YLR 2009 Judgments - Pakistan Legal Archive

Courts in this Volume

Board Of Revenue Punjab
Federal Land Commission
High Court Azad Kashmir
Islamabad
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan

Board Of Revenue Punjab

YLR 2009 BOARD OF REVENUE PUNJAB 666 #

2009 Y L R 666

[Board of Revenue]

Before Liaquat Ali Khan Niazi, Member (Judicial-II)

MUHAMMAD RAFIQUE and others---Petitioners

Versus

Jam ABDUL MALIK and others---Respondents

R.O.R. No.2407 of 2006, decided on 29th January, 2008.

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

----Ss. 42 & 164--Cancellation of mutation---Contention of petitioners was that they were owners of the impugned land by virtue of mutations to which respondent was not party; that rights accrued in favour of petitioners on the basis of said mutations which had been cancelled by the orders of District Officer (Revenue) after about ten years on the review application of respondent were still intact; that respondent had no locus standi to challenge impugned mutations, which had already been incorporated in the perennial record-of-rights and had attained the status of finality; that setting aside/modifying of the same was not within the competence of the Revenue functionaries; and that it could only be done by the civil court---Version of the petitioners being dependable and reliable, revision petition was accepted by the Board of Revenue and order passed by the Executive District Officer (Revenue) and of District Officer (Revenue) were set aside---Impugned mutations were restored in favour of the petitioners.

Muhammad Arshad Mughal for Petitioners.

Federal Land Commission

YLR 2009 FEDERAL LAND COMMISSION 652 #

2009 Y L R 652

[Federal Land Commission]

Before A. Waheed Bhatti, Member

WARYAM---Petitioner

Versus

THE STATE and another---Respondents

No.R.P.1(917)/FLC/2007, decided on 10th December, 2007.

Land Reforms Regulation, 1972 [M. L. R. 115]---

----Paras. 5, 12, 18, 25 & 29---Land Reforms Act (II of 1977), Ss. 7, 18 & 22---Resumption of land of declarant---Allotment to tenants---Giving tractor concession to declarant---Land of lady declarant was resumed by Deputy Land Commissioner in the year 1973 and same was allotted to petitioner tenant in the same year---After lapse of 34 years Deputy Land Commissioner started proceedings of the said case on the basis of order passed by Additional Chief Land Commissioner in which declarant from whom land was resumed had been given benefit of tractor concession---Validity---Additional Chief Land Commissioner did not possess the powers to decide the land reform cases at the time of passing the impugned order as notification empowering Additional Chief Land Commissioner was issued after about one year and eight months from passing the impugned order---Order passed by Additional Chief Land Commissioner, being without jurisdiction was of no legal effect---Proceedings initiated by Deputy Land Commissioner returning certain area to declarant from whom land was resumed, on account of tractor concession were also illegal, which should be set aside---Allotments of allottees/tenants were to remain intact.

PLD 1977 Lah. 442 ref.

Arshad Malik Awan and Muhammad Irshad Chaudhary for Petitioners.

Arfan Khan, Representative, Punjab Land Commission.

Asif Hussain, Representative, Deputy Land Commissioner, Jhang.

Munawar Hussain for Respondents.

High Court Azad Kashmir

YLR 2009 HIGH COURT AZAD KASHMIR 1004 #

2009 Y L R 1004

[High Court (AJ&K)]

Before Rafiullah Sultani, J

AZIZ AKBAR and 3 others---Applicants

Versus

THE STATE through Advocate-General of Azad Kashmir---Respondent

Criminal Miscellaneous No.43 of 2008, decided on 15th January, 2009.

Criminal Procedure Code (V of 1898)---

----S. 561-A---West Pakistan Arms Ordinance (XX of 1965), S.13(a) (b)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Penal Code (XLV of 1860), Ss.353/186 & 506/224---Quashing of F.I.R.---Alternate remedy available---Effect---Application for quashing of F.I.R. was filed by the applicants/accused before the High Court after the lapse of period of nearly fifteen months and writ petition earlier filed by accused persons for quashing of said F.I.Rs. was later on withdrawn by them---Except one F.I.R., in all other cases recoveries of weapons and narcotics had been made out from accused persons and it could not to said at that stage that said recoveries were fictitious---Evidence of the prosecution was going to be completed nearly in all the cases---Provisions of S.561-A, Cr.P.C., were not meant for purpose of thwarting the criminal proceedings pending before Trial Court---High Court could not assume the role of Investigator---Applicants/accused had alternate remedy under S.265-K, Cr.P.C. before the Trial Court---When alternate remedy was available,, then remedy' under S.561-A, Cr.P.C. was not attracted---Accused/applicants should have put their defence version regarding their innocence before the Trial Court instead of High Court---No cogent material was available from accused's side for the satisfaction of the Court that said F.I.Rs. had been registered with mala fide intention to harass accused and the continuance of the cases would be an abuse of process of law---Remedy under S.561-A, Cr.P.C. was not to be used to divert the ordinary course of Criminal Procedure Code---Accused persons could seek the remedy under 5.265-K, Cr.P.C. before the Trial Court---Application being devoid of force was dismissed---It was no valid legal ground that accused were acquitted in other cases by Shariat Court and on account of that proceedings pending before the Trial Court in cases were to be quashed---Every case depended upon its own facts.

PLD 1999 Kar. 121; 1998 PCr.LJ 95; 2002 SCMR 1076; 1991 PCr.LJ 1125; PLD 1997 Lah 135; 1999 PCr.LJ 99; PLD 1998 Lah. 214; PLD 1995 Kar. 73; PLD 1999 Lah. 50; NLR 1999 Criminal 98 and Bashir Ahmed v. Zafar-ul-Islam and others PLD 2004 SC 298 ref.

Kh. Tariq Saeed for Applicants.

Mumtaz Hussain Kiani, Addl. A.-G. for the State.

YLR 2009 HIGH COURT AZAD KASHMIR 2423 #

2009 Y L R 2423

[High Court Azad J&K]

Before Rafiullah Sultani, J

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad---Appellant

Versus

ARIF ASLAM KHAN and 4 others---Respondents

Civil Appeal No.32 of 2000, decided on 10th April, 2009.

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

----Ss.47, 96 & 104---Order passed in execution proceedings---Appeal---Maintainability---When an order was passed in execution proceedings by the Executing Court under S. 47, C.P.C., such order was appealable under S. 104, C.P.C. before District Judge---Appellant having not filed appeal under S.104, C.P.C., appeal before High Court was not maintainable.

PLD 1970 SC 63; AIR 1970 SC 997; PLD 1968 Lah. 433; PLD 2001 Lah. 135; 1983 CLC 1181; 1987 CLC 1994; 2002 MLD 1233; 1992 SCR 214; PLD 2000 SC 589 and 2007 SCR 381 ref.

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

----S.104 & O.XLIII, R.1---Appeal from order---Each decree was appealable, but each order was not appealable---Appeal could lie only against those orders which had been made appealable under S.104, C.P.C. read with O. XLHI, R. 1, C.P.C.

Khalid Shahbaz Chaudhry and 4 others v. Prime Commercial Bank Limited through Attorney and another 2003 YLR 2912 ref.

----O.XLI, R.25---Appellate jurisdiction---Exercise of---Scope---Order XLI, R.25, C.P.C. was attracted only in exercise of appellate jurisdiction and said prescribed law would not apply while exercising revisional jurisdiction.

The Punjab Association Club Lahore v. Major Ejaz Ahmed Khan and another PLD 1980 Lah. 675; Mst. Hanifan Bibi and 3 others v. Mst. Fatima and 4 others 2001 CLC 1344; Gogula Gurumurthy and others v. Kurimeti Ayyappa AIR 1974 SC 1702; Haji Muhammad Ashiq Bhutta v. Dr. Ajazul Haq Qureshi 1989 CLC 19 and Muhammad Yunus and 5 others v. Abdullah and 3 others PLD 1987 SC (AJK) 133 ref.

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

----S.151---Inherent powers of the court---Exercise of---Scope---Inherent powers of the court would apply only where there was no express provisions of law applicable to the case---In presence of a specific provision of law, a party could not seek relief under S.151, C.P.C.-Provisions of S.151, C. P. C. could not be exercised to defeat the provision of the Code, nor could be invoked to patch up the lacuna in case or to condone gross negligence.

Mst. Hanifa Begum v. Hassan Sheikh and 3 others PLD 1983 SC AJK 163-164; Dost Muhammad and another v. (Firm) Jai Ram Damodar AIR 1935 Pesh.151; Karamatullah Khan v. Government of West Pakistan PLD 1967 Lah. 171; Ghulam Farid and 4 others v. Sultan 1985 MLD 619; Muhammad Farid v. Mst. Shahnaz Begum and 5 others PLD 1987 AJK 44; Rao Muhammad Suleman v. Allied Bank of Pakistan Ltd. and 11 others 1987 CLC 1338; Jyotish Chandra Chakraborti v. Hem Chandra Roy and another PLD 1959 Dacca 337; Amjad Rashid Khan v. Mrs. Zubeda Rashid and another 1984 CLC 2851; Rao Muhammad Suleman Khan v. Allied Bank of Pakistan Ltd, Gole Cloth Branch, Faisalabad and 10 others 1987 CLC 1338 and Rana Shahshad Ali Khan v. Province of Punjab through Collector, Multan and 4 others 1993 SCMR 1473-1474 ref.

(e) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S.46---Jurisdiction of High Court---Scope and extent---High Court had the powers of superintendence and control on all the subordinate courts, but those powers were not conferred upon it for converting it into the court of appeal or court of revision.

(f) Administration of justice---

----If the basic order was illegal then all the steps taken further on the basis of that order were not sustainable in law.

Raja Muhammad Hanif Khan for Appellant.

Raja Muhammad Khurshid Khan and Muhammad Yaqoob Khan Mughal for Respondents.

YLR 2009 HIGH COURT AZAD KASHMIR 2454 #

2009 Y L R 2454

[High Court (AJ&K)]

Before Rafiullah Sultani, J

MUHAMMAD ZAREEF KHAN and another---Petitioners

Versus

MUHAMMAD MAROOF and 6 others---Respondents

Civil Revision No.12 of 2008, decided on 4th April, 2009.

(a) Co-sharer---

----Joint immovable property---Co-sharers' rights, extent of---Every co-sharer had interest in each and every inch of joint property, however no joint owner could change its character without first having the joint property partitioned; and could not be permitted to alter the character of property without consulting the other co-sharers.

1994 CLC 2406; 2000 CLC 1138; 1999 CLC 964; 2008 CLC 934; Ali Gohar Khan v. Sher Ayaz and others 1989 SCMR 130; Sardara and 4 others v. Muhammad Khan PLD 1998 SC 1509; Muhammad Yusuf Khan v. Board of Revenue and 12 others 2002 CLC 739; Maqsood Begum v. Mukhtar Ali and 5 others 1999 CLC 598; Muhammad Zubair v. Syed Zakir Hussain Shah and another 1996 CLC 275 and Khurshid Anwar Jalil and 6 others v. Muhammad Hafeez Mirza and 14 others 2003 CLC 1695 ref.

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

----O.XXXIX, Rr.1 & 2---Application for grant of injunction---Documents to be considered---Only those documents should be considered in case of injunction which were part of the record at time of filing of the application for injunction.

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & S.115---Suit for declaration and permanent injunction---Application for grant of interim injunction---Grant of status quo, dismissal thereof---Stay order was issued against defendants to maintain status quo, however after due course of law status quo order was dismissed---Feeling aggrieved, by said judgment, plaintiffs filed appeal before the Appellate Court, which was dismissed---Validity---Plaintiffs had got ingredients of injunction in their favour---Revision petition was accepted and impugned orders of the courts below were set aside; and status quo order issued by High Court against the defendants would remain continued till the disposal of original suit.

1994 CLC 2409 and 2000 CLC 1138 ref.

Sardar Ghulam Mustafa Khan for Petitioners.

Ch. Liaqat Ali for non-Petitioners.

YLR 2009 HIGH COURT AZAD KASHMIR 2466 #

2009 Y L R 228

[Islamabad]

Before Muhammad Munir Peracha, J

GREGORY & COOK S.A. through Hussain Abuzar Pirzada---Appellant

Versus

OIL AND GAS DEVELOPMENT COMPANY LTD.---Respondent

F.A.O. No.75 of 2007, decided on 10th July, 2008.

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

----O.IX, R.8, O.XVII, Rr.4, 5 & S.115---Dismissal of application for restoration of suit dismissed for non-prosecution--Expression "called on for hearing" occurring in O. IX, R.8, C.P.C.---Connotation---Wearing' consists of taking of evidence, hearing of arguments or consideration of question relating to suit, which would enable the Court to finally come to an adjudication upon it and not consideration of interlocutory matters--Where the Presiding Officer was not holding the Court, in the absence of any material, it could not be said that the Reader handed over the parties, slip of paper specifying the other date fixed for proceedings, the `date' on which the case was adjourned by the Reader thus could not be termed as "date of hearing"---Trial Court, in circumstances, was not competent to dismiss the suit for non prosecution on the said date---High Court, in exercise of its suo motu power under S.115, C.P.C., set aside the order passed by the Trial Court dismissing the suit for non-prosecution---Suit shall be disposed of on merits in accordance with law---Principles.

Nowsheri Khan v. Syed Ahmed Shah 1983 SCMR 1092 fol.

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

----O. IX, R.9---Limitation Act (IX of 1908), S.5---Application for restoration of suit dismissed for non prosecution barred by time---Explanation for delay in filing the application being not believable, application was rightly dismissed.

----S. 115(1)---Interpretation of S.115(1), C. P. C.---Revisional Jurisdiction of High Court---Scope.

Section 115(1), C.P.C. can be divided into two parts. The High Court may suo motu call for the record of any case, which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto and may make such order in the case as it thinks fit. The High Court may also exercise the revisional power on an application filed by a person. In case an application, invoking the revisional jurisdiction is filed, such application is to be filed within 90 days of the passing of the order. In appropriate cases, the High Court may exercise its suo motu power, even if the application filed by the person, invoking the revisional jurisdiction is barred by time, if a glaring mistake committed by a Court subordinate to the High Court comes to the knowledge of the High Court, though through an application of an aggrieved person filed beyond period of limitation, the High Court cannot and should not allow the mistake to remain on the ground that .the application filed is barred by time.

Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar PLD 1975 SC 678 fol.

Haseeb Shakoor Paracha for Appellant.

Ray Muhammad Nawaz Kharal for Respondent.

Date of hearing: 4th July, 2008.

YLR 2009 ISLAMABAD 297 #

2009 Y L R 297

[Islamabad]

Before Syed Qalb-i-Hassan and Raja Saeed Akram Khan, JJ

Moulana ABDUL AZIZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 116-B of 2008, decided on 26th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.427, 448, 452, 506, 147 & 149---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-D(iv)---Bail, refusal of---Complainant was Chowkidar of the Library, which the student had forcibly occupied---Complainant was quite an independent person and he was not a police personnel---Serious efforts were made for the restoration of possession peacefully---Accused was the person who was Incharge of Lal Masjid and Jamia Hafza and all the students of said Madrasa were under his control and they were ready to go to any extent in compliance of his order and as such he was in commanding position---Situation, which was created at the time of occurrence, had created a panic/insecurity in the people of area---Window pans were broken during that occurrence and loss was caused to the library, which was a public property---Whole area where said library was situated, was presenting a picture of 'No go area' and people of that area were feeling sense of insecurity, and they could not even purchase the things of daily use and all that had made the case, falling under the purview of S.6 of Anti-Terrorism Act, 1997---Contention of counsel for accused that S. 452, P.P.C. did not fall under the prohibitory clause of S.497, Cr. P. C. had no force---Each case should be decided on its own merits---Even bail could be refused in the case which did not fall within the prohibitory clause of S. 497, Cr. P. C. ---Principle of consistency was also not applicable in the case, as the cases in which bail had been granted, were different from the present case, on facts and merits---Deeper appreciation of evidence could not be made while hearing the bail application, but only tentative assessment of material collected by the prosecution against accused, could be made---Accused had been implicated in the case, on the basis of supplementary statement made by Chowkidar of the Library, who was a relevant person---No mala fide or ill-will had come on record, to falsely implicate accused in the case, question of false implication did not arise---Challan in the case had been submitted before the court of competent jurisdiction---Accused having failed to make out the case for bail, his bail application was dismissed.

Mst. Shahida Zareen v. Iqrar Ahmed Siddiqui 2008 SCMR 174; Aftab Hussain v. The State 2004 SCMR 1467; 1996 SCMR 364; 1996 SCMR 493 and 1996 PCr.LJ 1998 ref.

Bashir Ahmed and an other v. The State 2007 PCr.LJ 966 and Muhammad Rafiq and 4 others v. The State 2007 PCr.LJ 1488 rel.

Shaukat Aziz Siddiqui for Petitioner.

Muhammad Ilyas Siddiqui, Prosecutor General for the State.

Iftikhar Ahmed Bhatti, Federal Counsel for the State.

Abdur Rasheed, Inspector with record.

YLR 2009 ISLAMABAD 420 #

2009 Y L R 420

[Islamabad]

Before Dr. Sajid Qureshi, J

LAL KHAN and others---Petitioners

Versus

Malik SHAHZADA KHAN and others---Respondents

Civil Revision No. 328 of 2004, decided on 4th July, 2008.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and injunction---Record showed that Mutation which was an admitted document, was alleged to be forged as a result of fraud, however, the parties had not alleged any forgery to the execution of documents concerned---High Court declined to interfere in the judgment of Appellate Court which maintained the claimed possession of land of both the parties.

Rehman v. Yara 2004 SCMR 1502; Muhammad Siddique v. Muhammad Akram 2000 SCMR 533; Muhammad Daud Khan v. Muhammad Usman Ghanni 1985 CLC 2309; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Haji Abdul Jameel v. Anjuman Jameh Masjid Hagani,1996 MLD 818; Muhammad Din v. Province of West Pakistan PLJ 1973 Lah. 450; Mustafa and three others v. Muhammad Khan PLD 1478 SC (AJ&K) 75; Bibi Jan v. Mir Zaman 2003 CLC 909; Muhammad Muzaffar Khan v. Muhammad Yousuf Khan PLD 1959 SC 9 and Muhammad Afzal v. Muhammad Latif 1995 CLC 1951 SC AJ&K ref.

Ishfaq Ali Raja for the Petitioners.

Zulfiqar Ali Abbasi for the Respondents.

Date of hearing: 18th June, 2008.

YLR 2009 ISLAMABAD 556 #

2009 Y L R 556

[Islamabad]

Before Raja Saeed Akram Khan, J

IMRAN LATIF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 115-B of 2008, decided on 9th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Further inquiry---Business transaction between the parties---Complainant had also admitted before the High Court that he received amount however, he explained that same was part of an other transaction---Cheque in question was presented after about six months of its issuance and F.I.R. was got registered after about 10 months of its presentation-Complainant remained silent for such a long period and no explanation in that regard had come on the record, which had made the case as that of further inquiry- Challan though had been submitted in the court, but no progress was in the Trial---Accused was behind the bars for the last about one and a half year---Punishment under S. 489-F, P.P.C. was 3 years and substantial part of three years had been undergone by the accused---If a case was made out for grant of bail, the bail should not be refused or withdrawn as an instrument of punishment---Trial Court had to finally decide the guilt or innocence of accused and before that stage every accused was to be treated innocent and he could only be kept behind the bars when it was so required under the law---Accused was admitted to bail, in circumstances.

Muhammad Nadeem v. The State 2007 MLD 926; Farrukh Hameed v. The State and others 2007 PCr.LJ 100 and Muhammad Shoaib Anwar v. The State 2007 PCr.LJ 1824. ref.

Ch. Abdul Aziz for the Petitioner.

Mojtaba Haider for the Complainant.

Malik Ishtiaq Ahmed, Federal Counsel for the State.

Ibrar A.S.-I. with record.

YLR 2009 ISLAMABAD 565 #

2009 Y L R 565

[Islamabad]

Before Sardar Muhammad Aslam, C.J. and Raja Saeed Akram Khan, J

KAMRAN MASIH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 85-B of 2008, decided on 29th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of--Meagre quantity of narcotic i.e. 610 grams Charas was allegedly recovered from accused---Accused was behind the bars since 16-2-2008 and was no more required for the purpose of further investigation---Even challan had not yet been submitted in the court---Accused was admitted to bail, in circumstances.

Muhammad Tanveer Chaudhry for the Petitioner.

Kh. Asif Mahmood, Federal Counsel for the State.

Zaman, S.-I. with record.

YLR 2009 ISLAMABAD 577 #

2009 Y L R 577

[Islamabad]

Before Raja Saeed Akram Khan, J

ISHTIAQ HUSSAIN SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.336-B of 2008, decided on 13th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 337-L(i), 148 & 149---Bail, grant of---Further inquiry---One of the prosecution witnesses, while appearing before the court, had not supported the prosecution version and exonerated accused, which had made the case as that of further inquiry---Complainant had expired, whereas other star witness of the prosecution had not supported its version--Injuries on accused side were not denied, regarding which cross case was registered---Case was registered against the police officials on account of tampering with the record---Commencement of trial would not bar the grant of bail, if case would fall within the ambit of 'further inquiry'---Accused was behind the bars for more than one year and was still languishing in jail---Trial, though was in progress, but still 7/8 prosecution witnesses had yet to be examined which exercise would definitely take some time---No useful Purpose would be served by keeping accused behind the bars in such like case---Accused was admitted to bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Muhammad Mushtaq and another v. The State through Advocate General AJ&K and another 2007 PCr.LJ 1542 ref.

Muhammad Ilyas Siddiqui for the Petitioner.

Ch. Abdul Aziz for the Complainant.

Abdur Rehman, Federal Counsel for the State.

Ibrar, A.S.-I. with record.

YLR 2009 ISLAMABAD 598 #

2009 Y L R 598

[Islamabad]

Before Sardar Muhammad Aslam, C J and Raja Saeed Akram Khan, J

ISMAIL MICHAEL---Petitioner

Versus

THE STATE---Respondents

Criminal Miscellaneous No.367-B of 2008, decided on 6th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9(c), 14 & 15---Bail, refusal of---Narcotics was recovered from the shoes, which were purchased from a company---Owner along with manager of said company had identified accused on seeing his photograph, being the person, who purchased shoes from them---Deeper appreciation of evidence was not allowed at bail stage and any tentative assessment of material collected by the prosecution during investigation was to be made---Prima facie sufficient material was available on record to believe involvement of accused in the case, wherein offence was punishable with death or life imprisonment and fell within the ambit of prohibitory clause of S.497, Cr. P. C. ---Challan had already been submitted in the Trial Court, where trial was likely to commence soon---Bail was declined in circumstances.

Qari Abdul Rasheed for Petitioner.

Amjad Iqbal Qureshi, D.A.-G. for the State.

Muhammad Qadir, Inspector Customs, with record.

YLR 2009 ISLAMABAD 648 #

2009 Y L R 648(1)

[Islamabad]

Before Muhammad Munir Peracha, J

MUHAMMAD ASHIQ---Petitioner

Versus

MUHAMMAD SADIQ and another---Respondents

Writ Petition No. 868 of 2008, decided on 29th July, 2008.

Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Competency---Petitioner having an adequate remedy by filing an appeal under S.21 of Islamabad Rent Restriction Ordinance, 2001, constitutional petition filed by him was not competent.

M. Tanvir Chaudhry for Petitioner.

YLR 2009 ISLAMABAD 664 #

2009 Y L R 664

[Islamabad]

Before Raja Saeed Akram Khan, J

Mst. FAUZIA HAVEED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.380-B of 2008, decided on 17th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, & 324/34---Bail, grant of---Accused who was a female was behind the bars for the last more than one year and the trial of case had not been concluded---Out of 22 witnesses only one had been examined---If a woman accused was detained in jail for continuous period of six months and her trial had not been concluded, she would be released on bail, provided delay was not attributed to her---Such statutory period had expired much earlier in the present case and delay in trial was not attributed to accused---She had accrued right of bail---Mere abscondence of co-accused would also not bar the court from extending concession of bail, if otherwise same had become right of accused---Accused was admitted to bail, in circumstances.

Ghulam Sakina v. The State 2007 MLD 860 and Raja v. The State 2005 PCr.LJ 570 rel.

Sabah Mohy-ud-Din Khan for Petitioner.

Tariq Azam Chaudhry for the Complainant.

Abdur Rehman, Federal Counsel for the State.

Asjad Mahmood, S.-I. with record.

YLR 2009 ISLAMABAD 691 #

2009 Y L R 691

[Islamabad]

Before Raja Saeed Akram Khan, J

JAHANZAIB---Petitioner

Versus

Malik MEHBOOB and others---Respondents

Criminal Revision No.8 of 2008, heard on 17th June, 2008.

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

----Art. 150---Anti-Terrorism Act (XXVII of 1997), S. 7---Penal Code (XLV of 1860), Ss.302, 201, 109, 197, 167, 193 & 149---Evidence of a hostile witness---Credibility--Scope---Declaring witness as hostile---Cross-examination of hostile witness---Trial of case was under process before the Trial Court to which case was transferred---Trial Court acceded to the request of the counsel for the complainant and declared one of the prosecution witnesses as hostile, allowing counsel for the complainant to cross-examine said witness---Validity---Witness was supposed to make his statement for whom he was appearing and if he would speak in different voice, it would be for the court to decide in what voice he spoke the truth---Article 150 of the Qanun-e-Shahadat, 1984, gave discretionary power to permit the person, who called the witness to put any question to him, which might be put in cross-examination by adverse party---If a witness was inconsistent with his statement or would try to suppress the truth, the court had discretion to allow the party calling the said witness, to put questions to him as could be put in cross-examination, which was only source under the law to find out the truth---If a prosecution witness unexpectedly would make statement, which was not favourable to the prosecution, the court could not refuse to grant permission to the prosecution to cross-examine said witness---Was not necessary that after cross-examination, the witness would lose his credibility, but his evidence could be relied upon by either party and court could come to its own conclusion, after going through the whole evidence---Evidence of a hostile witness could not be discredited wholly and merely for the reason of his being declared hostile---Trial Court was fully justified to declare prosecution witness hostile while allowing counsel for the complainant to cross-examine him---In absence of any illegality or material irregularity in the impugned order, same could not be interfered with in revisional jurisdiction of High Court.

Inayat Ullah v. Riaz Ahmad 1998 CLC 1148; Kamran Illahi v. The State, 1985 PCr.LJ 623; The State v. Banaras and others PLD 1967 Peshawar 80; The State v. Khizer Hayat and others PLD 1991 Azad J&K 76; Dahyabhai Chhaganbhai Thakkar v. State of Gujrat AIR 1964 SC 1563; Mehboob Ali v. The State 1991 MLD 2455; Kaloo and 2 others v. The State 1973 PCr.LJ 334 and The State v. Abdul Ghaffar 1996 SCMR 678 ref.

Ch. Zahoor Hussain for Petitioner. Malik Rab Nawaz Noon for Respondents.

YLR 2009 ISLAMABAD 770 #

2009 Y L R 770

[Islamabad]

Before Dr. Sajid Qureshi, J

Mst. ASIA BANO---Petitioner.

Versus

JAVED AKHTAR---Respondent

Civil Revision No. 378 of 2004, heard on 20th May, 2008.

Civil Procedure Code (V of 1908)---

----O.IX, R.13 & S.115---Limitation Act (IX of 1908), Arts.164 & 181---Ex parte decree, setting aside of---Limitation---Ex parte decree was passed on 18-10-2001, and application to set aside the same was filed on 31-1-2002---Trial Court and Lower Appellate Court concurrently declined to set aside the decree on the ground that application under O.IX, R.13 C.P.C. was time barred---Validity---Law prescribed period of thirty days for setting aside of ex parte judgment and decree under Art.164 of Limitation Act, 1908, which was to begin from date of passing of decree or where summonses were not served from the date when applicant had knowledge of decree---Under Art.181 of Limitation Act, 1908, there was a period of limitation of three years however, the same was not attracted---Justice preferred that cases should be decided on merits rather than on mere technicalities--- Defendant was given every opportunity to record her evidence which she failed to avail and failed to appear before Trial Court on several occasions and failed to observe limitation granted under Art.164 of Limitation Act, 1908---High Court in exercise of revisional jurisdiction declined to interfere with the orders passed by both the courts below---Revision was dismissed in circumstances.

