter by the High Court---Petition seeking interim relief, had lost its relevance and was dismissed.

Tahir Naeem for Petitioner.

2008 Y L R 501

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD ABBAS alias GHULAM ABBAS and 3 others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.1417-B of 2002/Mtn. decided on 18th July, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979), Ss.10(3) & 11---Bail, grant of---Further inquiry---Complainant after abduction of his daughter never reported the matter to the police though according to him, he knew the names of the culprits---F.I.R. showed that the abductee was returned to the complainant, even then the matter was not reported to the police for three days---Alleged abduction was not produced before the investigating officer when the case was registered and her statement was recorded after more than three weeks---Prima facie presumption was that alleged abductee was not prepared to support the prosecution case in her statement recorded under S.161, Cr.P.C. by the investigating officer---Alleged abductee had stated in clear words that she had contracted marriage with the accused with her free consent and no body had abducted her---Alleged abductee appeared before the Magistrate and sought protection as she apprehended danger at the hands of her parents due to her marriage with accused; and on her application she was lodged in Dar-ul-Aman vide order of the Magistrate---Allegations levelled against accused needed further probe and inquiry within the ambit of subsection (2) of S.497, Cr.P.C.---Accused were admitted to bail, in circumstances.

Tariq Zulfiqar Ahmed Chaudhry for Petitioners.

Muhammad Yousaf Khan for the Complainant.

Ejaz Ahmad Khan for the State with Sarwar, A.S-I.

2008 Y L R 503

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. KHURSHID BEGUM through Legal Heirs---Petitioners

Versus

LIAQAT ALI KHAN and 20 others---Respondents

Civil Revisions Nos.1037, 1038 of 1996, heard on 21st October, 2003.

Specific Relief Act (I of 1877)---

----Ss.8 & 39---Civil Procedure Code (V of 1908), S.115 & O.XIV, R.5---Suits for possession on the basis of title and cancellation of Rent Notes were consolidated and tried together---Material issue---Proper issue---Conduct of trial---Contention was that the defendants had claimed ownership of a portion of disputed property in their written statement, and material issue with regard to the portion was not framed and plaintiffs thus had failed to prove ownership of that portion--Reply in written statement was found as evasive, boundaries given in documentary evidence of the plaintiffs tallied with the boundaries of the suit property and boundaries given in documentary evidence produced by the defendants did not tally with the boundaries of the suit property---No application under O. XIV, R. 5, C.P.C. was filed before the Trial Court, nor such ground was taken in appeal---Both the parties without any objection produced evidence of their choice before the Trial Court---Being aware of the controversy involved in the suit, petitioner could not be allowed to turn back to say that the trial was not properly conducted---Objection raised thus had no worth---Suit for possession was correctly decreed and both the suits rightly succeeded.

Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 fol.

Tassawar Hussain Qureshi for Petitioners.

Masood A. Malik for Respondents.

Date of hearing: 21st October, 2003.

2008 Y L R 523

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

MEHR KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No"337-J of 2005 and Murder Reference No. 797 of 2002, decided on 4th April, 2007.

Penal Code (XLV of 1860)---

----S.302(b)/34--Criminal Procedure Code (V of 1898), S.345---Appreciation of evidence---Compromise---Pending appeal, applications were filed by accused persons, seeking their acquittal on the basis of compromise arrived at between the parties----Reports with regard to the genuineness of the compromise were requisitioned from the Sessions Judge---Said reports had proved genuineness of the legal heirs of deceased and voluntary nature of the compromise arrived at between the parties---All the major legal heirs got recorded their statement in which they stated that they had entered into compromise with accused voluntarily and had compounded the offence in the name of Almighty Allah after receiving Badl-e-Sulah in the shape of transfer of land in their names to the extent of their respective shares of Diyat---Accepting appeal, convictions and sentences awarded to accused, were set aside and they were acquitted of the charge and were directed to be released from jail.

Naseem Ullah Khan for Appellant.

Muhammad Mazhar Sher Awan, Additional Prosecutor-General for Respondent.

Date of hearing: 4th April, 2007.

2008 Y L R 524

[Lahore]

Before Khawaja Muhammad Sharif, J

KHIZAR HAYAT and 8 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1637 of 2004, decided on 2nd March, 2007.

Penal Code (XLV of 1860)---

----Ss.302(c), 324, 337-A(i)(ii), 337-F(i)(vi) & 337-L(ii)---Appreciation of evidence---Sentence, reduction in---Accused party had a cross-version qua injuries on their four persons which were neither explained in the F.I.R. nor before the Trial Court---F.I.R. only mentioned that four persons from accused party also received injuries---Trial Court had found it a `case of free fight'---Sharp-edged injuries were found on the person of deceased while four were with blunt weapons as per doctor who had conducted the post-mortem examination---No distinctive features though were appearing in the case, but the Trial Court had awarded fourteen years' R.I. to two accused persons, while ten years R.I. to an other accused---Sentence awarded to said two accused persons, was harsh and was reduced to ten years' R.I. to make it parallel with sentence to said other accused---Sentences in the form of Daman, Arsh and Diyat etc. or fine were ordered to remain intact.

Syed Zahid Hussain Bokhari and Naseemullah Khan Niazi for Appellants.

Ch. Nazir Ahmad for the State.

Mian Muhammad Qamaruzzaman for the Complainant.

Date of hearing: 2nd March, 2007.

2008 Y L R 531

[Lahore]

Before Muhammad Sayeed Akhtar, J

ZAHID ALI JAVED---Appellant

Versus

HAMEED HUSSAIN SHAH---Respondent

Regular First Appeal No. 231 of 2002, heard on 5th November, 2003.

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

----O.XXXVII, R.2---Suit on the basis of pro note/receipt---Discrepancies in statements of witnesses---Effect---Pro note and the receipt were executed on one piece of paper; receipt had two marginal witnesses who deposed about payment and thumb impression of the defendant---Thumb-­impression on both the receipt and pro note were found identical with the samples and were proved through expert witness---Minor discrepancies in the testimonies of the witnesses would not affect the case---Appeal was dismissed in circumstances.

(b) Negotiable Instruments Act (XXVI of 1881)---

----S.4---Qanun-e-Shahadat (10 of 1984), Art.17(2)---Pro note---Pro note and receipt were. executed on the same piece of paper---Receipt having been proved/attested by the witnesses and Pro note was not required to be attested by witnesses under Negotiable Instruments Act, 1881---Article 17(2) of the Qanun-e-Shahadat, 1984 provided that if the Special Law provided otherwise, the requirement of attestation of the instrument by two witnesses was not necessary.

Rana Muhammad Saleem and Mehr Muhammad Tufail Bhutta for Appellant.

Syed Almas Haider Kazmi for Respondent.

Date of hearing: 5th November, 2003.

2008 Y L R 538

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

DILDAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 346/J of 2006, decided on 13th June, 2007.

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

----S.9(b)---Appreciation of evidence---Sentence, reduction in---Counsel for accused did not challenge conviction of accused on merits, but had prayed for reduction in the sentence awarded to him on the grounds that the substance allegedly recovered from him was meagre; that he was not a previous record holder; and had already served out ten months of imprisonment---Counsel for State did not seriously oppose the prayer made by the counsel for accused---Sentence awarded to accused was severe in circumstances, to meet the ends 'of justice, it would be appropriate to reduce sentence of accused to the period already undergone by him---While maintaining conviction of accused, his sentence was reduced to the period already undergone by him.

Naseemullah Khan Niazi and A.H. Masud for Appellants.

Abdul Latif Hanjra, Deputy Prosecutor-General Punjab for the Complainant.

2008 Y L R 539

[Lahore]

Before Nasim Sikandar, J

Mst. SHAKOORI alias SHAKOORAN BIBI---Petitioner

Versus

MUHAMMAD ALI and 5 others---Respondents

Criminal Revision No. 1395 of 1999, decided on 8tlrSeptember, 2003.

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

---S. 42---Mutation-- Attestation---Cancellation of power of attorney---Sale duly reflected in Roznamcha Waqaiti on 17-1-1994 and statements of the parties were recorded on 23-1-1994---Sale was complete---Attestation of mutation by the Tehsildar was a mere formality which happened on 30-1-1994---Power of attorney was cancelled on 26-1-1994 such cancellation could not deprive the purchaser of his rights.

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

----S.115---Revision---Any of the three constituents for interference under S.115, C.P. C. were absent, revision petition was dismissed.

Mian Khalid Habib for Petitioner.

Ch. Muhammad Hussain for Respondents.

Date of hearing: 25th July, 2003.

2008 Y L R 541

[Lahore]

Before M.A. Shahid Siddiqui, J

SHAFAULLAH KHAN-Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No. 921 and Writ Petition No. 12809 of 2006, decided on 21st May, 2007.

Penal Code (XLV of 1860)---

----S.193---Appreciation of evidence---Sentence, reduction---Proceedings had arisen in the case out of a civil appeal which was dismissed for non-prosecution and, counsel of petitioner in said appeal was equally responsible for the dismissal of petitioner's appeal in default---Possibility that petitioner was not properly advised by his counsel; could not be ruled out---Counsel for petitioner opted not to challenge conviction of petitioner, he, however, had pleaded for reduction in the sentence on the ground that petitioner had in fact been misled by his counsel who had himself failed to appear to prosecute appeal of the petitioner---Petitioner who was a class-IV employee in the P.A.F., had spent more than a year in jail, which, in the circumstances of the case, was sufficient to meet the ends of justice---Petitioner was in jail since his conviction and had suffered incarceration for almost a year, which in the circumstances of the case appeared to be sufficient to meet the ends of justice---Maintaining conviction of petitioner, sentence of five years' R.I. passed against petitioner was reduced to the term already undergone by him.

Mst. Kareem Khatoon v. The State PLD 1984 SC 44 ref.

Ghulam Hussain Malik for Petitioner.

Muhammad Amir Khan Niazi for the Complainant.

Mrs. Azra Parveen, Deputy Prosecutor General.

2008 Y L R 543

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and Sh. Javaid Sarfraz, JJ

MUHAMMAD MUMTAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1093 of 2006, decided on 21st February, 2007.

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

----S.9(b)---Appreciation of evidence---Sentence, reduction in---Charas of 110 grams was recovered from the accused and both prosecution witnesses, who witnessed recovery proceedings, had supported case of prosecution---Nothing was on record to show that said prosecution witnesses had any enmity against accused to falsely" involve him in the case---Evidence of said witnesses inspired confidence and rang true, which could be relied upon to uphold the conviction of accused---Substance recovered from accused was only 110 grams charas and record of the case was silent with regard to any criminal history of accused---Accused had already undergone quite a reasonable period as under-trial prisoner as well as a convict---Accused was facing the agony of the case since 2005---While dismissing appeal of accused, sentence of imprisonment of accused was reduced to the period already undergone by him and amount of fine was also reduced accordingly.

Muhammad Ameer Khan Niazi for Appellant.

Ch. Jamshaid Hussain, D.P.G. assisted by Mian Abdul Qayyum Anjum for Respondent.

Date of hearing: 21st February, 2007.

2008 Y L R 550

[Lahore]

Before Muhammad Muzammal Khan, J

ABDUL QADIR and 5 others---Petitioners

Versus

Mst. SAMINA ZAFAR KHAN and 32 others---Respondents

Civil Revision No. 399 of 1998, decided on 15th November, 2003.

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

----Ss.5 & 29(2)---Civil Procedure Code (V of 1908), Ss.12(2), 115, 151, O.IX, Rr.2, 13, O. VII R.10 & O. V, R.20-Ex parte decree---Revision---Limitation---Condonation of delay---Substituted service---Revision was filed against the remand order passed in appeal against an ex parte decree in a case of double allotment---Revision was barred by time, with seven days' delay---Application under S.5, Limitation Act, 1908 for condonation of delay was filed with the revision petition, alleging the publication of notices in a daily of limited circulation and that the plaintiffs were not served nor the notice was sent by post---Court found that at one stage plaintiffs had filed an application under O. VII, R. 10, C. P. C. seeking return of the application filed by defendants under S.12(2), C.P.C. and thus they were aware of the pendency of the proceedings which was also clear from the averments, made both in revision petition and application under S.5, Limitation Act, 1908---Power under S.5 of the Limitation Act, 1908 to condone delay in filing revision petition was not available---Delay, in circumstances, was not condoned and application and revision petition were dismissed.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 fol.

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

----Ss.151 & 115---Limitation Act (IX of 1908), S.5---Limitation---Condonation of delay---Inherent powers of the Court---Exceptional circumstances---Ex parte decree was set aside and case was remanded for fresh decision after hearing the parties---Held, no injustice or prejudice having been caused to the parties and no exceptional circumstances having been put forth, High Court declined interference in revision.

Khan Khizar Abbas Khan for Petitioner.

Muhammad Rafique Warriach for Respondent-1.

Muhammad Nazir Janjua for Respondents Nos.2-4.

Date of hearing: 28th October, 2003.

2008 Y L R 554

[Lahore]

Before Muhammad Khalid Alvi, J

SHAH MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 361 of 2002, decided on 28th March, 2006.

Penal Code (XLV of 1860)----

----S.302(c)---Appreciation of evidence---Self-defence, right of---Recovery of crime empties and crime weapons, had rightly been discarded from consideration by the Trial Court in view of fact that prosecution witnesses, who were police officials, though had stated that the crime empties and crime weapons were handed over to them for safe custody, but in their statement under S.161, Cr. P. C., no such thing was ever handed over to them for safe custody---Report of Chemical Examiner, which reflected that the crime empties matched the crime weapon, was of no consequence and could not be used against accused, because possibility of tampering with both said pieces of evidence, could not be ruled out---No motive existed with accused to attack the deceased---Place of occurrence and surrounding area being owned by accused, at night time in view of the dispute between the parties, deceased had no reason to be in the lands of accused---Presence of complainant/prosecution witness at the time of occurrence, also became doubtful from the perusal of site plan prepared by Patwari---Prosecution having failed to establish different pieces of evidence against accused, Trial Court had rightly given weight to plea of accused that he was attacked by deceased along with others and in exercise of right of private defence of his person and property, he fired at him/deceased which resulted in his death---If said version of accused was accepted, it could not be said that accused had exceeded his right of defence---Accused were acquitted from the charges framed against them, in circumstances.

Malik Sadiq Mahmood Khurram for Appellant.

Mian Muhammad Afzal Wattoo and Sardar Ahmad Khan for the Complainant.

Malik Wajid Aftab Misso for State.

Date of hearing: 28th March, 2006.

2008 Y L R 559

[Lahore]

Before M.A. Shahid Siddiqui, J

MIRAJ BIBI alias MEHR RAJA---Petitioner

Versus

DISTRICT & SESSIONS JUDGE and 3 others---Respondents

Writ Petition No. 13214 of 2005, decided on 17th February, 2006.

Penal Code (XLV of 1860)---

----S.338-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings in the F.I.R---Petitioner who was married to respondent filed a suit for dissolution of her marriage on the basis of Khula in the Court of Judge Family Court---Respondent; during the pendency of the suit, made a complaint to the Sessions Judge/Chairman Human Rights seeking a direction to the S.H.O. police station concerned to register a case against the petitioner and,; Jeer parent for causing Isqat-i-Hamal' punishable under S.338-A, P.P.C.-Sessions Judge on the basis of an entry in the Register of a Lady Health Worker showing her pregnancy and expected date of delivery, ordered for the registration of the case and F.I.R. was registered---Petitioner had challenged order of courts below in her petition and also prayed for quashing F.I.R. registered and proceedings thereunder---Validity---Complainant/respondent had certainly produced evidence to show that petitioner had become pregnant, but absolutely no evidence was available to show that '`Isqat­i-Hamal' of petitioner had been caused by her or any other person---No possibility existed of the petitioner and other accused being convicted of any offence against whom the proceedings appeared to have been initiated out of sheer venom---Accepting constitutional petition, proceedings in the F.I.R., were quashed by High Court.

Nasim Ullah Khan Niaz for Petitioner.

Zahid Hussain Khan for Respondent No.4.

Date of hearing: 17th February, 2006.

2008 Y L R 561

[Lahore]

Before Syed Jamshed Ali, J

ELAHI BAKHSH and another---Petitioners

Versus

Syed ALI TAHIR SHAH and 5 others---Respondents

Criminal Revision No.2408 of 1994, heard oa.7th November, 2003.

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

---S.42---West Pakistan Land Reforms Regulation 1959 [M.L.R. 64], para. 22---West Pakistan Land Revenue Act (XVII of 1967), S.39---Suit for declaration of title---Record of rights---Jamabandi---Title of land---Suit-land as alleged was brought under cultivation with permission of Malik­-e-Aala, Abadkari fees "Jhori was paid to him---Plaintiffs, according to short Wajib­-ul-Arz, became Malik-e-Adna and by virtue of para. 22 of the West Pakistan Land Reforms Regulation, 1959, plaintiffs became owners of suit-land---Suit was decreed by the Trial Court---Appellate Court reversed the judgment---Validity--Jamabandi did not establish that the person to whom "Jhori" was paid. was Aala Malik" and receipt did not specify the area and land for which "Jhori " was paid---"Notore" created certain rights but it could only be done with the consent of the `Aala Malik"-Vital facts having not been proved, plaintiffs did not become "Malik" Adna "---Plea based on para. 22 of the West Pakistan Land Reforms Regulations, 1959 read with the Notification dated 3-371959 was neither pleaded, nor was proved---Entry" Basharah Malkana Bawaja Nautor" was not sufficient to defeat the title of the owners---Revision petition was dismissed in circumstances.

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

----S.115---Re-examination of evidence---Judgment of variance---First Appellate Court had not discussed the entire evidence---High Court examined said evidences in revision.

Allah Wassaya Malik for Petitioner.

Gohar Razzaq for Respondent.

Date of hearing: 7th November, 2003.

2008 Y L R 571

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SAJJAD ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 640-M of 2007, decided on 27th June 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 561-A- Superdari of vehicle---Petition for setting aside the order---Car in question, was duly transferred in the name of petitioner by issuing open letter in his favour by the original owner of the car---Original registration book showed petitioner as owner of the car---Remaining of the car in police custody for indefinite period would cause damage to its machinery---Even if co-accused who was brother of petitioner was fugitive from justice, it was not a ground for refusal of the custody of the car to a bona fide purchaser/owner of said car as said criminal case had yet to be finally decided by the court of competent jurisdiction---Both the courts below had failed to exercise the jurisdiction vested in them by law properly-Impugned orders in circumstances had been rendered illegal and without jurisdiction, which were set aside---Petition was accepted and application submitted by petitioner before Magistrate was allowed and car in question was given to petitioner on superdari.