Province of Punjab v. Muhammad Anwar 2000 SCMR 657; Ata-ur-Rehman Baig v. Barey Khan PLD 1998 Pesh. 43; State Life Insurance Corporation of Pakistan v. Mst. Shakar Khatoon 1998 CLD 283; Gulzar v. Hata 1988 MLD 1518; Messrs Rehman Weaving Factory v. IDBP PLD 1981 SC 21; Fiaz Rasool v. Government of N.W.F-P. 2001 CLC 1976; Muhammad Qasim and others v. Mojuddin and others 1995 SCMR 218; Muhammad Afzal v. SBFC 1977 CLC 1080; Hashim Khan v. N.B.P. 1992 SCMR 707; Noshairee Khan v. Saeed Ahmad Shah 1993 SCMR 1092; Inayat Masih v. Munshi Masih 2001 CLC 591; Kamran Co. v. Messrs Modern Motors PLD 1990 SC 713 and Mst. Qamar Sultan v. Saeed Murtaza 1985 CLC 2984 ref.

Muhammad Younis Bhatti for the Petitioner.

Ishfaq Ali Raja for Respondent.

Date of hearing: 20th May, 2008.

YLR 2009 ISLAMABAD 795 #

2009 Y L R 795

[Islamabad]

Before Raja Saeed Akram Khan, J

ABDUL GHANI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.401/B of 2008, decided on 14th January, 2009.

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

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Role assigned to accused was raising of `Lalkara"---Accused had been declared innocent in investigation on the plea of alibi---Ipsi dixit of police though was not binding on the Court, yet the same could be considered as one of the relevant factors for grant of bail---Even benefit of doubt could be extended at bail stage---Accused, despite being allegedly armed with a pistol, did not use the same in the occurrence---No injury had been caused by the accused to any of the deceased---Commanding or proverbial nature of "Lalkara" was yet to be determined by Trial Court after recording evidence and the said exercise did not fall within the domain of High Court---Accused was behind the bars since long and he was no more required for further investigation---Further detention of accused in jail would amount to premature 'punishment in circumstances---Accused was admitted to bail accordingly.

Muhammad Sadiq and another v. The State 1996 SCMR 1654; Abdul Rehman v. Javed and two others 2002 SCMR 1415; Mst. Qudrat Bibi v. Muhammad Iqbal 2003 SCMR 68; Muhammad Arshad v. The State 2006 SCMR 966; Irfan alias Kalu v. The State 2006 PCr.LJ 598 Lahore; Muhammad Sadiq v. Muhammad Nisar and 7 others 2003 PCr.LJ 20; Todo and another v. The State 2001 PCr.LJ 649 Karachi; Nazir Ahmad v. The State 1993 SCMR 1993; Nasir Ahmad v. The State 2008 PCr.LJ 1323 and Muhammad Afzal v. The State 2008 PCr.LJ 1352 ref.

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

----S.497---Penal Code (XLV of 1860), S.302/34---Bail---Assessment of evidence---Court, while dealing with bail application has to see the allegations made in the F.I.R. and the statements of prosecution witnesses recorded under S.161, Cr.P.C.---Deeper appreciation of evidence at bail stage in not warranted under the law and only a bird's eye view of the same is to be made.

----Ss. 497/498---Bail---Police opinion---Relevancy---Ipsi dixit of police though is not binding on the Court, yet it can be considered as one of the relevant factors for grant of bail---Benefit of doubt can be extended even at bail stage.

Nazir Ahmad v. The State 1993 SCMR 1993; Nasir Ahmad v. The State 2008 PCr.LJ 1323 and Muhammad Afzal v. The State 2008 PCr.LJ 1352 ref.

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

----S.497---Penal Code (XLV of 1860), S.302/34---Bail in offences falling within the prohibitory clause of S. 497, Cr.P.C.---Principle--Bail is not to be refused as punishment merely on the allegation that the accused has committed on offence punishable with death or imprisonment for life, unless reasonable grounds appear to exist to show his involvement.

Sardar Muhammad Ishaq Khan for Petitioner.

Malik Rub Nawaz Noon and Syed Wast-ul-Hassan Shah for the Complainant.

Abdul Rehman Minhas, Federal Counsel and Shams, S.-I. with record.

YLR 2009 ISLAMABAD 816 #

2009 Y L R 816

[Islamabad]

Before Raja Saeed Akram Khan, J

MUHAMMAD ZAHEER---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.385-B of 2008, decided on 22nd December, 2008.

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

----S.497---Penal Code (XLV of 1860), Ss.302/201/109/34---Bail, grant of---Complainant having failed to produce any evidence regarding presence of accused on the spot, he had been declared innocent in investigation, which fact was also verified by A.S.P./D.S.P.O. and, thus, case of accused was one of further inquiry under S.497(2), Cr. P. C---Abscondence of accused by itself was not conclusive to establish his guilt and would not disentitle him to grant of bail on this ground alone in the absence of any other evidence, and if otherwise he was entitled to bail---Nothing incriminating had been recovered from the accused---Ipsi dixit of police, no doubt, was not binding on the Court, but it could be considered as a relevant factor at bail stage---Common intention of accused with his co-accused would be determined by Trial Court after recording evidence---Deeper appreciation of evidence could not be made at bail stage---Accused was in jail since his arrest and he was not required for further investigation---Bail was allowed to accused in circumstances.

Fayyaz Ali Khan v. The State 2007 Cr1. L.J. 160; Muhammad Asghar v. The State 2002 SCMR 1299; Kashif v. The State 2005 PCr.LJ 462; Farooq Shah and two others v. The State 2008 PCr.LJ 1419; Nazir Ahmed alias Bhillu v. The State 2008 PCr.LJ 274; Abid Sohail v. The State 2006 PCr.LJ 864; Irfan alias Kalu v. The State 2006 PCr.LJ 598; Allandino and 6 others v. The State 2003 PCr.LJ 135; Ghulam Rasool and another v. The State PLD 2001 Lahore 45; Khial Gul and another v. Sherzada and another 2002 PCr.LJ 1054; Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Saeed v. The State 2008 PCr.LJ 726 and Javed Iqbal v. The State 2008 PCr.LJ 1578 and 2007 PCr.LJ 1274 ref.

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

----S. 497---Bail---Police opinion---Ipsi dixit of police is not binding on the Court, but the same can be considered as one of the relevant factors at the stage of bail.

2007 PCr.LJ 1274 ref.

----S.497---Penal Code (XLV of 1860), Ss. 302/201/109/34---Bail---Abscondence of accused---Effect---Abscondence of accused by itself is not conclusive to establish his guilt and its probative value depends on the facts and circumstances of each particular case, but it would not disentitle him to grant of bail when prosecution has no other evidence against him and he, otherwise, is entitled to bail.

Ch. Abdul Aziz for Petitioner.

Muhammad Ilyas Siddiqui for the Complainant.

Abdul Rehman Minhas, Federal Counsel for the State.

Rabnawaz, S.I.

YLR 2009 ISLAMABAD 839 #

2009 Y L R 839

[Islamabad]

Before Raja Saeed Akram Khan, J

MUHAMMAD RAMZAN KHOKHAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.184-B of 2008, decided on 11th July, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss. 316/109/406/167/427/288/324/322/119/ 336/337-F(v)/337-A(ii)/34---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, refusal of---Building known as "Margalla Towers" had collapsed on 8-10-2005 due to an earth quack---Accused, owner of the building, had absconded after the occurrence and he was forced to come back from abroad and arrested on 14-5-2008---Occurrence having been reported in Print as well as in Electronic Media all over the world, accused being evidently aware of the same had remained absconder for such a long period, for which no explanation had come on record---Despite a number of objections regarding defects in the construction of the said building and directions by the Capital Development Authority to remove the same, accused did not take any measures to redress the wrong---Even "no objection certificate" had been obtained by the accused from the concerned authority before delivery of possession to the innocent inhabitants, which was an intentional negligence on his part, resulting into a large number of casualties and he being owner of the building could not escape from his liability---Accused could not claim bail as a matter of right even in the offences not falling within the prohibitory clause of S.497(1), Cr. P. C.---Police Officer was competent to make a complaint in the case, of which the facts had come to his knowledge---If some irregularity was committed, same was curable under S.537, Cr. P. C. and unless it had actually prejudiced the accused, it would not vitiate the trial---Sufficient material was available on record to connect the accused with the commission of offence---Bail was declined to accused in circumstances.

Jamal-ud-Din v. The State 1985 SCMR 1949; Abdul Salam v. The State 1980 SCMR 142; Ghulam Murtaza and another v. Muhammad Akram and another 2007 SCMR 1549; Syed Muhammad Firdaus and others v. The State 2005 SCMR 784; and Fazil Khaliq alias Hafiz v. The State through AG N.-W.F.P. and on other 1996 SCMR 364; Akhtar Ali v. Azhar Ali Shah and others 1985 SCMR 1166; Sher Ali alias Sheri v. The State 1998 SCMR 190; Awal Gul v. Zarwar Khan and others PLD 1985 SC 402; Amjad Pervaiz alias Amjad v. The State 1999 MLD 982; Muhammad Shahid v. The State 2002 SCMR 247; Haji Muhammad Nasir and others v. The State 2008 SCMR 807; Raja Muhammad Zarat Khan v. The State PLD 2007 Karachi 27 and Muhammad Hanif v. The State PLD 2002 Lahore 200 ref.

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

----S.497---Bail Assessment of evidence---Principle---At bail stage deeper appreciation of evidence in not allowed and only tentative assessment of the same is to be made.

Muhammad Shahid v. The State 2002 SCMR 247 ref.

----S.497---Bail in cases not falling within the prohibitory clause of S.497, Cr. P. C.---Bail cannot be claimed as a matter of right in the cases not falling within the prohibition contained in S.497(1), Cr. P. C.-Each criminal case is required to be dealt with independently on its own merits.

Haji Muhammad Nasir and others v. The State 2008 SCMR 807 and Raja Muhammad Zarat Khan v. The State PLD 2007 Karachi 27 ref.

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

----Ss.156(2) & 537---Illegality or irregularity in investigation---Effect---Nothing in law prevents a police officer from making a complaint in a case, of which the facts have come to his knowledge---Irregularity committed is curable under section 537, Cr.P.C. and unless it has actually prejudiced the accused, it would not vitiate the trial.

Muhammad Hanif v. The State PLD 2002 Lahore 200 ref.

Dr. Babar Awan for Petitioner.

Syed Muhammad Tayyab, S.P.P. for the State.

Khalid Abbas, Deputy Attorney General.

Abdul Sattar Baig, S.I., with record.

YLR 2009 ISLAMABAD 856 #

2009 Y L R 856

[Islamabad]

Before Raja Saeed Akram Khan, J

Mrs. TABINDA A. MOIZ through Special Attorney---Appellant

Versus

TAHIR ABBASI and another---Respondents

R.S.A. No.8 of 2006, decided on 12th June, 2008.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), S.16 & O. VII, R.10---Suit for specific performance of agreement to sell---Jurisdiction of court---Return of plaint---Suit having concurrently been decreed by the courts below, defendant had filed second appeal against said concurrent judgments and decrees---Counsel for defendant had raised question with regard to jurisdiction of the court, contending that property in question being situated at place 'R', jurisdiction lay with the court at place 'R' whereas suit was filed in court at place 'I' which had no jurisdiction in the matter--Defendant, after filing of suit by the plaintiffs, also filed suit for declaration and injunction against the plaintiffs at place 'G'---Defendant raised objection regarding jurisdiction of the Trial Court in her written statement---Even after the decree of that suit defendant also raised question of jurisdiction of the court in first appeal---Defendant also filed application under O. VII, R.10, C.P.C. that suit be transferred to court at place 'R' as the court at place 'I' had no jurisdiction---Held---Consent of the parties would not confer jurisdiction upon the court---Order/decree passed by the court, having no jurisdiction, was nullity in the eye of law---Court was to decide at first instance the question of jurisdiction, even though such question was not raised by the parties---Objection to the jurisdiction could be raised at any subsequent stage---Non-fulfilment of mandatory conditions for exercise of jurisdiction before the court would render illegal its entire proceedings--In the present case the point of jurisdiction had not been properly dealt with by both the courts below---High Court accepted second appeal and set aside the impugned judgment and decree remitted the matter to the Trial Court at place 'I' which, after summoning the parties, would return the plaints to the plaintiffs of their respective suits in order to file same in the court of competent jurisdiction.

Paryal and others v. Sher Muhammad and others 2003 CLC 163; Muhammad Hussain and an other v. Muhammad Shafi and others 2004 SCMR 1947; Maulvi Aziz-ur-Rehman v. Ahmad Khan and others 2004 SCMR 1622; Land Acquisition Collector, Nowshera and others v. Sarfraz Khan and others PLD 2001 Supreme Court 514; Munawar Hussain and 2 others v. Sultan Ahmad 2005 SCMR 1388; Syed Sajid Ali Asif through legal heirs v. Mumtaz Ahmed and 3 others PLD 1993 Karachi 520; Tahir and 2 others v. Ahmad Bakhsh 1991 MLD 506; Ata Muhammad and others v. Sultan and another 1996 CLC 1611; Muhammad Mushtaq and other v. Bashir Ahmad Chaudhry and other PLD 1991 Lahore 400; Izhar Alam Farooqi Advocate v. Sheikh Abdul Sattar Lasi and others 2008 SCMR 240 and Water and Power Development Authority through Chairman, WAPDA and 4 others v. Abdul Shakoor through Legal Heirs PLD 2008 Lahore 175 ref.

F.K. Butt for Appellant.

Sardar Muhammad Ishfaq Abbasi for Respondent.

Date of hearing: 29th May, 2008.

YLR 2009 ISLAMABAD 892 #

2009 Y L R 892

[Islamabad]

Before Dr. Sajid Qureshi, J

SHIREEN MEHTAB KHAN---Petitioner

Versus

SHIFA COLLEGE OF MEDICINE and others---Respondents

Writ Petition No.1468 of 2008, decided on 20th January, 2009.

(a) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----S.33(1)---Pakistan Medical and Dental Council Regulations, 2007---Constitution of Pakistan (1973), Art.199---Admission in Shifa College of Medicine sponsored by Shifa Foundation---Refusal of College to admit petitioner in M.B.B.S. course---Constitutional petition impleading therein such College, Pakistan Medical and Dental Council and Ministry of Health, Government of Pakistan---Maintainability---All Colleges were bound to follow Medical and Dental Council Regulations, 2007, and any deviation therefrom might be susceptible to any remedial and other measures, which cold be taken by Council against such Colleges---Constitutional petition was maintainable in circumstances.

Anoosha Shaigan v. LUMS PLD 2007 Lah. 568; Muhammad Ahmad Toor v. Federation of Pakistan 2000 SCMR 928; Salah-ud-Din Frontier Sugar Mills PLD 1975 SC 244 and Qamar-ul-Islam v. ICAP 1993 MLD 1362 ref.

PM & DC v. Dr. Raza Muhammad Khan 1992 SCMR 1621 and Salah-ud-Din v. Frontier Sugar Mills PLD 1975 SC 244 rel.

(b) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----S.33(1)---Pakistan Medical and Dental Council Rules---Pakistan Medical and Dental Council Regulations, 2007---Constitution of Pakistan (1973), Art.199---Constitutional petition---Admission in Shifa College of Medicine sponsored by Shifa Foundation---Conditions advertised by College for admission in M.B.B.S. course for year 2008 being academic; Shifa Entrance Test and interviews---Petitioner being a Hafiz-e-Qu'ran obtained 47.16% marks in Shifa entry test and obtained 76% marks in Medical Colleges Admission Test (MCAT)---College declined admission to petitioner, but gave admission to SAT-II score holders without Shifa entry test---Validity---Entry test by institution concerned was a mandatory requirement---Under Pakistan Medical and Dental Council Rules no student could be admitted to M.B.B.S. course without passing entry test by institution concerned---SAT-11 and MCAT scores being only eligibility factors for appearance in entry test could not be used by medical institution as an alternate option to entry test---College had omitted to pay weightage to MCAT result of petitioner---Record showed that two students without submitting their Matric or O-level grade certificates had been given a Grand Weightage of 80.62 and 87.65 marts respectively---If petitioner's marks of 47.16% and 76% obtained in Shifa entry test and MCAT respectively had been taken into consideration, then she would be at No.39 on merit list---Present case was example of discrimination, un-uniformity and inequality---College had violated Pakistan Medical and Dental Council Rules by granting admission to SAT-II score holders without entry test and not considering MCAT result of petitioner---High Court accepted constitutional petition with direction to College to give seat in M.B.B.S. course to petitioner without affecting or disturbing already admitted candidates---High Court also directed Pakistan Medical and Dental Council to investigate admission process and procedure of such College and ensure compliance of all rules, regulations and law by such College in future---Principles.

----Preamble---Duty of Ministry of Health and Pakistan Medical and Dental Council to ensure compliance of mandate of Pakistan Medical and Dental Council Ordinance, 1962 by medical institutions---Principles.

The Ministry of Health, Government of Pakistan should ensure that the mandate of the Pakistan Medical and Dental Council Ordinance, 1962 is given effect in letter and spirit and any violation of these laws are met with penal consequences as envisaged under the law. Clear violations must be addressed by the Government of Pakistan as well as the council. They are to ensure that Medical Colleges keep to the highest level of standards to ensure that good doctors are produced, who should take care of the population and that medical institutions do not become mere money making factories producing lines of doctors and dentists with no professionalism, quality, ethics or values. Candidates or students should not be penalized, if the institutions are carrying out questionable activities, and if the council fails to register such doctors and dentists in the future, the doctors cannot be blamed, but blame should be appropriated to the institution, who had violated council's regulations.

Mian Abdul Rauf and Naveed Malik for Petitioner.

Atta Ullah Kundi for Respondent No.1.

Ahmad Nadeem Akbar (Registrar) PM&DC and Miss Sara Nasir, (Law Officer), PM&DC.

Date of hearing: 14th January, 2009.

YLR 2009 ISLAMABAD 917 #

2009 Y L R 917

[Islamabad]

Before Syed Qalb-i-Hassan, J

Mrs. NEELOFAR---Petitioner

Versus

MUHAMMAD ABDUL RAZAQ and 2 others---Respondents

Writ Petition No.95 of 2008, decided on 22nd April, 2008.

Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 17---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Ejectment petition---Ground of default in payment of rent---Lease agreement provided for refund of security amount to tenant on termination of lease---Non-proving of payment of rent by tenant despite dishonouring of cheque given to landlord---Ejectment order passed by Rent Controller upheld by Appellate Court---Plea of tenant that such security amount could be adjusted towards default---Validity---Security amount could be applied in manner provided in lease agreement and could not be adjusted towards rent---Adjustment of security amount towards rent would amount to change in the terms of lease agreement---High Court dismissed constitutional petition in circumstances.

Muhammad Yousaf v. Abdullah 1980 SC 298; Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190; Mst. Saidan Khatoon v. Muhammad Ahmad Latifi PLD 1990 SC 389 and Farman Akhtar v. Haji Muhammad Sharif 1989 SCMR 592 rel.

Muhammad Nawaz Bhatti for Petitioner.

Mian Tahir Iqbal for Respondents.

Date of hearing: 14th April, 2008.

YLR 2009 ISLAMABAD 1044 #

2009 Y L R 1044

[Islamabad]

Before Syed Qalb-i-Hassan, J

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman---Petitioner

Versus

ABDUL MAJEED and another---Respondents

Civil Revision No.150 of 2003, decided on 2nd December, 2008.

Civil Procedure Code (V of 1908)---

----S.12(2) & O.XVII, R.3---Application under S.12(2), C. P. C. for setting aside of consent decree--Non-production of evidence by applicant on several previous dates---Applicant's request for grant of further adjournment for recording evidence on the ground that entire record pertaining to subject-matter of suit, which he wanted to produce in evidence, had been requisitioned by N.A.B. in a pending reference---Closure of applicant's evidence and dismissal of application under S. 12(2), C.P.C., by Trial Court for his failure to produce evidence despite availing several opportunities---Validity---Trial Court had passed impugned order without ascertaining the truth and falsity of the ground taken by applicant for adjournment--- Trial Court was bound to inquire into the matter and in case applicant was able to show a reasonable/sufficient cause, then he was entitled to grant of further adjournment---Previous opportunities for leading evidence granted on their own merits and circumstances could not be considered for sufficiency of adjournment on date of passing impugned order---Applicant had shown a sufficient cause for an adjournment---Trial Court ought to have granted some time to applicant to produce in evidence record pertaining to subject-matter of the suit---High Court accepted revision petition and directed Trial Court to provide an opportunity to applicant to lead evidence.

Sufi Ghulam Mohy-ud-Din v. Khushi Muhammad and others 1997 CLC 636 ref.

Sri Nath v. Mata Prasad and others AIR 1935 Allahabad 476; Seth Shivrattan Ga. Mohatta and another v. Messrs Mohammadi Steamship Co. Ltd PLD 1965 SC 669; Abdul Rehman v. Mst. Amir Khatoon etc K.L.R. 1985 Civil Cases 649 and Messrs Raheem Steel Re-Rolling Mills and 4 others v. Messrs Karim Aziz Industries Pvt. Ltd 1988 CLC 654 rel.

Barrister Masroor Shah for Petitioner.

Mian Ishtiaq Hussain for Respondents.

Date of hearing: 21st November, 2008.

YLR 2009 ISLAMABAD 1059 #

2009 Y L R 1059

[Islamabad]

Before Muhammad Munir Peracha, J

HASSAN AKHTAR and 5 others---Appellants

Versus

AZHAR HAMEED and others---Respondents

R.S.As. Nos.2 and 3 of 2007, decided on 28th January, 2009.

Civil Procedure Code (V of 1908)---

----O. XXIII, R.1 & O.XLI, Rr. 22 & 33---Withdrawal of suit without permission to file fresh suit---Effect---Appellate Court, powers of---Plaintiff filed two suits wherein relief sought was declaration and possession through pre-emption, later on relief regarding declaration was abandoned and relief was restricted only to the extent of recovery of possession through preemption---Subsequently plaintiff withdrew both the suits and filed two fresh suits for cancellation of sale deeds---Trial Court dismissed the fresh suits being barred under O.XXIII, R.1 (3) C.P.C.---Lower Appellate Court recorded finding that suits were not barred under 0.XXIII, R.1 (3) C.P. C. and no appeal or cross-objections had been filed by plaintiffs---Validity---Parties, as well as Trial Court, were dealing with cases as suits for pre-emption and were conscious of the fact that claim of declaration stood abandoned, therefore, subsequent suits were liable to be dismissed as barred under O. XXIII, R.1(3), C.P.C.---Party in appeal could support a decree even on grounds which were found against him by subordinate court without filing an appeal or cross-objection in view of O.XLI, R. 22 C.P.C.---Appellate Court had also powers under O.XLI, R.33 C.P. C. to pass any decree or make any order which ought to have been passed or made notwithstanding the fact that a party had not filed any appeal or objection---As both the suits were hit by O.XXIII, R.1(3) C.P.C., High Court declined to record any findings on the merits of case---Second appeal was dismissed in circumstances.

Din Muhammad v. Farooq Mirza PLD 1955 Sindh 62; Sh. Muhammad Fazil v. Sh. Abdul Qadir 1997 CLC 243; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Shams-ud-Din and 4 others v. Mst. Sitara Begum 1993 MLD 962; Fida Muhammad v. Muhammad Khan through L.Rs. and others PLD 1985 SC 341; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811; Muhammad Siddique and 2 others v. Mst. Shagufta Begum alias Shagufta Rafique and another 1994 CLC 1690; Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31; Messrs Arokey Ltd. and another v. Munir Ahmad Mughal and 3 others PLD 1982 SC 204; Mst. Noor Jahan v. Azmat Hussain Farooqi and another 1992 SCMR 876 and Muhammad Jamil v. Municipal Committee, Mandi Bahauddin through Chairman and another 2001 MLD 568 ref.

Din Muhammad v. Farooq Mirza PLD 1955 Sindh 62 and Sh. Muhammad Fazil v. Sh. Abdul Qadir 1997 CLC 243 distinguished.

Zameer Hussain and Malik Mehmood Sultan Kalyami for Appellant.

Saeed-ul-Haq for Respondents Nos.1 to 4E.

Date of hearing: 22nd January, 2009.

YLR 2009 ISLAMABAD 1100 #

2009 Y L R 1100

[Islamabad]

Before Syed Qalb-i-Hassan, J

SGM (PVT.) LIMITED---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman Islamabad and another---Respondents

Writ Petition No.404 of 2008, decided on 17th December, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Building construction contract---Issuance of offer letter to petitioner after approval of his highest bid by Authority---Payment of initial 25% premium of contract amount by petitioner through cheque dishonoured by Bank for insufficient funds, difference of signatures and missing of company's rubber stamp thereon---Cancellation of offer letter by Authority for petitioner's failure to pay such premium within time extended twice---Petitioner's plea was that non-delivery of possession of land by Authority free from encroachment had delayed payment of such premium---Validity---Petitioner, in his letter, while demanding extension of time on ground of political unrest in country, had not agitated non-delivery of possession of land---Alleged political unrest in country would not have been any hurdle for petitioner to deposit such premium, Authority had provided sufficient time to petitioner for fulfilling his obligation enshrined in offer letter, but he had failed to show his bona fide in this respect---High Court dismissed constitutional petition in circumstances.

Capital Development Authority through Chairman and another v. Zahid Iqbal and another PLD 2004 SC 1999 ref.

Messrs Essem Hotels Pvt. Ltd. through Director v. Capital Development Authority, Islamabad through Chairman and 2 others 1998 CLC 1453 distinguished.

Khurram M. Hashmi for Petitioner.

Barrister Farooq Iqbal for Respondents.

Date of hearing: 4th December, 2008.

YLR 2009 ISLAMABAD 1163 #

2009 Y L R 1163

[Islamabad]

Before Syed Qalb-i-Hassan, J

SARWAR---Petitioner

Versus

MUHAMMAD RIZWAN and 7 others---Respondents

Civil Revision No.198 of 2005, decided on 28th October, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, R.17 & O. XLI, R.33---Specific Relied Act (I of 1877), S.42---Amendment of plaint---Scope---Suit for declaration of title without praying for possession of suit-land--Appeal against judgment of Trial Court dismissing suit for being not maintainable--Acceptance of application for amendment of plaint to include therein prayer of possession---Validity---Addition of such prayer allowed as a consequential relief was not alien to or inconsistent with frame of suit filed by plaintiff-Appellate Court had rightly allowed amendment of plaint---High Court dismissed revision petition filed by defendant.

Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762; Jane Margrete William v. Abdul Hamid Mian 1994 SCMR 1555; Muhammad Shafi and other v. L.D.A. and others, 1993 CLC 2482 and Muhammad Ismail and others v. Roshan Ara Begum and others PLD 2001 Lah. 28 rel.

Moulvi Ejaz-ul-Haq for Petitioner.

Respondents ex parte.

Date of hearing: 17th October, 2008.

YLR 2009 ISLAMABAD 1296 #

2009 Y L R 1296

[Islamabad]

Before Dr. Sajid Qureshi, J

FEDERAL BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, ISLAMABAD through Chairman/Secretary---Petitioner

Versus

JUNAID REHMAT---Respondent

Civil Revision No. 184 of 2004, decided on 13th November, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Declaration of title---Correction of date of birth---Concurrent findings of fact by two courts below---Plaintiff sought correction of date of birth mentioned in his Secondary School Certificate---Suit filed by plaintiff was decreed by Trial Court in his favour and appeal filed by Intermediate and Secondary Education Board was dismissed by Lower Appellate Court---Validity---Plaintiff had taken all possible measures to rectify not only the Secondary School Certificate but also many other documents, which showed the corrected / rectified date which was reflected in his action to correct such documents at appropriate time and by proper procedure---Plaintiff had exhausted his local remedy and he had corrected his date of birth on several documents, which were not challenged by the Board--Correction of date of birth having not adversely affected any right of any other person or policy of the Board, decisions of both the courts below needed no interference by High Court.

Saima Altaf v. Principal Junior Burn Hall Girls College, Abbotabad 2001 CLC 972; Board of Intermediate & Secondary Education v. Javed Iqbal Bajwa 2005 YLR 2114; Ejaz Mehmood v.. BISE 1999 CLC 984; BISE v. Muhammad Ishaque 2006 CLC 1850; Feroze Begum through General Attorney v. Province of Punjab through Collector Khushab and another 2005 YLR 2286; Abdul Rahim and others v. Mrs. Jannatay Bibi and others 2005 SCMR 346; Anwar Zaman and others v. Bahadur Sher and others 2000 SCMR 431; Dr. Sadiq Hussain v. Mst. Maqbool Begum and others 2005 CLC 368; Haji Muhammad Amean v. Messrs Frontier Ceramics Ltd. Peshawar PLD 2005 Pesh. 69; Board of Intermediate and Secondary Education v. Syed Khalid Mahmood 1985 CLC 657; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Munir Ahmad and others v. Muhammad Saddique 2005 MLD 364; Iqbal Mand and others v. Shahi Bakhsh .and others 2005 YLR 1725 and Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647 ref.

Mir Afzal Malik for Petitioner.

Sardar Muhammad Ilyas for Respondent.

Date of hearing: 5th November, 2008.

2009 Y L R 13

[Karachi]

Before Farrukh Zia G. Shaikh, J

AHMED alias AHMEDO and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.662 and M.As. Nos. 2782 and 2783 of 2008, decided on 24th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.363, 452, 343, 165 & 364-A---Bail, grant of, further inquiry---Contents of F.I.R., showed that enmity existed between the parties---Accused were in jail for the last more than one year---After completion of investigation a challan had already been submitted in the case---Continued custody of accused persons in jail, was not likely to serve any beneficial purpose at such a stage---Case against accused persons calling for further inquiry into their guilt within the purview of subsection (2) of section 497, Cr.P. C., they were admitted to bail.

Zulifquar Ali Jatoi for Applicants.

Agha Ather Hussain, Asst. Advocate-General Sindh.

YLR 2009 KARACHI HIGH COURT SINDH 17 #

2009 Y L R 17

[Karachi]

Before Syed Pir Ali Shah, J

MUHAMMAD ANWAR---Plaintiff

Versus

SYED SALEEMUDDIN and 2 others---Defendants

Civil Suit No.1014 of 2008, decided on 3rd September, 2008.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Suit for specific performance of agreement to sell property---Application for grant of interim injunction to restrain defendant from creating third party interest in suit property---Payment of Rs.10,00,000 as earnest money to defendant out of total sale price of Rs.62,00,000---Failure of defendant to provide photo copies of title documents for verification by plaintiff and pay previous utility bills and taxes of property---Issuance of legal notice prior to filing of suit by plaintiff calling upon defendant to receive balance amount and execute proper deed in his favour---Plea of defendant that agreement stood terminated and earnest money stood forfeited for plaintiff's failure to pay balance amount within time---Validity---In case of plaintiff's failure, defendant was under legal and moral obligation to have served him with legal notice calling upon him to fulfil his part of agreement---Plaintiff's offer to defendant in court to receive entire balance amount showed his honest intention---Plaintiff had a good prima facie case, who had paid huge amount in advance---Restraint on alienation of suit property would not result in any irreparable loss/injury to defendant, but in case of its refusal, plaintiff would have to face further complications and multiplicity of proceedings---Interim order restraining defendant from creating third party interest was confirmed till decision of suit.

Ardeshir H. Mama v. Flora Sassoon AIR 1928 Privy Council 208; Mani and Others v. Krishnan Nayar AIR 1953 TRA-Co. 377 (Vol. 40 C.N. 146); Abbas Ali v. Kodhusao AIR 1929 Nagpur 30 ref.

Abdul Majeed v. Muhammad Naeem and others 2006 CLC 1123 and Khurshid Ali and others v. Shah Nazar PLD 1992 SC 822 rel.

Muhammad Aziz Khan for Plaintiff.

Mirza Waqar Hussain for the Defendant No.2.

YLR 2009 KARACHI HIGH COURT SINDH 24 #

2009 Y L R 24

[Karachi]

Before Mrs. Qaiser Iqbal, J

Syed FAISAL HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.614 of 2008, decided on 11th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Prosecution witnesses did not support the case of prosecution---Deeper assessment of evidence was not done at bail stage---Tentative assessment of the evidence recorded by the Trial Court, showed that accused was entitled to bail and indefinite detention during trial could be irreparable in the event of his being found not guilty---Accused was presumed to be innocent, unless found guilty---Accused was behind the bars for the last four years and the trial was not yet completed despite the direction in two successive bail applications---Bail was granted to accused, in circumstances.

Shebaz Ali v. The State 2008 MLD 178 ref.

Aamir Mansoob Qureshi for the Applicant.

Nawaz Ali Khokhar for the State.

YLR 2009 KARACHI HIGH COURT SINDH 25 #

2009 Y L R 25

[Karachi]

Before Farrukh Zia G. Shaikh, J

WALI MUHAMMAD and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-487 and M.A. No. 3044 of 2008, decided on 28th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 114, 148, 149 & 337-H(ii)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Bail, grant of---Further inquiry---Dispute existed between the parties over the agricultural land, on which incident had taken place---Counter cases between the parties with regard to the same incident, in which two persons had been murdered from the complainant side and one person had been murdered and two persons had been injured from accused side; and both the parties claimed that other party was the aggressor---At bail stage all said points could not be properly thrashed out as it required deep appreciation of evidence to prove each of said assertions and that had to be scrutinized at the time of trial---Case, in circumstances, required further inquiry within the meaning of S.497(2), Cr.P.C. and accused persons were entitled for concession of law---Accused, were admitted to bail in circumstances.

Maqbool Ahmed Awan for Applicants.

Muhammad Iqbal Mahar, Asst. Advocate-General Sindh.

YLR 2009 KARACHI HIGH COURT SINDH 32 #

2009 Y L R 32

[Karachi]

Before Ghulam Dastagir A. Shahani, J

SANTOSH KUMAR BARWANI---Appellant

Versus

ELECTRICAL INSPECTOR, KARACHI and another---Respondents

IInd Appeal No. 20 and C.M.A. No.1473 to 1476 of 2008, decided on 30th September, 2008.

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

----Art. 152---Appeal---Limitation would start from the date of the passing of the decree---Party cannot be penalized for delay, if any, on the part of the office, in respect of late preparation of the decree.

The Government West Pakistan and others v. Niaz Muhammad PLD 1967 SC 271 and Muhammad Shafi v. Sirajuddin and 3 others 1985 CLC 1788 ref.

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

----O. VI, R.17--Amendment of pleadings--Scope---Amendment in pleadings can be allowed even at Supreme Court stage, if by that amendment subject matter of suit remained same and did not change the nature and character of the suit.

2008 CLC 946; PLD 1982 AJ & K Z6; 1982 CLC 513; 1996 CLC 198; 1992 MLD 1257; PLD 1985 SC 345; PLD 1996 Pesh. 32; 1990 CLC 151; 1986 CLC 1033; 1996 CLC 1252, 1987 CLC 1219; PLD 1986 AJK 184; 1988 CLC 25; PLD 1996 Lah. 99; PLD 1987 AJK 49; 1980 CLC 897; 1991 CLC 1616; YLR 2008 Lah. 911 and PLD 2004 SC 894 distinguished.

----S. 9---Jurisdiction---Civil Court is a court of ultimate jurisdiction even if jurisdiction of Civil Court is barred---Civil Court can see any illegality and mala fide committed by any forum, Tribunal or Authority.

1974 SCMR 356 and PLD 1970 SC 180 ref.

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

----S. 9, & O. XXX, R.I---Remedy cannot be availed on same cause of action and on same subject matter by partners of a firm individually---Once jurisdiction is invoked party will be estopped to challenge same subsequently.

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

----S. 100---Second appeal---Scope---No person, unless he is a party to the suit, is entitled to appeal.

No. person unless he is a party to the suit is entitled to appeal.

There is no justification when there is no substantial error or defect in the procedure provided under the law to file a second appeal by a person who was not a party at any stage.

Second Appeal shall lie from every decree passed in appeal by a court when decision was contrary to law or courts below failed to determine some material issue of law or a substantial error or defect in the procedure provided by C.P.C. or by any other law for the time being in force was apparent. Second Appeal will also lie against the decree disallowing the respondents' cross objections or decision is not based on a judicial consideration but same would not lie on the question of facts and is to be summarily rejected.

Razi Begum v. Iqbal Begum and 7 others PLD 1957 Writ Petition Lah. 1040 ref.

H. Rai Khimani for Appellant.

YLR 2009 KARACHI HIGH COURT SINDH 38 #

2009 Y L R 38(2)

[Karachi]

Before Farrukh Zia G. Shaikh, J

TAJ MUHAMMAD alias TAJAN---Applicant

Versus

THE STATE, through A.A.G. ---Respondent

Criminal Bail Application No.573 M.As. Nos. 3205 and 3066 of 2008, decided on 4th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of---Accused along with other co-accused and two unknown persons, in presence of complainant and prosecution witnesses took away deceased from his house at about 10 p.m. (night) and thereafter deceased did not return to his house and on search, his dead body was found lying in the land---Said prosecution witnesses in their statements recorded under S.161, Cr.P.C. as well as 164, Cr. P. C., had fully implicated the accused in the case---Bail application of accused was dismissed.

Ramzan v. The State 2007 PCr.LJ 1572 ref.

Shaukat Ali Phul for Applicant.

Agha Ather Hussain, Assistant Advocate-General Sindh.

YLR 2009 KARACHI HIGH COURT SINDH 41 #

2009 Y L R 41

[Karachi]

Before Arshad Noor Khan, J

LAND ACQUISITION OFFICER/D.D.O. (REVENUE)---Appellant

Versus

Haji MUHAMMAD YOUNIS---Respondents

Land Acquisition Appeals Nos. 4, 5, 6, 7 and C.M.A. No. 1003 of 2007, decided on 19th September, 2008.

Land Acquisition Act (I of 1894)---

----S. 20---Service of notice---Referee Court is under obligation to serve notice upon all the persons interested in the objection except those who have accepted the award unconditionally--- Word "interested persons" used in S.20, Land Acquisition Act, 1894 is of much significance which also includes persons for whose benefits the land has been acquired---Principles.

Muhammad Yousif Leghari, Advocate-General Sindh for the Appellants.

Mian Muhammad Afzal Arain, for Respondents in Miscellaneous Appeals No. 5 of 2007.

Nusrat Mehmood Gill for Respondent in Miscellaneous Appeals Nos. 4, 6 and 7 of 2007.

2009 Y L R 63

[Karachi]

Before Arshad Noor Khan, J

ABDUL REHMAN---Petitioner

Versus

ABDUL GHAFFAR and others---Respondents

Constitutional Petition No. S.183 of 2008, decided on 19th September, 2008.

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

---Ss. 15(2) (ii) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent---Tenant filed written statement, wherein alleged default in payment of rent had not specifically been controverted---Tenant, however claimed that he constructed pucca house after spending an amount of Rs. 3,00,000---Besides, the pucca house, tenant had further claimed that he also obtained electric, sui-gas and water connection etc., in the premises in question; and that landlords had allowed him to carry out said construction work, but they had not returned said amount of Rs. 3,00,000 being repair charges, etc.---Both Rent Controller and Appellate Court concurrently accepted ejectment application and directed tenant to vacate the premises and tenant had challenged said concurrent orders in constitutional petition---Validity---Tenant had completely failed to produce any independent or sufficient evidence to prove that landlords had allowed him to carry out the repair work of the premises in question and that repair charges could be adjusted towards monthly rent of the premises---Tenant, in circumstances, had committed default in payment of monthly rent as alleged by the landlord---Both Rent Controller and Appellate Court had rightly allowed ejectment application of landlords.

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

----Ss. 15(2)(vii) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of bona fide personal need of landlords---Landlords claimed that the premises in question was required for their personal bona fide use on the ground that the marriages of two landlords were held up for want of sufficient accommodation, and that premises in question were suitable for their personal use---Tenant had nowhere disputed the assertion made by landlords regarding ownership of the premises in question; it was also not denied by the tenant that premises in question was required by the landlords for their personal bona fide use---Evidence produced by the landlords in proof of their claim, remained unshaken---Landlords, in circumstances had proved their claim of bona fide personal need through cogent evidence---Both the Rent Controller and Appellate Court had rightly ordered ejectment of tenant on that ground also.

S. Hassan Tariq for the Petitioner.

Nemo for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 69 #

2009 Y L R 69

[Karachi]

Before Syed Mahmood Alam Rizvi, J

SALMAN KHALIL---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.131 and M.As. Nos. 2530 and 2531 of 2008, decided on 20th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.406 & 420---Cancellation of bail, application for---Counsel for applicant/ complainant had contended that he tried to argue before the Trial Court, but his request was turned down---Counsel had contended that he would not press his application for cancellation of bail if the direction be given to the Trial Court that he should be allowed to address the court on behalf of the complainant---Contention of counsel being reasonable, the Trial Court was directed to hear the counsel on behalf of the complainant and decide the pending bail application within the specified period.

Gen. (Retd.) Fazle Haq v. The State PLD 1989 Pesh. 227 ref.

Mehmood A. Qureshi for the Applicant.

Syed Muhammad Ali Mirza for the State.

2009 Y L R 80

[Karachi]

Before Farrukh Zia G. Shaikh, J

MUNAWAR alias MUNOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.668 of 2008, decided on 5th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Bail, grant of---Enmity existed between the parties---Accused was behind the bars for the last more than three years and no progress was forthcoming in the trial---Accused could not be kept in jail for an indefinite period as a punishment---Accused was admitted to bail, in circumstances.

Ghulam Muhammad Khan Durrani for Applicant.

Agha Ather Hussain, Assistant Advocate-General Sindh.

YLR 2009 KARACHI HIGH COURT SINDH 82 #

2009 Y L R 82

[Karachi]

Before Khawaja Naveed Ahmed, J

ASHIQ HUSSAIN---Applicant

Versus

THE STATE---Respondent

Bail Application No. 893 and M.A. No.3174 of 2008, decided on 14th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.365-B/494/148/149---Pre-arrest bail, confirmation of---Accused appeared before he High Court along with alleged abductee and produced Nikahnama claiming that he had not abducted her, but she being sui juris, out of her free-will had performed Nikah with him and they both were living as husband and wife---Complainant had not come in court and was not pursuing the matter---Wife (alleged abductee) of accused was a young girl and had validly married with accused---Accused was taking care of the girl and she appeared to be happy---Alleged allegation of previous marriage of alleged abductee and leaving the ex-husband without obtaining divorce had not been substantiated through evidence before the Investigating Officer by the complainant---Alleged ex-husband had not come forward---State counsel as well as Additional Prosecutor General were not in a position to controvert the ground reality--Interim pre-arrest bail granted to accused was confirmed on the same terms and conditions.

S.M. Iqbal for Applicant.

Salim Akhtar, Additional Prosecutor-General and Muhammad Bux, for the State.

YLR 2009 KARACHI HIGH COURT SINDH 83 #

2009 Y L R 83

[Karachi]

Before Anwar Zaheer Jamali, J

AURANGZEB KHAN---Applicant

Versus

DISTRICT POLICE OFFICER and 4 others---Respondents

Criminal Revision Application No. S-21 of 2005, decided on 11th October, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Justice of Peace on application under Ss.22-A & 22-B, Cr. P. C, passed a detailed order directing S.H.O. concerned to lodge F.I.R. of applicant against proposed accused---S.H.O. violated such order and instead of recording complaint/F.I.R. of the applicant, he recorded his statement as well as statements of various other persons and thereafter, submitted his report before the Justice of Peace---Such conduct of the S.H.O. smacked of foul play and mala fide on his part as after passing of order by the Justice of Peace, the only course available to S.H.O. was to record the statement of the applicant/complainant under S.154, Cr.P.C. and proceed further with the investigation of the crime in accordance with law---Despite categorical assertion of applicant that S.H.O. was favouring the opposite party, Justice of Peace, instead of enforcing his earlier order, accepted/entertained application of S.H.O. of Police Station; and passed the order reviewing his earlier order and directing applicant to file direct complaint---Passing of such order by Justice of Peace was a patent illegality which was liable to be corrected in exercise of revisional powers of the High Court.

Aijaz Shaikh for Applicant.

Anwar H. Ansari for the State along with S.H.O. Makki Shah Police Station Hyderabad.

YLR 2009 KARACHI HIGH COURT SINDH 87 #

2009 Y L R 87

[Karachi]

Before Khawaja Naveed Ahmed, J

Mst. RAZIA BEGUM---Applicant

Versus

THE STATE---Respondent

Bail Application No.996 of 2008, decided on 22nd September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, confirmation of---Benefit of doubt---Inordinate delay of two years in lodging F.I.R.---Had there been a genuine cause of action, the complainant should have re-acted immediately---Complainant in the contents of the F.I.R. had not mentioned that after dishonouring of the cheque from the Bank he had ever approached accused for recovery of the money or accused had ever promised to him to pay that amount---Delay in lodging F.I.R. was unexplained which created doubt regarding prosecution version---Benefit of doubt, if any, even at bail stage, should be given to accused--Apart from the merits of the case, accused was a woman coming from a good family and was in her advanced age---Pre-arrest bail granted to accused earlier, was confirmed.

Miss. Aftab Bano Rajput for Applicant.

Salimur Rehman, Additional Prosecutor General for the State.

YLR 2009 KARACHI HIGH COURT SINDH 89 #

2009 Y L R 89

[Karachi]

Before Farrukh Zia G. Shaikh, J

BACHAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.89 of 2008, decided on 4th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 561-A---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Quashing of order---Application for---Alternate prayer sought by the applicant that the case should be remanded to the Trial Court for fresh trial, was more Plausible, especially when impugned order Passed by the Trial Court was not a speaking order---Case being fit to be remanded same was ordered accordingly.

Pervez Ali Ghumro for Applicant.

Muhammad Iqbal Mahar, Asstt. Advocate-General Sindh.

YLR 2009 KARACHI HIGH COURT SINDH 92 #

2009 Y L R 92

[Karachi]

Before Ali Sain Dino Metlo, J

GHANI GLASS COMPANY---Appellant

Versus

MUHAMMAD AZEEM CHOUDHRY and another---Respondents

Criminal Acquittal Appeal No.25 of 2007, decided on 27th February, 2008.

Penal Code (XLV of 1860)---

----S.408---Criminal Procedure Code (V of 1898), S. 417----Appeal against acquittal---Allegation against accused was that he had misappropriated one million empty bottles---On completion of investigation, the case was sent to the Magistrate who charged accused for the offence of criminal breach of trust, punishable under S.408, P.P.C.---Trial Court on appraisal of evidence, came to the conclusion that the prosecution had failed to prove the charge against accused and consequently acquitted him---In absence of any evidence as to how many bottles were entrusted to accused and how many were found short or to whom he sold the bottles, charge of criminal breach of trust could not be said to have been proved against him---Counsel for complainant as well as the Assistant Advocate General conceded to the factual position regarding the lack of evidence---Acquittal recorded by the Magistrate, in said circumstances could not be interfered with---Appeal against acquittal, was dismissed, in circumstances.

Chaudhary Rasheed Ahmed for Appellant.

Sardar Muhammad Yousaf for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 95 #

2009 Y L R 95

[Karachi]

Before Munib Ahmad Khan, J

MUKHTIAR alias MUKHO and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1 of 2008, decided on 23rd June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.354---Bail, grant of---Further inquiry---F.I.R., showed that complainant, a female, had travelled a mile from her house to collect the fodder for the animals near the Katcha area where alleged incident happened---Was to be seen as to why a lady in lone capacity travelled to the area, while no public was available; that as to how the husband and brother reached the place of incident by crossing one mile distance in a shortest time when accused were busy in committing crime and ran away after seeing them; that it was to be investigated as to how the information in respect to the incident reached the husband of the lady and his brother and whether they were present in the house, which was a time for a work for men folk---All said factual position needed further investigation---Accused was admitted to bail, in circumstances.

Abdul Rasool Naich along with Zulifqar Ali Sangi for Applicants.

Muhammad Iqbal Mahar A.A.-G. for the State.

Ghulam Sarwar Korai for the Complainant.

YLR 2009 KARACHI HIGH COURT SINDH 98 #

2009 Y L R 98

[Karachi]

Before Rehmat Hussain Jafferi, J

HAKIM ALI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-122 and M.As. Nos. 609 and 495 of 2007, decided on 25th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 504, 147, 148 & 149---Bail, grant of---No other allegation was against accused persons, except their presence at the scene of incident coupled with raising Lalkara---Accused persons though were armed with DBBL guns, but they did not use the said guns in the commission of offence---No allegation against accused persons that they caused injuries to the deceased or to any of the prosecution witnesses---Recorded enmity existed between the parties as one of accused persons was complainant in the murder case of his brother in which the deceased and two prosecution witnesses were nominated as accused persons---Bail could be granted to accused persons against whom allegation of Lalkara was made and no part of firing was assigned to accused persons for causing injuries to deceased or any witness---Accused persons were admitted to bail, in circumstances.

1993 SCMR 1992; 1995 SUMK 343; 1994 SCMR 2161 and 1996 SCMR 1654 ref.

Aijaz Ahmed Shaikh for Applicants.

Miss Razia Khan Bahadur for the Complainant.

2009 Y L R 110

[Karachi]

Before Syed Zawwar Hussain Jaffery and Azizullah M. Memon, JJ

Mst. BANO---Petitioner

Versus

SULEMAN BHUTTO and others---Respondent

Constitutional Petition No. D-313 of 2004, decided on 28th October, 2004.

Penal Code (XLV of 1860)---

----Ss. 340 & 342---Constitution of Pakistan (1973), Art.199---Constitutional petition---Wrongful confinement---Counsel for the petitioner had submitted that S.H.O. had released two detenus out of three after receipt of notice of the case and that third one was still in confinement---Contents of allegation showed that a case for registration of F.I.R. was made out---Petitioner was directed by High Court to appear before the concerned D.P.O. along with a copy of complaint and the order of High Court who would direct to register the F.I.R. of the petitioner at police station---D.P.O. was further directed to withdraw S.H.O. from relevant police station and a fair inquiry be conducted against him through some impartial officer, not below the rank of Inspector.

Aijaz Shaikh for Petitioner.

Masood A. Noorani Addl. A.-G. along, with Suleman S.I.O. Police Station Qazi Ahmed for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 112 #

2009 Y L R 112

[Karachi]

Before Salman Ansari, J

TARIQ SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 979 of 2008, decided on 9th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365-B/34---Bail, refusal of---Accused in his bail application had admitted that abductee had posed herself as a virgin and sworn affidavit and then solemnized marriage with him and fixed her thumb-impression as well as signature on the Nikahnama---Such admission was also supported by the copies of documents filed and Nikahnamas which had shown that abductee was married to three different persons and she was not in the company of her parents and she had left the house of her husband after a domestic quarrel---As there was admission of Nikah with an already married woman, bail should not be granted---Court below however was directed to examine the abductee without any delay and thereafter case of accused for bail, could be considered.

YLR 2009 KARACHI HIGH COURT SINDH 114 #

2009 Y L R 114

[Karachi]

Before Mrs. Yasmin Abbasey, J

KAMRAN alias KAMI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1147 of 2007, decided on 21st January, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/324/34---Bail, grant of---Name of accused was not mentioned in any of the documents prepared by the Investigating Officer during three days after the occurrence---Prosecution had tried to improve its case by introducing two eye-witnesses of the occurrence in the case, whose statements were recorded by the police after three days of the incident without explaining the delay---Identification parade of accused was held after seven days of his arrest in which both the so-called eye-witnesses mentioned above had identified the accused as culprit, which had made the genuineness of the identification parade highly doubtful---No sound and satisfactory evidence was available on record to connect the accused with the commission of offence and his case needed further inquiry into his guilt---Accused was admitted to bail in circumstances.

Mahmood A. Qureshi for Applicant.

Agha Zafir for the State.

Shaikh Javed Mir for the Complainant.

YLR 2009 KARACHI HIGH COURT SINDH 118 #

2009 Y L R 118

[Karachi]

Before Arshad Noor Khan, J

AHMED---Applicant

Versus

MUHAMMAD IBRAHIM and others---Respondents

Revision Application Nos.53 of 2008, decided on 8th September, 2008.

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

----S. 115---Revision---Maintainability---Principles---Revision application is only maintainable when jurisdiction not vested in Trial Court has been exercised or jurisdiction vested in it has been refused to be exercised or jurisdiction has been exercised perversely---Such judgment and decree can be examined and checked by appellate court.

(b) Partition Act (IV of 1893)---

----S.4---Civil Procedure Code (V of 1908), Ss.115 & 96---Revisional jurisdiction of High Court---Jurisdictional defect---Judgment and decree passed by Trial Court on merits was maintained by Lower Appellate Court considering the same as a consent decree---Plea raised by the petitioner was that judgment and decree passed by Lower Appellate Court suffered from jurisdictional defect as Trial Court did not pass judgment with the consent of parties---Validity---Judgment passed by Lower Appellate Court suffered from inherent infirmities of making observation that consent decree could not be challenged under S.96, C. P. C. whereas neither the decree assailed before Lower Appellate Court was consent decree, nor the applicant had been heard before recording such observation by Lower Appellate Court---Judgment passed by Lower Appellate Court suffered from legal infirmities and jurisdictional defect, which could be checked by High Court in exercise of its jurisdiction under S.115, C.P. C. ---High Court set aside the judgment and remanded the case to Lower Appellate Court for deciding the appeal afresh---Revision was allowed accordingly.

2008 SCMR 428; 1996 SCMR 669 and PLD 1996 Pesh. 200 rel.

PLD 1998 Kar. 111; PLD 2000 Kar. 280; 2001 CLC 1814; 2002 CLC 295 and 1988 SCMR 1655 ref.

Eijaz Ali Hakro for Applicant.

Saeeduddin Siddiqui for Respondent No.1.

Mumtaz Alam Leghari, Asstt. A.-G. for Respondents No.2 & 3.

YLR 2009 KARACHI HIGH COURT SINDH 123 #

2009 Y L R 123

[Karachi]

Before Salman Ansari, J

GHAFOOR AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 870 of 2008, decided on 18th September, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of----Sixty three capsules containing 600 grams of heroin powder were recovered from the body of accused, which process would have consumed same time to recover the narcotics---However, accused had been challaned under S.9(b) of the Control of Narcotic Substances Act, 1997, which provided sentence of seven years' R.I. and the offence did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused was admitted to bail in circumstances.

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

Muhammad Shahid v. The State Criminal Bail Application 576 of 2008; Abdul Majeed v. The State Criminal Bail Application No.516 of 2008 and Afzaal Ahmed v. The State 2003 SCMR 573 ref.

Ghulam Rasool Mangi for Applicant.

Syed Mehboob Ali Shah, D.A.-G. for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 126 #

2009 Y L R 126

[Karachi]

Before Khawaja Naveed Ahmad, J

MUHAMMAD YAQOOB---Applicant

Versus

ABDUL RAZZAQ and 2 others---Respondents

Civil Revision Application No.144 of 2007, decided on 15th September, 2008.