M. Zubair Saeed Awan for the Petitioner.

Saeed Ashraf Warriach, Additional Prosecutor General.

2008 Y L R 572

[Lahore]

Before Muhammad Farrukh Mahmud and M.A. Shahid Siddiqui, JJ

GULZAR HUSSAIN and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 232 and Murder

Reference No. 109 of 2002, heard on 4th June, 2007.

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

----S. 302 (b)/34---Appreciation of evidence---No independent witness was produced by prosecution to prove the occur­rence---Eye-witnesses had made dishonest improvements at the trial in order to bring their statements in line with medical evidence---Recovery evidence had not strengthened the prosecution case, rather the same had weakened it---Eye-witnesses were not found to be present on the spot at the time of occurrence and they had implicated all the three brothers in the case---Both the accused were acquitted in circumstances.

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

----Ss.302(b) & 302(c)---Appreciation of evidence-Sentence, reduction in---Accused had taken the plea of self-defence of person, honour and provocation---No explanation was available on record as to what led to abuses between the deceased and the accused two or three days prior to the occurrence---Defence plea taken by accused appeared to be closer to truth when kept in juxtaposition with prosecution version---However, accused had exceeded his right of private defence, as deceased after receipt of brick blow fell down on the ground and lost control over the Chhuri which was picked up by the accused and he thereafter gave three Chhuri blows to the deceased---Conviction of accused under S. 302 (b), P.P.C. was, therefore, altered to section 302(c), P.P.C. and his death sen­tence was reduced to twenty years' R.I. in circumstances with benefit of section 382-B, Cr. P. C. ---Trial Court's order for payment of compensation under section 544-A, Cr. P. C. was set aside being not maintainable in view of the dictum laid down by Supreme Court.

Khalid Javed and another v. The State 2003 SCMR 1419 and Mairaj Begum v. Ejaz Anwar PLD 1982 SC 294 ref.

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

----S.302(b)---Appreciation of evidence---Case of two versions---Proper and legal way of dealing with such a case---All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz. is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case---If the answer be in the affirmative, then the Court must accept the plea of accused and act accordingly---If the answer to the question be in the negative, then the Court, will not reject the defence plea as being false, but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true---If the Court finds that although the accused had failed to establish his plea/version to the satisfaction of the court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly

Khalid Javed and another v. The State 2003 SCMR 1419 ref.

Muhammad Ahsan Bhoon for the Appellants.

Ch. Muhammad Aslam Sindhu, Additional Prosecutor-General for the State.

Sardar Muhammad Latif Khan Khosa for the Complainant.

Date of hearing: 4th June, 2007.

2008 Y L R 586

[Lahore]

Before Muhammad Akhtar Shabbir, J

GOVERNMENT OF THE PUNJAB through Secretary Irrigation and

Power Department, Punjab, Lahore and another-Petitioners

Versus

MUHAMMAD LATIF BUTT, GOVERNMENT CONTRACTOR and 2 others---Respondents

Writ Petitions Nos.10955 to 10981 of 1999 and Civil Revision Nos. 713 to 739 of 2000, decided on 31st July, 2003.

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

----S.12(2) & O.IX, R.9---Dismissal of application in default---Restoration---Knowledge---Inference---Petitioner in the application for restoration claimed that he had no knowledge of proceedings in the courts on the two specific dates---Such fact could' be proved by producing certified copies of the interim orders of the courts concerned---Certified copies having not been produced in spite of the order of the Court, court rightly inferred that party had the knowledge and the default was wilful.

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

----S.115---Revision---Concurrent findings of fact---No illegal exercise of jurisdiction or failure to exercise jurisdiction legally, or any jurisdictional defect, was pointed out---Revision was dismissed, in circumstances.

Mst. Akhtar Nasimi v. Martial Law Administrator PLD 1982 Kar. 130; Guldar Khan v. Isa Khan 1993 SCMR 2099; Nazir Ahmad v. Boota 1989 SCMR 450; Riaz v, Muhammad Saleem 1989 SCMR 1491 and Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 rel.

Muhammad Sohail Dar, Asstt. A.-G. for the Petitioners.

Muhammad Iqbal Cheema for the Respondent No.1 with Azhar Masood, S.D.O. (Lahore Sub-Division) CBCD, Lahore and Pervaiz Akhtar Head Clerk for Respondents.

Date of hearing: 31st July, 2003.

2008 Y L R 589

[Lahore]

Before Maulvi Anwarul Haq, J

PATHANA and others---Petitioners

Versus

ALLAH DITTA---Respondent

Civil Revision No. 2072 of 1994, decided on 28th July, 2003.

(a) Islamic Law---

----Will---Plaintiff had claimed legacy under the will, in the suit for declaration filed four months after the death of the testator claimed to be issueless Shia against the defendants collaterals and the widow and challenged inheritance mutations---Inheritance mutations had shown that widow was excluded by applying the Shia Law---Defendants filed written statement and denied the execution of the will; widow in her written statement urged that her husband was a Sunni and she was entitled to inherit the estate as neither the plaintiff nor the defendants were the heirs of the deceased---Trial Court decreed the suit and both appeals, one filed by the widow and the other by the defendants, were dismissed---Widow was not impleaded as she had not filed the revision---Validity---Widow was held to be a necessary party, she had contested the suit with her own version---Suit property was admittedly owned by the deceased, relationship of the widow and collaterals was admitted, deceased died issueless, plaintiff was not an heir of the deceased and the document stated to be a will was dated one month prior to the date of death of the deceased---Reading of the said document showed that it was not a "will" but a complete disposition of property---Deceased was sole owner of the property, the document could not take effect as a gift as there was no acceptance thereof by the plaintiff and it could not take effect as a release deed for the reason, that plaintiff was not a co-owner---Witnesses produced were the first cousins of the plaintiff, while. the stamp vendor and the scribe was not produced---Evidence in the light of the contents of the said document showed that the Courts below had not cared to read the same in proper perspective---Execution of the alleged `will', in circumstances, was not proved.

(b) Islamic Law---

----Sect---Presumption---Presumption is that every Muslim citizen in Pakistan unless proved to the contrary, shall be deemed to be a Sunni---Both the Courts below, in -the present case, had relied upon mutations of inheritance attested on death of the deceased---While doing so, Courts simply forgot that mutation was challenged by the widow (plaintiff in the case)---No other evidence was available to the effect that said mutation had already been cancelled and set aside in the Revenue hierarchy---No evidence on record was available to prove that deceased was a Shia---Evidence of, witnesses was rebutted by the other witnesses---Presumption that the deceased was Sunni was not at all displaced either by the defendants or by the plaintiff--Findings of the Courts below on the issue were reversed and deceased was held to be a Sunni in circumstances---Courts in deciding the issue about the heirship of defendants placed reliance on the mutation to hold that the defendants were the collaterals, however, the statement of defendant that he was a Chachazad (cousin) of deceased was not questioned in cross-examination and the widow had stated that she did not know as to whether the petitioners were related to her husband or not---Estate of the deceased, in circumstances, was to devolve upon the widow to the extent of 1/4th while remaining was to go to the collaterals---Judgment and decrees of both the Courts were set aside in circumstances.

Muhammad Zainul Abidin for the Petitioners.

Masood Zakaria for the Respondent.

Date of hearing: 28th July, 2003.

2008 Y L R 593

[Lahore]

Before M.A. Shahid Siddiqui, J

MUKHTAR AHMED and 2 others---Petitioners

Versus

THE STATE through Advocate-General and another---Respondents

Criminal Miscellaneous No.315-M of 2005, decided on 8th May, 2007.

Criminal Procedure Code (V of 1898)---

----Ss.561-A, 107 & 145---Quashing of order---Petitioners had prayed for quashing, the order passed by Judicial Magistrate under S.145, Cr. P. C., which was upheld by Additional Sessions Judge-Petitioners claiming to be in possession of disputed Ihata had instituted a suit in the year 1999 for perpetual injunction---Said suit was pending at the time of institution of qalandra by S.H.O. and on the date when impugned order was passed----Revision petition filed by the petitioners was also still pending adjudication before the Member Board of Revenue---Pendency of civil suit relating to possessionary title to the disputed property, would constitute a bar to commencement or continuance of proceedings under S.145, Cr. P. C. ---Allegation of apprehension of danger to possession and tranquility in such a case could be settled by resort to S.107, Cr. P. C.-Order of area Magistrate was not lawful under S.145, Cr.P.C.---Impugned order was set aside in circumstances.

Muhammad Khashif Zia v. Muhammad Sarwar and others 2000 PCr.LJ 559; Sher Afzal Khan and others v. The State 2001 PCr.LJ 1568; PLD 1970 SC 470; Muhammad Ameen v. Master Bashir Ahmad 2006 SCMR 969 and Muhammad Sadiq v. Muhammad Rafiq and others 2006 SCMR 1470 ref.

Mirza M. Aziz-ur-Rehman for Petitioners.

Syed Iqbal Hussain Shah Gilani for Respondents.

Mrs. Azra Perveen, D.P.G. for the State.

Date of hearing: 8th May, 2007.

2008 Y L R 595

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

SHAHZAD HUSSAIN SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 801-H of 2007, decided on 2nd August, 2007.

Criminal Procedure Code (V of 1898)---

---S.491---Habeas corpus petition---Report of the Bailiff showed that during raid at the police station concerned, detenu was found present in the room of Sub-Inspector of the police on a cot and no case was registered against him nor his arrest had been shown in the daily diary---No case having been registered against detenu on the basis of an undertaking, detenu could, not be detained---Detenu was set at liberty, in circumstances.

Malik Abdul Aziz Kandowal for the Petitioner.

Rana Ameer Ahmad Khan, A.A.-G. for the State.

Muhammad Ihsanul Haq Bailiff in person.

2008 Y L R 600

[Lahore]

Before Muhammad Farrukh Mahmud, J

Mst. MARYAM BIBI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2006 in Criminal Appeal No. 927 of 2003, decided on 24th July, 2006.

Criminal Procedure Code (V of 1898)---

---S.426---Penal Code (XLV of 1860), Ss.302, 404, 411, 201, 109 & 34---Suspension of sentence--- Petitioner/ accused was not the principal accused and she had been convicted for abetting the offence---Petitioner who was a woman of advance years, was mother of three co-accused, her case was covered by first proviso to subsection (1) of S.497, Cr.P.C., which could be considered for the purpose of suspension of sentence as well---Petitioner was in jail for the last about 2 years and 7 months---Sentence of petitioner was suspended, in circumstances.

Altaf Ibrahim Qureshi for the Petitioner/Appellant.

Ch. Falak Sher for the State.

2008 Y L R 601

[Lahore]

Before Mian Hamid Farooq, J

MAHMOOD YASIR and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9-T of 2007, decided on 17th April, 2007.

Criminal Procedure Code (V of 1898)---

----S.526---Penal Code (XLV of 1860), Ss. 381-A, 411, 420, 467 & 471---Transfer of case---Two F.I.Rs. were lodged in two different Districts regarding theft of same vehicle and two challans were pending before different Courts---Accused persons were the same in both the cases---Both offences seemed to be committed in same series of acts/transactions---If both the challans were entrusted to one court, it would not cause prejudice to any of the parties---No legal impediment existed in transferring the challan case from the court at place 'M' to the court at place "S "---Challan case under Ss.420, 467, 468 & 471, P.P.C. pending in the court at place "M" was withdrawn and entrusted to the court at place "S" where another challan case under Ss. 381-A & 411, P.P.C. was pending.

Mian Shakeel Ahmad for the Petitioners.

Rao Atif Nawaz, State Counsel for the State.

2008 Y L R 603

[Lahore]

Before Syed Jamshed Ali, J

MANNU KHAN and others---Petitioners

Versus

Mst. JUMMI and others---Respondents

Civil Revision No. 1988/D of 1996, decided on 12th September, 2003.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Art.79---Suit for specific performance of agreement to sell property---Receipt of payment of consideration--Proof of execution of such receipt---Witness had stated that the scribe was his uncle and the receipt was in his handwriting which was entered in the Register of the scribe---Signatures of witnesses on the receipt were not found on the said register---None of the two marginal witnesses of the receipt had been examined---Execution of the receipt was not established in circumstances.

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

----S.12---Transfer of Property Act (IV of 1882), S.53-A---Suit for agreement to sell property---Part performance---Receipt of payment of money---No evidence was available on the record in support of plea' that with the execution of the receipt of money possession of the land was transferred---Receipt being not agreement to sell, delivery of possession under a written agreement alone could entail legal consequences.

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

----S.12---Suit for specific performance of agreement to sell property---Equity---Conduct of parties---Bona fides---Application for comparison of thumb-impression with admitted thumb-impression was withdrawn with the offer that the defendant would take oath on the Holy Qur'an which was also withdrawn---Conduct of plaintiffs detracted from the bona fides of their claim---Suit to enforce agreement to sell 146 Kanals of land for only Rs.846 was filed after 18 years of alleged payment of sale consideration of Rs.846---Equity heavily leaned in favour of the defendant in circumstances.

Faiz Muhammad Bilal for the Petitioners.

Qazi Khurshid Alam for the Respondents Nos. 1 to 3.

Date of hearing: 12th September, 2003.

2008 Y L R 606

[Lahore]

Before M.A. Shahid Siddiqui, J

MUHAMMAD RAMZAN alias DHURLA---Appellant

Versus

THE STATE-Respondent

Criminal Appeals Nos. 42 and 43 of 2004, decided on 30th November, 2006.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Prosecution case hinged on the testimony of one of the prosecution witnesses who had found a skeleton and in whose presence accused had confessed their guilt--No other evidence was available to connect accused with the occurrence---In absence of recovery of any empty, recovery of pistol from accused was of no consequence---Nothing was on the record to show that deceased had sustained any injury with sharp-edged weapon---Recovery of hatchet, in circumstances was also un consequential---Evidence of extra judicial confession was a weak type of evidence which was normally fabricated in cases which were un-witnessed---Extra judicial confession of accused being joint, could not be treated as a legal evidence---Prosecution having miserably failed to bring home the charge to accused, impugned judgment of the Trial Court could not be sustained---Conviction and sentence awarded to accused by the Trial Court were set aside and they were acquitted.

Muhammad Riaz Satti for the Appellant.

Nemo for Respondent.

Ashfaq Ahmad Chaudhary for the State.

Date of hearing: 30th November, 2006.

2008 Y L R 608

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

EISA KHAN and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1571 of 2001 and Murder 'Reference No. 877 of 2001, decided on 29th May, 2007.

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

----Ss. 302(b)/34, 302(c)/34 & 324/34---Appreciation of evidence---Occurrence according to prosecution itself had taken place in front of the house of accused--While the complainant party was rushing towards the house of the accused, the accused sensing danger appeared to have reached---Medical evidence had also supported the fact that the complainant party was fired upon when they had reached very close to the accused---Motive alleged by the prosecution was, not proved by any' independent evidence---Motive set up in the defence plea appeared to be closer to truth---Report of Forensic Science Laboratory had corroborated the prosecution case relating to the firing caused by two accused---Only one person on accused side had received a fire-arm injury whereas four persons on complainant side were injured, three of whom had died because of multiple injuries, accused, thus, had exceeded their right of self-defence by taking lives of three persons---Conviction of the aforesaid two accused under S.302(b)/34, P.P.C. was consequently altered to section 302(c)/34, P.P.C. on each count and their sentence was reduced to twenty five years' R.I. each on each count---Conviction and sentence of the said accused under section 324/34, P.P.C. were however set aside.

Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294 ref.

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

----Ss.302(b)/34 & 324/34---Appreciation of evidence---Accused according to prosecution evidence were empty-handed at the time of occurrence and had not caused any injury to any of the deceased---Accused were acquitted in circumstances.

Rana Ijaz Ahmad Khan for the Appellants.

Ch. Muhammad Aslam Sandhu, Addl. Prosecutor General for the State.

Munir Ahmad Bhatti for the Complainant.

Date of hearing: 29th May, 2007.

2008 Y L R 619

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD LATIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.310-J of 2000, decided on 2nd My, 2006.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Name of accused was mentioned as a single accused in promptly lodged F.I.R.---Weapon of offence recovered from accused was handed over to the police, which fact was supported by the evidence on record---Complainant and prosecution witness though were related inter se and with deceased, but mere said relationship was not sufficient to declare them as interested witness, when hey had no previous ill-will or enmity against accused to falsely implicate him in such like case---Both complainant and prosecution witness had established their presence at the spot---Complainant also got injuries during occurrence and he having medically examined about 15 minutes after incident, it could not be said that during such a short period, complainant could have managed receiving said injuries through friendly hands only to become a witness in the case---No mala fide was suggested to the Doctor that he was in league with complainant party to create such an evidence---Complainant was subjected to lengthy cross-examination, but he remained consistent with his previous statement regarding the time, place and the manner in which deceased had received injuries from the hands of accused who was armed with rifle---Presence of prosecution witnesses was also established at the place and time of occurrence---Factum of arrest of accused at the spot was duly mentioned in F.I.R., which had provided independent corroboration to the ocular account that accused had committed the crime---Weapon of offence used by accused, was also taken into possession by complainant and was presented before Investigating Officer on the same day---Statements of 'both eye-witnesses could be relied upon as they had no previous ill-will, grudge or enmity against accused to falsely implicate him in the case---Empty recovered from the spot was sent to Forensic Science Laboratory and according to its report it had matched with the rifle---Motive had fully been established---Prosecution, had been able to bring home guilt to accused beyond any shadow of doubt for committing Qatl-i-Amd of deceased and causing injuries to complainant---In absence of any mitigating circumstances for awarding lesser sentence to accused by withholding the normal penalty of death provided by the statute, death sentence-awarded to accused by the Trial Court, was confirmed.

Mirza Masood Sadiq for the Appellant.

Ch. Muhammad Younas Gujjar for the Respondent.

Ashfaq Ahmad Chaudhry and Arif Ali Hazoor for the State.

Date of hearing: 2nd May, 2006.