Civil Procedure Code (V of 1908)---

----O.VII, R.11 & S.115---Specific Relief Act (I of 1877), S.42--- Rejection of plaint---Declaration of title---Concurrent findings of fact by two courts below---Plaint was rejected by Trial Court on the ground that plaintiff did not have cause of action as he was illegal trespasser and declaratory suit was not competent by a person having no title at all---Order passed by Trial Court was maintained by Lower Appellate Court---Validity---Orders passed by both the Courts were neither fanciful nor absurd as sound reasons had been mentioned in the orders---High Court had the power to set aside concurrent findings of courts below in revisional jurisdiction but there was no ground to upset the orders---Orders passed by both the courts below Were based on correct factual position as well as they had properly appreciated the provision of law applicable in the suit---Trial Court had rightly rejected plaint and Lower Appellate Court had also rightly upheld the order of Trial Court---Revision was dismissed in circumstances.

Abdul Ghafoor and others v. Kallu and others 2008 SCMR 452; Muhammad Ali v. Mahnga Khan 2004 SCMR 1111; Allauddin and 17 others through legal heirs v. District Manager Waqf Properties, Mirpurkhas, Sindh and 3 others 2003 CLC 799; S.M. Shafi Zaidi through legal heirs v. Malik Hassan Ali Khan (Moin) 2002 SCMR 338 and Ume Aiman and 43 others v. Muhammad Yousuf and 10 others 2002 CLC 1620 ref.

Muhammad Safdar for Applicant.

Muhammad Ilyas Khan Tanoli for Respondent No.1.

YLR 2009 KARACHI HIGH COURT SINDH 135 #

2009 Y L R 135

[Karachi]

Before Salman Ansari, J

LIAQ SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1040 of 2008, decided on 19th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)---Bail, grant of---Further inquiry---Co-accused had been granted bail by the Special Court, whereas there was very little difference in the allegations against accused who had been granted bail and that of the accused applied for bail---Case of accused would fall on the borderline of offence under Ss.9(b) & 9(c) of Control of Narcotic Substances Act, 1997---Was yet to be seen whether the maximum punishment would be awarded to accused under the circumstances, which would need discussion and further inquiry---Evidentiary value of affidavit filed by the injured person, was yet to be determined---Case of accused being one of further inquiry, bail was allowed to him, in circumstances.

Gul Hassan Dero v. The State 2000 PCr.LJ 657 (Kar.) and Taj Ali Khan v. The State 2004 YLR 439 ref.

Muhammad Iqbal for Applicant.

Ms. Perveen for Ashfaq Hussain Rizvi Special Prosecutor ANF.

YLR 2009 KARACHI HIGH COURT SINDH 136 #

2009 Y L R 136

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD IQBAL HAIDER and another---Petitioners

Versus

VTH RENT CONTROLLER/SENIOR CIVIL JUDGE, KARACHI CENTRAL and 2 others---Respondents

Constitutional Petition Nos. S-346 C.M.A. No. 2554 of 2008, decided on 29th August, 2008.

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

----Ss. 15(2) (ii), 16(1) & 17---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Maintainability---Ejectment of tenant on ground of default in payment of rent of premises---Tentative rent order---Non-compliance---Effect---Respondent claimed that she was the owner of the premises in question which she had purchased through registered sale-deed---Petitioner, who was tenant of premises under previous owner after changing hands regarding title of the premises, became tenant of the respondent as per tenancy agreement---Petitioner/tenant who was required to pay rent of premises to respondent, having failed to pay rent, and charges of utility, respondent filed ejectment application against petitioner; for tentative rent order to pay arrears of rent and monthly rent---Petitioner instead of complying with tentative rent order, not only failed to deposit arrears of rent and future monthly rent, but filed constitutional petition, which was entertained by the High Court, but on date of hearing petitioner failed to appear---Respondent had challenged maintainably of constitutional petition contending that defaulter in payment of rent could not knock at the door of the court for relief unless he would pay the rent and arrears of rent in accordance with order passed by competent court of law; that a person who had no respect for court's order and was not complying its order, could not seek relief from higher forum or from the same court---Petitioner having failed to comply with tentative rent order, constitutional petition filed by him was not maintainable, which was liable to be dismissed in limine---Petition was dismissed with direction to the Trial Court to dispose of the matter within the specified period.

Waheedullah v. Mst. Rehana Nasim and others 2004 SCMR 1568; Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan PLD 1986 Kar. 74; Haji Jan Muhammad v. Ghulam Ghaus and 2 others 1976 SCMR 141; Muhammad Bashir v. Allah Dad and another 1983 CLC 1309; Anwar Ali v. Muhammad Hussain 1999 CLC 1932; Allah Yar and others v. Additional District Judge and others 1984 SCMR 741 and Ismail Shah v. Wadho Akhara Trust 1992 ALD 549(1) and Muhammad Younis v. Atta Muhammad and 2 others 1999 SCMR 2574 ref.

None present on behalf of petitioner.

Masood Khan Ghori for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 142 #

2009 Y L R 142

[Karachi]

Before Rahmat Hussain Jafferi and Munib Ahmed Khan, JJ

MUREED ABBAS---Appellant

Versus

THE STATE---Respondent

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

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Specific motive alleged by the prosecution was not proved---Ocular testimony detailed by the eye-witnesses was fully corroborated by medical evidence---Accused had admitted all the main aspects of the incident taking the plea that due to attack from the side of the deceased persons he had fired his weapon, but his plea was not supported by medical evidence and he had not even tried to establish the same either by examining himself on oath or producing any evidence in this regard---Crime empties secured from the place of occurrence had matched with the weapon used by the accused in the incident which belonged to the acquitted co-accused---Accused having the exclusive knowledge as to how the said weapon came into his possession, had to show the same but he failed to prove this fact---Prosecution had failed to prove the motive behind the occurrence, which had taken place suddenly at the spur of the moment without pre-planning or premeditation and the same being the mitigating circumstances in favour of accused he had been rightly awarded lesser punishment of imprisonment for life---Conviction and sentence of accused were upheld in circumstances.

Jehanzeb v. State 2003 SCMR 98 ref.

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

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

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

Ejaz Khatak for Applicant (in Criminal Jail Appeal No. 87 of 2003).

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

Mehmood A. Qureshi for Respondent (in Criminal Jail Appeal No. 87 of 2003).

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

Mehmood A. Qureshi for Respondent (in Criminal Revision Application No.95 of 2003).

Date of hearing: 2nd January, 2007.

YLR 2009 KARACHI HIGH COURT SINDH 148 #

2009 Y L R 148

[Karachi]

Before Salman Ansari, J

RAFIQ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applicant No. 1010 and M.A. No. 3592 of 2008, decided on 16th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.337-A(iii)---Bail, grant of---Further inquiry---Unexplained delay in lodging of F.I.R., could not be overlooked---Every likelihood was present that the complainant had resorted to manipulation of the facts before lodging the F.I.R.---Even otherwise delay in recording of statements under S.161, Cr.P.C. would make the case of accused one of further inquiry---Was yet to be determined that as to what was exact nature of the injury as no weapon had been recovered nor described in the F.I.R. other than a "pointed thing" with which complainant alleged that he was struck by accused---Case of further inquiry having been made out, accused was released on bail.

Zaheer M. Minhas for Applicant.

Haji A. Majeed Memon for the State.

YLR 2009 KARACHI HIGH COURT SINDH 149 #

2009 Y L R 149

[Karachi]

Before Munib Ahmad Khan and Dr. Rana Muhammad Shamim, JJ

KARACHI BUILDING CONTROL AUTHORITY, through Attorney---Petitioner

Versus

PROVINCE OF SINDH through Secretary Law Department and 5 others---Respondents

Constitutional Petitions Nos. D-1009 of 2003, D-532 of 2006 and D-253 of 2007, decided on 30th September, 2008.

(a) Natural Gas Rules, 1960---

----R. 13-A---`Applicant"---Connotation---Word "applicant" as appearing in R.13-A of Natural Gas Rules, 1960, connotes "applicant" who carries with him proper title and proper title in such respect can only be when person is occupying premises in proper and legal way.

(b) Natural Gas Rules, 1960---

---R. 13-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Good governance---Unauthorized constructions---Remedial measures---High Court in exercise of constitutional jurisdiction, directed that gas and electricity connections were to be provided only when approved building plans were issued by Karachi Building Control Authority and to premises only which were mentioned in approved building plan---High Court further directed that if such connections were being illegally extended to other unapproved structures then authorities concerned, at the request of Karachi Building Control Authority, would immediately disconnect the same---High Court was informed that after construction of building, sub-leases were being registered by builders which were accepted by Sub-Registrar of properties without examining as to whether building had been constructed legally or illegally---High Court directed that only those sub-leases from builders would be admitted, executed and registered by Sub-Registrars properties of concerned area, which were in accordance with approved building plan from Karachi Building Control Authority---High Court further directed that in case of doubt, their authenticity to be checked from Karachi Building Control Authority which should be done within seven days time by the Authority---In case of water supply similar position was to be adopted and water connection was to be provided only to the premises which had legally been constructed keeping in view the approved building plan---Petition was disposed of accordingly.

2000 SCMR 1748 ref.

Shahid Jamiluddin, Syed Ansar Ali Shah and Sheikh Haider for KBCA along with Manzoor Qadir, Chief Controller of Buildings and Jamil Memon, TBCO (Lyari).

Ataullah Khan and Hameedullah Khan Niazi for Petitioners.

Abdullah Rajput holds brief for S. Khizar Askar Zaidi for Abdul Wahid Petitioner.

Yoi:saf Leghari, Advocate General Sindh and Miran Muhammad Shah, A.A.-G, along with Suhail Waraich, Superintendent of Police; Raja Umar, TPO Lyari; Raees Abdul Ghani, DSP/SPO Lyari; Zahid, S.H.O. Police Station Kalri and Anwar Subhani, AIGP Legal.

Tasawar Hussain for KW&SB along with Ghulam Arif, Managing Director, KW&SB.

Manzoor Ahmed, EDO (Law), for CDGK.

Muhammad Ali Mazhar, for KESC.

Aasim Iqbal, for SSGC along with M. Arif Latif, Deputy Chief Manager, Shahab Siddiqui, Manager (Sales).

Ahmed Pirzada, Advocate for Land Utilization Department, Board of Revenue.

Akbar Ali, Section Officer (Judicial-II), on behalf of Home Department, Govt. of Sindh, present in person.

Muhammad Talib Shah, President Check and Watch Environmental Foundation present in person.

YLR 2009 KARACHI HIGH COURT SINDH 155 #

2009 Y L R 155

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

MUHAMMAD SHOAIB WASTI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Director-General--Respondent

Constitution Petitions Nos. 568, 880, 993, 994, 995-D and D-1432, decided on 12th October, 2007.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a) (iii), (iv), (vi) & (xii)---Constitution of Pakistan (1973), Art. 199---Bail, grant of---Prosecution evidence and the comments had revealed that the allegations made against the accused could only be determined at the conclusion of the trial, which required deeper appreciation of evidence to find out their involvement in the case---Allegations by themselves would not constitute any bar for grant of bail in the peculiar facts and circumstances of the case---According to the tentative assessment without touching the merits of the allegations and grievances of the accused which might prejudice the case of any of the parties, accused were entitled to bail---Accused were admitted to bail in circumstances.

Rasheed A. Rizvi and Amer Raza Naqvi for Petitioners.

M. Shafi Muhammadi for the Petitioner.

Abdul Wahab Baloch for Petitioner.

M.A. Kazi for Petitioner.

Shafat Nabi Sherwani, DPGA NAB for Respondent.

Date of hearing: 2nd October, 2007.

YLR 2009 KARACHI HIGH COURT SINDH 160 #

2009 Y L R 160

[Karachi]

Before Salman Ansari, J

ASTI KHAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.973 and M.A. No. 3462 of 2008, decided on 18th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392/34---Bail, refusal of---Colour and registration number of the car in which accused had intercepted the complainant's car was given in the F.I.R.---Non-bailable offence had been made out against accused persons and unless it was put to evidence, it could not be assumed that involvement of accused in the case would require further inquiry---Bail application of accused persons was rejected and unless the evidence of the complainant and the eye-witnesses of the incident was recorded, no case of bail was made out.

Asif v. The State 2004 PCr.LJ 1422; Wasim Riaz V. The State 2004 PCr.LJ 668 and Muhammad Khalid v. The State 2007 PCr.LJ 1947 ref.

Adil Hussain Awan for Applicants.

Ms. Farah Naz Qazi, State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 162 #

2009 Y L R 162

[Karachi]

Before Azizullah M. Memon and Khalid Ali Z. Kazi, JJ

A.H. INTERNATIONAL (PVT.) LTD. and 3 others---Petitioners

Versus

FEDERATION OF PAKISTAN and another---Respondents

C.P.D No. D-54 Criminal Miscellaneous Nos. 2938, 2937, 202, 203 of 2007 and 4027, 3550, 3113 of 2008, decided on 19th August, 2008.

Civil Procedure Code (V of 1908)---

----O.I, R.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Necessary parties---Impleading as respondents---Assistance to court---Applicants alleged that after having obtained financial loans from different financial institutions, petitioner, either disposed of their respective properties or in any other manner had managed to avoid repayment of loan amounts with mark-up thereon---Objection raised by petitioners was that impleading of applicants as party to petition filed by them would amount to accepting their pleas---Validity---Impleading applicants as respondents would never mean to say that pleas raised by them stood accepted but on the contrary such pleas would be subject to proof thereof strictly in accordance with the provisions of Qanun-e-Shahadat, 1984---Even though the applicants might not be proper as well as necessary parties, yet for the purpose that they might properly assist the court to dispose of constitutional petition in a proper manner, High Court allowed them to be impleaded as respondents in the petition---Application was allowed in circumstances.

Messrs Mona Lisa Fruit Juice Industries Ltd. v. Government of Sindh and 5 others 1998 MLD 9 and Ghulam Ahmad Chaudhry v. Akbar Hussain PLD 2002 SC 615 rel.

Salman Aslam Butt for Petitioners.

Aamir Raza Naqvi, DAG for Respondent No.1.

Amanullah Khan for Respondent No.2.

Saima Alam Khan Durrani for Intervener Saudi Pal Leasing Company Limited.

Ashraf Hussain Rizvi for Intervener A.H. International Employees Union.

YLR 2009 KARACHI HIGH COURT SINDH 167 #

2009 Y L R 167

[Karachi]

Before Bin Yameen, J

MUHAMMAD SHAHID---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.676 of 2008 decided on 13th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9 & 51---Bail, grant of---Accused was behind the bars for the last about 7/8 months, but his case was still at preliminary stage as no charge had been framed against him so far---Case of accused was not likely to be concluded in the near future---Punishment provided for the alleged offence was seven years and fine, which did not fall within the prohibitory clause of S.51 of Control of Narcotic Substances Act, 1997---Case for grant of bail to accused having been made out, he was allowed bail.

Ghulam Rasool Mangi for Applicant.

Syed Ashfaq Hussain Rizvi, Special Prosecutor, ANF.

YLR 2009 KARACHI HIGH COURT SINDH 169 #

2009 Y L R 169

[Karachi]

Before Mrs. Qaiser Iqbal and Mehmood Alam Rizvi, JJ

GHULAM MUJTABA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.32 of 2008, decided on 17th March, 2008.

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

----S.561-A---Anti-Terrorism Act (XXVII of 1977), S.11-F(1) (b) (ii)---Penal Code (XLV of 1860), Ss.123-All 24---Quashing of proceedings---Accused had been connected with the crime on the statement of co-accused recorded after eight days of the alleged incident---Incriminating literature was not recovered on the pointation of accused, rather the same was recovered from a place easily accessible to the students and administrative staff of the University and the alleged recovery against the accused was not sustainable in law---No evidence being available against the accused, he was placed in Column No.2 of the Challan---Evil should be nipped in the bud even prior to the framing of the charge---Charge framed in the case was groundless in the absence of any cogent evidence against the accused and could not result into his conviction---Proceedings pending against the accused were quashed in circumstances and he was acquitted accordingly.

Zahoor-ud-Din v. Khushi Muhammad and 6 others 2005 YLR Peshawar 2800; 1998 SCMR 1840; Nazeer Ahmed v. The State 2005 YLR Kar. 3153 and Mst. Nayyara Naureen alias Shazia v. Muhammad Arif Butt Sabri 2005 YLR Lah. 1047 ref.

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

----Ss. 249-A, 265-K & 561-A---Acquitted of accused at any stage--principle---Where the charge is groundless and there is no possibility of conviction of accused, then the evil should be nipped in the bud even prior to the framing of the charge and proceedings against him should be dropped.

Mehmood A. Qureshi for Applicant.

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

YLR 2009 KARACHI HIGH COURT SINDH 171 #

2009 Y L R 171

[Karachi]

Before Arshad Noor Khan, J

TAIMUR USMAN KHAWAJA and others ---Plaintiffs

Versus

ALI MUHAMMAD SHAIKH and others---Defendants

Suit No. 1361 in C.M.A. No. 9046 of 2005, decided on 1st September, 2008.

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

----O. XXXIX, Rr.1 & 2---Interim injunction--- Pre-conditions---For the purpose of grant of temporary injunction, plaintiff is required to prove that there is existence of good prima facie case and balance of inconvenience is in his favour and in case the injunction, as prayed, is not granted, he will suffer irreparable loss and injury.

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

----S.55---Contract Act (IX of 1872), S.55---Civil Procedure Code (V of 1908), O.XXXIX, Rr:1 & 2---Interim injunction, grant of---Time as the essence of contract---Scope---Alternate relief---Claim of damages---Effect---Plaintiff sought restraining order against defendant from transferring suit property in favour of any third person---Contention of defendant was that time was of the essence of the contract and as plaintiff failed to comply his part of contract within stipulated time the agreement had become void---Validity---In view of specific clause in contract between the parties, time was of the essence of the contract and irrespective of the fact as to who was at fault amongst the parties, agreement had come to an end after stipulated date---After the end of agreed time, contract had become voidable at the option of parties---Plaintiff possessed no good prima facie case in his favour and he would suffer no irreparable loss, if injunction was refused---Plaintiff had already claimed damages against defendant and the loss sustained by him had already been measured by him in terms of money, therefore, he would not suffer irreparable loss if the injunction was refused---High Court declined to grant injunction in favour of plaintiff---Application was dismissed in circumstances.

2005 YLR 1916; PLD 1996 Lah. 633; PLD 1973 Kar. 49; PLD 1976 Kar. 14; PLD 2003 Kar. 57 and 222; 1998 SCMR 2485 ref.

----O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Principle---Whenever the loss, if any, is measured in terms of money, the general rule is that no injunction could be granted.

Haseeb-ur-Rahman for the Plaintiff.

Shaikh Javed Mir for Defendant No.1.

YLR 2009 KARACHI HIGH COURT SINDH 175 #

2009 Y L R 175

[Karachi]

Before Azizullah M. Memon, C. J. and Khalid Ali Z. Qazi, J

Mst. SAEEDA KHATOON---Appellant

Versus

Haji ZANGI KHAN and others---Respondents

H.C.A. No.143 of 2008, decided on 3rd July, 2008.

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

----O. XL, R.1---Appointment of Receiver---Requirement---For the purpose of O.XL, R.1, C. P. C. a party seeking appointment of a Receiver over the property involved in a particular suit, had to prove, at such an interlocutory stage of the suit itself, by means of cogent evidence that property involved in the suit was at a great risk and danger of getting destroyed at the hands of the other party; which was likely to cause irreparable loss to the party; it was thus essential that a Receiver should be appointed and directed to take over the possession of such a property.

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

----Ss. 12 & 39---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Suit for specific performance of contract and cancellation of sale agreement---Parties had filed counter-suits against each other, inasmuch as one party filed suit for specific performance of the contract which was contested by other party, whereas the other party had filed its own suit with a prayer to get the sale agreement cancelled---Counter-claims raised by the parties, respectively, were yet to be heard and adjudicated upon by means of the evidence which could be produced by both the parties in the suit---Until and unless party proved his case satisfactorily to entitle him to the decree of the specific performance of the contract in pursuance of the disputed sale agreement, he could not claim any right, title or interest in the rental amount being earned from the disputed property.

Abdul Karim Khan for Appellant.

Muhammad Ali Abbasi for Respondent No.1.

Syed Hassan Ali for Respondent No.2.

YLR 2009 KARACHI HIGH COURT SINDH 181 #

2009 Y L R 181

[Karachi]

Before Mrs. Qaiser Iqbal, J

GULAB DAHRI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 585 of 2007, decided on 12th December, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Absconder---Further inquiry---Fatal blow was attributed to co-accused, while no overt act was attributed to accused in the commission of the crime---Even Lalkara was not attributed to accused---Proceedings as envisaged under S.512, Cr.P.C., had been drawn against him---Even otherwise no absolute rule existed to the effect that a fugitive from law should, under no circumstances, be enlarged on bail, though abscondence did constitute a relevant factor when examining question of bail---In bail matters no universal rule existed which could be pressed into service in all cases as every case had distinguishable features---In the present case no overt act had been attributed to accused except that he was present at the place of occurrence having past enmity with the complainant and deceased---Case against accused required further inquiry into his guilt---Bail, in such cases could not be withheld as a matter of punishment---Accused was admitted to bail, in circumstances.

Suhrab v. The State 2007 YLR 2374 Kar.; State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373; Muhammad Khan and another v. The State 1999 SCMR 1220; Gul Khan v. The State 1999 SCMR 304; Muhammad Khan and another v. the State 1999 SCMR 1220; Syed Ali Shah v. The State 1993 PCr.LJ Kar. 1118; Abdul Raheem v. The State 1999 PCr.LJ Pesh. 1305 and Sadardin alias Sadar v. The State 2007 PCr.LJ 1579 ref.

Ghulam Sajjad Gopang for the Applicant.

Mashooq Ali Samo, A.A.G. for the State.

YLR 2009 KARACHI HIGH COURT SINDH 184 #

2009 Y L R 184

[Karachi]

Before Muhammad Ashraf Leghari, J

SHAUKAT ALI alias LALOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.650 of 2003, decided on 19th November, 2003.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i) (iii) & 337-F(ii), (v)---Pre-arrest bail, confirmation of---Allegations against two accused persons were the same---Co-accused was granted bail--Injuries caused on the person were punishable upto five years only---Case of accused was not covered by prohibitory clause of S.497(1), Cr.P.C.---Co-accused having already been released on bail, accused was also entitled for bail on the ground of consistency---Interim pre-arrest bail granted to accused was confirmed on same terms and conditions.

Aijaz Shaikh along with Applicant.

Rasheed Ahmed Qureshi, Asstt. A.-G. for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 192 #

2009 Y L R 192

[Karachi]

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

GHULAM MUJTABA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.35 and

Miscellaneous No. 185 of 2008, decided on 25th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.123 & 124---Anti-Terrorism Act (XXVII of 1997), S.11-F(1), (b) (ii)---Pre-arrest bail, confirmation of---Mala fides appeared on the part of the Investigating Agency to book accused in the commission of the crime---Recovery was effected from a place accessible to all, free and open---Punishment provided under the charged offence being less than 10 years, accused was entitled to concession of bail---Interim pre-arrest bail granted to accused, was confirmed on the same terms and conditions.

Mehmood A. Qureshi for Applicant.

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

YLR 2009 KARACHI HIGH COURT SINDH 196 #

2009 Y L R 196

[Karachi]

Before Munib Ahmad Khan, J

MUHAMMAD HUSSAIN---Petitioner

Versus

ABDUL QAYYUM KHAN and others---Respondents

Constitutional Petition No.S-735 of 2003, decided on 21st August, 2008.

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

----S. 41---Purchase of property from unauthorized person---Validity---Such purchaser could not claim to be bona fide purchaser of property.

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

----S. 54---Simple agreement of sale not proof of ownership of vendee.

Shoa-un-Nabi for Petitioner.

Farooq Hashim for Respondent.

Date of hearing: 11th August, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 204 #

2009 Y L R 204

[Karachi]

Before Munib Ahmad Khan, J

MUKHTARUL OMAR---Petitioner

Versus

Messrs STATE LIFE INSURANCE CORPORATION OF PAKISTAN and 2 others---Respondents

Constitutional Petition No. 84 of 2005, decided on 11th August, 2008.

Sindh Rented Premises Ordinance (XVII 1979)---

----Ss.8 & 9---Fair rent, fixation and enhancement of---Scope---No limitation on Rent Controller while fixing fair rent, who could enhance rent of Rs.1 to Rs.100 or Rs.1000 after keeping in view factors given in S.8 of Sindh Rented Premises Ordinance, 1979 and duration of time after which rent application was made---Fair rent, if already fixed, could be enhanced upto 10% only in terms of S.9 of the Ordinance---Section 8 of Sindh Rented Premises Ordinance, 1979 was independent in nature---While fixing fair rent, Rent Controller, in addition to four factors given in S. 8 of the Ordinance, must consider location of property, environmental value and attraction of general buyer thereto---Principles.

PLD 2005 Karachi 554; 2001 SCMR 1103; 1997 MLD 1004; 1991 MLD 644; 1992 CLC 739; PLD 1988 Karachi 164; and PLD 2008 Kar. 100 ref.

Ahmedullah Farooqui for Petitioner.

Ch. Waseem Iqbal for Respondent.

Date of hearing: 4th August, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 209 #

2009 Y L R 209

[Karachi]

Before Mrs. Yasmin Abbasey, J

RIND and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. 258 and 348 of 2008, decided on 8th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 324---Bail, grant of---Further inquiry---Only allegation against accused was of instigating other culprits who caused injuries to the complainant and his wife---Version of the complainant and prosecution witnesses, were contradictory to each other---Said contradictory statements had created confusion as to the place of incident, which had made out a case of further inquiry---In view of said contradictory versions of the complainant and his witnesses about place of incident, and having no evidence of recovery of crime weapon, no definite opinion against any person could be formed---Accused, was admitted to bail, in circumstances.

Zulifqar Ali Sangi for Applicant (in Criminal Bail Application No.258 of 2008).

Qurban Ali Malano for Applicant (in Criminal Bail Application No.348 of 2008).

Mujeeb Rehman Soomro and Muhammad Aslam Shahani for Complainant (in Criminal Bail Application No.258 of 2008)

Liaquat Ali Shar, Additional Advocate General for the State.

YLR 2009 KARACHI HIGH COURT SINDH 215 #

2009 Y L R 215

[Karachi]

Before Munib Ahmad Khan and Syed Pir Ali, Shah, JJ

CITIZEN WELFARE SOCIETY through Vice President and another---Petitioners

Versus

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

C.P. No.D-1157 of 2005, decided on 5th September, 2009.

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

---Ss. 19 & 21-A---Karachi Building and Town Planning Regulations, 1979, Reglns. 16, 20 & 25---Karachi Building and Town Planning Regulations, 2002, Reglns.3-2.20.2 & 3-2.21.1---Building constructed contrary to approved plan, regularization of---Karachi Building Control Authority, power of---Scope---No provision existed in S.19 of Sindh Buildings Control Ordinance, 1979 for regularization, but S.21-A thereof authorized Authority to frame regulations consistent with Sindh Buildings Control Ordinance, 1979---Regulations framed in respect of regularization had binding effect---Power to regularize such building vested with Karachi Building Control Authority, which could take up such issue after inspection and take action in accordance with Regulations and if building was regularizable, then it could regularize same---Violation of approved plan should not be of nature so as to change the very complexion of building or convert its status from one category to another category or cause public nuisance--Regularization could be ordered keeping in view public interest, in environment, need and interest of public---In order to treat such building to be in accordance with Building laws and Regulations, certain alterations or corrections could be ordered to be made therein---Principles.

Abdul Razak v. Karachi Building Control Authority and others, PLD 1994 SC 512; Multiline Associates v. Ardeshir Cawasjee and others, PLD 1995 SC 423; (1998) 5 SC Cases 513; (1993) 4 SC Cases 10 and PLD 1958 SC 104 ref.