2008 Y L R 626

[Lahore]

Before Muhammad Farrukh Mahmud and M.A. Shahid Siddiqui, JJ

GHULAM SHABBIR and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1034 and Murder Reference No.413 of 2002, heard on 4th June, 2007.

Penal Code (XLV of 1860)---

----Ss.302(b), 324 & 148---Appreciation of evidence---Benefit of doubt---Eye-witnesses being not related to either of the parties could not remain present at the scene. of occurrence risking their lives, when firing was exchanged between both the parties---Matter was not reported at the police station, rather the same was reported at an "Adda" where S.H.O. was present per chance---Such like F.I.Rs. were registered after due deliberations---Both the parties continued firing at each other for ten minutes, yet not a single crime empty was recovered from the spot, nor the recovered weapon was sent to the Forensic Science Laboratory---Said recovery, therefore, could not be used against the accused---According to investigation it was doubtful whether the deceased had died by the shot fired by the principal accused---Deceased was not related to any' of the parties and the motive for the occurrence based on suspicion as set up in the F.I.R., was not proved by any independent evidence---Prosecution case was not free from doubt---Accused were acquitted in circumstances.

Bashir Ahmad Khan and Ch. Muhammad Abdus Saleem for Appellants.

Ch. Muhammad Aslam Sandhu, Additional Prosecutor-General for The State.

Date of hearing: 4th June, 2007.

2008 Y L R 638

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ASLAM JAVED---Appellant

Versus

ZAHUR AHMAD and others---Respondents

Regular Second Appeal No.54 of 1996, decided on 24th September, 2003.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Arts 17 & 79---Suit for specific performance of agreement of sale---Execution of receipts, proof of---Plaintiff's suit for specific performance of agreement to sell was decreed but said decree was set aside by Appellate" Court---Validity---Both the Courts below had returned the findings that the plaintiff had proved the execution of agreement to sell and receipts of the payment of balance amount by producing marginal witnesses and scribe of said documents---Entering of defendant into agreement to sell with the plaintiff and receipt of entire consideration amount was proved---Findings of Appellate Court was set aside and that of Trial Court which was quite just and in accord with the evidence were maintained.

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

----Art.84---Comparison of signatures by Court---Another document was signed after lapse of two months apparently by the same ink---Validity---Signatures on document after lapse of two months did not raise presumption that same were forged one---Court itself compared the signatures on the documents and rightly found them not forged.

Ch. Faza Ullah for Appellant.

Ch. Muhammad Afzal Wahla for Respondent.

Date of hearing: 24th September 2003.

2008 Y L R 641

[Lahore]

Before Sh. Abdul Rashid, J

ABDUL REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.129 of 2006, decided on 29th May, 2006.

Criminal Procedure Code (V of 1898)---

---S.514---Penal Code (XLV of 1860), Ss.337-H(ii), 342, 379, 109, 148 & 149---Forfeiture of bail bond----Accused for whom petitioner stood surety, having failed to appear, in the court, petitioner/surety had been burdened to pay entire surety amount---Petitioner had pleaded that on account of compromise between complainant and accused for whom petitioner stood surety, case was cancelled and due to said misunderstanding accused did not appear; the Trial Court while passing impugned order did not issue proper notice to the petitioner---Validity---Impugned order had revealed that same had been passed ex parte and point of view of petitioner/surety had not been considered---Impugned order was set aside and matter was remanded to the Trial Court for rehearing case after giving due hearing to the petitioner.

Zafar Iqbal Chohan for the Petitioner.

Najeeb Faisal Chaudhry, Addl. A.-G.

2008 Y L R 642

[Lahore]

Before Ijaz Ahmad Chaudhry, J

THE STATE---Appellant

Versus

SHAMILE RAJ and another---Respondents

Criminal Miscellaneous No.589/M of 2007, decided on 28th May, 2007.

Penal Code (XLV of 1860)---

----S. 193---Appreciation of evidence---Accused had sought pardon in writing from the court---Constitutional petition, affidavit of both accused, Nikahnama filed by them and all other documents signed by them had shown that they had intentionally made false statements during proceedings of the court-"Unconditional apology", which had been made orally, but in writing word "pardon" had been raised, could only be taken as a mitigating circumstance in favour of accused; and the sentence, which was provided under S.193, P.P.C. was seven years with fine---Court while taking lenient view, convicted both accused to undergo three years' R.I. each with a fine of Rs. 10,000 each.

Ch. Muhammad Hanif Khatana, Addl. A.-G., Syed Zahid Hussain Bukhari and Rana Sajjad Hussain for the Respondents.

Miss Gulzar Butt for the Complainant.

Dr. Abdul Hafeez Kardar and Dr. Muhammad Asif in person.

Khalid Mahmood, Inspector with Shamile Raj and Shahzina Tariq from respective jails.

2008 Y L R 646

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmed Chaudhry, JJ

BASHIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.446 and Murder Reference No.174 of 2002, decided on 28th February, 2007.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Sentence, reduction in---Eye-witnesses being inmates of the house of occurrence, their presence at the spot was natural---Accused being related to eye-witnesses, his identification by them was not difficult---Eye-witnesses had no ill-will or grudge against the accused so as to involve him in a false case---Ocular evidence was natural, consistent, coherent and confidence inspiring and was fully supported by medical evidence and the same could not be discarded merely on the point of delay in reporting the matter to the police, particularly when on one hand son of the complainant had been murdered, while on the other hand his real nephew had done so and in such a difficult situation it was natural for the complainant to take some time before rushing to the police station---Opinion of Police Officers regarding innocence of accused could not be given any weight in the presence of direct evidence---Conviction of accused was consequently upheld---No recovery was effected from the accused, motive as set up in the F.I.R. against the accused could not be proved and the Investigating Officer had pinned the case against the acquitted co-­accused---Sentence of death of accused was altered to imprisonment for life in circum­stances following the principle of safe administration of justice.

S.M. Nazim for Appellant.

Muhammad Hussain Chachar, Additional Prosecutor-General, for the State.

Date of hearing 28th February, 2007.

2008 Y L R 650

[Lahore]

Before Mian Hamid Farooq, J

Ch. MUHAMMAD ASHRAF and others---Petitioners

Versus

Mst. GULSHAN ARA and others---Respondents

Civil Revisions Nos.1404-D and 1405 of 1991, decided .on 16th September, 2003.

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

----S.42---Limitation Act (IX of 1908), Art.120---Suit for declaration---Mutation of inheritance was sanctioned in favour of sons of deceased excluding his wife and daughter---Land inherited was acquired by Lahore Improvements Trust and plots were allotted to the sons of the deceased---Legal heirs of the daughter of deceased filed suit after 65 years of the mutation asserting their right of inheritance in the mutated land---Suit was decreed by trial. Court without giving any finding on the issue of limitation---Decree was upheld by the Appellate, Court which also did not give any finding on the issue of limitation---Validity---Right to sue accrued in favour of the predecessor of the plaintiffs about 65 years ago when mutation was sanctioned which was not challenged during her life time---Suit for declaration could be filed within period of six years when right to sue accrued as such suits of plaintiffs were barred by time---Decrees. of both the Courts below were set aside and suits were dismissed.

(b) Islamic Law---

----Inheritance---Mutation was sanctioned tin favour of sons excluding wife and daughter of deceased---Mutation was not challenged during life time of the excluded person---Effect---Mutation was challenged after 65 years by legal heirs of excluded person by claiming their share of inheritance---Land being not mutated in the name of the predecessor of the plaintiff's legal heirs, question of claiming of inheritance by them did not arise.

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

----Art.120---Suit for declaration---Limitation---Right to sue for declaration accused from the date when mutation was sanctioned and not from the date. when exempted plots were allotted---Such suit could be filed within period of six years from the date when right to sue accrued---Suit filed after 65 years of sanction of mutation was held to be time-barred.

Talib H. Rizvi for Petitioners.

Muhammad Farooq Qureshi Chishti for Respondents Nos.1 and 4-A.

Muhammad Rashid Ahmed for Respondent No.6.

Date of hearing, 16th September 2003.

2008 Y L R 653

[Lahore]

Before Syed Jamshed Ali, J

Mst. SHARIFAN BIBI and others-Petitioner

Versus

Mst. BARKAT BIBI and others---Respondents

Civil Revision No.2500 of 1985, heard on 13th June, 2003.

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

----S.42---Exchange---Mutation---Factum of exchange was recorded initially in the Jamabandi, but the entry was scored off and substituted showing predecessor of plaintiff as tenant---Neither any order of Competent Authority was placed on record in support of said substitution of the entry nor there was any order to the effect that. mutation of exchange was cancelled---Effect---No doubt, was left, in circumstances, that two mutations of exchange were duly entered and attested and possession was transferred in favour of the parties.

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

----S.42---Civil Procedure Code (V of 1908), O.XLI, R.27(b)---Production of additional evidence at appellate stage---Mutation--Parat Patwar of mutation was placed on the record---Patwari Halqa was directed to produce Parat Sarkar because Parat Patwar did not contain detailed order of the Revenue Officer.

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

----S.42---Civil Procedure Code (V of 1908), O.XXII, R.3 & O.XLI, R.4---Co­defendants in the suit did not assail the judgment and decree of the Trial Court, which upheld the mutation of exchange by the predecessor-in-interest---Judgment and decree of the Trial Court attained finality qua the successors-in-interest.

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

----Art. 120---Plaintiffs were in actual physical 'possession of the land in dispute---Suit was governed by Art.120 of the Limitation Act, 1908.

Muhammad Sharif Chohan for the Petitioner.

Muhammad Saleem Shahnazi for the Respondent No.15 with Faheem Javed and Munir Ahmad Patwaries with record.

Date of hearing: 13th June, 2003.

2008 Y L R 659

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD SARFRAZ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.68, 58 and Murder Reference No.166 of 2000, heard on 13th November, 2006.

Penal Code (XLV of 1860---

----Ss. 301 & 302(b)---Appreciation of evidence---Presence of complainant and prosecution witnesses at the time of occurrence was borne out from the fact that statement of complainant was recorded promptly within thirty five minutes---Both prosecution witnesses had given consistent, coherent, natural and trustworthy account of occurrence---Witnesses had corroborated each other on all material points---Intrinsic value of evidence of witnesses could not be shaken during their cross-examination---Ocular account was fully supported by medical evidence---Both accused were arrested soon after the occurrence and weapons were recovered from them---Two persons including a high-ranking officer were murdered in a broad-daylight---Prosecution had also successfully proved the motive---Prosecution had successfully proved its case against two accused through ocular account, which was supported by medical evidence and was fully corroborated by circumstantial evidence, like arrest of accused on the same day, lodging of F.I.R. with promptitude, prompt post-mortem examination on the dead body, recoveries of weapons and their tallying with the empties---Both accused committed murder of two innocent persons in broad--day-light---No mitigating circumstances existed in favour of the two accused---Legal heirs of one of deceased driver of car, however entered into compromise with accused which compromise was accepted vide order of High Court---Both accused were acquitted of the charge of murder of deceased driver and their death sentence was not confirmed and Murder Reference was answered in negative to that extent---Conviction and sentence of the two accused for causing murder of high ranking officer were maintained---Regarding case of third accused, enmity of prosecution witnesses with said accused was established---False implication of said third accused in the case could not be ruled out---Story put forward by prosecution witnesses in that respect was not plausible and was also against common sense---Appeal filed by said third accused was allowed and judgment passed by the Trial Court to this extent was set aside and he was acquitted of all charges.

Moslemuddin Sikdar v. The Chief Secretary, Government of East Pakistan and others PLD 1957 Dacca 101 and Khadim v. The Crown PLD 1954 Lah. 69 rel.

Sardar Muhammad Latif Khan Khosa, for Appellants.

Muhammad Suleman Awan, A. H. Masood and Maqbool Ahmad Qureshi in Crl. As. Nos.68, 58 and M.R. No.166 of 2000 respectively for the State.

Munir Ahmad Bhatti and Malik Muhammad Saleem for the Complainant.

Date of hearing: 13th November, 2006.

2008 Y L R 673

[Lahore]

Before M. Bilal Khan, J

Mst. TASLEEM BIBI and another---Appellants

Versus

STATION HOUSE OFFICER and 2 others---Respondents

Writ Petition No.18710 of 2005, decided on 8th March, 2006.

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

----Ss. 10/11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Allegation against male petitioner was that he abducted the female petitioner who was already married with another person---Alleged abductee had stated that she had contracted marriage with the petitioner and that her marriage with said other person was absolutely absurd---Marriage of alleged abductee with petitioner had been performed with her free will, volition and consent---Earlier alleged marriage of the lady with other person, did not find mention in the F.I.R.---Case, however was under close scrutiny before the Judge Family Court; concerned where proceedings were already taking place---Best forum to decide whether alleged Nikah with the other person was genuine or fake, was the Family Court before which both parties would be at liberty to lead evidence for and against the proposition and then after properly examining the issue, Family Court would pronounce the judgment---Parties could produce their evidence oral as well as documentary in order to prove their case---No justification existed to quash the F.I.R.----Constitutional petition was disposed of accordingly.

Syed Muhammad Awais Shibli v. The State 1995 MLD 567; Dr. Munawar Hussain v. Dr. Muhammad Khan, District Health Officer, Sargodha and 2 others 2004 SCMR 1462; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 and Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 1995 rel.

Muhammad Tariq Bashir Awan for Appellant.

Naseem Ullah Khan Niazi and Zafar Iqbal Chohan for Respondents.

Ch. Aamir Rehman, Addl. A.G. assisted by Tanvir Ahmed Shami for the State.

Ghulam Abbas, A.S-I. P.S. Khushab with record.

2008 Y L R 675

[Lahore]

Before Muhammad Nawaz Bhatti and Tariq Shamim, JJ

FAYYAZ HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 and Criminal Appeal No.294 of 2006, decided on 28th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302 & 452/34---Suspension of sentence--Petitioner/accused was allegedly armed with an iron rod at the time of occurrence, but injury attributed to him was of sharp-edged weapon, which had clearly shown mala fide on , the part of prosecution---Material conflict appeared between medical evidence and ocular account of occurrence---Trial Court had itself found that injury attributed to petitioner was not fatal---Appeal related to year 2006 and there was no likelihood of hearing of the main appeal in the near future---Petition for suspension of sentence was allowed and sentence awarded to petitioner was suspended.

Ch. Muhammad Anwar-ul-Haq for Appellant.

Saeed Ahmad Khan for the State.

2008 Y L R 677

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD ASLAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8282/B of 2006, decided on 22nd November, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Bail, grant of-Accused allegedly dragged the alleged victim in order to subject her to sexual intercourse---Prima facie, act of accused was short of attempt to commit Zina-bil-Jabr---Was yet to be determined as to whether the allegation levelled against accused attracted the provisions of S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 or S.354, P.P.C.---School certificate showed that accused was below 18 years of age at the date of occurrence and was not adult---Maximum sentence which could be awarded to accused was five years under S.7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Offence against accused, in circumstances, did not fall within the prohibitory clause of S.497, Cr. P. C.---Accused was behind the bars for a considerable period---Accused was admitted to bail, in circumstances.

Yaseen v. The State PLD 1983 F.S.C. 53, Syed Shakeel Ahmad v. The State 1989 PCr.LJ 646; Syed Shakeel Ahmad v. The State 1989 PCr.LJ 646 and Waris Ali and another v. The State 1984 PCr.LJ 2179(1) rel.

Naseem Ullah Khan Niazi for the Petitioner.

Tariq Waheed Khan for the State.

2008 Y L R 681

[Lahore]

Before Muhammad Jehangir Arshad, J

ALLAH DITTA and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2395B of 2006, decided on 24th August, 2006.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.337-A(i)(ii), 337-H(ii), 337-L(ii), 148 & 149--Ad interim pre-arrest bail, grant of---Injury constituting offence under S.337-A (ii), P.P.C. which was punishable with five years imprisonment was attributed to co-accused whose bail application had been' dismissed as withdrawn---Other offences attributed to the remaining accused were bailable and question of their vicarious liability was yet to be determined after recording of evidence---Accused, prima facie were entitled to confirmation of their pre-arrest bail.

Tariq Zulfiqar Ahmad Chaudhry for Petitioners.

Sardar Muhammad Sarfraz Dogar for the Complainant.

Imtiaz Ahmad Sheikh for the State.

Muhammad Aslam, S-I. with record.

2008 Y L R 682

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

ABDUL JABBAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.248-J of 2001, 1390 of 2001, Criminal Revision No.620 and Murder Reference No.583 of 2001, heard on 8th November, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 109/34---Appreciation of evidence-Prosecution case against accused persons revolved around statements of complainant and other prosecution witnesses who not only were inter se nearly related, but also related to deceased---Both of them lived at a distance of two miles from the spot and were chance witnesses---Complainant in his statement before the Trial Court had made many dishonest improvements vis-a-vis the motive and the occurrence---Time of death of deceased was not mentioned in relevant Column of Post-mortem report and also in Column No.3 of Inquest report---Investigating Officer's report revealed that blood-stained earth was deposited with Moharrar, next day of its collection---Matter was not reported to the police at Police Station which, was at' a distance of three miles from the spot, rather the police officer reached the hospital 4-1/2 hours after the occurrence---Place of occurrence was at a distance of one Acre from Bus-Adda and was in front of many shops, it was not possible that the police would not come to know about the occurrence soon after, and it was more plausible that occurrence was not witnessed by the complainant or other prosecution witnesses mentioned in F.I.R. and the complainant reached the Hospital after receipt of information that deceased had been injured and subsequently F.I.R. was recorded after due deliberations-Co-­accused was acquitted and said acquittal was maintained---No recovery was effected from one of the accused persons and there was no record that pistol recovered at the instance of other accused was deposited with Moharrar of police station to place same in safe custody nor said pistol was sent to Forensic Science Laboratory to ascertain whether it was in working order or not---No empties were collected from the spot---Evidence of recovery, being not worthy of, credence, could not be used against-accused---Prosecution having failed to prove its case against accused persons beyond doubt, impugned judgment passed by Trial Court, was set aside and they were acquitted of all charges against them.

Ch. Muhammad Ayub for Appellant.

Bashir Ahmad Gil, in Criminal Appeals Nos. 248-J and 1390 of 2001 and S.D. Qureshi, Advocate in Murder Reference No.583 of 2001 for the State.

Date of hearing: 8th November, 2006.