Ardeshire Cawasjee and 10 others v. Karachi Building Control Authority and 4 others, 1999 SCMR 2883; Ardeshir Cowasjee v. Karachi Building Control Authority reported in PLD 2006 Karachi 63; Anwar Shah v. Province of Sindh as others, 2001 YLR 2984; Zaheer Ahmed Chaudhry and 9 others v. City District Government, Karachi through Nazim-e-Ala and 13 others, 2006 YLR 2537; Jawad Mir Muhammad and others v. Haroon Mirza and others PLD 2007 SC 472 rel.

Sardar Muhammad Yousaf for Petitioner No.1.

Messrs Abdur Rahman and Abdul Qayum Abbassi for Petitioner No.2.

Aminullah Siddiqui for Respondent No.1.

Khalid Javed Khan for Respondent No.2.

YLR 2009 KARACHI HIGH COURT SINDH 223 #

2009 Y L R 223

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

MUHAMMAD SHOAIB WASTI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Director General Sindh---Respondent

Constitutional Petitions Nos.D-1432 D-568, D-880, D-993, D-994 and D-995 of 2007, decided on 2nd October, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---National Accountability Ordinance (XVIII of 1999), Ss. 9 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Interim bail, grant of---Interim bail granted to five accused persons was confirmed on the same terms and conditions, whereas the sixth accused was granted bail on furnishing solvent surety.

Rasheed A. Rizvi for Petitioner (in C.P. No.568 of 2007) with Petitioner in person.

Shafi Muhammadi for the Petitioner (in C.P. No.880 of 2007) with Petitioner in person.

Abdul Wahab Baloch for Petitioner (in C.P. No.993 of 2007).

Muhammad Ashraf Kazi for Petitioner (in C.P. Nos.994 and 995 of 2007) with Petitioner in person.

Mahmood A. Qureshi for the Petitioner (in C.P. No.1432 of 2007) with Petitioner in person.

Shafaat Nabi K. Sherwani, D.P.G.A. NAB for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 247 #

2009 Y L R 247

[Karachi]

Before Munib Ahmad Khan and Pir Ali Shah, JJ

Messrs IMPERIAL BUILDERS through Managing Partner and another---Appellants

Versus

LINES (PVT.) LTD. Through Chief Executive and 3 others---Respondents

High Court Appeal No. 262 of 2006, decided on 1st September, 2008.

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

----S. 55---Time as essence of contract of sale of immovable property---Scope---Time would not be of the essence of such contract, unless there was undoubted specification in respect to timings.

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

----S.55---Sale of immovable property, contract of---No mention in contract respecting forfeiture of huge amount paid to vendor or its return at any date---Effect---Such fact created some doubt in respect to certainty in timing of its performance requiring assistance from evidence.

----Party at fault could not be given credit of his own mischief as he should not be allowed to reap gain at the cost of others.

1983 SCMR 559; PLD 2003 SC 430; 2005 SCMR 544; PLD 1995 SC 314; 1995 SCMR 459; 1994 SCMR 826; PLD 1984 SC 289; PLD 2005 SC 511; 2004 CLC 1029; PLD 2006 Kar. 593; 2000 SCMR 1305; 2001 MLD 1815; 2002 SCMR 338; PLD 2006 Kar. 621; 1985 SCMR 554; 2002 SCMR 361; 2002 MLD 1474; PLD 1966 SC 505; 1994 CLC 733; 1989 CLC 2070; 1988 CLC 299; AIR 1997 SC 772; AIR 2003 SC 1391 and PLD 2003 SC 518 ref.

Khalid Anwar, Khawaja Shamsul Islam and Jehanzeb for Appellants.

Asim Mansoor Khan for Respondent No.1.

Dates of hearing: 28th, 29th August and 1st September, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 252 #

2009 Y L R 252

[Karachi]

Before Khawaja Naveed Ahmed, J

Dr. MUHAMMAD NASEEM and others---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Applications Nos.518 of 1999, 39 of 2000, 109 and 115 of 2008, decided on 11th September, 2008.

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

----S.561-A---Penal Code (XLV of 1860), S.409/109---Prevention of Corruption Act (II of 1947), S. 5 (2)---Quashing of proceedings---Incident had taken place in the year 1996---One accused had died in custody during pendency of the case---Another accused had been acquitted by High Court in quashment proceedings---Steel Mills had not suffered any loss on account of the act done by the present accused, who was being dragged in proceedings for the last 12 years---Recommendation of withdrawal of the case under N.R.O. had also been made---No doubt, proceedings under section 561-A, Cr.P.C. neither provided an additional nor an alternate remedy and High Court could not assume function of Trial Court, but in appropriate cases, in order to avoid the abuse of process of Court, High Court in exercise of its power under section 561-A, Cr. P. C. could quash the proceedings---Continuance of proceedings of the matter in the trial Court would be an exercise in futility, as there was no probability of conviction of the accused for any offence---Continuance of criminal case against the accused would amount to abuse of the process of Court and quashment of the same would secure the ends of Justice---Proceedings against the accused were quashed in circumstances.

Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275; Mehboob Alam v. The State PLD 1996 Karachi 144; Manzar Iqbal v. The State 1993 PCr.LJ 125; Kashif Ali Bhutto v. The State 1993 SCMR 523; Asif Ali Zardari v. The State 1994 SCMR 798; Raja Nawaz v. Muhammad Afzal PLD 1967 SC 354; Gian Chund v. The State 1968 SCMR 380 ref.

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

----S.561-A---Inherent jurisdiction under S. 561-A, Cr. P. C---Scope---Proceedings under section 561-A, Cr. P. C. do not provide any additional or alternate remedy and High Court cannot assume the function of Trial Court; however, in appropriate cases, in order to avoid the abuse of process of Court, High Court in exercise of its power under section 561-A, Cr. P. C. can quash the proceedings.

Messrs Raza Hashmi and Suleman Habibullah for Applicants.

YLR 2009 KARACHI HIGH COURT SINDH 263 #

2009 Y L R 263

[Karachi]

Before Khalid Ali Z. Qazi, J

M.Y. CORPORATION (PVT.) LTD.---Plaintiff

Versus

PROVINCE OF SINDH through Secretary, L.U. Deptt. and 15 others---Defendants

Suit No.781 and Civil Miscellaneous No.5910 of 2007, decided on 28th August, 2008.

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

----S.42---Letter of Mukhtiarkar (Tehsildar) certifying a person as owner of land would have no legal value.

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

----O. XXXIX, Rr.1 & 2---Temporary injunction, grant of--Three essential conditions i.e. prima facie case, balance of convenience, irreparable loss and injury---Duty of applicant to satisfy court as to existence of such conditions in his favour---Principles.

A party would be entitled to relief under Order XXXIX, Rules 1 & 2, Cr.P.C. provided he satisfies the court that he has a prima facie case; that balance of convenience is in his favour; and that irreparable loss and injury could be caused to him if interim relief is not granted. The aforesaid three phrases are not rhetoric phrases, but elastic words to meet a wide range of situation in a given set of facts and circumstances. The burden is always on the plaintiff/applicant to satisfy the Court that a prima facie case exists in his favour. The court must further satisfy itself that non-interference by court would result in irreparable injury to a party seeking relief. Irreparable injury means that the injury must be a material one, one that court cannot adequately compensate by way of damages. The Court is expected to exercise sound judicial discretion to find out the amount of substantial mischief or injury, which is likely to be caused to the other party if the injunction is not granted.

Syed Sami Ahmed along with Masood Ahmed Baig Mirza for Plaintiff.

Khizer Akser Zaidi, A.A.-G. for Defendant No.1.

Nemo for Defendants No.2.

Muhammad Jamil for Defendant No.3.

Nemo for Defendant No.4.

Khawaja Shamsul Islam for Defendants Nos. 5 to 16.

Date of hearing: 11th August, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 274 #

2009 Y L R 274

[Karachi]

Before Syed Mehmood Alam Rizvi, J

SAJID KHAN---Applicant

Versus

THE STATE---Respondent

Bail Application No. 926 of 2008, decided on 29th August, 2008.

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

----S.497---Penal Code (XLV of 1860), S.302---Bail, grant of--Admittedly the accused and the deceased used to stay in the house of occurrence daily for couple of hours and fingerprints on the fan and other articles of the accused were natural and the same alone were not sufficient to connect the accused with the crime---Although the complainant and the office clerk of the deceased had identified the handwritten pages of the deceased to be in her handwriting, yet the same were not referred to any handwriting Expert---No such fact had been mentioned in the said papers that the accused was going to kill her, but the same showed that the accused had given threats to the deceased to marry with him otherwise he would kill her brother---Prima facie, the aforesaid fact showed that the above mentioned pages had been written prior to the marriage of the deceased with the accused---Medical evidence had contradicted the version of the complainant---Prosecution had no evidence to show that the accused was inside the house at the time of occurrence---Case against accused required further inquiry in circumstances and he has admitted to bail accordingly.

Abdul Hayee and 2 others v. The State 1996 SCMR 555; Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765; Muhammad Sharif v. The State 1980 SCMR 313; Allah Dita v. The State 1990 SCMR 307; Muhammad Sadiq and others v. The State 1980 SCMR 203; Muhammad Usman and another v. The State 1975 SCMR 391; Shoaib Khan v. The State 1996 PCr.LJ 810 and Sabz Ali And 3 others v. The State PLD 1993 Quetta 66 ref.

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

----S.497---Penal Code (XLV of 1860), S.302---Bail---Assessment of evidence---Principle---Principle that Court should refrain itself from deeper appreciation of evidence at bail stage is applicable to the cases in which direct evidence is available against the accused; but in the cases of circumstantial evidence only it is the duty of the Court to see whether sufficient' evidence is available with the prosecution to connect the accused with the commission of the offence or not---Court for such conclusion may evaluate entire prosecution evidence even at bail stage and Court has to see whether the accused is entitled to bail or not.

Habib Ahmed along with Ali Jafar for Applicant.

Naqi Mirza and Amjad Ali Shah for the Complainant.

Mohammad Bux for the State.

YLR 2009 KARACHI HIGH COURT SINDH 282 #

2009 Y L R 282

[Karachi]

Before Azizullah M. Memon, C. J. and Khalid Ali Z. Qazi, J

Col. (Retd.) S. MAQBUL ILLAHI through Attorney ---Petitioner

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through Administrator---Respondent

C.P. No. D-681 of 2008, decided on 5th September, 2008.

(a) Pakistan Defence Officers Housing Authority, Karachi Order (P.O. 7 of 1980)---

---Art. 17(h) ---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Allotment of plot in year 1966 by decision of Special Committee of Managing Committee of Authority and execution of lease deed in favour of petitioner by President of Pakistan after depositing all dues thereof---Show-cause notice issued by Authority in year 2008 to petitioner threatening cancellation of his plot---Validity---No body had challenged decision of Managing Committee or execution of lease deed to be illegal---Impugned notice calling upon petitioner to show cause as to why his allotment be not cancelled was in fact a change of view or mind in grave violation of Art. 17(h) of Pakistan Defence Officer Housing Authority, Karachi Order, 1980---According to Art. 17 (h) of Pakistan Defence Offices Housing Authority Karachi, Order, 1980 all allotments and transfers of plots, whether residential, commercial or otherwise made by Society before its dissolution, would be deemed to be allotments and transfers made by Authority---Impugned notice was without lawful authority and void---High Court accepted constitutional petition in circumstances.

2004 PTD 330 [364 (i)]; 2001 PTD 196; 2003 PTD 2097 (2099); 1982 PTD 361 (365); 1990 PTD 356 (361); PLD 1996 Kar. 68 (94); PLD 1990 SC 399; PLD 2005 SC 792 (Para-4); 2008 SCMR 611 (614); PLD 2005 Kar. 188; 2006 SCMR 178 (181); 2000 YLR 1989; 1982 PLC (Service) 01; 1991 SCMR 2434; 1970 SCMR 158 (169); 1993 SCMR 2307; 2002 CLC 953 (960); 2000 SCMR 317; 2001 YLR 1891 (1896); 1968 SCMR 317 (2); 2003 MLD 1939; 1993 SCMR 618 and PLD 1989 SC 360 ref.

Pakistan Defence Housing Authority, Karachi v. Shamim Khan through L.Rs. and others PLD 2005 SC 792 rel.

Mustafa Lakhani's case 2008 SCMR 611 distinguished.

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

---Art. 199---Constitutional petition--Impugned order/action patently illegal, void or wanting in jurisdiction---Alternate remedy, non-availing of---Effect---Such remedy, if counter productive, would not bar exercise of constitutional jurisdiction by High Court in such matter---Principles.

If the order or action complained of is so patently illegal; void or wanting in jurisdiction; that any further recourse to alternate remedy may only be counter productive and by invoking of Article 199 of the Constitution, the mischief can forthwith be nipped in the bud, then in such matters existence of alternate remedy would not bar the exercise of constitutional jurisdiction by High Court.

1999 SCMR 1881; 1999 SCMR 1072; 1993 SCMR 1778 and PLD 1990 SC 399 rel.

Mukhdoom Ali Khan, Bar-at-Law for Petitioner.

Khalid Javed for Respondent.

Date of hearing: 21st August, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 289 #

2009 Y L R 289

[Karachi]

Before Ghulam Dastagir A. Shahani, J

MUHAMMAD MOHSIN MALIK---Petitioner

Versus

Mst. QAMAR JEHAN and 2 others---Respondents

Constitutional Petition No. S-470 of 2007, decided on 12th September, 2008.

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

----S.15---Constitution of Pakistan (1973), Art:199---Constitutional petition--Ejectment of tenant---Bond fide personal need of landlady for her children---Proof---Failure to produce children as witness---Effect---Demand of high rent---Landlady sought ejectment of tenant from shops on the ground of bona fide personal need for her children and default in payment of rent---Ejectment application was dismissed by Rent Controller but Appellate Court allowed the appeal and passed eviction order on the ground that landlady had proved her bona fide need---Plea raised by tenant was that landlady failed to prove her stance as she did not produce her children as witness and she only wanted to increase rent---Validity---For personal requirement, landlady's failure to examine children for whose occupation she sought ejectment of tenant, would not be fatal, if landlady's statement on oath was convincing and tenant had failed either to shake her statement in cross-examination or to disprove by evidence in rebuttal---No hard and fast rule could be laid down for quantum and quality of evidence to prove bona fide need of landlady for seeking eviction of tenant---Statement of landlady alone was sufficient to prove her personal requirement if it could satisfy a prudent mind by objective evidence that such requirement did exist---For bona fide personal requirement, landlady had to state in her application the material facts which only constituted cause of action along with those facts which prima facie showed that requirement was according to law and was made in good faith and landlady was not required to state the nature of business which she intended to carry on---Demand of higher rent by itself did not cast any doubt on the personal bona fide requirement, where factum of bona fide requirement was independently proved---Landlady had only to establish good faith and if version of landlady had not been challenged, the purpose of their examination would not improve the case---Even otherwise each and every case was to be decided on its own merits---Order of eviction passed by Lower Appellate Court was legal, proper and in accordance with law and passed on merits, therefore, the same did not require any interference and was maintained by High Court---Petition was dismissed in circumstances.

Pakistan State Oil Company Ltd. v. Sikandar A. Karim and others 2005 CLC 03; Abdul Rehman and others v. Pakistan State Oil Co. Ltd and another 1997 CLC 1085; Shahid Ahmed alias Shahid Mukhtar and 9 others v. Mst. Rasheeda Mukhtar and 12 others 1997 CLC 1186 (C); Messrs United Bank Ltd. v. Haji Abdul Razzak & Co. 1993 MLD 2575; United Bank Ltd. v. Ehsan Ellahi 1989 CLC 287(C) and Noor Muhammad v. Iqbal Ahmad 1985 CLC 1007(A) distinguished.

Muhammad Younus v. Dr. S. Muzammil Ali 1981 CLC 327; Suleman Motala v. Turab Ali 1984 CLC 2469; Muhammad Ishaque v. Fateh Muhammad and 3 others 1984 CLC 2527; 1985 CLC 2111 and Mst. Saira Bai v. Syed Anisur Rahman 1989 SCMR 1366 ref.

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

----S.15---Qanun-e-Shahadat (10 of 1984), Arts.137 & 138---Ejectment of tenant--Bona fide personal need of landlady---Failure to cross-examine---Presumption---Version of landlady was not challenged in cross-examination---Effect---In view of Arts.137 and 138 of Qanun-e-Shahadat, 1984, presumption would be that evidence had been accepted by opponent against whom it was given.

Shahid Qadeer Saherwardi for Petitioner.

Zafaruddin Khan for Respondents.

Date of hearing: 3rd September, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 296 #

2009 Y L R 296

[Karachi]

Before Mrs. Yasmin Abbasey, J

SUDHEER-Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-156 and M.A. No. 376 of 2006, decided on 8th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Delay in conclusion of trial without any fault of accused---Effect---Diaries of the Trial Court had shown that not a single day's delay was on the part of accused---When the Trial Court had failed to conclude the trial of the case and State counsel had given consent for grant of bail to the accused, accused was enlarged on bail, in circumstances.

1999 SCMR 2147; 2003 MLD 19 and 2005 PCr.LJ 147 rel.

Aijaz Shaikh for Applicant.

Anwar Husain Ansari for the State.

YLR 2009 KARACHI HIGH COURT SINDH 301 #

2009 Y L R 301

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD ANIS---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.857 of 2007, decided on 8th October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 395/412---Bail, grant of---Joint recovery---Recovery was effected on joint pointation of the accused from one godown---Accused was not named in F.I.R.---Since personal liberty of an individual is guarded by criminal jurisprudence as well as under constitutional provisions it would be better to keep the accused persons on bail than in jail during the trial---Story of the prosecution did not appear to be probable which required further inquiry---Bail was allowed in circumstances.

Naeem Akhtar and others v. The State 1993 PCr.LJ 769; Rafique alias Pheeki and 2 others v. The State 1993 PCr.LJ 1017; Khalid Javed v. The State 2003 SCMR 1419 and Syed Amanullah Shah v. The State PLD 1992 SC 241 ref.

Mehmood A. Qureshi for Applicant.

Sardaruddin Qureshi for the State.

2009 Y L R 315

[Karachi]

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

ADAM LIMITED, KARACHI---Appellant

Versus

Messrs MITSUI & COMPANY---Respondents

H.C.A. No.152 of 1995, decided on 20th October, 2008.

Contract Act (IX of 1872)---

----Ss.23, 73, 187 & 237---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Compensation and damages, recovery of---Transaction by agent---Indoor management, doctrine of---Plaintiff claimed compensation and damages on the ground that despite valid agreement between both the parties, defendant-company failed to supply goods---Defendant-company denied execution of any contract and contended that letters relied upon by plaintiff were signed by its employee not authorized to do so---Plea raised by plaintiff was that principle of indoor management was applicable---Validity---Doctrine of indoor management was not applicable to transaction entered into between a registered company and a third party in good faith on the basis of any statutory provisions in Companies Ordinance, 1984--Doctrine of indoor management was applicable to such transactions on the principle of public policy, equity and good conscience to protect' innocent persons dealing in good faith with corporate entity--If agent had apparent authority to enter into a particular contract on behalf of principal, the contract was valid even though in fact he had no such authority---Written consent of principal was not essential before contract was entered into by agent on behalf of principal---No evidence was available on record to prove market rate of goods on the day of breach, therefore, no damages could be awarded to plaintiff---High Court declined to interfere in the judgment and decree passed by Single Judge---Intra-court appeal was dismissed in circumstances.

Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1965 W.P. Karachi 202; 1968 SCMR 539; Pakistan Employees Cooperative Housing Society Ltd. Karachi v. Mst. Anwar Sultana and others PLD 1969 Karachi 474; 1990 MLD page 878 and PLD 64 West Pakistan Karachi 290; PLD 1981 Karachi 504; Panorama Development Guildford Ltd. v. Fidelis Furnishing Fabrics Ltd. (1971) 3 ALR ER (sic); Sarshar Ali v. Roberts Cotton Association Ltd. and another PLD 1963 SC 244; Islamic Republic of Pakistan through Ministry of Finance v. Pioneer Trading Company Karachi, 1982 CLC Karachi 495; Bismiallah Begum v. Messrs Pak Construction Company Ltd. 1987 MLD Karachi 648 and Messrs Taj Oil Company Ltd. v. Bengal Oil Mills Ltd. 1990 MLD Karachi 877 ref.

Abdul Qadir Khan for Appellant.

Saif Malik for Respondent.

Date of hearing: 4th August, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 321 #

2009 Y L R 321

[Karachi]

Before Nadeem Azhar Siddiqi, J

EHSANULLAH AFRIDI---Plaintiff

Versus

PROVINCE OF SINDH and others---Defendants

Suit No.768 of 2005 and C.M.A. No.4457 of 2007, decided on 22nd October, 2008.

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

----O. VI, R.17---Amendment of written statement---Principles---Additional grounds---Defendant sought amendment of his written statement on the ground that he wanted to raise additional grounds which would not make a new case---Validity---Principles applied to application for amendment of plaint were also applicable for amendment of written statement---Defendant could not be allowed to make out a new case and to resile from admission, if any, made in written statement---Defendant could be allowed to raise additional grounds or defence by way of amendment if the grounds were not inconsistent with the original defence---Proposed amendment was necessary for determining the real question in controversy and would also curtail multiplicity of proceedings---Plaintiff himself sought cancellation of agreement which defendant had pleaded in proposed amendment and the same was not inconsistent with the earlier written statement---Issues had not been framed and if proposed amendment was allowed no prejudice would be caused to plaintiff, who would get sufficient opportunity to rebut the claim of defendant---Application was allowed in circumstances.

Sardar Begum v. Malik Khalid Mehmood 1986 CLC 2342; Ghulam Haider v. M. Ayub 2001 SCMR 133; Secretary Govt. of W.P. v: Kazi Abdul Kafil PLD 1978 SC 242; Nazir Hussain Rizvi v. Zazhoor Ahmed PLD 2005 SC 787; Quaid Jauhar v. Hajra Bai and another 2002 CLC 551; and Ghulam Bibi v. Salsa Khan PLD 1985 SC 385 ref.

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

----O. VI, R.17 & S.151---Amendment of application for amendment of written statement--- Principle---Defendant had sought correction in amendments proposed in written statement on the ground that corrections were formal and would not change complexion of proposed amendment---Validity---Clerical or typographical mistakes or errors from accidental slip or omission if not changing complexion of proposed amendment could be corrected by Court---Application was allowed in circumstances.

Abid S. Zuberi for Plaintiff.

Khizer Akber Zaidi for Defendants Nos.1, 4 and 6.

Sathi M. Ishaque for Defendant No.2.

Zafar Alam Khan for Defendant No.3.

YLR 2009 KARACHI HIGH COURT SINDH 326 #

2009 Y L R 326

[Karachi]

Before Dr. Qammaruddin Bohra, J

YOUNUS KHASKHELI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.464 of 2004, decided on 27th October, 2008.

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

----S. 13-D---Appreciation of evidence---Complainant police officer had failed to produce documentary proof in Court of his leaving the police station at relevant time, which had made the prosecution case doubtful---Material contradiction in prosecution evidence had suggested false and mala fide implication of accused in the case and that he was innocent---Accused had been acquitted by Special Judge in the narcotics case on almost the same evidence furnished by the same witnesses, which had been disbelieved and no appeal against acquittal of accused in that case was filed---Prosecution had failed to prove the accused guilty in the present case as well---Accused was acquitted in circumstances.

2002 PCr.LJ 51; 2001 PCr.LJ 1762; 2001 PCr.LJ 1736; 1996 SCMR 308; 1996 SCMR 167; NLR 1996 G-234 (sic); NLR 1996 G-120 (sic); 1995 SCMR 1345, and 2002 PCr.LJ 264 ref.

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

----S.382-B---Period of detention to be considered while awarding sentence of imprisonment---Nature and scope of S.382-B, Cr.P.C.---Provisions of section 382-B, Cr.P.C. are mandatory and no direction is available to the Court in the matter.

Irfan Mir for Appellant.

Ms. Kausar Naz Naqvi for the State.

Date of hearing: 6th October, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 334 #

2009 Y L R 334

[Karachi]

Before Mrs. Qaiser Iqbal, J

FAR EASTERN IMPEX (PVT.) LIMITED, KARACHI---Plaintiff

Versus

QUEST INTERNATIONAL NEDERLAND BV and 6 others--- Defendants

Suit No.494 and C.M.As. Nos.2805, 4494, 6021, 6440 and 7145 of 2008, decided on 4th September, 2008.

(a) Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Ordinance (LVIII of 2007)---

----S.4---Arbitration Act (X of 1940), S.34--Proceedings, stay of---Referring the matter for arbitration---Defendants sought stay of proceedings in suit filed by plaintiff and also sought referring the matter for arbitration in accordance with covenants contained in arbitration agreements entered with the parties---Validity---Discretion available to Court under S.34 of Arbitration Act, 1934 was not available under Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Ordinance, 2007, being mandatory in nature, the foreign elements could not be considered nor the discretion vested with the court to stay or not to stay the proceedings in terms of arbitration agreement---Plaintiff's suit as against defendants was not maintainable in law and was dismissed---Plaintiff failed to bring out the case within the limitations provided under S.4 (2) of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Ordinance, 2007, therefore, proceedings of the suit were stayed---High Court referred the dispute between parties to arbitral proceedings in terms of arbitration clause--Application was allowed accordingly.

Messers. Neincke Food Processing Equipment v. Messrs Danish Butter Cookies Pvt.. 1992 CLC 1132; PLD 1985 Karachi 425, PLD 1973 SC 373; PLD 1984 Karachi 138; Muhammad Aref Effendi v. Eypt AIR 1980 SCMR 588; Karachi Catholic Cooperative Housing Society Ltd. v. Mirza Jawad Baig PLD 1994 Karachi 194; Akbar Cotton Mills Ltd. v. Messrs Ves Ojuanojo Objedienije Tech Amesh Export And another 1984 CLC 1605; Michael Goldetz And others v. Serajuddin and Co. AIR 1963 SC 1.044 V50 C 155 From Calcultta; Messrs Uzin Export and Import Enterprises For Foreign Trade v. Messrs. M. Iftikhar and Company Limited 1993 SCMR 866; Zubair Ahmed v. Pakistan State Oil Co. Ltd. and another PLD 1987 Karachi 112; Messrs Universal Trading Corpn. Pvt. Ltd. v. Messrs Beecham Group PLC and another 1994 CLC 726; Rachappa Gurudappa, Bijapur v. Gurusiddappa Nuraniappa and others 1990 MLD 1383; Supreme Court of India Balagamwala Oil Mills Pvt. Ltd. v. Shakarchi Trading A.G. and 2 others PLD 1990 Karachi 1 and Mian Tajammul Hussain and 3 others v. State Life Insurance Corporation of Pakistan 1993 SCMR 1137; Aziz-ur-Rehman v. Presiding Officer, Local Council Elections and others 2005 CLC 1201 and Messrs Travel Automation Pvt. Ltd. Through Managing Director v. Abacus International Pvt. Ltd. through President and Chief Executive and 2 others 2006 CLD 497 ref.

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

----S.202---Interest of agent---Effect---Provisions of S.202 of Contract Act, 1872, can be split up into two parts: First part contemplates that interest of agent himself should exist in property that forms subject matter of agency; Second part, is that when such interest is created, it cannot be terminated to the prejudice of agent, unless it is expressly provided in the contract.

Bolan Beverages Pvt. Ltd. v. Pepsico. INC. and 4 others PLD 2004 SC 860; Messrs Time N Visions International (Pvt.) Ltd v. Dubai Islamic Bank Pakistan Ltd. PLD 2007 Karachi 278; Huma Enterprises and 3 others v. S. Pir Ali Shah and others 1985 CLC 1522; Worldwide Trading Company v. Sanyo Electric Trading Company Ltd. PLD 1986 Karachi 234; Palani Vannan and others v. Krishnaswami Konar and others AIR (33) 1946 Madras 9; Sheoparsan Singh and others v. Ramnadan Prasad Narayan Singh and others AIR 1916 Privy Council and Messrs Business Computing International Pvt. Ltd v. IBM World Trade Corporation 1997 CLC 1903 ref.

Abdul Qayyum Abbasi for Plaintiff.

Khawaja Mansoor for Defendants Nos.1 to 5.

Nazar Akbar for Defendant No.6.

Iqra Saleem and S.M. Ghani for Defendant No.7.

YLR 2009 KARACHI HIGH COURT SINDH 344 #

2009 Y L R 344

[Karachi]

Before Abdur Rehman Faruq Pirzada, J

ABDUL MAJEED and another---Applicants

Versus

THE STATE---Respondent

Cr. Bail Application No. 588 and C.M.As. Nos.2992 and 2421 of 2008, decided on 21st October, 2008.

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

----S.497---Penal Code (XLV of 1860), S.324/147/148/149/114/337-H(ii)---Bail, grant of---Eighty four persons armed with deadly weapons could have easily killed the complainant and the prosecution witnesses, in case they had any such intention---Even after finding that the prosecution witness had sustained injuries on his legs only, neither the accused had repeated their fires nor the remaining 82 accused persons had tried to fire upon the complainant party or to kill them by any other means---Injuries suffered by the witnesses were on non-vital parts of their bodies---Prima facie, S. 324, P.P.C. did not appear to be applicable in the case---Remaining offences were not hit by the prohibitory clause of section 497(1), Cr.P.C.---Accused were admitted to bail in circumstances.

1999 PCr.LJ 140 Karachi; 2002 MLD 150 Karachi; 2004 MLD 1910; PLD 1989 SC 347 and 1987 PCr.LJ 1088 rel.

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

----S.324---Attempt to Commit qatl-i-amd---Applicability of S. 324, P.P.C.---Scope-Applicability of section 324, P.P.C. has to be judged in the background of the number of the accused persons, the weapons carried by them and the opportunity available to them to complete the intended offence.

Ubedullah Malano for Applicants.

Muhammad Iqbal Mahar, A.A.-G. for the State.

YLR 2009 KARACHI HIGH COURT SINDH 348 #

2009 Y L R 348

[Karachi]

Before Arshad Noor Khan, J

MUHAMMAD AYUB & BROTHERS through Partner ---Plaintiff

Versus

PROVINCE OF SINDH through Secretary, Irrigation and another---Defendants

Suit No.205, C.M.As. Nos. 995, 1851, 2682, 6992 and 7411 of 2008, decided on 3rd November, 2008.

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

----O. XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Essential conditions to be considered by Court stated.

For the purpose of grant of interim injunction, the Court has to consider three cardinal principles regarding grant of interim injunction, viz, (i) existence of a good prima facie case in favour of the plaintiff; (ii) balance of convenience in favour of the plaintiff, and (iii) plaintiff shall suffer irreparable loss and injury, in case the injunction is refused.

For the loss, if any, which can be measured in terms of money, no injunction can be granted. The loss can be recovered as damages by filing of a suit against defendant.

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

----S.54---Civil Procedure Code (V of 1908), O. VII. R.11 (d)---Arbitration Act (X of 1940), S.34---Suit for permanent injunction---Relief claimed in suit to restrain plaintiff-employer from forfeiting Bank guarantee furnished by plaintiff-contractor---Contract agreement containing clause regarding reference of dispute between parties to arbitrator---Application by defendant for rejection of plaint---Validity---Forum available to plaintiff was to approach Arbitrator and not to Court---Suit was barred by provisions of Arbitration Act, 1940---Plaint was rejected under O. VII, R. 11, C. P. C.

----S.69---Civil Procedure Code (V of 1908), XXIX, R.1---Suit by registered partnership firm through a person alleged to be authorized by firm---Resolution or authority on behalf of firm in favour of such persons was neither filed along with plaint nor relied upon---Effect---Such person did not posses lawful authority to sign, verify and file plaint on behalf of firm---Plaint had not been filed through a competent person---Suit filed by such person was dismissed for being not maintainable.

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

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S.56---Temporary injunction, grant of---Scope---No injunction could be granted against day to day functioning of public functionaries.

Bilal A. Khawaja for Plaintiff.

Muhammad Yousuf Leghari, A.-G. Sindh for Defendant No.1.

YLR 2009 KARACHI HIGH COURT SINDH 358 #

2009 Y L R 358

[Karachi]

Before Mrs. Qaiser Iqbal, J

COOPER & CO. LTD. through Chairman---Plaintiff

Versus

LAUREL NAVIGATION (MAURITIUS) LTD. ---Respondent

Suits Nos.127, 128, C.M.As. Nos. 653 and 654 of 2008, decided on 12th November, 2008.

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

----S. 202---Shipping agency, termination of---Effect---Interest of agent in such agency being commission or remuneration could not be said to be interest in property itself.

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

----Ss. 12, 42 & 54---Contract Act (IX of 1872), S.202---Suit for specific performance of contract by agent for shipping agency, injunction and damages---Incurrence of heavy expenditure by agent in setting up office and necessary infrastructure for carrying on business of agency---Application for temporary injunction to restrain termination of agency by principal---Validity---Interest of agent in such agency being commission or remuneration same could not be said to be an interest in property itself---Incurrence of such expenditure by agent would not warrant grant of injunction as agent had claimed damages as alternative relief---Compensation in money would normally be .considered adequate remedy for illegal termination of agency---Application for temporary injunction was dismissed in circumstances.

Muhammad Aref Effendi v. Egypt Air 1980 SCMR 588; Abdul Habib Rajwani v. Messrs Brothers Industries Ltd. 2007 YLR 590; Messrs. Travel Automation (Pvt.) Ltd. v. Abacus International (Pvt.) Ltd. 2006 CLD 497; Roomi Enterprises (Pvt.) Ltd. v. Stafford Miller Limited and others 2005 CLD 1805; Messrs. Time N Visions International (Pvt.) Ltd. v. Dubai Islamic Bank Pakistan Limited 2007 CLD 762; Messrs.. Farooq & Co. v. Federation of Pakistan and others 1996 CLC 2030; Zubair Ahmed v. Pakistan State Oil Co. Ltd. and others PLD 1987 Karachi 112; Muhammad Ibrahim v. Small Business Finance Corporation 2002 CLD 176; Messrs. Business Computing International (Pvt.) Ltd. v. IBM World Trade Corporation 1997 CLC 1903; Pakistan Automobile Corporation Limited and others v. General Motors Overseas Distribution Corporation and others PLD 1982 Karachi 796; Huma Enterprises v. Syed Pir Ali Shah and others 1985 CLC 1522; Messrs. Universal Trading Corporation (Pvt.) Limited v. Messrs. Beecham Group PIC and Others 1994 CLC 726; Bolan Engineering (Pvt.) Limited v. Pepsi Co, Inc and others PLD 2004 SC 860; Messrs. World Wide Trading Co. v. Sanyo Electric Trading Co., Limited and others PLD 1986 Karachi 234; Muhammad Riaz v. Federal Construction Corporation Limited and others 1987 CLC 345; Messrs Universal Business Equipment (Pvt.) Limited v. Messrs Kokusai Commerce Inc. and others 1995 MLD 384; Talani Vannan and others v. Krishnaswami Konar and others AIR 1946 Mad. 9; Muhammad Farooq & Co. (Pvt.) Limited v. Messrs. Pakistan Tobacco Co. Limited and others 1997 CLC 520; Syed Shafique Hussain v. Syed Abdul Qasim PLD 1979 Karachi 22; Messrs. Caltex Oil Pakistan Limited v. Sheikh Rahan-Ud-din PLD 1958 Lahore 63; Sardar Muhammad Nawaz v. Mst. Firdous Begum 2008 SCMR 404; Muhammad and 9 others v. Hashim Ali PLD 2003 SC 271; Mst. Salma Javed and others v. S. M. Arshad and others PLD 1983 Karachi 303; Balagomwala Oils Mills v. Shakarchi Trading AG and others PLD 1990 Karachi 1; Molasses Export Co. Limited v. Consolidated Sugar Mills Limited 1990 CLC 609; Marghub Siddiqui v. Hamid Ahmed Khan and others 1947 SCMR 519; Rehman Khan and others v. Mst. Safia Begum 2002 YLR 3120; Syed Mahmood Ali Gardezi v. Syeda Rabia Begum and others 1993 MLD 814; Pakistan Paper Corporation Ltd. P.P.C. v. National Trading Company N.T.0 1993 CLC 1969; Muhammad Matin v. Mrs. Dino Manekji Chinoy PLD 1983 Karachi 387; Sui Gas Transmission Company v: Sui Gas Employees' Union 1977 SCMR 220; S.N. Gupta. & Co. v. Sadananda Ghosh PLD 1960 Dacca 153; Muhammad Yousuf v. Messrs Urooj Private Limited PLD 2003 Karachi 16; Sunshine Corporation (Pvt.) Limited v. V.E.I. Du Pont 1999 YLR 2162; Messrs Nasir Traders v. Habib Bank Limited. Quetta PLD 1993 Quetta 94; Mst. Azeemun Nisa Begum v. Ali Muhammad PLD 1990 SC 382; Philippine Airlines Inc, v. Paramount Aviation Private Limited PLD 1999 Karachi 227; Messrs. Time N Visions International (Pvt.) Limited v. Dubai Islamic Bank Pakistan Limited PLD 2007 Karachi 278 Bolan Beverages (Pvt.) Limited v. Pepsico Inc. PLD 2004 SC 860 2004 CLD 1530; M/s. Petrocommodities Pvt. Limited v. Rice Export Corporation of Pakistan PLD 1998 Karachi 1, Zahid Hussain v. Government of Sindh 1992 CLC 2396; Messrs. Pakistan Associated Construction Limited v. Asif H. Kazi 1986 SCMR 820; Hameedull v. Headmistress 1997 SCMR 855; Puri Terminal Limited v. Government of Pakistan 2004 SCMR 1092 and Hazara. Hill Tract Improvement Trust v. Mst. Qaisra Elahi & anothers SCMR 678 ref.

----S.202---Illegal termination of agency by principal---Remedy of agent---Normally in such case, compensation in money would be considered adequate remedy.

Farogh Naseem for the Plaintiffs.

Rehman Aziz Malik for the Defendant No.1.

Shakeel Pervez Bhatti for Defendant No.2.

YLR 2009 KARACHI HIGH COURT SINDH 367 #

2009 Y L R 367

[Karachi]

Before Abdur Rahman Faruq Pirzada and Ghulam Dastagir A. Shahani, JJ

NAIMAT ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. D-129 of 2008, decided on 15th May, 2008.

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

----S.497---Penal Code (XLV of 1860) Ss. 302/396/337-F(i)/337-L(2)/148/149---Bail, grant of---Accused, according to F.I.R. was only shown to be present on the spot being armed with a hatchet, but he had not caused any injury either to the deceased or to any one else belonging to the complainant parry---Co-accused charged with the role of inflicting 'Lathi' blows to a prosecution witness, had already been released on bail by High Court and case of accused was even on a better footing than the case of said co-accused---Proceedings under Ss. 87/88 Cr.PC. having not been completed by Trial Court, accused could not be termed as an absconder under the law---Neither complainant in the F.I.R. nor his son or any other witness in their statements under S. 161 Cr.P.C. had given the exact number or even description of the buffaloes allegedly robbed by the accused, which had made the prosecution case doubtful---Applicant also deserved con-cession of bail on the rule of consistency---Bail was allowed to accused in circumstances.

Khan Mir v. Amal Sherin 1989 SCMR 1987; Mumtaz v. The State 1990 PCr.LJ 205; Baloo alias Piyar Ali v. The State 2000 PCr.LJ 1508; Muhammad Amin Hussain v. The State 1997 MLD 605; 2001 YLR 815 and 1991 SCMR 322 ref.

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

----Ss.87/88---Penal Code (XLV of 1860), Ss.302/396---Abscondance---When no proceedings under Ss. 87 and 88 Cr.P.C. were taken against the accused in respect of his abscondence, he cannot be termed as an absconder.

Khan Mir v. Amal Sherin 1989 SCMR 1987 and Mumtaz v. The State 1990 PCr.LJ 2055 ref.

----Abscondenace---Effect---Long abscondance of accused can be ignored, where his case requires further inquiry.

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

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

----S.497---Bail---Abscondence of accused---Effect---Abscondence of accused per se may not be the sole ground for refusal of bail, but it is indeed one of the factors which can be taken into consideration while deciding the question of his bail.

Muhammad Amin Hussain v. The State 1997 MLD 605 ref.

Abdul Ghaffar Korai for Applicant.

Muhammad Mehmood S. Yousfi, Asstt. A.-G. for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 373 #

2009 Y L R 373

[Karachi]

Before Nadeem Azhar Siddiqi, J

Messrs AL-AZIZ ROUTE TRANSPORT COMPANY through Managing Partner---Plaintiff

Versus

Messrs ASKARI LEASING LIMITED and another---Defendants

C.M.As. Nos. 9231, 9233, 9235, 9237 of 2008 in Suit Nos. B-13 to B-16 of 2008, decided on 30th October, 2008.

Civil Procedure Code (V of 1908)---

----S.152---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss.9 & 2(b)(ii)---Suit for declaration, rendition of accounts, injunction, specific performance of contract, redemption/release of securities/guarantees, damages and other reliefs---Any clerical or arithmetical omission or error in the order can be corrected by invoking the jurisdiction of Court under S.152, C.P. C. and the same cannot be said to be reopening the case---Specific intent cannot be corrected.

Saalim Salam Ansari and Rana Azeem for Plaintiff (in all Suits).

Asif Mahmood and Bahzad Haider for Defendant No.1 (in Suit No.B-13 of 2008).

Ms. Naheed A. Shahid for Defendant No.1 (in Suit No.B-14 of 2008).

Ms. Samia Alam Khan Durrani for Defendant No.1 (in Suit No.B-16 of 2008).

Tahawwur Ali Khan for Defendant No.2 (in all Suits).

None present for Defendant No.1 (in Suit No.B-15 of 2008).

YLR 2009 KARACHI HIGH COURT SINDH 381 #

2009 Y L R 381

[Karachi]

Before Arshad Noor Khan, J

ALVIA TABLIGH TRUST through Managing Trustee---Plaintiff

Versus

MUHAMMAD AKRAM and another---Respondents

Suit No.1291 of 2004 and C.M.A. No.6234 of 2006, decided on 27th October, 2008.

Specific Relief Act (I of 1877)---

----S.42---Sindh Katchi Abadis Act (II of 1987), S.19---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration---Rejection of plaint---Land in question fell within the ambit of Katchi abadi as such declaration sought by plaintiff in his suit in any way could not be granted---Plaintiff himself did not possess any legal character over property in dispute as required- under S.42 of Specific Relief Act, 1877, to claim ownership, unless the same had been allotted to him by government under the provisions of Sindh Katchi Abadis Act, 1987---Suit filed by plaintiff was not maintainable and the same was rejected---Application was allowed accordingly.

S.M. Shafi Ahmed Zaidi v. Malik Hassan Ali Khan (Moin) 2002 SCMR 338; Ume Aiman and 43 others v. Muhammad Yousuf and 10 others 2002 CLC 1620; Messrs Mateen Corporation v. Messrs Plasticrafters (Pvt.) Limited PLD 2006 Karachi 621; Messrs Sign Source v. Messrs Road Trip Advertisers and another 2005 CLC 1982 and Abdul Zahir v. Mir Muhammad and others 1999 CLC 246 ref.

Nemo for Plaintiff.

Haroon Ishaque for Defendant No.1.

Date of hearing: 20th October, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 387 #

2009 Y L R 387

[Karachi]

Before Zafar Ahmed Khan Sherwani, J

JAMSHER MAZARI---Applicant

Versus

THE STATE---Respondent

Crl. Bail Application No.524 of 2008, decided on 24th October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.459/460/324/148/149/337-H(ii)--- Bail, grant of---Seven armed bandits including the accused had trespassed into the courtyard of the complainant after midnight to commit theft of his cattle---Accused was stated to have also given a "Lathi" blow to the deceased on his head, but his skull bone was not fractured---Identification of accused in torch light was, doubtful, as the torch was not produced before the Investigating Officer---Seventeen hours delay in lodging the F.I.R. had reflected deliberations and consultations by the complainant party before, nomination of the accused---Father of the present accused who was alleged to have fired with his Kalashnikov at the deceased as well as a prosecution witness, had already been let off by the police, making the ocular account of the incident doubtful and also indicating that complainant had involved more than one person of the family of accused in the commission of the offence---Sufficient grounds were available for further inquiry into the guilt of accused as envisaged in S. 497(2) Cr.P.C.-Accused was granted bail in circumstances.

Khadim Hussain v. The State 990 KLR Criminal Cases 195; Parial v. The State 2006 PCr.LJ 1212; Sultan Mahmood v. The State KLR 1986 Lahore 13; Mst. Qudrat Bibi v. Muhammad Iqbal and other 2003 SCMR 68 and Saeed Muhammad Shah v. The State 1993 SCMR 550 ref.

Awan Rehmatullah Nadeem for Applicant.

Muhammad Akram Shaikh, State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 389 #

2009 Y L R 389

[Karachi]

Before Gulzar Ahmed, J

Syed NIAZ AHMED---Plaintiff

Versus

NATIONAL REFINERY LIMITED, KARACHI through Chief Executive and another---Defendants

Suit No.1203 of 2006, decided on 24th October, 2008.

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

----O. VI, Rr.1, 15, O. VIII, R.5 & O. XII, R.6---Qanun-e-Shahadat (10 of 1984), Art.113---Non-verification of written statement by defendant on oath and solemn affirmation---Plaintiff objected to taking on record such written statement and insisted upon summoning of defendant as witness to prove such non-verification-Non-production of evidence by defendant in support of written statement---Effect---Evidence of deponent having verified written statement would be material in such case as he could say whether he had taken oath on solemn affirmation or not---Such question would be consequential and would rather be a question of law and not of fact---If defendant appeared and admitted written statement to be on oath and solemn affirmation, the same would become a piece of evidence and could be relied upon by him even without his evidence---If defendant deposed that written statement was not on oath and solemn affirmation, then same would become defective and would not be taken into consideration by Court except admissions made therein.

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

----O.XVI, R. 2(1)---Provision of O.XVI, R. 2(1), C.P.C. regarding deposit of expenses of witness--- Effect--- Such provision being mandatory must be strictly observed and complied with before grant of summons for attendance of witness---In case of non-compliance with such provision, grant of summons would be illegal and summons would become liable to be recalled---Principles.

----O. VIII, R.5 & O. XII, R. 6---Qanun-e-Shahadat (10 of 1984), Art. 113---Written statement, admission in---Proof---Non-production of evidence by defendant to prove contents of written statement--Effect---No evidence would be required to prove such admission---Defence plea taken in written statement without evidence would remain unproved, except facts admitted therein, which would be binding upon defendant and plaintiff could take advantage thereof---Principles.

Faqeer Muhammad v. Mst. Muhammad Bibi PLD 1991 SC 590 ref.

Ahmed Khan v. Rasool Shah PLD 1975 SC 311 and Muhammad Ayub v. Mst. Naseem Akhter 2003 MLD 1349.rel.

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

----O.XIV, R.1, O.VI, Rr.1, 14 & 15---Non-framing of issue regarding non-signing and non-verification of written statement by Managing Director of company/defendant---Effect---Such fact could not be introduced at stage of recording of evidence.

(e) Sindh Chief Court Rules (O.S.)---

----Appendix-A, Form 3---Affidavit in support of application---Adoption of contents of application in affidavit for sake of brevity---Validity---Repetition of matter again and again would only burden Court file without any practical benefit---Such adoption would not be illegal.

Agha Faqueer Muhammad for the Plaintiff.

Shahid Anwar Bajwa for the Defendants.

YLR 2009 KARACHI HIGH COURT SINDH 394 #

2009 Y L R 394

[Karachi]

Before Mrs. Yasmin Abbasey, J

Mst. BILQEES BEGUM---Petitioner

Versus

AUSAFUDDIN and 2 others---Respondents

Civil Petition No. S-74 of 2006, decided on 26th October, 2007.

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

----S.15---Civil Procedure Code (V of 1908), S.9---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Ejection application---Relationship of landlord and tenant, denial of---Tenant's plea to have purchased disputed premises through oral sale agreement---Non-execution of sale-deed by landlord and non-filing of suit for specific performance of oral sale agreement by tenant even after expiry of eleven (11) years---Landlord's statement in cross-examination that he was ready to execute sale-deed in favour of tenant after payment of differential amount in between Pugri amount and sale consideration---Ejectment order passed by Rent Controller reversed by Appellate Court---Validity--- In presence of documents placed on record and due to non-existence of proper title document, tenant's statement was ambiguous---High Court directed parties to approach Civil Court to get their title cleared and suspended impugned order till determination of title of disputed premises.

M.M. Tariq for the Petitioner.

Adnan Ahmed for the Respondent No.1.

Date of hearing: 26th October, 2007.

YLR 2009 KARACHI HIGH COURT SINDH 400 #

2009 Y L R 400

[Karachi]

Before Khalid Ali Z. Qazi, J

SHAUKAT HAYAT---Plaintiff

Versus

Mst. IMTIAZUNNISSA and others---Defendants

Suit No. 245 of 2006, decided on 7th November, 2008.

Specific Relief Act (I of 1877)---

----Ss.12, 42 & 54---Civil Procedure Code (V of 1908), O.IX, R.6---Ex parte decree---Absence of defendants---Despite several opportunities afforded to defendants to appear before court and contest the suit, they failed or avoided to appear before the court and were declared ex parte---Effect---In absence of any defence, 'court had no option but to accept claim of plaintiff that he purchased suit property from defendant vide sale agreement and had paid full consideration---High Court directed the Nazir of this Court to execute sale deed and sign all documents in respect of transfer of suit property and to record statement on behalf of defendants before Sub-Registrar concerned, in favour of plaintiff---Suit was decreed accordingly.

Tasawur Ali Hashmi and Muhammad Sarwar Shahid for the Plaintiff.

Mst. Imtiazunnissa and another called absent.

Date of hearing: 22nd October, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 403 #

2009 Y L R 403

[Karachi]

Before Salman Ansari, J

Mian ZAFAR IQBAL through Attorney---Petitioner

Versus

FARZANA KHANUM and another---Respondents

Civil Petition No. S-562 of 2007, decided on 28th October, 2008.

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

----S. 17(8)---General Clauses Act (X of 1897), S.21-Constitution of Pakistan (1973), Art. 199---Constitutional petition---Order of deposit of tentative rent---Rent Controller on tenant's application under S. 21 of General Clauses Act, 1897 kept such order in abeyance till decision of his already pending application for framing of preliminary issue regarding existence of relationship of landlord and tenant between parties---Validity---No provision of review existed in Cantonments Rent Restriction Act, 1963, High Court set aside impugned order for being without jurisdiction.

Muzaffar Ali v. Muhammad Sharif PLD 1981 S C 94; Abdul Wahid Khan v. Ghulam Mustafa 1983 CLC 2297 and Ch. Ijaz Sarwar v. Nadeem Farooq and another 2004 CLC 1525 fol.

Khilji Bilal for the Petitioner.

YLR 2009 KARACHI HIGH COURT SINDH 408 #

2009 Y L R 408

[Karachi]

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

MUHAMMAD YOUNIS---Appellant

Versus

MUHAMMAD ISHAQ and others---Respondents

H.C.A. No. 173 and C.M.A. No.977 of 2008, decided on 29th October, 2008.

Civil Procedure Code (V of 1908)---

----S.12(2) & O.XII, R.6---Setting aside of decree---Admission of claim---Defendant assailed judgment and decree passed by High Court, on the ground that he did not make any admission to accept claim of plaintiff in the suit---Validity---Where a suit had been heard and decided on the basis of admission of defendant and proceedings so recorded were clear enough indicating no ambiguity as well as definite admission was found pertaining thereto, the concerned party could not subsequently take a "U" turn to say that he had no intention to make such admission for the purpose of disposal of suit---Defendant failed to-show any fraud or misrepresentation of facts as alleged by him during the proceedings---Suit was decided on his own admission and his application under S.12 (2) C.P.C. was correctly found to be without merits and was rightly dismissed by High Court---High Court appeal was dismissed in limine.

G.R. Syed v. Muhammad Afzal 2007 SCMR 433 rel.

Saathi M. Ishaque for the Appellant.

Muhammad Ilyas Khan Tanoli for the Respondent No.1.

Manzoor Ahmed for, Respondent No.2.

YLR 2009 KARACHI HIGH COURT SINDH 414 #

2009 Y L R 414

[Karachi]

Before Khalid Ali Z. Qazi, J

TALAT HUSSAIN---Plaintiff

Versus

Messrs RADO BUILDERS AND DEVELOPERS, KARACHI and another---Defendants

Suit No. 356 of 2007, decided on 7th November, 2008.

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

----Ss. 12, 42 & 54---Civil Procedure Code (V of 1908), O.IX, R.6---Ex parte decree---Absence of defendants---Despite several opportunities afforded to defendants to appear before court and contest the suit, they failed or avoided to appear before the court and were declared ex parte---Effect---In absence of any defence, court had no option but to accept claim of plaintiff that he booked suit property from defendants and had paid Rs.4,76,500 out of total sum of Rs. 5,76,000---Fact regarding payments made to defendants had been confirmed from receipts annexed with memo of plaint---Such fact was also admitted by one of the defendants in its letter issued to plaintiff for cancellation of allotment---Court directed plaintiff to deposit balance consideration amount with its Nazir, who would execute sale-deed and sign all documents in respect of transfer of suit property and to record statement on behalf of defendants before Sub-Registrar concerned, in favour of plaintiff---Suit was decreed accordingly.

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

----Arts. 117 & 120---Proof of case---Principle---Plaintiff cannot take benefits of weaknesses of defendants and he has to prove his case according to his own pleadings.

M.A. Khan for the Plaintiff.

Defendants called absent.

Date of hearing: 30th October, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 424 #

2009 Y L R 424

[Karachi]

Before Nadeem Azhar Siddiqi, J

HIRA JAWED and 5 others---Plaintiffs

Versus

FEDERATION OF PAKISTAN through its Federal Secretary, Ministry of Petroleum and Natural Resources Block "B" Islamabad Secretariat and 8 others---Defendants

C.M.A. No.2658 in Suits Nos. 382 in C.M.A. No. 4768 in Suit No. 573 of 2007, decided on 30th October, 2008.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Karachi Town Planning Regulations and Change of Land Use and Master Planning Bye-laws, 2003, bye-laws No. 3 & 7---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Suit for declaration---Interim injunction, grant of---Commercializing of residential plot---Installation of Compressed Natural Gas Station---Plot in question was initially a residential plot which was converted into commercial plot on the basis of notification, whereby the whole road had been declared commercial---Plaintiffs assailed commercializing of plot and construction of Compressed Natural Gas station over the same---Validity---Plot in question was situated in a known residential area and was converted into commercial plot for using the same for Compressed Natural Gas filling station---Bye-laws Nos. 3 and 7 of Karachi Town Planning Regulations and Change of Land Use and Master Planning Bye-laws, 2003, provided for publication of advertisement in two different newspapers and holding of open Katchary by Union Council and plot changed for commercial purpose was not be permitted to be used for storage of dangerous inflammable matters, or other dangerous articles---Compressed Natural Gas Station was allowed to be installed in violation of bye-laws Nos.3 and 7 of Karachi Town Planning Regulations and Change of Land Use and Master Planning Bye-laws, 2003 and it was sufficient to hold that plaintiffs had made out a prima facie case and balance of inconvenience was also in their favour and if Compressed Natural Gas Station was allowed to be operated the only sufferers would be the residents of the area---Application for grant of injunction was allowed in circumstances.