2008 Y L R 688

[Lahore]

Before Tariq Shamim, J

MUHAMMAD RIAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5129-B of 2007, decided on 30th July, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss. 337-A(ii), 337-F(i), 337-L(ii) & 354/34---Ad interim pre-arrest bail, confirmation of---Benefit of doubt---Brother of accused was examined half an hour prior to the medical examination of the complainant, but for some reason the F.I.R. was not lodged at his instance---Cross-­version from accused's side was declined to be recorded by the S.H.O. and on the order of S.S.P. (Operation) same was registered against the complainant of F.I.R. and others---Medical Board constituted to re-examine the complainant, in its report opined that the injury allegedly inflicted by accused on the head of the complainant could be self-suffered---Serious doubt, in circumstances had been created about the veracity of the prosecution case and the benefit of any doubt, even at bail stage must go to accused---Offence with which accused was charged, entailed a maximum, sentence of five years which was not hit by the prohibitory clause of S.497, Cr.P.C.---Delay of ten hours in lodging of the F.I.R. had not been explained---False implication of accused in the case could not be ruled out on account of some previous dispute between the parties---Conflict existed with regard to time of occurrence in the statements of two eye-witnesses---Prosecution witnesses had not supported the prosecution case---Injury caused to the brother of accused had been concealed by the complainant in the F.I.R. and since it was a case of two versions, accused was° entitled to the grant of pre-arrest bail---Ad interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Syed Samar Hussain for Petitioner.

Rana Manzoor Ahmed for the Complainant.

Asif Mehmood Cheema, Deputy Prosecutor General along with R.M. Yousaf, A.S-I. with record for the State.

2008 Y L R 691

[Lahore]

Before Asif Saeed Khan Khosa, J

KHIZAR HAYAT and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.10055-B and 10195-B of 2006, decided on 14th December, 2006.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.302/34---Ad interim pre-arrest bail, confirmation in the case had been lodged with a delay of three days---At one stage during investigation of the case, S.302, P.P.C. was deleted from the F.I.R. and the same was substituted by S.316, P.P.C., but thereafter S.302, P.P.C. had been restored in the F.I.R.---Violence on deceased, immediately preceding his death had not been seen by any member of the complainant party and it was not known to the complainant party with any degree of certainty as to whether accused had physically participated in the occurrence or not---Medical evidence available in the case had shown that the cause of death ,of deceased was not readily discernible---Accused had no personal motive to do away with deceased---Criminal case against accused which had originated in the year 2004, had been investigated by a number of police officers of different ranks---Throughout the initial stages of investigation of the case all investigating officers had exonerated accused and at one stage provision of S.302, P.P.C. had been formally deleted from the F.I.R. and same had been substituted by S.316, P.P.C.-All accused persons being public servants, there was little likelihood of their absconscion in case of their admission to bail---Investigation of the case having already been finalized, physical custody of accused was not likely to serve any beneficial purpose---Deceased was involved in as many as 115 criminal cases and even, the complainant had himself remained involved in as many as 110 criminal cases---Malice on the part of complainant party, could not safely be ruled out of consideration---Ad interim pre-arrest bail already allowed to all accused was confirmed, in circumstances.

Sardar Fiaz Rasool Jalbani with Petitioner in person.

Mrs. Salma Malik, Asst. A-G. with Ghulam Rasool, Inspector with record for the State.

2008 Y L R 693

[Lahore]

Before Muhammad Muzammal Khan and Syed Asghar Haider, JJ

MUHAMMAD MUNIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3126-B of 2007, decided on 21st May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9---Bail, grant of---Further inquiry---Accused had no criminal history to his credit as he was not involved in any other similar case---Alleged recovered "Garda Charas" was not narcotic in its entirety and the chemical examiner had not mentioned percentage of narcotic substance, therein, which had made the case of accused that of further inquiry---"Garda" was dust and its meagre quantity allegedly recovered from accused would not make him a trafficker/peddler of contraband---Offence charged was not covered by prohibitory clause of S.497, Cr. P. C. and in absence of any allegation of abscondence or tampering with prosecution evidence by accused, bail was not to be withheld as of punishment, especially when inspite of submission of challan, no prosecution witness had been examined diminishing the chances of conclusion of the trial in the near future---Accused would face the sentence, if ultimately convicted by the Trial Court and for the time being his further detention would not advance prosecution case any more---Accused having made out case for grant of bail, he was admitted to bail, in circumstances.

Ch. Tariq Javaid for the Petitioner.

Rana Bakhtiar Ali, D.P.G. with Sain Muhammad A.S-I.

2008 Y L R 694

[Lahore]

Before Hasnat Ahmad Khan, J

NAWAZISH ALI alias SARFRAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4432-B of 2007, decided on 10th July, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.365-B---Pre-arrest bail, confirmation of---Allegation against accused was that he had abducted two ladies---Prosecution case was not that second abductee was made victim of Zina or her modesty was outraged---Said second lady being already in the custody of the complainant, was not required to be recovered from accused---Other abductee had owned her marriage with accused who had stated that she was not abducted by accused---Police though had failed to verify the contents of the alleged "Nikahnama", but alleged abductee, who was sui juris lady, had stated that she had married accused of her own will---Question as to whether said second lady, who was in the custody of complainant, was abducted by accused would be requiring further inquiry---F.I.R. was not lodged bona fide against accused in circumstances---Law of bail was not a static law and in appropriate cases, pre-arrest bail could be granted to accused keeping in view the merits of the case---Ad interim pre-arrest bail granted to , accused, was confirmed, in circumstances.

Meeran Bux v. The State and another PLD 1989 SC 347; Muhammad Ismail v. Ghaus Bux 1990 PCr. LJ 2013 and Aftab Gul v. The State 1989 PCr.LJ 1599 rel.

Rai Muhammad Tufail Khan Kharal for the Petitioner.

Sardar Khurram Latif Khan Khosa for the Complainant.

Mrs. Azra Perveen, D.P.G. with Ghulam Abbas and Ghulam Ali, S.-Is.

2008 Y L R 697

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

ABDUL JABBAR KHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1622, Criminal Revision No.943 and Murder Reference No.648 of 2000, heard on 14th November, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Both complainant and other eye-witness, who were brothers of deceased lived far away from the place of occurrence and serious enmity existed between accused and complainant---Witnesses, in circumstances were not only related to deceased, but were also inimical and chance witnesses---Very foundation that prosecution witnesses and deceased were together at the spot fell on the ground---F.I.R. neither mentioned nature of weapons used, nor number of fires---Specific fires were not attributed to accused nor seat of injuries was mentioned---Evidence on record had fully established that prosecution witnesses were not present at the time of occurrence---Motive alleged by prosecution could not be used against accused as it would cut both ways since it could very well be a reason for causing occurrence and could also be the reason for implicating accused in the case---Double barrel gun allegedly recovered on pointation of accused was a licensed weapon, presence of which in the house of accused was not unnatural---Neither rifle nor the gun was sent to Forensic Science Laboratory nor was any empty recovered from the scene of occurrence---No one from the public was associated during recovery proceedings---Recoveries of weapons, in circumstances, would be of no consequence and could not be used against accused---Prosecution had failed to link motorcycle allegedly used by accused in occurrence with accused---Even one doubt genuinely arising out of circumstances of the case would be enough to record acquittal, whereas present case was replete with doubts---Impugned judgment passed by the Trial Court, was set aside and accused were acquitted of all charges and were released.

Sardar Muhammad Latif Khan Khosa for Appellants.

Ms. Najma Parveen, Tariq Ismail Mew and S.D. Qureshi in Crl. A. No.1622, Crl. R. 943 and M.R.No.648 of 2000 respectively for the State.

Rab Nawaz Khan Niazi for the Complainant.

Date of hearing: 14th November, 2006.

2008 Y L R 703

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AMEER SULTAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3721-B of 2007, decided on 20th June, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.324/34---Bail, grant of---Further inquiry---Only allegation of ineffective firing upon complainant had been levelled against accused and co-accused, but no injury was received by him---Story narrated in the F.I.R. by the prosecution appeared to be doubtful and the chances of false involvement of accused in the case by the complainant with mala fide intention and ulterior motive due to the previous enmity, could not be ruled out--Whether accused had actively participated in the occurrence was a question, which would be resolved by the Trial Court after recording the evidence---Accused having succeeded in making out a case of further inquiry covered by S.497(2), Cr.P.C. was admitted to bail, in circumstances.

Naseemullah Khan Niazi for the Petitioner.

Saeed Ashraf Warraich, Addl. Prosecutor General for the State.

Muhammad Riaz with record.

2008 Y L R 714

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ZAMIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.115-B of 2007, decided on. 24th January, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---Allegation against co-accused was that he fired a shot from .12 bore gun at deceased which hit on his backside of waist and left elbow while fire of accused hit inner side of thigh of deceased---No recovery was effected from accused---First version of accused was before the police that at the relevant time he was present on the duty and he produced documentary evidence and witnesses in support of his such plea of alibi, whereafter he was found innocent during the course of investigation and was placed in Column No.2 of the challan---Accused, in circumstances, had made out a prima facie case falling under sub-section (2) to S.497, Cr. P. C. and was entitled to the concession of bail---Accused was admitted to bail, in circumstances.

Muhammad Ameer Khan Niazi for the Petitioner.

Naseeruddin Khan Nayyar, Addl. Prosecutor General with Ahmad Khan, A.S-I. with record for the State.

Syed Imdad Hussain Hamdani for the Complainant.

2008 Y L R 715

[Lahore]

Before Hasnat Ahmad Khan, J

ABDUL KHALIQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.394-B of 2007, decided on 23rd May, 2007.

Criminal Procedure Code (V of 1898)--

----S.497(2)---Penal Code (XLV of 1860), Ss.302/109---Bail, grant of---Further inquiry---Accused though was specifically named in the F.I.R., but only allegation levelled against him. was that of instigation---Accused was not present at the spot at the relevant time and had not actively participated in the occurrence---Allegation of abetment was levelled against accused without referring to any evidence of abetment in F.I.R.---Both the witnesses were closely related to deceased---Such would be a question of further consideration as to whether accused was so fool as enough to declare his intention to kill the person in presence of someone related to deceased---Case against accused, in circumstances would be needing further inquiry into the guilt of accused entitling him to bail---Accused was allowed bail, in circumstances.

Khalid Mahmood Arain for the Petitioner.

Nadir Manzoor Duggal, Deputy Prosecutor General and Sh. Imtiaz Ahmad, with Ishfaq Ahmad, A.S-I. with record for the State.

Muhammad Ishfaq Chaudhry for the Complainant.

2008 Y L R 723

[Lahore]

Before Syed Sajjad Hussain Shah, J

MUHAMMAD RAMZAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9768-B of 2006, decided on 21st February, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.324/34---Bail, grant of---Accused, who was `child', within the meaning of the Juvenile Justice 'System Ordinance, 2000, was in jail for the last more than four months and his trial had not yet started, even charge had not been framed in the case---Accused was admitted to bail, in circumstances.

Muhammad Amir Khan Niazi for the Petitioner.

Ibn-e-Hassan for the Complainant.

Saeed Ashraf Warraich, Additional Prosecutor General with Kazim Hussain, A.S-I. with record.

2008 Y L R 725

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD SHARIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.12-J of 2003 and Murder Reference No.777 of 2001, heard on 1st November, 2006.

Penal Code (XLV of 1860)---

----S. 302/34---Criminal Procedure Code (V of 1898), S.544-A---Appreciation of evidence---Sentence, reduction in---Case of two versions---Both versions to be put in juxtaposition to ascertain which of the two was true or nearer to truth---F.I.Rs. not recorded at police stations---Dishonest improvements made by prosecution witnesses in their statements---Defence plea recorded soon after arrest of accused--Effect---Allegation against accused/ appellant was that he along with two co-accused committed murder of deceased by cutting his throat with "Churri "---Motive of occurrence as stated in F.I.R. was that accused/appellant committed murder of deceased over money dispute---Trial Court convicted and sentenced accused to death---Accused contended that from the very outset, he had taken plea of grave and sudden provocation; that eye-witnesses were chance witnesses and were related to deceased; that there was, an inordinate delay in reporting the matter to police and that it was not a case of capital punishment---Validity--Being a case of two versions, both versions were to be put in juxtaposition to ascertain which of the two was true or nearer to truth---Matter was not reported at police station rather Sub-Inspector of police met complainant per chance---F.I.Rs., which were not recorded at police station suffer from inherent doubt that those were recorded after deliberations---Prosecution witnesses made dishonest improvements in their statements during trial in order to bring their statements in conformity with medical evidence regarding number of injuries and in this regard witnesses were duly confronted with their earlier statements---Statements of prosecution witnesses were belied by the time written on the complaint---Circumstances showed that prosecution witnesses were not present at the time of occurrence---No independent witness had been produced to support motive and no appeal was filed against acquittal of co-accused---Defence plea was in accordance with first version of accused recorded by him soon after his arrest---Accused had produced in his defence, landlord/owner of the house, where he used to live as tenant, who supported on oath the defence plea of accused---Landlord was subjected to lengthy cross-examination but no dent could be caused in veracity of his statement---Defence plea was supported by oral evidence as well as circumstances of the case---Conviction of accused/appellant was altered to offence under S.302(c), P.P.C. and sentence was reduced to 10 years---As defence plea was accepted, order passed by Trial Court under S.544-A, Cr. P. C. was set aside---Appeal partly allowed.

Meraj Begum v. Ejaz Anwar and others PLJ 1981 SC 435 (sic) rel.

Hafiz Assad Ullah for Appellant.

Mian Muhammad Bashir, in Criminal Appeal No.12-J of 2003 and Malik Suleman Awan, in Murder Reference No.777 of 2001 for the State.

Date of hearing: 1st November, 2006.

2008 Y L R 732

[Lahore]

Before Hasnat Ahmad Khan, J

SHAHID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.61-B of 2007, decided on 24th January, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.419 & 420---Bail, grant of---Offences with which accused had been charged, did not fall within the prohibitory clause of S.497, Cr. P. C. ---Accused was behind the bars since his arrest on 2-12-2006---Bail should not be withheld as a matter of punishment---Accused was admitted to bail, in circumstances.

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

Ch. Khalid Mehmood Arain for the Petitioner.

Sh. Imtiaz Ahmad for the State. Complainant in person.

Muhammad Amin, A.S-I.

2008 Y L R 733

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. NAGINA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8545-B of 2005, decided on 8th December, 2005.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.368/109---Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979), Ss.10 & 11---Bail, grant of ---Further inquiry---Accused being a woman, her case fell within the first proviso of S.497, Cr. P. C.---Lady accused was also mother of a suckling baby---Allegations in the F.I.R., revealed that real brother of accused/co-accused had developed illict relation with the alleged abductee but subsequently during the investigation, he produced Nikahnama executed with the alleged victim---Accused was not expected to have helped her husband's second marriage with virgin girl who was allegedly aged about 20/21 years--Accused had thus succeeded making out a case of further inquiry-Even otherwise, accused was in jail with a suckling baby and nothing was left to be recovered from her and thus she could not be detained in jail for an indefinite period---Accused was admitted to bail, in circumstances.

Naseemullah Khan for the Petitioner.

Abid Hussain Shahi for the State.

Pir Ali Raza Gillani for the Complainant.

Abdul Rehman, S.-I. with record.

2008 Y L R 760

[Lahore]

Before Muhammad Akhtar Shabbir, J

WASEEM BARI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5528 of 2006, decided on 9th October, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Bail, refusal of---Accused seemed to be in habit of committing fraud with people---Offence under S.489-F, P.P.C. though did not fall within the prohibition as contained in S.497, Cr.P.C., but in the present case amount of Rs.1,50,00,000 was involved---If accused was released on bail, likelihood was of his absconsion from the country---Cases which were not covered within the prohibition clause as contained in S.497, Cr.P.C., grant of bail in such cases through was a. rule and refusal an exception, but in view of circumstances, the case was covered within the exceptional clause of the rule---Sufficient material being available on record to connect accused with the commission of the offence, bail petition of accused was dismissed.

Ch. Shaukat Ali Javed for the Petitioner.

Ghulam Murtaza Ch., for the Complainant.

Badar Munir Malik with Asad Ullah, A.S-I. for the State.

2008 Y L R 762

[Lahore]

Before Fazal-e-Miran Chauhan, J

GHULAM HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2256-B of 2007, decided on 11th April, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Offence against accused did not fall within the prohibitory clause of S.497, Cr.P.C. maximum punishment of which was only 3 years---Accused was in jail for the last two months---Dispute arose between parties on account of business transactions and in that connection civil litigation was pending between the parties before the competent court---Accused was no more required by the police and nothing was to be recovered from him---Keeping accused behind the bars for an indefinite period would not serve or advance the prosecution case and it would amount to punishment before the conviction, which was not permissible under criminal jurisprudence---Accused was admitted to bail, in circumstances.

Maqsood Abid Naqvi for the Petitioner.

Mrs. Farzana Khan, Assistant Prosecutrix General with Muhammad Akram, A.S-I. for the State.

2008 Y L R 763

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD BOOTA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2009 of 2000 and Murder Reference No.134 of 2001, heard on 6th November, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(6) & 34---Appreciation of evidence---Testimony of chance witnesses who were related to deceased---Delay in reporting matter to police---Crime empty and weapon not sent to Forensic Science Laboratory---Effect---Accused/appellant allegedly committed murder of deceased on suspicion that the latter had developed illicit relations with his (accused's) cousin---Trial Court convicted and sentenced accused to death---Accused contended that eye-witnesses were related to deceased and were chance witnesses; that statements of eye-witnesses were not corroborated by arty independent witness and that in existence of motive as alleged in F.I.R., a father was not to allow his son to accompany the accused---Validity---Evidence of eye-witnesses who reached place of occurrence per chance and were related to deceased needed deeper scrutiny---Delay of 3-1/2 hours in reporting matter at police station which was at a distance of 1-1/2 Km from hospital remained unexplained and led to irresistible conclusion that eye-witnesses were not present at the time of occurrence---Complainant who already knew about motive was not to allow his son to accompany accused and once deceased was allowed to go along with accused then there was no reason to follow them soon after their departure---Medical evidence supported prosecution case to the extent that deceased received a fire-arm shot but did not lead to the killer---Recovery of crime weapon at the instance of accused was of no consequence as neither empty from the spot nor pistol was sent to Forensic Science Laboratory---During recovery action provisions of S.103, Cr.P.C. were not followed---Recovery witnesses stated about recovery of pistol but none of them said anything about bullets, for recovery memo showed that pistol contained five live bullets---Circumstances of the case led to conclusion that it was an un-witnessed occurrence, therefore, there was no need to go into defence plea taken by accused---Prosecution had failed to prove its case against accused beyond doubt---Appeal was allowed and accused was acquitted of all charges.