Jibendra Kishore Achharyya Chaudhary v. The Province of East Pakistan through Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan PLD 1957 SC 9; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Karachi Development Authority v. Wali Ahmed Khan 1991 SCMR 2434; Basharat Ali v. Director, Excise and Taxation, Lahore 1997 SCMR 1543; Muhammad Mubeen-us-Salam v. Federation of Pakistan through Secretary, Ministry of Defence PLD 2006 SC 602; Karachi Building Control Authority v. Hashwani Sales and Service Limited PLD 1993 SC 210; Mr. Zaheer Ahmed Chaudhry v. City District Govt. Karachi 2006 YLR 2537; Hafiz Muhammad Siddique Anwar v. Faisalabad Development Authority 2007 SCMR 1126; Muhammad Rasab v. Muhammad Siddique Chaudhry 1998 MLD 2045; Sui Gas Transmission Company v. Suit Gas Employees Union 1977 SCMR 220; Muhammad Aref Effendi v. Egypt AIR 1980 SCMR 588; Mian Muhammad Latif v. Province of West Pakistan though The Deputy Commissioner, Khairpur PLD 1970 SC 180; Messrs Mall Square Residents Association Karachi v. Messrs Mall Developers (Pvt.) Limited, Karachi PLD 1997 Karachi 1; Rehmat Petroleum Service v. Public-at-Large PLD 2006 Lahore 339; Mst. Zarina v. Province of Sindh 2004 CLC 767; Messrs Excell Builders v. Ardeshir Cowasjee 1999 SCMR 2089; Haji Amin v. Navaid Hussain 2008 SCMR 133; Capt. S.M. Aslam v. Karachi Building Control Authority 2005 CLC 759; Irfan v. Karachi Building Control Authority 2005 CLC 694; Star Trading Company v. The Pakistan Insurance Corporation 1987 CLC 61; Syed Ali Asghar v. Creators Builders 2001 SCMR 279; Mrs. Zunaira Khan v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resource 2008 YLR 1701; and Navid Hussain v. Jahangir Siddiqui 2007 CLC 1568 ref.

Muhammad Zahid Khan for Plaintiffs (in Suit No.382 of 2007 in C.M.A. No.2658 of 2007).

Fazal-ur-Rehman, Federal Counsel for Defendant No.1 (in C.M.A. No.2658 of 2007).

Syed Khizar Asker Zaidi, Assistant Advocate General, Sindh for Defendant No.2 (in C.M.A. No.2658 of 2007).

Qaiser Jamil for Defendant No.3 in C.M.A. No.2658 of 2007.

Syed Tasawwur Hussain for Defendant No.4 (in C.M.A. No.2658 of 2007).

Dr. Muhammad Farough Naseem and Munawwar Hussain for Defendant No.8 (in C.M.A. No.2658 of 2007).

M. Naim-ur-Rahman and Abdur Rahman for Plaintiffs (in C.M.A. No. 4768 of 2007).

Dr. Muhammad Farough Naseem and Munawwar Hussain for Defendant No.1 (in C.M.A. No. 4768 of 2007):

Fazal-ur-Rehman, Federal Counsel for Defendant No.2 (in C.M.A. No. 4768 of 2007).

Qaiser Jamil for Defendants Nos. 6 and 7 (in C.M.A. No. 4768 of 2007).

Syed Tasawwar Hussain for Defendant No.10 (in C.M.A. No. 4768 of 2007).

YLR 2009 KARACHI HIGH COURT SINDH 432 #

2009 Y L R 432

[Karachi]

Before Khalid Ali Z. Qazi, J

ATIQUR REHMAN and another---Applicants

Versus

NOVELL DATA SYSTEMS PAKISTAN (PVT.) LTD., KARACHI and another---Respondents

J. Miscellaneous No. 24 of 2008 in Suit No. 243 of 1994, decided on 31st October, 2008.

Civil Procedure Code (V of 1908)---

----S.12 (2)---Decree, setting aside of---Misrepresentation and fraud---Defendant assailed decree on the ground that plaintiff suppressed his correct address and process was issued on wrong address which resulted in ex parte decree against defendant--Validity---Record had established that no notice on correct address of defendant was ever issued and service was not held good---Plaintiff failed to get notices issued on the address as mentioned in the affidavit-in-rejoinder to the counter affidavit filed by plaintiff, wherein the defendant had clearly mentioned his correct address---Held matter should be decided on merits rather than on technicalities---Judgment and decree passed against defendant was set aside---Application was allowed accordingly.

2002 SCMR 664; 2002 CLC 932; PLD 1980 Lahore 668; 2002 CLD 157 and 2003 SCMR 181 ref.

Khawaja Shamsul Islam for the Applicant.

Muhammad Irfan for Plaintiff.

Defendant No.1 called absent.

YLR 2009 KARACHI HIGH COURT SINDH 441 #

2009 Y L R 441

[Karachi]

Before Salman Ansari, J

ISHTIAQ KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1057 of 2008, decided on 24th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Foreigners Order, 1951, S.7---Foreigners Act (XXXI of 1946), S.14-F---Bail, grant of---Further inquiry---Punishment of the offence against accused was only three years' R.I.---Counsel for accused had produced the Pakistani Passport of accused and N.J. Cs of his family members i.e. his wife and children---Offence against accused did not fall within the prohibitory clause of S.497, Cr.P.C. and case as made out required further inquiry---Accused was admitted to bail, in circumstances.

Qadir Hussain for Applicant.

Fazalur Rehman Awan, State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 442 #

2009 Y L R 442

[Karachi]

Before Khawaja Naveed Ahmed, J

ANWER HUSSAIN---Plaintiff

Versus

AFSAR HUSSAIN and 2 others---Defendants

High Court Suit No. 1302 and C.M.A. No.8839 of 2005, decided on 23rd October, 2008.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O. XL, R.1---Receiver, appointment of---Principle---Applicant sought appointment of receiver during pendency of suit---All facts mentioned in the plaint were admitted by defendants in respect of shares of plaintiff in suit properties---Defendants, had taken defence that shares of plaintiff were sold out to third party but neither sale agreement was filed along with plaint nor copies of plaints of suits filed in other courts had been produced---Alleged purchasers of properties did not move any application under O.I, R.10 C.P.C. for becoming party in the suit---Effect---Only blame against plaintiff was that he had married a woman who was still wife of another man---Such blame was in respect of matrimonial relations of plaintiff and had nothing to do with the suit properties, its management, waste, misappropriation or danger to the properties---Plea taken by defendants was not substantiated by them---High Court appointed receiver of suit properties and directed him to seize the entire accounts and take accounts of all income of properties and would keep the future accounts with him---Application was allowed accordingly.

Messrs Al Riaz Packages (Pvt.) Ltd. v. Akhlaque Hussain 1990 CLC 631; Moinuddin Paracha and others v. Sirajuddin Paracha and others 1993 CLC 1606; Syed Khurshid Sohail v. Aziz Hami and 4 others 1988 MLD 381; Mazhar Hussain and 4 others v. Jan Mohammad and 13 others 2000 YLR 2056; Zafreen Iqbal's case 2008 CLC 741; Salma Zaheen and others v. Anwar H. Pir Bhai 1982 CLC 1044; Rais Tayyab and others v. Raza Muhammad and others 1985 CLC 2600 and Mir Muhammad v, Hashim and others 1988 CLC 2195 ref.

Sardar M. Ajaz Khan for the Plaintiff.

Iftikhar Javed Qazi for the Defendant.

YLR 2009 KARACHI HIGH COURT SINDH 451 #

2009 Y L R 451

[Karachi]

Before Nadeem Azhar Siddiqi, J

Haji ABDUL KARIM through Attorney and 4 others---Plaintiffs

Versus

Messrs FLORIDA BUILDERS (PVT.) LTD. KARACHI---Defendant

Suit No.18 and C.M.A. No. 329 of 2003, decided on 4th November, 2008.

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

----O. VII, R.11---Rejection of plaint---Principles---Plaint can only be rejected if it comes within the mischief of O. VII, R.11 C.P.C.---While considering application under O. VII, R.11 C.P.C. only the contents of plaint and other material available on record, which on its own strength is legally sufficient to completely refute the claim of plaintiff, can be looked into and defence of defendant cannot be considered---While considering application under O. VII, R.11 C.P.C., contents of plaint are to be treated as true on its face value and plaint can only be rejected if from any statement in the plaint the same is found to be barred by any law.

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

----S.12---Limitation Act (IX of 1908), Art.113---Specific performance of contract--Limitation--- Provision of Art.113 of Limitation Act, 1908, caters for two situations i.e. one when time of performance is fixed in agreement and the other when time is not fixed in the agreement; in first situation, starting point of limitation is three years from the date fixed for performance in agreement and in later situation time starts running from the date when performance is refused.

Mst. Kulsoom v. Mst. Marium 1988 CLC Karachi 870 rel.

---S.12---Limitation Act (IX of 1908), Art.113---Civil Procedure Code (V of 1908), O. VII, R.11---Rejection of plaint---Specific performance of agreement to sell---Limitation--Defendant sought rejection of plaint on the ground that suit was time barred as limitation for filing of suit started from the date mentioned lit the agreement---Plea raised by plaintiff was that limitation was to start from the date when performance was refused---Validity---Agreement annexed with plaint contained specific date of performance and time for filing of suit started from that date, irrespective of the fact that time was the essence of agreement or not--- Limitation started running from 31-12-1997, the date of performance fixed in the agreement and three years had completed on 30-12-2000, thus suit filed on 7-1-2003, was filed beyond the period of limitation mentioned in Art.113 of Limitation Act, 1908---Plaint was rejected in circumstances.

Haji Muhammad Yaqoob v. Shahnawaz 1998 CLC 21; Messrs Imperial Builders v. Lines (Pvt.) Limited PLD 2006 Karachi 593; Ali Muhammad Aslam v. Bilquees Begum PLD 2008 Lahore 42; Muzaffer Javed v. Haji Noor Bukhsh 2002 MLD 1474; Province of Punjab v. Muhammad Hussain PLD 1993 SC14; S.M. Shafi Ahmed Zaidi v. Moulvi Hasan Ali Khan 2002 SCMR 338; Mst. Parveen Akhter v. Consulate General of USA 2006 MLD 1657; M/s. Farm and Foods International v. Hamid Mehmood 2006 CLC 492; Moulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305 and Muhammad Akram alias Akan v. Mst. Pathani 2001 MLD 1037 ref.

Muhammad Yaqoob v. Hakim Ali 2004 SCMR 584; Mst. Gul Shahnaz v. Abdul Qayoom Soomro PLD 2002 Kar. 333; Javed Iqbal v. PASSCO 2004 CLC 478; Zaheer Ahmed v. Abdul Aziz 1983 SCMR 559; Messrs Galaxy Construction Limited v. Province of Sindh through Secretary Highway Division of Communication and Works Department 1994 MLD 754; Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Syed Muhammad Saleem v. Ashfaq Ahmad Khan 1989 CLC 1883; Mst. Batul and others v. Mst. Razia Fazal and others 2005 SCMR 544; Ghulam Hussain Pakseema v. Ebrahim Saley Mayat PLD 1964 (W.P.) Karachi 388; Haji Sattar Haji Mohamed v. Allah Rakhya Dhanji PLD 1963 W.P Karachi 786; Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314 and M. Hannan v. Dr. Anwarul Hassan 2000 SCMR 361 distinguished.

(d) Limitation---

----Question of limitation---Duty of court--Question of limitation is always not a mixed question of law and facts---Where question of limitation is apparent on the face of record, court can proceed further without any further inquiry---Matters relating to limitation of filing of suit cannot be left on pleadings of parties but a duty is cast upon the Court to notice point of limitation, irrespective of the fact whether the same was pleaded or not.

Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 ref.

Anwar Mansoor Khan and Rehan Aziz Malik for Plaintiffs.

Mansoor-ul-Arfin along with Muhammad Faruq Ghani, Director of Defendant Company for Defendant.

YLR 2009 KARACHI HIGH COURT SINDH 461 #

2009 Y L R 461

[Karachi]

Before Salman Ansari, J

JALIL AHMED---Petitioner

Versus

CONTROLLER OF RENT, KARACHI and another---Respondents

Constitutional Petition No. S-373 of 2007, decided on 29th October, 2008.

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

----Ss.24 & 25---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Maintainability--- Ejectment order---Non-filing of appeal by tenant against ejectment order---Effect---Dismissal of tenant's application for recalling of ejectment order made after six months of its passing during its execution proceedings---Constitutional petition by tenant challenging validity of ejectment order and dismissal of such application---Maintainability---Tenant for not filing appeal in time had been negligent in pursuing his case---Impugned order was not without jurisdiction or suffering any illegality or irregularity---High Court dismissed constitutional petition for not being maintainable.

Ms. Talat Mushtaq for Petitioner.

Naeem Ahmed Rana for Respondent No.2.

YLR 2009 KARACHI HIGH COURT SINDH 466 #

2009 Y L R 466

[Karachi]

Before Arshad Noor Khan, J

MUHAMMAD ASLAM through Attorney---Plaintiff

Versus

BOARD OF REVENUE, SETTLEMENT AND REHABILITATION SINDH, KARACHI and others---Defendants

Suit No. Nil of 2006, decided on 20th October, 2008.

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

----S.211---Principal and agent, relationship---Scope---Power of attorney being an instrument in writing confers certain authority or power by principal to his agent to do certain thing in a specific and limited manner and agent is, therefore, required to do certain thing in a specific and limited manner in which he has been assigned the power---Agent cannot travel beyond authorization of power of attorney conferred on him and the same must be strictly construed in letter and spirit.

Messrs Eagle Star Insurance Company Limited v. Messrs Usman Sons Limited and others PLD 1969 Kar. 123 and Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418 rel.

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

----S.42---Contract Act (IX of 1872), S.211---Civil Procedure Code (V of 1908), O. VII, R.11---Rejection of plaint---Cause of action, absence of---Filing of plaint--Invalid power of attorney---Effect---Plaintiff was tenant in suit property and had been evicted from the same in execution of ejectment order passed against him by Rent Controller---Plaintiff contested ejectment proceedings through attorney who was appointed through special power of attorney---Plaintiff through same attorney assailed title of defendants over suit property---Validity---Special power of attorney filed along with suit showed that power of attorney had come to an end as it was executed by plaintiff in favour of his agent for specific and limited purpose and the same had come to an end on the day when possession of the property in question was delivered to defendant through process of Court---Plaintiff did not assign any fresh power to his attorney to sign, verify and present the plaint before court on fresh cause of action and as such suit filed by attorney of plaintiff was not presented properly and was without any power to agent to file suit--Plaintiff did not even possess any legal character against defendants to maintain suit under S.42 of Specific Relief Act, 1877, as relationship of landlord and tenant had already come to an end between the parties---After eviction of plaintiff from suit property, plaintiff did not possess any legal status in the property---Suit filed by plaintiff was neither properly presented nor maintainable under S.42 of Specific Relief Act, 1877---Plaint was rejected in circumstances.

Irshad Ahmed and others v. Allah Ditta and others 1998 SCMR 948; Muhammad Aslam v. Abdul Majeed 1991 CLC 481; Messrs Maratos & Co v. Rice Trader and 2 others PLD 1989 Kar. 94; Nazar Ali v. Secretary, Ministry of Rehabilitation, Government of Pakistan and 4 others 1973 SCMR 441; Main Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499; Chandrika Prasada v. Bombay Boroda & Central India Ry. AIR 1935 PC 59; Kumar Krishna Prasad Lal Singha Deo v. Baraloni Coal Concern Ltd. and others AIR 1937 PC 251; Lowndes and Sir Dinshah Mulla Currimbhoy & Co. Ltd. v. L.A. Creet and others AIR 1933 PC 29 distinguished.

2003 SCMR 870 and PLD 1988 SC 734 ref.

Mansoor-ul-Haq Ansari for Plaintiff.

Naim Sulleman for Defendant No.4.

Khizar Askar Zaidi, Asstt. A.-G. for Defendant No.1.

Date of hearing: 13th October, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 474 #

2009 Y L R 474

[Karachi]

Before Salman Ansari, J

Mst. MUSSARAT BEGUM---Petitioner

Versus

MUHAMMAD SULTAN and 3 others---Respondents

Constitutional Petition No.S-53 of 2003, decided on 29th October, 2008.

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

----S. 15---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court---Scope---Ejectment of tenant---Where two lower Courts had given concurrent findings against the petitioner; appreciation of evidence was not found to be perverse; no provision of the statute was found to have been so grossly violated as the orders were passed within its jurisdiction and all the matters were decided on the basis of evidence available on the record and in accordance with law, High Court declined interference under its jurisdiction under Art.199 of the Constitution.

Muhammad Sharif and anothers v. Muhammad Afzal Sohail and others PLD 1981 SC 246; Hafiz Shafatullah v. Mst. Shamim Jahan and another PLD 2004 Kar. 502; Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 MLD 1033; Saifullah v. Muhammad Bux and 2 others 2003 MLD 480 and PLD 2001 SC 415 ref.

Abrar Hassan for Petitioner.

Nemo for Respondent No.1.

Abdullah Chandio for Respondent No.2.

YLR 2009 KARACHI HIGH COURT SINDH 483 #

2009 Y L R 483

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD MUNIR---Plaintiff

Versus

SHAHIDA SALEEM---Defendant

Suit No.1660 of 2006, decided on 22nd October, 2008.

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

----O. VI, R.17---Pleadings, amendment of--Principles---Powers of court---Scope---Amendment can be allowed at any stage of proceedings provided fundamental character, nature and complexion of suit is not altered---Subject matter of suit and cause of action cannot be allowed to be substituted---Jurisdiction to allow amendment is discretionary with court and the same is to be liberally construed and exercised in accordance with settled judicial principles---Necessary for exercise of discretion that applicant has acted in good faith---Court is not bound to accept amendment tainted with mala fide---Test of bona fide is that proposed amendment is akin, consistent and ancillary to main proposition in dispute and should not in any manner change the nature and complexion of suit and cause of action---Amendment taking away the right accruing to other party cannot be allowed.

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

----O. VI, R.17---Amendment of plaint---New relief, inclusion of---Plaintiff only sought recovery of earnest money which he had paid against agreement to sell executed by defendant in his favour and also sought recovery of liquidated damages---During pendency of suit, plaintiff intended to include relief regarding specific performance of agreement to sell---Plea raised by defendant was that such relief could not be included as plaintiff himself had abandoned such relief---Validity---Plaintiff himself terminated the agreement and at later stage he could not claim specific performance of agreement---According to the agreement, in case of breach, parties instead of seeking specific performance had agreed to claim damages from each other---Due to termination of agreement by plaintiff himself, a valuable right had accrued to defendant, which could not be taken away by allowing proposed amendments in plaint---Plaintiff had not shown any interest in suit property since filing of the suit and was only interested for refund of earnest money and damages stipulated in agreement---Defendant had rightly contended that proposed amendment was sought due to increase in value of properties---Conduct of plaintiff being not above board, under equity he was not entitled to relief of amendment in plaint---Application was dismissed in circumstances.

Mst. Barkat Bibi v. Khushi Muhammad 1994 SCMR 2240; Mst. Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345; Mst. Arshan Bibi v. Maula Bakhsh 2003 SCMR 318; Semco Salvage (Pvt.) Limited v. M. V. Kaptan Yusuf Kalkavan 1993 SCMR 593 and Hazrat Zubir Obaid-ur-Rehman Farooqi v. Capt. Fareeduddin 2006 CLC 1304 distinguished.

Nadeem Akhtar for Plaintiff.

Sohail Muzaffar for Defendant.

YLR 2009 KARACHI HIGH COURT SINDH 489 #

2009 Y L R 489

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD ZAFFAR SALEEM---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Applications Nos.184 and 187 of 2008, decided on 20th October, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 169, 170 & 173---Police Rules, 1934, Rr.24.7 & 25.57---Penal Code (XLV of 1860), Ss.147/148/149/452/395/342/425 & 337-H(ii)---Quashing of order---Police, after registration of case, investigated the matter---Police on conclusion of investigation found the F.I.R. as false and submitted the report under S.173, Cr.P.C. as "B" class in the court of Judicial Magistrate, who had not accepted the same---As many as four police officers had investigated the case and all of them found the same a false case---Magistrate held that material available on record required further probe only by the Trial Court---Magistrate did not concur with the report in "B" class and same stood disapproved and Investigating Officer was directed to submit the final report challan and also to produce accused in person--Offences alleged in the F.I.R., were triable by the Sessions Court and Magistrate could not have directed submission of challan---Magistrate could only forward the matter to the Sessions Judge who could have taken the cognizance of the alleged offence---Regardless of the fact whether the Magistrate had applied her judicial mind to the facts stated in the report of the police, since the Magistrate was not vested with the jurisdiction to take cognizance of the offence, the Magistrate had acted without jurisdiction---Orders passed by the Magistrate being coram non judice, were quashed, accordingly.

Bahadur and another v. The State and another PLD 1985 SC 62; 1970 PCr.LJ 178; Soofi Abdul Qadir v. The State 2000 PCr.LJ 520; Wazir v. The State PLD 1962 WP Lahore 405; Farooq Sumar v. The State and another 2004 PCr.LJ 1023; Dawood Khan and 8 others v. Ahsan-ur-Rehman and others 2006 MLD 663; Muhammad Aslam Khan v. The State 2007 MLD 1247; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304 and Ch. Muhammad Ashraf v. The State 2006 PCr.LJ 518 ref.

Aamir Mansoob Qureshi for Applicant (in Criminal Miscellaneous No.187 of 2008).

M. Ilyas Khan for Applicant (in Criminal Miscellaneous No.184 of 2008).

Muhammad Aslam Choudhry for the Complainant (in both cases).

Fatima Jameela Jatoi for the State.

YLR 2009 KARACHI HIGH COURT SINDH 505 #

2009 Y L R 505

[Karachi]

Before Dr. Rana Muhammad Shamim, J

Syed IMTIAZ ALI SHAH and another---Applicants

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous Application No.S-219 and M.A. No.2919 of 2008, decided on 17th October, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 561-A---Justice of Peace directed the police to record statement of complainant and if cognizable offence was made out the respondent should lodge the F.I.R. accordingly---Said order of Justice of Peace was challenged on the ground that prior to registration of criminal case against applicants' who were public servants, a sanction for prosecution from competent authority was mandatory as provided under S.197, Cr. P. C.-Validity-Sanction for registration of criminal case and prosecution thereto against public servants was not required as S.197, Cr. P. C. had been, declared repugnant to the Injunctions of Islam---Counsel for applicants being unable to point out any illegality or material irregularity in the impugned judgment; such order passed by the Justice of Peace was upheld---Application was dismissed and complainant was required to appear before the S.H.O. concerned who would record his statement--If from the contents of said statement, a cognizable offence was made out, S.H.O. would register an F.I.R. accordingly.

Dr. Inayatullah Khilji and 9 others v. Ist Additional District and Sessions Judge (East) at Karachi and 2 other 2007 PCr.LJ 909 rel.

Noorul Haq Qureshi for the Applicants.

Anwar H. Ansari, State Counsel along with Abdul Sattar Solangi, S.H.O. P.S. Saeedabad who filed a statement that respondent No.3 complainant has not come forward till today for recording his statement.

YLR 2009 KARACHI HIGH COURT SINDH 518 #

2009 Y L R 518

[Karachi]

Before Salman Ansari, J

MUHAMMAD HAMID AKBAR alias QASIM -Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No. 92 of 2008, decided on 15th September, 2008.

Pakistan Prison Rules, 1978---

----Rr.243 & 248---Penal Code (XLV of 1860), Ss.324/353/34---Grant of B class to the under-trial prisoner---Plea raised was that the petitioner was accustomed to better mode of life and had degree of Bachelor in Science of Computing and Information Systems which entitled him for better class in prison---Validity---Applicant's case would fall under category of under-trial prisoner as given in Rule 248, Pakistan Prison Rules because his education reflected his social status and the way of life, showing that he was accustomed to a superior mode of living---High Court, while allowing petition, directed the jail authorities to provide B class facilities to the petitioner.

1997 PCr.LJ 79 rel.

Mian Khan Malik for the Applicant.

Assadullah Baloch, State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 527 #

2009 Y L R 527

[Karachi]

Before Bin Yamin, J

SARFRAZ AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.S-132 of 2006, decided on 6th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.161, 409, 420, 467, 468, 471, 477 & 511/34-Prevention of Corruption Act (II of 1947), S.5(2)---Quashing of proceedings---Application for---Applicant had performed the legal duties assigned to him as the sale-deed was supported with the required documents---Applicant was legally bound to register the sale-deed and had not committed any violation of any law--Involvement of the applicant in the F.I.R., in circumstances was without any justification---If the proceedings were allowed to continue against the applicant, same would amount to abuse of the process of law---F.I.R. in circumstances required its quashment---Proceedings pending against applicant under F.I.R., were quashed, accordingly.

2000 SCMR 122 ref.

Hidayatullah Abbasi for the Applicant.

Mumtaz Alam Leghari, Assistant A.-G.

YLR 2009 KARACHI HIGH COURT SINDH 550 #

2009 Y L R 550

[Karachi]

Before Ghulam Dastagir A. Shahani, J

MUHAMMAD ZAHID AYUBI---Applicant

Versus

THE STATE and another---Respondents

Criminal Revision Application No. 5 of 2008, decided on 25th September, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 561-A---Power of Justice of Peace---Justice of Peace in the present case refused to issue direction for registration of F.I.R.---Genuineness of document in question was to be determined by the civil Court, being disputed question and Justice of Peace had nothing to do with that as prima facie he had only to see whether cognizable offence was made out and summarily decide same; even report was not necessary to be called from police---Held, if civil Court came to the conclusion that the document, if my, produced by the respondent was forged and managed document, remedy was available to the applicant and he could avail same as and when required---Petition under S. 561-A was dismissed in circumstances.

Syed Abdul Waheed for the Applicant.

Qazi Wali Muhammad State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 559 #

2009 Y L R 559

[Karachi]

Before Ghulam Dastagir A. Shahani, J

TAJ MUHAMMAD and another---Appellants

Versus

MUHAMMAD ANWAR and another---Respondents

Criminal Appeal No. 70 of 2007, decided on 31st October, 2008.

Illegal Dispossession Act (XI of 2005)---

----S. 3(2)---Criminal Procedure Code (V of 1898), S.345---Appreciation of evidence--Compromise---Statement/undertaking had been filed duly signed by the complainant and his counsel, as well as by the respondents, so also by their counsel, stating therein that complainant would not press for conviction, if appellants/accused persons, would undertake not to interfere/dispossess the complainant from the subject plots in future---

Appellants/accused persons undertook that they would not interfere/dispossess complainant from subject property in future---Since accused were remorseful on their act and wanted to reform themselves and complainant did not oppose, if they were acquitted/or their sentence was reduced and not pressed for conviction, then legal position was that sentence and conviction awarded to accused by the Trial Court, could be reduced by taking a lenient view as under S. 345, Cr. P. C. compromise was being accepted and sentence reduced to already undergone---Sentence of R.I. for ten years each was reduced to the period already undergone by accused persons and fine of Rs.50,000 each was also remitted.

Jan Muhammad v. The State 1988 MLD 2734 and Kamir and Another v. The State NLR 1988 Criminal 620 rel.

Ghulam Nabi Shaikh for the Appellants.

Raja Basantani for Respondent.

Sardaruddin Qureshi for the State.

YLR 2009 KARACHI HIGH COURT SINDH 568 #

2009 Y L R 568

[Karachi]

Before Farrukh Zia G. Shaikh, J

GHULAM QADIR---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 86 and M.As. Nos.3351, 3254 of 2008, decided on 14th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Suspension of sentence---Application for---Sentence of two years awarded to applicant/accused was short and he was in jail for about six months---Revision petition filed by accused was already admitted to regular hearing which would take time for its disposal---Sentence awarded to applicant was suspended and he was ordered to be released on bail.

Shaukat Ali Phul for the Applicant.

Agha Ather Hussian, Assistant Advocate General Sindh for the State.