Shaukat Rafiq Bajwa for Appellant.

Abdul Qayyum Anjum in Criminal Appeal and M. Saleem Shad in Murder Reference for the State.

Date of hearing, 6th November, 2006.

2008 Y L R 773

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD AKRAM KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3985-B of 2007, decided on 22nd June, 2007.

Criminal Procedure Code (V of 1898)---

---S. 497-Penal Code (XLV of 1860), Ss.324, 334, 337-F(vi)---Bail, refusal of---Case of accused was distinguishable from the case of two co-accused who though were attributed injuries, but had been found innocent by the Police during investigation---Accused himself appeared before the police after incident and made statement that victims had come to commit his murder while armed with pistol and fired at him twice---Statement of accused made before the police during the investigation could be considered along with other evidence collected by the Police---Different police officials had investigated the case and had found accused guilty---Sufficient evidence was available on record to prima facie connect accused with the offence which fell within the prohibitory clause of S.497, Cr. P. C. ---Charge had already been framed in the main case and their was likelihood of early conclusion of the trial---Bail application was dismissed.

2005 MLD 415 rel.

Shaukat Rafiq Bajwa for the Petitioner.

Saeed Ashraf Warriach, Additional Prosecutor General for the State.

Muhammad Ikhlaq, S.I. along with the record.

2008 Y L R 774

[Lahore]

Before Ali Nawaz Chowhan, J

QAISER AFZAL and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2753-B of 2006, decided on 24th April, 2006.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 324, 148, 149 & 109---Bail, grant of---Further inquiry---Co-accused had already been exonerated by the police, his case calling for further inquiry, he was admitted to bail.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 148, 149 & 109---Bail, refusal of---Case of accused was quite different 'from co-accused who was granted bail---Bail petition of accused was dismissed.

Saif-ul-Malook for the Petitioner.

Zafar Iqbal Chowhan for the Complainant.

Fazilat for the State.

2008 Y L R 778

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD IJAZ and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.3148-B and 3509-B of 2006, decided on 16th May, 2006.

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

---S.498---Penal Code (XLV of 1860), Ss. 420, 466, 468 & 471---Pre-arrest bail, confirmation of---Contention of counsel for accused that accused being Patwari had only performed his duty by entering the mutation and had not derived any benefit in the transaction; did not appear to be wholly without substance---Record also revealed that no damage had been suffered by complainant and that if any fraud was committed same had been detected well within time---Affixation of thumb-impressions on relevant papers was not denied---No material was available on. record to prima facie show that accused had forged any public record---Culpability and role played by accused during transaction called for further probe within the meaning of subsection (2) of S.497, Cr. P. C.---Accused had been joining investigation and no recovery was to be effected from him---No useful purpose would be served by sending accused behind the bars in the offences which did not attract prohibitory clause of S.497(1), Cr. P. C. ---Interim anticipatory bail already granted to accused, was confirmed.

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

----S.497---Penal Code (XLV of 1860), Ss.420, 466, 468 & 471---Post-arrest bail, grant of---Transaction had not attained finality and no loss had been suffered by complainant---Was yet to .be determined during the trial as to the manner in which the thumb-impressions of the complainant had been obtained and that would be done only after recording of some material evidence in the case---Accused was behind the bars for the last. more than four months and was no more required for investigation, his further incarceration would not serve any useful purpose to the prosecution---Offences with which accused had been charged, did not for the time being, attract prohibitory clause of S.497(1), Cr. P. C. ---Accused too was admitted to bail, in circumstances.

Zafar Iqbal Chowhan for the Petitioner.

Amjad Hussain Dogar in Criminal Miscellaneous No.3509-B of 2006 for the Petitioner.

Syed Zeshan Aslam Bokhari with Zulfiqar Ali, Inspector/CO, ACE, Jhang for the State.

2008 Y L R 784

[Lahore]

Before Tariq Shamim, J

RAB NAWAZ---Petitioner

Versus

JUSTICE OF PEACE---Respondent

Writ Petition No.2282 of 2006, decided on 13th June, 2006.

Criminal Procedure Code (V of 1898)---

----S.22-A---Constitution of Pakistan (1973), Art.199---Constitutional petition--Quashing of F.I.R---Application under S.22-A, Cr.P.C. on the allegation that respondent being issueless and owner of landed property, petitioner, to grab his property, had falsely got recorded the parentage of his son as respondent in the school record---Plea of petitioner was that respondent being issueless, parentage of son of petitioner was written as . respondent's in good faith and without malice and no forgery had been committed by the petitioner---Justice of the Peace ordered registration of case against the petitioner---Validity---Respondent did not file any application with the Police nor he appeared before S.H.O. in respect of the matter---No witnesses had been produced by resp6ndent in support of his case---Petition under S.22-A Cr.P.C. was filed by respondent on mere apprehension---Land in question was still in the name of respondent and no benefit of any sort had been obtained by the petitioner or his minor son---Application under S.22-A Cr.P.C. did not disclose commission of any cognizable offence---Grievance of respondent could be successfully redressed through appropriate proceedings for the rectification of the school record---Counsel for respondent could not point out any provision of Penal Code which might would be attracted in the case---Orders passed by Justice of Peace being unsustainable, were set aside.

Ijaz Ahmad Toor for Petitioner.

Shaukat Bilal Khan Bangash for Respondent No.3.

M.R. Khalid Malik, Addl. A-G. with Haider, S.H.O.

2008 Y L R 788

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

SHAHZAD and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.657 of 2002, Murder Reference No.292 of 2002 and Criminal Revision No.493 of 2002, heard on 1st February, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-D, 452/34---Appreciation of evidence---Case of two versions---Occurrence having taken place in the house of injured female, her presence in the house was natural---Presence of another injured witness not only was admitted, but his presence was also established by the fact that he received very serious injury during occurrence---Visit of other prosecution witness to the house of his sister could hardly be termed as unusual as he had explained that he had come to the Haveli of injured female in order to fetch milk---Said two injured witnesses had given very consistent account of the occurrence; their statements were convincing, coherent and natural---Said witnesses had corroborated each other on almost all the material points---Both the witnesses successfully stood the test of lengthy cross-examination; they had no previous enmity or ill-will against accused so as to depose falsely against them---Statements of said witnesses were fully supported by the medical evidence and corroborated by the factum of lifting of blood-stained earth from the roof of the house of female---Female in whose house occurrence had taken place, had given a detailed statement on oath regarding motive; she was truthful and natural witness---Not a single witness from the locality had been produced by accused in support of their defence plea and defence plea was also not supported by the circumstances of the case---Prosecution had successfully proved its case through reliable direct evidence, which was fully supported by ,the medical evidence and corroborated by the circumstances of the case--No benefit could be given to accused on the basis of police opinion---Accused, who was awarded death sentence, according to his birth certificate was less than 18 years of age at the time of occurrence and had been dealt with discriminately by the Trial Court as co-accused, who had inflicted similar injuries on person of deceased, had not been inflicted normal penalty of death on him considering his age as he was also less than 18 years at the time of occurrence---While maintaining conviction of accused under Ss.302(b)/34, P.P.C., his death sentence was altered to imprisonment for life---With said modification in sentence to the extent of accused, other convictions and sentences recorded by the Trial Court against all other accused persons, were maintained.

Khalid Mian for Appellants.

Nemo for the Complainant.

Ch. Muhammad Hussain Chachar, Additional Prosecutor General for the State.

Date of hearing: 1st February, 2007.

2008 Y L R 797

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

Mst. KHALIDA PARVEEN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.531 of 2006, decided on 7th September, 2006.

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

----S.9(b)---Appreciation of evidence---Council for accused instead of arguing appeal on merits, conceding the impugned judgment, and prayed that sentence awarded to accused by the Trial Court be reduced to one already undergone by her to which State counsel had no objection---Accused was granted bail six months after her arrest and at the time of pronouncement of judgment, accused was again sent to jail to serve her imprisonment and was behind the bars since then---Sentence of imprisonment already undergone by accused would meet the ends of Justice---In view of facts and circumstances of the case, maintaining conviction of accused, sentence was reduced to the one already undergone by her.

Muhammad Faisal Malik for Appellant.

Sardar Muhammad Farooq Khan for the State.

Date of hearing: 7th September, 2006.

2008 Y L R 798

[Lahore]

Before Maulvi Anwarul Haq, J

MUNSHI MUHAMMAD and 2 others---Petitioners

Versus

SHAKAR DIN---Respondent

Civil Revision No.12 of 1986, heard on 1st February, 2008.

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

----Ss.6 & 13---Suit for pre-emption---Pre­emptor who claimed to be brother of vendor filed suit for pre-emption on ground of superior right of pre-emption against vendees---Trial Court dismissed the suit but Appellate Court decreed the same---Ignorance was expressed by the vendees---As to fact that pre-emptor was brother of vendor---No plea was taken by the vendees that land in question comprised of non- occupancy tenancy of the vendees within the meaning of Para 25 of M.L.R.15 so as to vest them with the first right of pre-emption under the Regulations---In the course of evidence, the fact that vendor was brother of pre-emptor was admitted by one of the vendees---Appellate Court below, in circumstances had rightly decreed suit---No ground having been made out for interference with the impugned judgment and decree of the Appellate Court within meaning of S.115, C.P.C., revision was dismissed.

Malik Amjad Pervaiz for Petitioners.

Nemo for Respondent.

Date of hearing: 1st February, 2008.

2008 Y L R 803

[Lahore]

Before Tariq Shamim, J

RIAZ HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1497-B of 2006, decided on 20th June, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.392---Bail grant of---Accused neither was named in F.I.R. nor any specific role had been attributed to him, though other accused were named therein---No identification parade was held in the case and accused was nominated in the F.I.R. at the instance of complainant on the basis of supplementary statement recorded after more than two months of the occurrence---No recovery had been effected from accused and only evidence against him was that of extra judicial confession made before complainant and other witnesses related to he complainant---Co-accused, who had been nominated in the F.I.R., had been granted bail and law of consistency required that accused should also be granted bail---Accused having made out case for grant of bail, he was admitted to bail.

Mian Abid Hussain Ansari for the Petitioner.

Ch. Ghulam Muhammad with Khadim Hussain, S.I. for the State.

2008 Y L R 804

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD SARWAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1310-B of 2006, decided on 9th March, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.420, 468 & 471---Bail, grant of---Supreme Court had granted bail to one of co-accused and case of accused was on better footing than the case of said co­-accused---Another co-accused had also been granted bail by the High Court---Accused was also entitled to the same relief on the principle of consistency---Accused was admitted to bail, in circumstances.

Zafar Iqbal Chowhan for the Petitioner.

Asif Khan for the State.

Nusrat Ali, A. S-I. with the record.

2008 Y L R 805

[Lahore]

Before Muhammad Khalil Alvi, J

GHULAM HASHMI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1273-B of 2006, decided on 7th February, 2007.

Criminal Procedure Code (XLV of 1860)---

----S.497(2)---Penal Code (XLV of 1860), S.3027--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Bail, grant of---Further inquiry---Incident was an unseen occurrence---Complainant had implicated accused on basis of suspicion, but during investigation she could not substantiate her suspicion before Investigating Officer---Accused were not connected with the motive---Case of accused requiring further inquiry they were admitted to bail, in circumstances.

Sh. Saeed-ur-Rehman and Mian Faiz-ul-Hassan for the Petitioner.

Muhammad Afzal Pansota, Additional P.G. and Ghulam Haider, A.S-I.

Complainant in person.

2008 Y L R 808

[Lahore]

Before Muhammad Jehangir Arshad, J

GHULAM DASTGIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3772-B of 2006, decided on 17th April, 2007.

Criminal Procedure Code (V of 1898)---

---S.497---Penal Code (XLV of 1860), Ss.372, 411 & 109---Bail, grant of---F.I.R. was got lodged against three unknown `persons and name of accused was disclosed by the complainant through his supplementary statement on the basis of some information given by some informant, but neither his name nor even other particulars were given---True identification of accused, especially in the absence of any identification parade could not be determined at bail stage---Accused was behind the bars since 2-1-2005 and other co-accused were absconding---Accused could not be kept behind the bars as a matter of punishment---Accused was admitted to bail, in circumstances.

PLD 1968 SC 349 and PLD 1972 SC 81 ref.

Rafiq Ahmad Qureshi for the Petitioner.

Ishaq Masih Naz, D.P.G. with Muhammad Ayub S.I.

2008 Y L R 810

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD HANIF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1634-B of 2006, decided on 20th July, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Emigration Ordinance (XVIII of 1979), Ss.17 & 18---Prevention and Control of Human Trafficking Ordinance (LIX of 2002), Ss.3 & 4-Bail, grant of---Further inquiry---Record did not show as to how accused was aware of the fact that his sons were to be used as Jockeys in camel race when they were sent abroad---Nothing was on record that payment was made to accused prior to sending the minors abroad---Mother of minors was confined in Jail abroad---Prima facie the possibility that the minors accompanied their mother, could not be ruled out---Allegation levelled against accused needing further probe and inquiry within the ambit of subsection (2) of S.497, Cr.P.C., accused was granted bail.

Altaf Ibrahim Qureshi for the Petitioner.

Ch. Saghir Ahmad Standing Council for the Federation.

2008 Y L R 811

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMAMD AKRAM JAVED alias BUTT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2888-B of 2006, decided on 2nd October, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Prohibition (Enforcement of Hadd), Order (4 of 1979), Arts.3 & 4---Anti-Terrorism Act (XXVII of 1997), S.7---Bail, grant of---As to how the police added S.7 of Anti-Terrorism Act, 1997 in the F.I.R. was not understandable---No evidence of sale of the liquor was on record and State Counsel stated with reference to the police record that according to the report of Chemical Examiner, liquor was not found to be adulterated---Accused had suffered more than two years of incarceration---Trial was still at the early stage---Accused was admitted to bail, in circumstances.

Mehr Khalil-ur-Rehman for the Petitioner.

Abdul Ghaffar Sial with M. Bashir, S.I. with records for the State.

Date of hearing: 2nd October, 2006.

2008 Y L R 814

[Lahore]

Before Sh. Javaid Sarfraz, J

SHAUKAT KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9192-B of 2007, decided on 4th February, 2008.

Criminal Procedure Code (V of 1898)---

----S.498---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Pre-­arrest bail, grant of---Allegation against accused was that he being the owner of vehicle was transporting huge quantity of liquor, however, despite lapse of over three months, the Investigating Agency had not been able to verify the ownership of the said vehicle---Even the report from the Chemical Examiner had not been obtained in the absence of which it could not be said that the substance which was recovered, was liquor or not---Possibility that the case had been registered against accused mala, fide could not be ruled out---Case of further inquiry had been made out in circumstances---Ad interim pre-arrest bail already granted to accused was confirmed on the same surety.

Agha Abul Hassan Arif for Petitioner.

Mrs. Azra Israr, APG, for the State with Ali Ajved, S.-I.

2008 Y L R 815

[Lahore]

Before Muhammad Farrukh Mahmud, J

RAEES AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1583-B of 2006, decided on 24th July, 2006.

Criminal Procedure Code (XLV of 1860)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Bail, grant' of---Accused and his co-accused were in jail since 31-3-2005 and despite the fact that about 1-1/4 years had elapsed, Trial Court had not concluded the trial---Case of prosecution rested on the statements of police officials---None of the offences against accused attracted the mischief of prohibitory clause of S.497, Cr.P.C.---Police Officer, had violated the provisions of S.103, Cr. P. C.---Accused was admitted to bail, in circumstances.

Mehr Khalil-ur-Rehman for the Petitioner.

Zafar Mahmood Anjam with Raja Ali Shah, S.I. for the State.

2008 Y L R 818

[Lahore]

Before M. Javed Buttar, J

SARFRAZ---Petitioner

Versus

KHIZER HAYAT and another---Respondents

Criminal Revision No. 2271 of 1996, heard on 14th May, 2003.

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

----Arts.79, 117 & 120---Execution of sale­-deed---Onus to prove---Plaintiff denied execution of disputed sale-deed in favour of defendant---Defendant did not enter the witness-box to rebut the evidence produced by the plaintiff---Both the marginal witnesses of the sale-deed had denied having witnessed the sale-deed and the plaintiff himself denied his thumb impression on the sale-deed---Effect---Onus had shifted on the defendant and it was for the defendant and not for the plaintiff to get signatures and thumb impressions of the plaintiff and other witnesses compared with the thumb impressions and signatures available on the sale-deed.

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

----Ss. 42 & 54---Declaratory suit---Dismissal of suit on the basis of the limitation---Plaintiff claimed to be owner in possession of the suit property and had denied execution of disputed , sale-deed in favour of the defendant---Trial Court dismissed the suit on the ground that the sale-deed had been proved to be executed by the plaintiff in favour of the defendant---Appellate Court, though reversed the findings of Trial Court regarding proof of sale-deed yet the suit was dismissed being barred by time---Validity---Decision of the Appellate Court had attained finality as the defendant did not assail the same any further---Final decision on the issues regarding execution of sale-deed in favour of the defendant had resulted in declaring the sale-deed as illegal, based on fraud and misrepresentation, void, ineffective and in-operative against the rights of the plaintiff and. the plaintiff was in possession of the land in dispute as owner---Such declaration had made the sale-deed as non-existent and therefore, the plaintiff could come before the court at any time for declaration and injunction that he was owner in possession of the land in dispute---Plaintiff came to know of the existence of the disputed sale-deed a few months prior to the filing of the suit and defendant did not produce any evidence to rebut such oral evidence---Appellate Court acted illegally in dismissing the plaintiff's appeal arising out of his own suit on the issue of limitation as the suit was within time---Judgment and decree passed by Appellate Court was set aside and the suit was decreed in favour of the plaintiff in circumstances.

Shamim Abbas Bokhari for Petitioner.

Syed Muhammad Asghar Naeem for Respondents.

Date of hearing: 14th May, 2003.

2008 Y L R 823

[Lahore]

Before Muhammad Sayeed Akhtar, J

ZAFAR MAHBOOB and 2 others---Appellants

Versus

Mst. KAUSAR and another---Respondents

Regular Second Appeal No.92 of 1996, heard on 9th May, 2003.

Specific Relief Act (I of 1877)---

----S.12---Qanun-e-Shahadat (10 of 1984), Arts.72 & 79---Execution of agreement to sell---Proof---Plaintiff alleged that the defendant had entered into agreement to sell and sought specific performance of the same---Defendant denied execution of agreement to sell----Evidence of the witnesses produced by the plaintiff was contradictory---Plaintiff failed to prove the place where the bargain was struck and where agreement to sell was written---Witnesses and agreement to sell were silent as to who paid the sale price---Trial Court dismissed the suit while the Appellate Court allowed the appeal and the suit was decreed in favour of the plaintiff----Validity---Alleged agreement to sell had not been proved by the plaintiff---Even otherwise the same did not mature into an agreement creating legal relationship between the parties---Judgment and decree passed by Appellate Court was set aside and that of the Trial Court was restored in circumstances.

Muhammad Kazam v. Janat Bibi PLD 1985 Lah. 637 and Mst. Barkat Bibi and others v. Muhammad Rafique and others 1990 SCMR 28 ref.

Ch. Muhammad Afzal Wahla for Appellants.

Khan Zahid Hussain Khan for Respondents.

Date of hearing: 9th May, 2003.

2008 Y L R 829

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD AMJAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.183 of 2002 and Murder Reference No.312 of 2002, heard on 21st February, 2007.

Penal Code (XLV of 1860)---

---Ss. 302(b)/34---Appreciation of evidence---Occurrence took place in darkness---Only source of light was the torches but no evidence was available to the effect that torches were taken into possession by Investigating Officer---Both prosecution witnesses simply forgot about the torches when their statements were recorded before the Trial Court---Both the prosecution witnesses had made dishonest improvements before the Trial Court---Matter was reported to the police after delay of three hours, while police station was situated at 12 miles from the place of occurrence---Medical evidence had supported prosecution case only to the extent that deceased lost his life due to fire-arm injury, but it had cast doubt at the time of occurrence---No recovery was effected at the instance of co-accused while the evidence of recovery to the extent of accused was not worthy of credence as empties were kept at the police station till arrest of accused---No independent witness was produced in support of recoveries---Occurrence took place in the dark night and it was doubtful that prosecution witnesses were present at that time---Impugned judgment of the Trial Court passed against accused, was set aside extending them benefit of doubt and they were acquitted of all the charges and were ordered to be released forthwith.

Sardar Shahbaz Ali Khan Khosa for Appellants.

Gohar Razzaq Awan for the Complainant.

Muhammad Hussain Chachar, Additional Prosecutor-General for the State.

Date of hearing: 21st February, 2007.

2008 Y L R 834

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD ISHAQ and 3 others---Petitioners

Versus

PROVINCE OF PUNJAB through Collector and 12 others---Respondents

Criminal Revision No.1685-D of 1999, heard on 6th June, 2003.

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

---S.54---West Pakistan Land Revenue Act (XVII of 1967), Ss.39 & 42---Such deed to supersede revenue record---Sale of specific portion out of one Killa exclusively owned by vendor---Registered sale-deed describing location of land sold---Effect---Vendee would not be deemed to have purchased share in such Killa---Vendee would become owner of such specific land, notwithstanding that no Tatima had been carved out by revenue authorities or mutation had not described such land by metes and bounds---Sale-deed being title document would prevail over revenue record.

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

----S.115---Findings of Appellate Court based on misinterpretation of document i.e. registered sale-deed---High Court set aside same in exercise of revisional jurisdiction.

Kamil Hussain Naqvi for Petitioners.

Abdur Rasheed Qureshi for Respondents.

Date of hearing: 6th June, 2003.

2008 Y L R 840

[Lahore]

Before M. Javed Buttar and Muhammad Sayeed Akhtar, JJ

NAWAB DIN through legal representatives---Appellant

Versus

PROVINCE OF PUNJAB through Collector and 2 others---Respondents

Regular First Appeal No.148 of 1993, heard on 14th May, 2003.

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

----S.23---Compensation---Enhancement of--Compensation fixed @ Rs. 75,000 per Kanal by Land Acquisition Collector was upheld by Referee Court, which rejected appellant's claim seeking enhancement to Rs. 3,00,000 per Kanal---Validity---Appellant had failed to prove that price of land at the time of acquisition was Rs.3,00,000 per Kanal---Nothing was available on record to show market value of land at time of announcement of award---Collector after considering all relevant factors had fixed such rate by giving cogent reasons, which appellant had failed to prove to be inadequate---High Court in other appeals had upheld same award challenged by other land owners---Appellant's land was similar to that of other land owners---Rule of consistency, thus, demanded upholding of same award in appellant's case---High Court dismissed the appeal.

Nisar Ahmad Khan and others v. Collector, Land Acquisition, Sawabi and others PLD 2002 SC 25; Muhammad Saeed and others v. Collector, Land Acquisition and others 2002 SCMR 407 and Abbotabad Land Acquisition and others v. Haji Ali Asghar Khan and others 1985 SCMR 767 ref.

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

----S.23(1)---Market value, determination of---Agreement to sell not being a sale-deed was not an evidence of market value of land.

Ch. Muhammad Yaqoob Sindhu for Appellant.

Sher Zaman Khan, Deputy Attorney General for Respondents.

Date of hearing: 14th May, 2003.

2008 Y L R 846

[Lahore]

Before Mian Hamid Farooq, J

GHULAM DASTGIR and others---Applicants

Versus

BARKAT ALI and others---Respondents

Review Application No.42-C/2005 in EFA No.133/2005, decided on 18th October, 2007.

Civil Procedure Code (V of 1908)---

---S.114 & O.XLVII, R.1---Limitation Act (IX of 1908), S.12---Review petition---Limitation---Review petition seeking review of order passed on 12-5-2005 was filed on 11-8-2005---Review petition initially was filed without certified copy of order sought to be reviewed, but same was placed on record on 13-2-2006 under the directions of the High Court---Effect---Petitioners, in circumstances were not entitled for exclusion of time consumed in obtaining the certified copy of judgment under review---Under S.12(2) of Limitation Act, 1908 while computing the period of limitation, the day on which judgment was pronounced was to be excluded---In the present case as judgment under review was pronounced on 12-5-2005 that day was to be excluded while calculating the period of limitation for filing review petition---Period for filing the review petition would be computed form 13-5-2005 and not from 14-5-2005---Review petition being barred by one day was dismissed.

Abdul Majid and Zaheer Zulfiqar for Applicants.

Hamid Ali Mirza for Respondents.

2008 Y L R 848

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD AKHTAR and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4107-B of 2006, decided on 9th January, 2007.

Criminal Procedure Code (V of 1898)---

---S.498---Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(ii), 337-F(i), 337-L(ii), 148 & 149---Pre-arrest bail, grant of---Accused were involved in a cross-version case which was recorded during the investigation. of the F.I.R. lodged by co-­accused---Both injured prosecution witnesses failed to appear before District Standing Medical Board---Presence of accused had not been shown in the F.I.R.---Only role attributed to one of the accused persons was causing of injuries through brick-bating, while role attributed to other accused was general in nature---All said questions would be requiring further inquiry---Ad interim pre-arrest bail already granted to accused, was confirmed.

Altaf Ibrahim Qureshi for Petitioners.

Mian Rashid Ahmad for the Complainant.

Rao Atif Nawaz for the State.

Abdul Rasheed, S-I.

2008 Y L R 850

[Lahore]

Before Ijaz Ahmad Chaudhry, J

GHULAM SHABBIR and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2806/B of 2007, decided on 16th May, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.380---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Bail, grant of---Further inquiry---Case was got lodged with a delay of three days without any explanation for said delay---One of accused, who was injured in the occurrence received nine injuries on his body with blunt weapon, whereas other accused received three injuries---Recovery at the instance of accused had been effected after two days of their medical examination and after the report of Doctor that they were severely tortured during the period of their alleged illegal confinement by the Police---Accused also moved an application before the Justice of Peace for registration of case against delinquent police officers and Justice of Peace directed D.P.O. to take action against them under Art.158-D of Police Order, 2002 and relevant provisions of Penal Code---Merely . because accused were previously involved in such like cases, was not sufficient ground for refusal of bail as it was not claimed that they were ever convicted and sentenced in any of said cases---Accused had succeeded in making out a case of further inquiry---Accused were admitted to bail, in circumstances.

Mst Fahmida v. The State 1997 SCMR 947 and Sher Muhammad v. The State 1997 MLD 2513 rel.

Syed Iqbal Hussain Shah for the Petitioners.

Rao Abdul Jabbar Khan for the Complainant.

Abdul Latif Hanjra, Deputy Prosecutor General and Zafar Iqbal, A.S-I. with record for the State.

2008 Y L R 852

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD SAEED---Petitioner

Versus

NAB and others---Respondents

Writ Petition No.877 of 2007, decided on 20th Match, 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---Accused was store keeper in WAPDA and alleged shortage in store was found after retirement of the accused---Accused was behind the bars since 4-12-2003 without any progress in the investigation---Special Prosecutor for National Accountability Bureau was not in a position to give time frame likely to be consumed in investigation, but was of the opinion that it could be concluded within three months---Incarceration of accused since 4-12-2003 and inordinate delay in proceedings had made out a case for exercising judicial discretion in favour of accused---Accused was granted bail.

Mian Shakeel Ahmad for Petitioner.

Ch. Abdul Sattar, Special Prosecutor for the NAB.

2008 Y L R 854

[Lahore]

Before Mian Hamid Farooq, J

NOOR AKBAR through Attorney---Petitioner

Versus

ALLAH YAR and 7 others---Respondents

Civil Revision No.410-D of 1995, heard on 3rd June, 2003.

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

---S.42---Limitation Act (IX of 1908), Art.120---Muslim Family Laws Ordinance (VIII of 1961), S.4---Suit for declaration---Mutation excluding plaintiff from inheritance was attested on 23-2-1974---Plaintiff filed suit on 1-10-1986 claiming to be in possession of suit land as co-.sharer since opening of succession---Trial Court decreed the suit, but Appellate Court dismissed same being time-barred---Validity---Status of plaintiff as co-sharer stood vanished in year 1979, when as a result of consolidation proceedings defendants (purchasers) had got separate "Wanda" of their share as owners---Plaintiff could have filed suit for declaration uptill year 1985---Appellate Court had rectified judgment of Trial Court, which was suffering from grave legal errors---High Court dismissed revision petition.

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

----S.115---Judgment of Courts below at variance---Preference---Appellate Court's judgment would ordinarily be preferred, when same was neither contrary to evidence on record nor in violation of principles of administration of justice.

Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202; Ilamuddin through legal heirs v. Syed Sarfraz Hussain through legal heirs and 5 others 1999 CLC 312 and Aasa v. Ibrahim 2000 CLC 500 ref.

Shamim Abbas Bokhari for Petitioner.

Mohy ud Din Qazi for Respondents.

Date of hearing, 3rd June, 2003.

2008 Y L R 857

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

IFTIKHAR AHMAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.393 and Murder Reference No.195 of 2002, heard on 1st February, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Occurrence took place in the dark of the night and only source of light, according to prosecution witnesses, was a torch which was being held by prosecution witness/brother of deceased, which was switched on only after hearing Lalkara of accused, otherwise both prosecution witnesses were on their way without switching on the torch---Real father and real brother would not leave deceased while he was critically wounded and run towards their house instead of taking any step to save the life of deceased---Prosecution witnesses did not report the matter to the police for more than eight hours---Said inordinate delay in lodging F.I.R. which remained unexplained, had made it manifest that prosecution witnesses were not present at the time of occurrence---No distinguishing features of any of accused having been described in the F.I.R., it was virtually impossible to identify accused---Prosecution had failed to prove that Karate knife which was allegedly found lying on the spot belonged to accused---Prosecution witness had admitted that no name or any other particular identification mark was available on said knife and that said knife was of common pattern and available in the market---Knife was not blood stained and no finger prints were obtained to match the same with the finger prints of accused---Alleged extra judicial confession having been made jointly by accused, was inadmissible---No compelling evidence was available against accused to make the confession after 8/9 months of the occurrence---Medical evidence had only narrated the cause of death and did not . lead to the assailant---Blood stained churri was shown to have been recovered at the instance of accused after about a month of occurrence---No independent evidence was produced to prove recovery of churri---Said recovery was of no consequence as the Churri was not blood stained---Case was woven against accused merely on the suspicion after recovery of Karate knife from the spot---Suspicion, however strong, could not take the shape of proof---Prosecution case was replete with doubts---Allowing appeal, judgment passed by the Trial Court against accused, was set aside---Accused were acquitted of all the charges and were released.

Malik Saeed Hassan for Appellants.

Ch. Muhammad Hussain Chhachhar, Addl. Prosecutor General for the State.

Date of hearing: 1st February, 2007.

2008 Y L R 864

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD IQBAL alias BALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2009-B of 2007, decided on 12th April, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Bail, grant of---One year and ten months had already passed, but not a single witness had been examined---Main injured prosecution witness had been awarded death sentence---Delay in conclusion of the trial had occurred due to fault of both the parties---Speedy trial was a right of accused who could not be kept in jail for an indefinite period---Accused was admitted to bail, in circumstances.

Rai Muhammad Tufail Khan Kharal for the Petitioner.

Mian Tariq Shafique Bhandhara for the Complainant.

Naseeruddin Khan Nayyar, Addl. Prosecutor General with Muhammad Asghar, A.S-I. for the State.

2008 Y L R 865

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMAMD SALEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3506-B of 2007, decided on 28th May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-F(i), 337-F(ii), 337-L(ii) & 279---Pre-arrest bail,, grant of---Further inquiry---F.I.R. in the case was got registered with an inordinate delay of four days, which, by itself, had made the case .of accused as that of further inquiry---Accused had not used any conventional weapon to cause injuries to injured prosecution witness---Injured prosecution witness fell down from the cart after being hit by the cart driven by accused---Accused while driving his cart had tried to overtake the cart of the complainant at a narrow path---Facts narrated in the F.I.R. as well as the result of the investigation, had shown that possibility could not be ruled out that it was a case of accident---Considering the background of ill-will between the parties, question of registration of false case due to the mala fides of the complainant party, could not be ruled out straightaway---Case of further inquiry, had been made out in favour of accused, in circumstances---Law of pre-arrest bail was not a static law and while deciding pre-arrest bail application, merits of the case could not be ignored---Ad interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

Meeran Bux v. The State and another PLD 1989 SC 347, Muhammad Ismail v. Ghous Bux and another 1990 PCr.LJ 2013 and Aftaz Gul v. The State PCr.LJ 1599 rel.

Dr. Muhammad Akmal Saleemi for the Petitioner.

Ch. Amjad Hussain, Deputy Attorney General with Iftikhar Ahmad Kharl, A.S-I. with record for the State.

Tanvir Ahmad for the Complainant.

2008 Y L R 867

[Lahore]

Before Mian Hamid Farooq, J

Messrs AMAN ENTERPRISES through Partner---Petitioner

Versus

PUNJAB SMALL INDUSTRIES CORPORATION, LAHORE through General Manager

and 2 others---Respondents

Civil Revision No.1561-D of 1990, heard on 28th May, 2003.

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

----Ss. 42 & 54---Transfer of Property Act (VI of 1882), S. 111(g)---Suit for declaration and injunction---Termination of lease for 99 years---Plaintiff (lessee) alleged such termination to be without notice---Plea of defendant (lessor) was that termination was after notice to plaintiff on account of his failure to raise construction on plot within stipulated period---Suit dismissed by Trial Court was upheld by Appellate Court---Validity---Lease-deed provided that defendant was entitled to re-enter upon suit plot after notice to plaintiff, if default committed by plaintiff in performance of its any covenant continued for thirty days---Plaintiff had failed to fulfil condition regarding construction of building for 4% years---Defendant had cancelled lease after serving notice upon plaintiff---Courts below had properly appreciated evidence on record and reached at proper conclusion---Such findings were in consonance with law on the subject, thus, not open to exception---Plaintiff had given undertaking to defendant that he would relinquish suit plot, in case he was able to get other two plots under litigation---Such litigation had culminated in plaintiff's favour, thus, he was bound by his undertaking about relinquishment of suit plot---Plaintiff had got no case on such score---High Court dismissed revision petition.

Messrs Aman Enterprises, Sialkot v. Messrs Rahim Industries Pakistan Ltd., Sialkot and another PLD 1993 SC 292 rel.

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

----S. 115---Revision---Findings on questions of fact or law recorded by Court of competent jurisdiction---Validity---Such findings could not be interfered with in revisional jurisdiction, unless same were suffering from jurisdictional defect, illegality or material irregularities.

Muhammad Rafique v. Aamar Shahzad and others 1999 YLR 610 rel.

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

---S. 115---Concurrent findings of fact based on evidence on record---Not liable to be interfered in exercise of jurisdiction under S.115, C.P. C.

Abdul Rahim and another v. Mst. Janatey Bibi and others 2000 SCMR 346; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329, Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid v. Muhammad Siddique PLD 2002 SC 293 rel.

Jari Ullah Khan for Petitioner.

Ch. Muzammal Khan for Respondents.

Date of hearing: 28th May, 2003.

2008 Y L R 872

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ASHIQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.123 of and Murder Reference No.339 of 2002, heard on 21st February, 2007.

Penal Code (XLV of 1860)---

---Ss. 302(b), 324 & 337-F(i), (ii), (iii)---Appreciation of evidence---Overwhelming evidence had proved that parties were inimical towards each other over possession of a piece of land---Hostility between the parties was apparent from the fact that fifteen persons armed with deadly weapons were shown to be present at the place of occurrence---Complainant made dishonest improvement in his statement, during the trial, which was totally opposed to the narration in the F.I.R.---Belated statements of both prosecution witnesses made under S.161, Cr.P.C., cast heavy shadow on their veracity and there would be strong presumption that their statements were recorded after due deliberations---Statement of complainant was not recorded at the police station, but was recorded at other place---Complainant had admitted that accused was never arrested by the police till his statement was recorded in the court---No evidence was available on record that accused remained absconder---Factum of non-arrest of accused by any of the Investigating Officers of different ranks, could not be overlooked---Medical evidence had supported prosecution case to the extent that deceased and the prosecution witnesses had received fire-arm injuries, but no further---Recovery of weapons was of no consequence and could not be used against any of accused as empties recovered from the spot were neither sealed into parcel nor counted nor sent to the Forensic Science Laboratory---Defence plea found support from the statement of prosecution witness---Statements of prosecution witnesses who were highly inimical towards accused, were neither confidence inspiring nor were corroborated by any independent reliable evidence---Prosecution case was not free from doubt---Impugned judgment passed by the Trial Court was set aside, accused were acquitted of all the charges and were ordered to be released.

Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570 and Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 ref.

Khawaja Sultan Ahmad for Appellant.

Ch. Muhammad Hussain Chhachhar, Addl. Prosecutor General for the State.

Q.M. Saleem for the Complainant:

Date of hearing: 21st February, 2007.

2008 Y L R 879

[Lahore]

Before Syed Shabbar Raza Rizvi, J

IMDAD ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2205/B of 2006, decided on 8th May, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 201 & 109---Bail, grant of---Further inquiry---High Court granted bail to co-accused on the ground that Investigating Officer had found her innocent and that she was a woman---Accused was also declared innocent by Investigating Officer vide his gaily diary-D.S.P./Acting S.P. also had declared accused innocent---Sufficient material and grounds being available in the case for further inquiry, accused was admitted to bail.

Dr. Muhammad Aslam v. the State 1993 SCMR 2288 ref.

Haji Khalid Rehman for the Petitioner.

Mrs. Sumaira Afzal for the State.

2008 Y L R 881

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD DIN, through Legal Representatives---Appellant

Versus

Mst. FATIMA BIBI and another---Respondents

Regular Second Appeal No.17 of 1994, heard on 14th May, 2003.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 117, 118, 119 & 129(8)---Suit for specific performance of agreement to sell---Denial of execution of agreement by defendant---Burden of proof---Plaintiff was under obligation to prove through best available evidence that defendant did execute each such agreement otherwise, he would not be entitled to decree prayed for.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 117, 118, 119 & 129(g)---Suit for specific performance of agreement to sell---Denial of execution of agreement by defendant (Pardhanashin lady)---Trial Court decreed the suit, but Appellate Court dismissed the same---Validity---Plaintiff ' claiming to be beneficiary of agreement was under legal obligation to prove that same had been executed by "Pardhanashin" lady; she had complete knowledge of its contents; she had independent and disinterested advice in matter before entering into transaction and executing agreement---Evidence on record did not satisfy such requirements---Plaintiff himself had not entered the witness-box but had examined his son who stated in cross-examination that all circumstances had been told and explained to him by his father---Payment of earnest money had not been proved by statement of plaintiff's son as he did not state that how much amount, for what purpose and at which place had been paid to defendant---Plaintiff had failed to prove execution of agreement---Findings of Trial Court were suffering' from grave legal errors but those of Appellate Court were based on evidence on record and are in consonance with law on the subject---High Court dismissed second appeal.

Zar Wali Shah v. Yousuf Ali Shah and others 1992 SCMR 1718; Ghulam Muhammad and another v. Muhammad Aslam and others PLD 1993 SC 336; Anjuman-e-Islamia, Sialkot through Khawaja Muhammad Ahmad, President, Anjuman-e-Islamia, Sialkot v. Haji Muhammad Younas and 3 others PLD 1997 Lah. 153; Muhammad Anwar v. Haji Muhammad Ismail and others 1992 MLD 860 and Boota and others v. Ghulam Haider and others 1999 YLR 1638 ref.

Amirzada Khan and another v. Itbar Khan and others 2001 SCMR 609 fol.

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

---S. 100----Judgments of Courts below at variance---Preference---Judgment of Appellate. Court would ordinarily be preferred, when same was neither contrary to evidence nor in violation of principles of administration of justice.

Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202 and Ilamuddin through legal heirs v. Syed Sarfraz Hussain through legal heirs and 5 others 1999 CLC 312 rel.

Syed Muhammad Kalim Ahmed Khurshid for Appellant.

Muhammad Yaqoob Chatha for Respondents.

Date of hearing: 14th May, 2003.

2008 Y L R 886

[Lahore]

Before Abdul Shakoor Paracha, J

NASIR ALI---Petitioner

Versus

TANVEER IQBAL and others---Respondents

Criminal Miscellaneous No.4267/B of 2006, decided on 16th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.324, 148 & 149---Bail, cancellation of---Unless a finding of the court was to the effect that no reasonable grounds were for believing that accused had committed a non-bailable offence, bail could not be granted by recording a finding of 'further inquiry"---No reasons, whatsoever, having been given for granting bail to accused, in the case, order granting bail to accused was without jurisdiction---Case of accused did not fall under subsection (2) of S.497, Cr.P.C.---Accused was not entitled to the grant of bail---Accused was nominated in the F.I.R. with specific role of firing on injured, which hit him near the ear which went through and through and same was corroborated by medico-legal-report---If the purpose of grant of bail to accused was to save him from loss of one academic year and facilitate him to appear in L.L.B. Examination, then the Trial Court should have released accused only for the purpose of appearing 'in the examination and thereafter he should have been confined to the judicial lock-up---Order granting bail to accused was recalled, in circumstances.

Mst. Resham Jan v. Abdur Rehman 1991 SCMR 1849 ref.

Rai Zameer-ul-Hassan for the Petitioner.

M. Asif Bhatti for Respondents.

Ms. Naseem Noor, State counsel along with Warsi, S.-I.

2008 Y L R 888

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD AKRAM and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9485/B of 2006, decided on 5th December, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 302, 337-A(i), 337-F(i), 337-F(v), 337-L(ii) & 452---Bail, grant of---Further inquiry---Both accused had not caused any injury to deceased---Circumstances in which deceased was done to death by one of co-accused by squeezing his testicles, required further probe regarding the question of sharing of common object by accused in the matter of killing of the deceased---Injuries allegedly caused by accused to the complainant and prosecution witness, attracted the offences under Ss.337-A(i) and 337-L(ii), which offences were bailable---Three accused had also received injuries on their persons during the same incident and they were medically examined on the very day of occurrence, but said injuries were completely suppressed in the F.I.R.---Nothing had been recovered from the possession of co-accused during the investigation---Accused according to F.I.R., was armed with the hatchet during alleged occurrence, but during investigation only a Danda had been recovered from his possession---Six accused persons nominated in the F.I.R., had already been opined by the investigating agency to be innocent, which prima facie had reflected adversely upon the veracity of the allegations, contained therein---After completion of the investigation, challan had already been submitted in the court---Physical custody of accused, in circumstances was not required for the purpose of investigation---Concession of bail, ought not to be withheld by way of premature punishment---Case against accused calling for further inquiry into their guilt within the preview of subsection (2) of S.497, Cr. P. C. accused were admitted to bail, in circumstances.

Imtiaz Shahid for the Petitioner.

Ishfaq Ahmad Chaudhry for the State with Safdar Ali, A.S-I. with record.

2008 Y L R 890

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD NAZIR---Appellant

Versus

QADEER BABAR---Respondent

Regular First Appeal No.101 of 2003, heard on 25th June, 2003.

Civil Procedure Code (V of 1908)---

----S. 148 & O. XXXVII, R. 3---Conditional leave to defend---Furnishing of surety bond---Extension of time---Trial Court granted leave to defend with a condition to furnish surety bond till next date of hearing---Defendant, on the next date, filed application under S.148 C. P. C. for extension of time---Trial Court dismissed the application on the ground that it could not extend time and the suit was decreed---Validity---At the time when application was submitted by the defendant, the Trial Court had not passed a decree nor it had become functus officio---Trial Court could have extended the time under S.148, C.P. C. for furnishing the surety bond---Judgment and decree passed by the Trial Court was set aside and the case was remanded for decision afresh---Appeal was allowed accordingly.

Sheikh Abdul Aziz for Appellant.

Ch. Muhammad Zafar Iqbal for Respondent.

Date of hearing: 26th June, 2003.

2008 Y L R 891

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

NAZIR AHMAD alias ZAHEER and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.539 and Murder Reference No.271 of 2002, heard on 31st January, 2007.

Penal Code (XLV of 1860)---

----S.302(b)/34---Appreciation of evidence--Sentence, reduction in---Both the witnesses were not only related to deceased, but were also chance witnesses and both were not shy of telling lies---Matter was not reported at the police station, but complainant, per chance, met police officer at same place and got his statement recorded---F.I.Rs. which were not recorded at the police station, were surrounded by inherent doubt that those were recorded at the spot after due deliberations---Time of death had not been mentioned in Column No.3 of the inquest report and in the relevant Column of the post-mortem report---Post­mortem examination was conducted on the next day of occurrence---All said facts had led to conclusion that prosecution witnesses were tot present at the time of occurrence--Motive only denoted that some grievance existed between the parties over the registration of a case and that could very well be the reason for implicating accused---Medical evidence had supported prosecution case only to the extent that deceased lost his life due to fire-arm injury caused on his right thigh- and nothing more---Accused in his defence plea had not come out with the whole truth; it appeared that some altercation took place between deceased and accused and during scuffle accused pulled the trigger which caused fatal injury to deceased---Conviction of accused was altered to offence under S.302(c), P.P.C. and reduced his sentence to fourteen years' R.I. and benefit of S.382-B, Cr. P. C. was also extended to him---Sentence of fine imposed by the Trial Court on accused being illegal, was set aside---Appeal to the extent of co-accused who were empty handed at the time of occurrence, was allowed and judgment passed by the Trial Court to their extent was set aside and they were acquitted of all the charges.

Muhammad Inayat Ullah Cheema for Appellants.

Ch. Muhammad Hussain Chhachhar, Addl. Prosecutor General for the State.

Sardar Khurran Latif Khan Khosa for the Complainant.

Date of hearing: 31st January, 2007.

2008 Y L R 898

[Lahore]

Before Tariq Shamim, J

SHOAIB AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6358-B of 2006, heard on 22nd August 2006.

Criminal Procedure Code (V of 1898)---

---S.498---Penal Code (XLV of 1860), S.409---Pre-arrest bail, refusal of---Accused was nominated in the F.I.R. and specific role had been attributed to him---Delay in lodging the F.I.R. had amply been explained therein---Procedure prescribed under Post Office Act, 1898 was complied with and Postmaster General had himself ordered registration of the F.I.R.---No mala fides had been shown by accused against he complainant or the police official for his false 'implication in the case, while mala fides on the part of complainant or the police was a pre-requisite for the grant of extraordinary concession of pre-arrest bail, which was lacking in the case---Accused, after dismissal of his bail application by the Special Court, did not surrender himself before the police and escaped from the court in order to approach High Court and on that ground alone accused was not entitled to the grant of extraordinary concession of pre-arrest bail-Provisions of S.409, P.P.C:, which entails a sentence of 10 years imprisonment were prima facie attracted to the case of accused---Offence in circumstances fell within the prohibitory clause of S.497, Cr.P.C.---Recovery of the mobile telephone was yet to be effected from accused who had not joined the investigation at any stage-Grant of pre-arrest bail, in such situation, would amount to putting the clog on the investigation process---Affidavit referred to by the counsel for accused sworn by the complainant was inconsequential as the offence under S.409, P.P.C. was not compoundable offence---Ample evidence being available on record to connect accused with commission of offence, petition for grant of bail was dismissed and ad interim pre-arrest bail granted to petitioner was recalled.

Muhammad Arshad and another v. The State 2005 MLD 1836; Syed Sabir Hussain Shah and another v. Syed Iftikhar Hussain Shah and another 1995 MLD 563; Mazhar Iqbal and others v. The State 2004 PCr.LJ 923; Allah Bakhsh v. The State 2004 PCr.LJ 285; Abdul Shafiq v. The State 1988 PCr.LJ 852; Muhammad Yasin v. S.S.P. and others 2004 SCMR 868; M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101; Muhammad Ali v. The State 2005 YLR 1239; Rana Shahid Farooq and others v. The State 2004 PCr.LJ 1007; Wasif and others v. The State 2004 MLD 1533 and Malik Muhammad Nawaz Khan and others v. The State 1997 PCr.LJ 390 rel.

Mian Shahid Iqbal for Petitioner.

Ch. Naeem Masood, Asstt. A.-G. for the State with Rizwan, S.-I.

2008 Y L R 900

[Lahore]

Before Mian Saqib Nisar, J

PAK TEA HOUSE through Proprietor--- Petitioner

Versus

ABID HUSSAIN SHEIKH and 3 others---Respondents

Civil Revision No.1018 of 2000, heard on 9th December, 2003.

Judicial Officers Protection Act (XVIII of 1850)---

----S.1---Civil Procedure Code (V of 1908) O. VII, Rr.10 & 11---Suit for damages against Judicial Officer for his mala fide act---Maintainability Judicial Officer after passing order for return of plaint in a previous suit, kept its file with him for two months, which order was ultimately set aside and suit was decreed--Plaintiff's plea in a subsequent suit for damages was that Judicial Officer (defendant) had retained file of his previous suit with mala fide intention in order to cause him prejudice---Trial Court rejected plaint to the extent of Judicial Officer, which order was upheld by .the Appellate Court---Contention of plaintiff was that plaint could not be rejected without allowing him to lead evidence to prove allegation of mala fide being a question of fact---Validity---Allegation of mala fide had been made against Judicial Officer---No protection was available under law, for such action---High Court accepted revision petition and set aside impugned order with direction to Trial Court to decide case after inviting written statements from defendants, framing issues and conducting trial.

PLD 1960 Lah. 1039 and PLD 1962 Lah. 411 fol.

Dr. Hameed Ahmed Ayaz for Petitioner.

Mirza Hafeez ur Rehman and Muhammad Mujahid Ahmed for Respondents.

Date of hearing: 9th December, 2003.

2008 Y L R 904

[Lahore]

Before Mian Hamid Farooq, J

MUSHTAQUE AHMAD and others---Petitioners

Versus

ABDUL HAQUE through Rehmat Bibi Widow and others---Respondents

Civil Revision No.1070 of 1990, heard on 8th April 2003.

Specific Relief Act (I of 1877)---

----S.42---Limitation Act (IX of 1908), S.20(2)---Civil Procedure Code (V of 1908), O. XIV, Rr.1 & 3---Raising of new plea before appellate Court---Non-framing of issue---Effect---Plaintiffs claimed to have become absolute owners of the land in dispute by prescription---Trial Court decreed the suit in favour of the plaintiffs Defendants, during appeal before Appellate Court, for the first time, raised the plea of S.20(2) of Limitation Act, 1908---Appellate Court accepted the appeal and suit was dismissed---Validity---Party was precluded from raising altogether a new plea before appellate Court which had not been agitated before the Court of plenary jurisdiction---No issue on the alleged controversy was framed by the Trial Court and the defendants did not file any application for amendment of the issues---When no such plea was raised in the written statement by the defendants, no issue could have been framed---Appellate Court without adverting to the crucial aspect of the case, proceeded to decide the appeal only on the basis of his findings on S.20(2) of Limitation Act, 1908---Appellate Court should not have allowed the defendants to raise the plea for the first time when even no application was preferred before the Appellate Court---Judgment and decree passed by the Appellate Court was set aside and that of the Trial Court was restored.

Malik Abdul Wahid for Petitioners.

Muhammad Zafar Chaudhry for Respondents.

Date of hearing: 8th April 2003.

2008 Y L R 906

[Lahore]

Before Tariq Shamim, J

MUHAMMAD SAFDAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1714-B of 2006, decided on 5th July, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/34/109---Bail, grant of---Further inquiry---Case was of blind murder of two deceased---Accused was neither 'named in F.I.R. nor any role had been assigned to him---Only evidence against accused was of extra judicial confession allegedly made by him after a lapse of about nine months from the date of occurrence---Same being weak evidence, not much reliance could be placed on the same---Accused was nominated only on the basis of a supplementary statement made by the father of deceased subsequently---No direct evidence was available of accused having taken part in the murder of the deceased---Sota allegedly recovered from the possession of accused was of no consequence as no blunt weapon injuries were found on the dead bodies of the deceased---No motive had been ascribed by the complainant in the supplementary statement against accused for alleged murder of deceased---Accused had been declared innocent by Investigating Officer as well as the S.H.O. who verified the investigation---Name of accused did not figure in the challan submitted before the Trial Court---Co-accused having been granted bail, accused was also entitled to the same concession in view of the law of consistency---Accused was admitted to bail.

Pir Masood-ul-Hassan Chishti for Petitioner.

Ms. Munazza Hashmi for the State with Asghar, A.S.-I.

2008 Y L R 910

[Lahore]

Before Hasnat Ahmad Khan, J

SHAUKAT and another---Petitioners

Versus

THE STATE- Respondent

Criminal Miscellaneous No.1555-B of 2007, decided on 2nd October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.380, 392 & 457---Bail, grant of---Further inquiry---F.I.R. in the case was lodged with an inordinate delay of 13/14 days-Complainant had alleged in the F.I.R. that on the night of occurrence four persons including accused had committed theft of Rs.55,000 and that complainant had seen the accused persons nominated in the F.I.R. while running away from the place of occurrence---Complainant, after ten days of lodging the F.I.R., made a supplementary statement, wherein it was alleged that some unknown, accused had committed offence of robbery after barging into the house of the complainant---Apparent inconsistency having been found between the F.I.R. and the supplementary statement, the case of accused had become as that of further inquiry---Case of further inquiry into the guilt of accused having been made out, they were admitted to bail, in circumstances.

Jabbar Hussain for Petitioners.

Ch. Muhammad Akram for the Complainant.

Nadir Manzoor Duggal, Deputy Prosecutor General with Abid, S-I, for the State.

2008 Y L R 911

[Lahore]

Before Mian Hamid Farooq, J

GHULAM SHABBIR---Petitioner

Versus

GHULAM SARFRAZ and 2 others---Respondents

C.R. No.489 of 2003, decided on 4th June, 2003.

Civil Procedure Code (V of 1908)---

-----O. XLI, R.27---Additional evidence---Decision of application for additional evidence along with the main appeal---Validity---Where application for production of additional evidence was filed before - appellate Court, such application had to be adjudicated upon and decided before the disposal of the main appeal---High Court in exercise of revisional jurisdiction, set aside the judgment and decree passed by the Appellate Court and case was remanded to Appellate Court to decide the appeal afresh.

Muhammad Umar v. Muhammad Qasim and another 1991 SCMR 1232 fol.

Hassan Ahmed Khan Kanwar for Petitioner.

Mian Hamid-ud-Din Kasuri for Respondents.

2008 Y L R 915

[Lahore]

Before Jawwad S. Khawaja, J

Mahr IFTIKHAR AHMAD and 3 others---Appellants

Versus

JAMSHED ALI KHAN and 3 others---Respondents

FAO No.62 of 2003, heard on 17 June, 2003.

Specific Relief Act (I of 1877)---

----S.12---Colonization of Government Lands (Punjab) Act (V of 1912), S.10---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Use of land for the purpose other than for which it was granted---Land, the subject matter of the suit was colony land granted for agriculture purposes---Plaintiff entered into agreement to sell with defendant regarding the suit land---Whole consideration amount was paid by the plaintiff and possession was delivered by the defendant---Plaintiff started developing the land for residential purposes---Construction of the plaintiff was interfered by the defendant on the ground that the plaintiff could not use the land for residential purposes---Trial Court declined to grant interim injunction in favour of the plaintiff---Validity---Plaintiff had undertaken that he would alone be responsible for the consequences and for payment of any royalties, penalties and other dues chargeable by Colony department/Board of Revenue or any other agency in respect of development of disputed land and its conversion to residential uses---Order passed by the Trial Court was set aside and application for interim injunction was allowed by High Court.

Hafiz Khalil Ahmed for Appellants.

Sh. Naveed Shaharyar for Respondent No.1.

Date of hearing: 17th June, 2003.

2008 Y L R 918

[Lahore]

Before Tariq Shamim, J

MUHAMMAD RAMZAN---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No.2577 of 2005, decided on 11th June, 2006.

Criminal Procedure Code (V of 1898)---

----Ss.516-A, 517 & 550---Constitution of Pakistan (1973), Art.199---Constitutional petition---Superdari of tractor---Application of petitioner for grant of Superdari of Tractor in question having concurrently been dismissed by the Magistrate and Appellate Court, petitioner had challenged said orders in constitutional petition---Scope---Both Courts below, while deciding the matter of grant of the Superdari of the tractor, had acted in accordance with law on the basis of documents produced by parties---Even otherwise matter pertained to disputed question of fact which could not be gone into by High Court in exercise of its constitutional jurisdiction---Concurrent findings of the courts below could not be interfered with in exercise of constitutional jurisdiction---Question as to the ownership of the tractor pertained to the determination of title of the parties which could only be resolved by a civil court after recording of evidence of the parties which exercise could not be undertaken by High Court in the present proceedings---Petitioner had failed to point out any illegality or legal infirmity in the impugned orders warranting interference of High Court in exercise of its constitutional jurisdiction.

Allah Ditta v. Mukhtar and another 1992 SCMR 1273; Mst. Naimat Bi through Fatima Bibi and another v. Mian Muhammad Hanif 2003 SCMR 1307; Mst. Arjmand Ara Begum v. Ayaz Umer and others 2004 SCMR 489; Mauzam Hanif v. Settlement Officer/ Collector and another 2006 SCMR 642 and Hameed Ahmad v. Gulab Khan 2006 SCMR 895 rel.

Malik Javed Akhtar Wains for Petitioner.

M.R. Khalid Malik, Addl. A-G. with Anwar Shakir, S.I.

2008 Y L R 921

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD TUFAIL---Appellant

Versus

GHULAM HUSSAIN and others---Respondents

Regular Second Appeal No.19 of 2000, heard on 6th June, 2003.

Specific Relief Act (I of 1877)---

-- S.12---Qanun-e-Shahadat (10 of 1984), Arts.72, 79 & 84---Specific performance of agreement to sell---Agreement, proof of---Failure to produce scribe and stamp vendor of agreement---Comparison of signatures---Plaintiff asserted that the defendant had entered into agreement to sell the suit property and had received partial consideration but the defendant refused to perform his part of contract---Plaintiff had examined marginal witnesses of the agreement to sell and the receipt who duly proved the documents---Record of the stamp vendor and the scribe was not available and thus the same was not produced in evidence---Judgment and decree passed by Trial Court in favour of plaintiff was maintained by the Appellate Court---Contention of the defendant was that neither scribe of the agreement nor record of stamp vendor was produced furthermore the defendant denied his signatures on the agreement---Validity-Due to non-production of scribe of agreement and record of stamp vendor, no adverse presumption could be drawn against the plaintiff---Defendant never applied to the Courts below for seeking the opinion of the handwriting expert about the signatures on the agreement to sell and the receipt---High Court itself compared the two signatures and had found not much discrepancy---High Court refrained from expressing any opinion on the comparison of signatures as it was the duty of defendant to have sought the opinion of expert in that regard---Concurrent findings of fact recorded by two Courts below not suffering from misreading and non-reading of evidence, appeal was dismissed.

Malik Muhammad Nadeem for Appellant.

Syed Azhar Ali Shah Bukhari for Respondents.

Date of hearing: 6th June, 2003.

2008 Y L R 923

[Lahore]

Before Muhammad Sayeed Akhtar, J

Mst. BINAT-E-ZUHRA---Petitioner

Versus

PARWARISH ALI and others---Respondents

Civil Revision No.998 of 1995, heard on 7th May, 2003.

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

----S.42---Mutation of sale, attestation of---Irregularity in procedure---Plaintiffs assailed the mutation of suit land on the ground of fraud---Trial Court dismissed the suit but Appellate Court allowed the appeal and the suit was decreed---Validity---Minor discrepancy about the place of payment of sale consideration did not invalidate the sale transaction---Plaintiffs had not been able to impeach the veracity of two witnesses produced by defendant---Findings of Appellate Court that a mutation of sale was to be attested in the common assembly in the estate in which the land was situated and mutation attested at Tehsil office, was void and was not sustainable---Judgment and decree passed by the Appellate Court was set aside and that of the Trial Court was restored.

Muhammad Ishaq and 2 others v. Ghafoor Khan and another 2000 SCMR 519 and Manzoor Hussain and 3 others v. Muhammad Siddique 2000 CLC 623 ref.

Muhammad Ishaq and others v. Ghafoor Khan and others 1999 YLR 1956 fol.

Sh. Naveed Shehryar for Petitioner.

Sh..Umar Draz for Respondents.

Date of hearing: 7th May, 2003.

2008 Y L R 927

[Lahore]

Before Jawwad S. Khawaja, J

Syed IFTIKHAR HUSSAIN BUKHARI and 2 others---Petitioners

Versus

Malik MUHAMMAD SHARIF and 3 others---Respondents

Civil Revision No.33 of 1994, heard on 11th June, 2003.

Civil Procedure Code (V of 1908)---

----O. VII, R.11(a)---Plaint, rejection of---Cause of action---Dispute was with regard to allotment of amenity plot by authorities to defendants for construction of petrol pump---Plaintiffs assailed the allotment on the ground that they had a vested right to use the amenity plot in the scheme---Both the Courts below concurrently rejected the plaint on the ground that the same had not disclosed any cause of action against the defendants-Validity-Plaint did show that the plaintiffs were owners of the property in the scheme and as owners the plaintiffs had a right to all the amenities provided for in the scheme as sanctioned, as such the same followed that if the contents of the plaint were proved by the plaintiffs through evidence, they would be able to establish their right to have the amenity plots maintained for the use provided for in the scheme---Such test had to be applied for the purpose of determining if the plaint disclosed a cause of action---Both the Courts below were not justified in holding that the plaint had not disclosed any right vested in the plaintiffs in respect of the suit land---Order passed by both the Courts below was set aside and the case was remanded to Trial Court for decision afresh.

Muhammad Sharif and others v. Muzaffar Iqbal and others 1983 CLC 3091 ref.

Tahir Mehmood Khokhar for Petitioners.

Ms. Nadeem Anwar and Mian Iftikhar Ahmed for Respondents.

Date of hearing: 11th June, 2003.

2008 Y L R 928

[Lahore]

Before Mian Hamid Farooq, J

HAYAT ULLAH KHAN---Appellant

Versus

UMAR HAYAT---Respondent

Regular First, Appeal No.756 of 2002, heard on 6th June, 2003.

Civil Procedure Code (V of 1908)---

----O.XXXVII, R.1---Recovery of money on the basis of pro note-Pro note executed under coercion and pressure of police---Trial Court had discussed each and every witness and after believing/disbelieving the. same came to the conclusion that the pro note and receipt were a result of coercion both by the police and the plaintiff and had dismissed the suit---Validity---Inferences drawn by the Trial Court were not only in accordance with record of the case but the same were also in consonance with the law on the subject---Judgment passed by the Trial Court was un-exceptionable and did not call for any interference by High Court.

Hafiz Khalil Ahmad for Appellant.

Muhammad Sharif Khokhar for Respondent.

Date of hearing: 6th June, 2003.

2008 Y L R 934

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

NASIR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2028-B of 2007, decided on 10th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 353, 148 & 149---Bail, grant of---Further inquiry--Encounter between accused party and the police allegedly continued for about 1-1/2 hours, but no empty had been recovered from the site and despite alleged heavy firing by accused party as well as the police no one received any injury---Case of accused, in circumstances had become that of further inquiry---Co-accused, who were attributed the similar role having been granted bail, following the rule of consistency accused was also entitled to grant of bail---Accused was admitted to bail, in circumstances.

2003 YLR 918; 2007 YLR 1573 and 1999 SCMR 1320 rel.

Ch. Muhammad Akram for Petitioner.

Bashir Ahmad Bhatti, D.P.G. for the State.

2008 Y L R 936

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAHID ASLAM and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4862-B of 2007, decided on 6th July, 2007.

Criminal Procedure Code (V of 1898)---

----Ss.497(2) & 498---Penal Code (XLV of 1860), S.302/34---Interim bail, confirmation of---Second bail petition---Earlier one was withdrawn by accused persons---Law Officer, while appearing before the court, submitted that both accused persons were found to be innocent and that they were not required by the police---Counsel for accused persons on said statement of Law Officer withdrew, earlier bail petition and thereafter, on the same day, complainant produced two witnesses before the Investigating Officer who stated that accused persons also gave kicks blow on the person of deceased, but that fact was not mentioned in the F.I.R.---Said witnesses were not eye-witnesses of the occurrence according to the F.I.R.---No useful purpose could be served by cancelling the bail of accused persons, because if the bail after arrest could be allowed to accused, then bail before arrest could also be granted to them--Complainant with mala fide intention had tried to implicate accused persons in the case by producing two witnesses---Interim bail already granted to accused persons was confirmed, in circumstances.

Ch. Muhammad Ashraf Kamboh for Petitioners.

Waseem Shahzad Chaudhry for the Complainant.

Naseer-ud-Din Khan Nayyar, A.P.G. and Nawaz S.-I. for the State.

2008 Y L R 944

[Lahore]

Before Hasnat Ahmad Khan, J

SHEHNAZ RASHID and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5292-B of 2007, decided on 8th August, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.337-A(ii), 337-F(i), 354, 148 & 149---Pre-arrest bail, confirmation of---Injury falling within the purview of offence under S.337-A(ii), P.P.C. which was a non-­bailable offence, had not been attributed to accused, whose case even otherwise required further inquiry---Accused being a lady was entitled to bail under second proviso to S.497, C.P.C.---Ad interim pre-arrest bail granted in favour of accused was confirmed, in circumstances.

Rana Farman Ali Sabir for Petitioners.

Muhammad Afzal Khan Dhudhi for the Complainant.

Rana Iqbal Hussain, D.P.G. with Muhammad Mukhtar, S-I. for the State.

2008 Y L R 945

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD BOOTA---Petitioner

Versus

THE STATE and others---Respondents

Writ Petition No.4503 of 2007, decided on 10th September, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(a) & 337-A(i)(ii)/34---Constitution of Pakistan (1973), Art.199--Constitutional petition---Default in payment of compensation---Due to some clerical error, period to be undergone by the petitioner in case he failed to pay the amount of compensation, did not find mention in the judgment of Appellate Court---While rectifying the said error, it was directed by the High Court, that in default of payment of compensation, petitioner would further undergo three months S.I. and that amount of compensation, was recoverable from the petitioner as arrears of land revenue.

Babar Murtaza Khan for Petitioner.

Sarfraz Ali Khan, A.A.-.G. for the State.

2008 Y L R 947

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

MUHAMMAD TARIQ JAVED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5230-B of 2007, decided on 8th August, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, refusal of---Cheque issued by accused could not be encashed as the account was closed one day before its encashment---Accused, thereafter, on the intervention of the respectables of the market, undertook to pay said amount and issued another cheque, which also was dishonoured and could not be encashed---When accused was seeking pre-arrest bail and no mala fide had been proved against complainant and the police, pre-arrest bail could not be granted to him---Mala fide on the part of accused and his brother, however was established---Grant of pre-arrest bail was an extraordinary concessional relief in which conduct of accused was to be taken into consideration---No case for grant of pre-arrest bail having been made out, accused did not deserve to be granted extraordinary relief of pre-arrest bail---Bail petition, was dismissed, in circumstances.

Unilever Pakistan Limited through Manager v. Muhammad Rafique and another 2005 YLR 686; Muhammad Javed v. The State 2007 YLR 309 and Jehan Khan v. The State PLD 2006 Lah. 302 rel.

Malik Amjad Pervaiz for the Complainant.

M. Azhar Javed Rana, D.P.G. for the State.

2008 Y L R 949

[Lahore]

Before Hasnat Ahmad Khan, J

GULZAR AHMED and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1963-B of 2007, decided on 11th October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Incident was a night time occurrence which was allegedly witnessed by the complainant and other eye-witnesses in the light of moon and a torch---Both deceased were murdered after having been found together---Possibility in the background of the motive of occurrence could not be ruled out that both deceased were murdered under sudden and grave provocation---Both accused were found innocent in all four successive investigations---Report for discharge of both accused was submitted by the police, but same was not acceded to by the Magistrate---Prima facie sufficient material was available in the shape of affidavit of witnesses who supported plea of alibi of the accused---Defence plea of co-accused was that he was very much available in his house where according to defence, deceased before occurrence had administered some intoxicating material due to which co-accused was enjoying deep and sound sleep---Said plea did not appear to be so sound as to make same basis for grant of bail, especially when place of occurrence was situated quite near to said house--- Case of accused, had thus been made out for further inquiry into his guilt---Start of trial would not cause any hindrance for granting bail to accused---Accused, in circumstances was granted bail---Bail application to the extent of co-accused however was dismissed and he was refused bail.

Muhammad Riaz v. The State 2002 SCMR 184 Ibrahim v. Hayat Gul and others 1985 SCMR 382; Muhammad Sadiq v. Sadiq and Others PLD 1985 SC 182; Ghulam Rasul v. The State and 4 others 1982 SCMR 440; Muhammad Shabbir v. The State 1997 PCr.LJ 1570; Nazar Hussain Shah and another v. The State 2007 PCr.LJ 1274; Muhammad Ismaeel v. Muhammad Rafiq and another PLD 1989 SC 585; Muhammad Umar v. The State and another PLD 2004 SC 477; Munir v. State 2002 MLD 712 and Muhammad Saleem v. The State PLD 1989 Lah. 233 rel.

Saghir Ahmad Bhatti and Sh. Muhammad Usman for Petitioners.

Sardar Muhammad Sarfraz Dogar, for the Complainant.

Nadir Manzoor Duggal, Deputy Prosecutor General with Mubashar Ali, S-I. for the State.

2008 Y L R 952

[Lahore]

Before Tassaduq Hussain Jillani and Muhammad Sayeed Akhtar, JJ

Dr. AZHER ATA MALIK---Appellant

Versus

CHAIRMAN, NAB and another---Respondents

Criminal Appeal No.1231 of 2003, heard on 10th June, 2004.

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

----Art.59---Opinion of Expert---Evidence of a handwriting expert---General rule---Evidence of handwriting expert is to be treated at par with any other witness---Opinion of handwriting expert is a piece of circumstantial evidence which seeks to corroborate the other evidence available on record.

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

----Ss.9/10---Appreciation of evidence---Accused had come to the Bank along with already filled forms, he asked the Manager to open twenty different accounts and for sanctioning the loan under the Yellow Cab Scheme for purchase of 40 vehicles, he had exerted pressure on Bank officials to expedite the approval of loan, he came to the Bank along with Car dealer and at his asking the drafts for the purchase of vehicles were given to the said dealer, he went to the insurance' company for the requisite insurance of the vehicles in question and he went to the office of the Excise and Taxation for their registration as well---Statement of Handwriting Export had to be read along with the said chains of the prosecution case---Accused during trial had never challenged the expertise of the Handwriting Expert---Evidence of the accomplice could not be out-rightly rejected and ,could be relied upon if corroborated by other evidence and material an record---Even otherwise, said accomplice having been discharged under Section 31-B of the National Accountability Ordinance, 1999, was a witness like any other witness and he had to be extended credence if his testimony was supported by other evidence on record and inspired confidence---Said witness had no enmity with the accused---Veracity of the documentary evidence had been endorsed by the Handwriting Expert---Independent circumstantial evidence inspired confidence---Accused did not appear as his own witness in defence to rebut the charges and the evidence led against him and the only defence witness examined by him was of no consequence---Conviction of accused was maintained in circumstances---Accused had defrauded the Bank through misrepresentation, forgery and had misappropriated a huge amount---Persons defrauded were different, period was different and the nature of transaction was different, sentences of accused, therefore, could not be directed to run concurrently and the same had rightly been made consecutive---Appeal was dismissed accordingly.

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

----Art.16--- Accomplice---Evidence of an accomplice cannot be outrightly rejected and can be relied upon if corroborated by evidence and material on record.

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

---S.397---Sentence of offender already sentenced for another offence---Principles--If a person is already undergoing a sentence and he is convicted and sentenced in a different case, then unless the Court directs otherwise the sentence so awarded has to commence on the expiration of the sentence which he was already under­going---Consecutive sentence is a general rule while concurrent sentence is an exception---Court may direct the sentences to run concurrently if the earlier case in which the person was undergoing sentence is intimately connected with the other or the transactions are similar in nature.

Sh. Ziaullah for Appellant.

Waqar Hassan Meer, D.P.-G. for NAB assisted by Ali Teepu Khan for NAB.

Date of hearing: 10th June, 2004.