Date of hearing: 14th November, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 572 #

2009 Y L R 572

[Karachi]

Before Bin Yamin, J

SHADOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-8545 of 2008, decided on 27th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/511---Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979), S.17 (3)---Qanun-e-Shahadat (10 of 1984) Art.22---Bail, grant of---Case of further inquiry---Identification parade--Innocence of co-accused---Neither the name of accused found place in F.I.R. nor after his arrest any identification parade was held to identify him as culprit---Accused was not required by police for further investigation---Three nominated accused were released by police under S.169 Cr. P. C. read with Ss. 496 and 497 Cr. P. C. and challan against them had been accepted by concerned Trial Court---Order for acceptance of such challan was not challenged by complainant side before any competent court of law---Effect---Case for grant of bail was made out by accused---Bail was granted in circumstances.

Shahbaz Ali Brohi for the Applicant.

Muhammad Akram Shaikh, State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 580 #

2009 Y L R 580

[Karachi]

Before Ghulam Dastagir A. Shahani, J

PERVEZ PETER-Appellant

Versus

THE STATE and 2 others---Respondents

Criminal Acquittal Appeal No. 72 of 2008, decided on 23rd October, 2008.

Criminal Procedure Code (V of 1898)---

----S.417---Penal Code (XLV of 1860), S.406/34---Limitation Act (IX of 1908) S.5--Appeal against acquittal---Condonation of delay---For condonation of delay each and every day was to be explained, to the extent that there were serious and special circumstances due to which it became impossible for the complainant to appear and file appeal in time---Unawareness was no ground for condonation of delay---Appeal was dismissed being time barred in circumstances.

Muaz Ahmad v. Haji Muhammad Ramzan and others 2008 SCMR 529; Noor Hassain v. Muhammad Salim 1985 SCMR 893 ref.

Zahid Hamid for the Appellant.

Fazalur Rehman, State Counsel for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 590 #

2009 Y L R 590

[Karachi]

Before Bin Yamin, J

DINAL alias KURARO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 2 of 2008, decided on 27th October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.324/34---Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979), S.17 (3)---Bail, refusal of---Offence falling in prohibitory clause of S.497 Cr. P. C. ---Accused, soon after the incident, was arrested and robbed motorcycle was secured from his possession in presence of witnesses along with an unlicensed gun---Nothing was on record to show that complainant had any reason to falsely implicate accused and others in the case---No documentary proof had been brought on record to show that there existed any family dispute between the parties---Effect---Merely oral words of defence side were not sufficient to show that accused was falsely involved in the case---Evidence of none of the witnesses had been recorded, therefore, prima facie there existed a case to believe that accused was involved in commission of offence---Punishment provided for offence under S.17(3) of Offences Against Property (Enforcement of Hadood) Ordinance, 1979, was amputation of right hand and left foot or 14 years of imprisonment, therefore the case fell within the prohibitory clause of S. 497 Cr. P. C. ---Bail was refused in circumstances.

Mazhar Ali Taj Abro for the Applicant.

Naimutullah Bhurgari State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 596 #

2009 Y L R 596

[Karachi]

Before Ghulam Dastagir A. Shahani, J

ALI KHAN and others---Applicants

Versus

THE STATE---Respondent

Cr. Bail Appln. No. S-278 of 2008, decided on 30th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.398, 399 & 402---Bail, grant of---Further inquiry---No evidence had been collected against accused persons that they had committed any offence punishable under Ss. 398/399, P.P.C.---Even if the alleged recovery of the weapons was believed to be true, the offence would not fall within the mischief of S.399, P.P.C., as according to the counsel for accused persons, no evidence, had been collected by the prosecution to prove that accused persons had made any preparation for committing the dacoity---Merely sitting armed would not bring the case of accused within the mischief of S. 399, P.P.C.-Even otherwise assembly of 5 armed persons by itself would not constitute the preparation for dacoity---No objection was recorded by the State Counsel for grant of bail to accused persons---Case of accused persons required further inquiry and was covered under S.497(2), Cr. P. C. ---Accused were admitted to bail, in circumstances.

Amir Ali Khan v. The State 1994 PCr.LJ 576 and Hatim and others v. The State 1994 PCr.LJ 900 ref.

Ayaz Ali Gopang for Applicants.

Muhammad Azeem Panhwar for the State.

YLR 2009 KARACHI HIGH COURT SINDH 600 #

2009 Y L R 600

[Karachi]

Before Amir Hani Muslim, J

AZIZ AHMED QURESHI---Decree Holder

Versus

ABDUL AZIZ---Judgment Debtor

Execution Appln. No.78 of 2007, decided on 30th October, 2008.

Civil Procedure Code (V of 1908)---

----O. XXI, R.10---Execution of decree---Application for---Default in payment of electricity charges---Electric Supply Corporation was taken up by a private Company in November 2005 and default in payment of electricity charges pertained to the year 1997 onwards---For three years prior to 1997 official of Corporation had allowed the occupants to utilize electricity without being paying a single penny for which Commercial Manager could not offer any plausible explanation---Action was taken in the year 1996 in the first place and F.I.R. was registered against the occupants---Electric connection was disconnected three times which remained restoring---Property was attached in the year 2004 and decree-holder had stated that he could not be made liable for payment of the amount outstanding against the occupants---Ex-facie, it was the responsibility of the Corporation to recover its dues from the occupants and that responsibility could not be shifted to the new entrant, who had no role to play---Corporation could hold enquiry as to why action was not taken for non-payment of dues and fix the responsibility of the officials who were party to the default committed by the occupants as that amount could not be recovered from a person who purchased the property through the court's orders---Corporation would be at liberty to recover the amount from the concerned officials which should start from the.. Chief Engineer to concerned Line Superintendent, who were posted at relevant times and within whose jurisdiction that property fell.

R.F. Virjee for the Decree-holder.

Muhammad Ali Mazhar for KESC along with Jawed Iqbal, Manager (Commercial), KESC for Judgment-debtor.

YLR 2009 KARACHI HIGH COURT SINDH 605 #

2009 Y L R 605

[Karachi]

Before Muhammad Afzal Soomro, C. J.

Ch. ABDUL RAHIM---Plaintiff

Versus

Mst. RAZIA RAHIM and another---Defendants

Suit No.509 of 2002, decided on 5th May, 2008.

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

----Ss. 42 & 54---Suit for declaration and injunction---Benami transaction---Essential ingredients---Suit for declaration and permanent injunction---Plaintiff claimed to be real, absolute and actual owner, holder and possessor of suit house, having purchased same through his own funds and accounts in the name of defendant---Plaintiff being in occupation of the suit house, had acquired the title of benami purchaser while the defendant as benamidar was being simply ostensible owner of suit house---Plaintiff sought declaration that suit house was the property of the plaintiff and defendant was merely a benamidar, having no interest or title to said property or any part thereof including the fittings and fixtures etc. thereof---Plaintiff also sought relief that defendants be permanently restrained from setting, transferring and changing the ownership right and title of the house in question to any vendee---Important ingredients of benami transaction were, motive; source of income with which the property was said to have been purchased; possession of the property; conduct of the parties as to how the property was dealt with and possession of title documents---Suit house was in possession of the plaintiff, as regards sources of income, plaintiff had produced number of documents from the Bank showing that he was running a business and was fully capable to purchase the house in dispute; so far as financial position of the defendant was concerned, she had admitted that her previous husband after divorce did not pay any expenses towards maintenance and that it was the plaintiff who bore the expenses for her children; she had further admitted that before entering second marriage with the plaintiff, she had no money or bank balance---From own admission by the defendant that she had no source of income and that suit house was purchased by the plaintiff for her, the claim of the plaintiff that it was purchased in the name of defendant as benamidar, was not open to any doubt---Other essential ingredients i.e. conduct of the parties and motive for purchase of suit house, which was fully reflected in the plaint, found support from said statement of defendant before civil court---Defendant being wife of the plaintiff and residing with him could possess the title documents of the property in question---Documents, as per routine, were always kept in the house under the guard and care of the wife---Bona fide presumption could be drawn that taking undue advantage of the confidence of the plaintiff, she had sneacked the title documents---Since the documents produced by the plaintiff had fully established the case of the plaintiff, it was not necessary to record oral evidence and linger on the matter---Defendant had failed to rebut claim of the plaintiff.

Malid M. Zubair v. Malik Muhammad Anwar PLD 2004 Lah. 515; Siraj Ahmed Nomani v. Iftikhar Ahmed Nomani 2004 CLC 782 and Hameeda Begum v. Farzand Ali 2002 YLR 1311 ref.

(b) Benami transaction---

----Essential ingredients.

Malid M. Zubair Malik Muhammad Anwar PLD 2004 Lah. 515; Siraj Ahmed Nomani v. Iftikhar Ahmed Nomani 2004 CLC 782 and Hameeda Begum v. Farzand Ali 2002 YLR 1311 ref.

Tauqur A. Khan for Plaintiff.

Ghulam Akbar Jatoi for Defendants.

Date of hearing: 5th May, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 612 #

2009 Y L R 612

[Karachi]

Before Dr. Rana Muhammad Shamim, J

MOULA BUX---Petitioner

Versus

ABDUL RAZAK CHANDIO and another---Respondents

C.P. No.S-25 of 2007 converted into Cr.M.A. 236 of 2008, decided on 24th October, 2008.

Criminal Procedure Code (V of 1898)---

---S.561-A---Penal Code (XLV of 1860), Ss. 392/337-H(ii)/504---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Magistrate vide impugned order had approved the summary submitted by the police and disposed of the case in "B" class---Validity---Accused were nominated in the F.I.R.---Son of the complainant present at the time of incident had not disqualified himself to act as an eye-witness---Contents of the F.I.R. and statements of witnesses had, at the best, attracted the provisions of S.392, P.P.C.---Prima facie, Magistrate had ignored and overlooked the material before him in the shape of contents of F.I.R. and statements of prosecution witnesses, which had attracted the provisions of Ss.392, 504 & 337-H(ii), P.P.C. and he, instead of taking cognizance of the case and sending up the same for trial to the competent court, had agreed with the Investigating Officer and approved in F.I.R. in "B" class with the direction to initiate proceedings against the complainant under S.182, P.P.C.---Impugned order was set aside and the Magistrate was directed to take cognizance under S.190(2), Cr.P.C. for sending up the accused persons for trial in the Court of competent jurisdiction---Petition was allowed accordingly.

Farooq Sumar v. State 2004 PCr.LJ 1023; Muhammad Dildar Hussain v. Civil Judge and Judicial Magistrate, Shujabad 2000 PCr.LJ 43 and 2000 PCr.LJ 1165 ref.

Ishrat Ali Lohar for Petitioner.

Allah Bachayo Soomro, Addl. A.-G. for the State along with I.O. Abdul Razzak.

YLR 2009 KARACHI HIGH COURT SINDH 615 #

2009 Y L R 615

[Karachi]

Before Mrs. Qaisar Iqbal, J

Mst. YASMEEN---Petitioner

Versus

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

C.P. No.S-208 of 2007, decided on 7th November, 2008.

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

----Ss. 15(2)(vii) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bona fide personal need of landlord---Landlady filed ejectment application for the use of her daughter as accommodation in her possession was insufficient---Landlady intended to marry her grown up daughter and provide a separate accommodation and that she was residing in one room---Tenant had admitted in cross-examination that the daughter of the landlady who was married was residing separately from her husband as she required separate accommodation---Evidence on the point of personal requirement was also consistent with the plea raised as the daughter of the landlady required the premises for her personal use--Rent Controller accepted ejectment application of the landlady and ordered ejectment of tenant which order was maintained by Appellate Authority---Validity---Concurrent findings of the two courts below could not be interfered with when the evidence led by the landlady was consistent with her case as pleaded in ejectment application---Even if landlady owned more than one house, it was her choice which was required to be taken into account when one house would be required by her for the use of her daughter---Matter would fall within her prerogative and discretion---Concurrent findings of two courts below not requiring interference, tenant was directed to vacate the demised premises within specified period and hand over its physical possession to the landlady.

2000 SCMR 1992 and Juma Sher v. Sabz Ali 1997 SCMR 1062 ref.

Qadir Hussain for Petitioner.

Syed Masroor Ahmed Alvi for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 640 #

2009 Y L R 640

[Karachi]

Before Faisal Arab and Dr. Rana Muhammad Shamim, JJ

SHOUKAT ALI---Appellant

Versus

THE STATE---Respondents

Crl. Appeal No.D-90 of 2003, decided on 23rd October, 2008.

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in---Counsel for accused had submitted that accused was continuously in prison for the last more than 13 years; that he would not challenge conviction of accused and requested that sentence awarded to accused be reduced---Counsel appearing on behalf of the State raised no objection stating that sentence awarded to accused be reduced to already undergone by accused---Accused, who was in custody for the last 13 years, was a first offender and he had shown his remorse and penitence---Since accused had served out substantive sentence of more than 13 years, he deserved leniency---Appeal filed by accused was dismissed as not pressed and his conviction was maintained; however, the substantive sentence awarded to accused was reduced from life imprisonment R.I. to twelve years' R.I. and fine was also reduced from one million to Rs. One lac---Accused would also be entitled for the benefit of S.382-B, Cr.P.C. extended to him by the Trial Court and he also would be entitled for benefit of remission, if any, as per Prison Rules.

1989 PCr.LJ 840; PLD 1977 Kar. 1049; 1993 PCr.LJ 490; 1991 PCr.LJ 886 and 1993 MLD 1823 ref.

Nandan A. Kella for Appellant.

Mukhtiar Ahmed Khanzada for Respondent.

Date of hearing: 23rd October, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 643 #

2009 Y L R 643

[Karachi]

Before Bin Yamin, J

Mrs. FIRDOUS SAUD and others---Applicants

Versus

THE STATE---Respondent

Crl. Bail Appln. No.612 of 2008, decided on 5th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A, 427 & 337-F(vi)---Bail before arrest, grant of---Delay in appearance of alleged injured before the Medical Officer, found support from the contents of Medical Certificate---Final Medical Certificate in the case was issued on 14-2-2008, but the F.I.R. against accused persons was registered on 18-2-2008, with the delay of four days, which required proper explanation at the time of trial---Civil litigation before filing of the case was going on in between the parties; which had given support to the contention of the counsel for accused persons that they were being involved in the case to pressurize them---Case for grant of pre-arrest bail to accused persons having been made out, interim bail before arrest earlier granted to accused persons, was confirmed, in circumstances.

Rais Wazir Ahmed v. The State 2004 SCMR 1167; Sh. Zahoor Ahmed v. The State PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Rafiq Ahmed Jilani v. The State 1993 PCr.LJ 785; Agha Muhammad Jamil v. The State 1997 PCr.LJ 901 and Shamrez Khan v. The State 1999 PCr.LJ 74 ref.

Muhammad Farooq for Applicants.

Muhammad Iqbal Kalhoro, Addl. P.-G. for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 657 #

2009 Y L R 657

[Karachi]

Before Bin Yamin, J

NAZIR AHMED BHUTTO---Applicant

Versus

THE STATE---Respondents

Criminal Bail Application No.609 and M.A. No.1495 of 2008, decided on 30th October, 2008.

Criminal Procedure Code (V of 1898)---

---- S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Two versions---Case of further inquiry---Judicial confession, non-recording of---Two different narrations regarding incident were available on record---According to earlier version of prosecution, deceased died accidental death---Subsequently on the basis of alleged extra judicial confession accused was shown as culprit---After arrest of accused, no judicial confession before any Magistrate was got recorded to show that actually such confession was made by the accused---Effect---Case of 'accused had fallen within the purview of a case of further inquiry and accused was entitled to grant of bail---Bail was granted in circumstances.

Mir Hazar v. The State 1999 SCMR 1377 fol.

Ali Nawaz Ghanghro for Applicant.

Muhammad Akram Shaikh for the State.

YLR 2009 KARACHI HIGH COURT SINDH 675 #

2009 Y L R 675

[Karachi]

Before Mushir Alam, J

Malik IMRAN KHAN---Plaintiff

Versus

UNIVERSITY OF KARACHI and others---Defendants

Suit No. Nil of 2005, decided on 12th April, 2005.

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

----Ss.42 & 54---University of Karachi Act (XXV of 1972), Ss.51 & 52---Declaration and permanent injunction, suit for---Cancellation of plaintiff's B. Com. Degree by University for having been obtained by tampering in its Result Register 'A"-Validity-Original Result Register "B" being master Register was kept in high security under lock and key of Registrar, while Result Register "A" always remained in office for day to day issuance of Marks Sheets and Degrees---Result contained in Register "B" showed 00 marks to have been obtained by plaintiff in all three papers; while Register "A" showed 45,50 and 40 to have been obtained by him---Tampering in marks recorded in Register "A" was clearly visible whereupon plaintiff was issued Degree---Plaintiff in his reply to show-cause notice had not challenged tampering of Register "A" and result published by University in which he was shown failed---University on detecting fraud, forgery, tampering or manipulation of its record might not only ratify and correct its record, but also cancel Result, Award, Degree or Certification based thereon in additional to setting into motion criminal prosecution and penal action against those found responsible---Plaintiff's Degree was not forged, but had been procured by employing fraudulent means on basis of tampered and manipulated Register "A "---Fraud would vitiate most solemn transaction---When edifice was demolished, then entire superstructure built thereon would crumble on the ground---Plaintiff could not claim any right in such Degree for same being bereft of any foundation---Plaintiff was beneficiary of such tampering and not University---Giving any benefit of plaintiff of any procedural deviation by University authorities would amount to giving premium to wrongful manner in which he had procured Degree---Suit was dismissed for being barred by Ss. 51 & 52 of University of Karachi Act, 1972.

2000 CLC 1524; PLD 1967 Dacca 190; PLD 2001 SC 235; 1995 CLC 465; 1990 MLD 2252; PLD 1970 SC 63; 1996 SCMR 1051; 2003 SCMR 1944; PLD 1975 Kar. 556; PLD 1976 Kar. 541; PLD 1965 SC 698 and 671; PLD 1996 SC 787; 1884 CLC 2782; 1991 CLC 752; 1993 CLC 2026; 1973 SCMR 455; PLD 1980 SC 307; 1982 SCMR 126 and PLD 1981 SC 176 ref.

Shahida and another v. Board of Intermediate and Secondary Education, Larkana PLD 2001 SC 26 rel.

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

----S.9---Suit challenging an action or order of a statutory authority---Jurisdiction of civil Court---Scope.

A mala fide action or order or one that is bad for want of or is in excess of statutory sanction or in colourable exercise of jurisdiction or authority cannot qualify to be within the framework of a particular statute, thus, beyond the scope of particular statute and in appropriate cases may be struck down by the Courts of law. A plea as to bar of jurisdiction can successfully be involved, if it is shown that impugned action was done in a bona fide exercise of powers conferred by the particular statute, rules and regulations framed thereunder and not otherwise.

K.G Traders v. Deputy Collector of Customs and others PLD 1997 Kar. 541 and Lakhani and Co. v. Trustees of the Port of Karachi 1988 CLC 1950 rel.

---Fraud, forgery, manipulation or tampering in record of educational institution, detection of---Steps essential to be taken by educational institution stated.

Any Educational Institution on detection of fraud, forgery, tampering or manipulation of its record done by whomsoever to benefit any one, may not only ratify and correct its record, but also cancel the Result, Award, Degree or Certification based on fraud, forgery, tampering or manipulation of its record, in additional to setting into motion the criminal prosecution and penal action against all those found responsible.

Shahida and another v. Board of Intermediate and Secondary Education, Larkana, PLD 2001 SC 26 rel.

(d) Fraud---

----Fraud vitiates most solemn transaction--When edifice is demolished, then entire superstructure built thereon crumbles on the grounds---Principles.

Munir A. Malik for Plaintiff.

Nadeem Azhar Siddiqui for Defendants Nos.1, 5 and 6 along with Asif Mukhtar.

Abbas Ali, A.A.-G. for Defendant No.2.

M.M. Tariq for Defendant No.3.

Fazle Ghani Khan for Defendant No.4.

YLR 2009 KARACHI HIGH COURT SINDH 697 #

2009 Y L R 697

[Karachi]

Before Bin Yamin, J

GHULAM MUHAMMAD JAMALI---Appellant

Versus

THE STATE---Respondents

Crl. Jail Appeal No.S-87 of 2004, decided on 24th October, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Principles----Complainant and other two eye-witnesses, had claimed that they, at the time of incident, had identified accused in the torch light, but as per admission of the complainant the said torch was. not produced on record to show that actually any such torch was available with them at the time of incident to identify accused---Complainant had clearly stated that he had not produced any torch before the police---Other two witnesses in their respective statements had given the different description of the torch, as both the witnesses had deposed that the torch which was used at the time of commission of offence, was containing three battery cells, whereas complainant had given the description of the torch having two battery cells---Complainant had not supported case of the prosecution against accused on the point of identification, as he clearly stated that he had not seen as to who fired gun-shot upon the deceased---Prosecution, in circumstances, had failed to establish the identify of accused as culprit of the case beyond reasonable doubt---When the identity of accused as a culprit of the case had become doubtful, no responsibility regarding the commission of the offence, could be fixed upon him---One circumstance was sufficient to create reasonable doubt in a reasonable and prudent mind to earn benefit of, doubt and numerous reasons for benefit of doubt were not necessary---Statements of eye-witnesses which were in contradiction to each other and also self-contradictory, had no evidentiary value---Prosecution had failed to prove its case against accused beyond reasonable doubt---Conviction recorded against accused by the Trial Court, was set aside extending him benefit of doubt.

1983 PCr.LJ 983 and 2006 MLD 313 rel.

Malik Javed Iqbal Langrial and Faiz Muhammad Larik for Appellant.

Muhammad Akram Shaikh for the State.

Date of hearing: 16th October, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 717 #

2009 Y L R 717

[Karachi]

Before Muhammad Afzal Soomro, C. J.

SARDAR IBRAHIM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.400 of 2008, decided on 5th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Bail, grant of---Further inquiry---Prosecution showed that three accused persons were involved in the case---Contraband Charas was recovered from the vehicle and not from the exclusive possession of accused---Arrest of accused, as per prosecution, was effected from the driver seat and on the road, whereas the news clipping of Newspaper, had shown that accused and other persons were not arrested from the place suggested by the prosecution, but were arrested from different places---Fair and expeditious trial was right of an accused, where, however, accused persons were able to show that unexplained delay was on the part of the prosecution to proceed with the case and delay in conclusion of the trial was unexplained, court could enlarge accused on bail---Accused was languishing in jail since 31-7-2006 and there was no chance of conclusion of the trial in near future---All said factors created reasonable doubt---Object of the criminal trial was to face trial and not to punish under trial prisoner---One could not be kept in custody on the basis of mere suspicion---Bar contained in section 51 of Control of Narcotic Substances Act, 1997 would be attracted only when there were reasonable grounds for believing that accused was guilty of alleged offence---High Court was competent to grant bail in appropriate cases notwithstanding the provisions of S.51 of Control of Narcotic Substances Act, 1997---No reasonable grounds were available for believing that accused was guilty of offence---Matter requiring further inquiry into guilt of accused he was admitted to bail.

Taj Wali and 6 others v. The State PLD 2005 Kar. 128; Husain Abid Jaffary v. State 2006 PCr.LJ 58; Abdul Aziz Khan Niazi v. State PLD 2003 SC 668; Ghulam Abbas and others v. The State PLD 2005 Kar. 255; Jaggat Ram v. The State 1997 SCMR 361; Muhammad Aslam v. The State 1999 SCMR 2147 and Muhammad Farooq Khan v. The State 2007 PCr.LJ 89 rel.

Nadeem Qureshi for Applicant.

Ashfaq Hussain Rizvi, Spl. Prosecutor ANF for the State.

YLR 2009 KARACHI HIGH COURT SINDH 741 #

2009 Y L R 741

[Karachi]

Before Ghulam Dastagir A. Shahani, J

ANWAR and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. S-55, S-57 and Criminal Jail Appeal No.S-74 of 2007, decided on 31st October, 2008.

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

----S.302(b)/34---Appreciation of evidence---Brother of complainant had been murdered near his house and the accused were not residents of that area, which proved that they had come with common intention after preparation to commit the murder, for which they were jointly responsible--Enmity between the parties existed due to exchange of harsh words one day before the incident and motive was established---Delay in recording the F.I.R. had occurred on account of the serious condition of the deceased before his death which had been explained--Relationship of prosecution witnesses with the complainant was no ground for favouring the accused--Minor contradiction or irregularities in prosecution case could not brush aside the entire evidence available on record---Version of complainant was fully supported by other prosecution witnesses as well as by medical evidence---Accused had caused the murder of the deceased in furtherance of their common intention---Conviction and sentence of accused were upheld in circumstances.

Juman v. The State 2003 YLR 927; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Fakir Muhammad and others v. The State 2007 PCr.LJ 1428; Mast Ali v. The State 1976 PCr.LJ 400; Abdullah Khan and 5 others v. The State 2008 MLD 535; Falak Sher and another v. The State 2008 PCr.LJ 837; Arshad Mahmood v. The State 2001 YLR 2731; Ali Sher and others v. The State 2008 SCMR 707; 1997 PCr.LJ 549; Sango and another v. The State 2004 PCr.LJ 1479; Munir Hussain and three others v. The State 2003 SCMR 493; Muhammad Boota v. The State 2003 SCMR 489; Sarfraz alias Shuffa v. The State 2003 SCMR 932, Mazhar Ali v. The State 2005 SCMR 523; Zafarullah and others v. The State and 6 others 2006 SCMR 1454 and Faqir Hussain v. The State 2006 SCMR 1373 ref.

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

----S. 302(b)/34--Appreciation of evidence--Quantity of prosecution witnesses---Accused can be punished on the basis of evidence of a single witness, if the case stands established against them supported by circumstances and medical evidence.

Syed Madad Ali Shah for Appellant (in Criminal Appeal No.S-55 of 2007).

Ayaz Hussain Tunio for the Complainant (in Criminal Appeal No.S-55 of 2007).

Noor-ul-Haq Qureshi for Appellant (in Criminal Appeal No.S-57 of 2007).

Bahadur Ali Baloch for Respondent (in Criminal Appeal No.S-57 of 2007).

Ayaz Hussain Tunio for the Complainant (in Criminal Appeal No.S-57 of 2007).

Noor-ul-Haq Qureshi for Appellant (in Criminal Jail Appeal No.S-74 of 2007).

Bahadur Ali Baloch for the State (in Criminal Jail Appeal No.S-74 of 2007).

Date of hearing: 11th August, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 762 #

2009 Y L R 762

[Karachi]

Before Rahmat Hussain Jaffri, J

ATTA MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1 of 2001, decided on 9th July, 2007.

Penal Code (XLV of 1860)---

----Ss. 324/504---Appreciation of evidence---No explanation of the complainant was about the delay in lodging F.I.R., which caused serious doubt about the prosecution story keeping in view the material contradictions in the evidence and non examination of witnesses---Prosecution having failed to prove the case against the accused beyond any reasonable doubt, appeal was allowed.

Shyam Lal A. Ladhani, for Appellant with. Appellant in person.

Zia Siddique for A.A.-G. for the State.

Date of hearing: 6th July, 2007.

YLR 2009 KARACHI HIGH COURT SINDH 775 #

2009 Y L P 775

[Karachi]

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

ABN AMRO BANK---Appellant

Versus

KARACHI WATER AND SEWERAGE BOARD---Respondent

H.C.A. No.233 of 2006, decided on 22nd November, 2008.

Municipal taxation---

----Municipal tax, imposition of---Failure/ neglect/inability of Municipality to perform its duties by rendering statutory services in concerned area or for benefit of certain residents---Remedy of aggrieved person---Scope stated.

As a general rule, the validity of the imposition of a municipal tax can be challenged either on the ground that the requisite power has not been conferred on the Municipality concerned by the statute or the charter, which governs its functions and powers or that the imposition is not for the purposes of the Municipality. The challenge cannot be based on the ground that the Municipality has failed to carry out its duties and obligations in a certain locality or for the benefit of certain individuals, as municipal taxation is intended for carrying on the administration of the Municipality as a whole. Further that the failure, neglect or inability of the Municipality to perform its functions does not relieve the citizen to pay municipal taxes, whose imposition has been authorized by law, as the liability to pay arises on account of the presence of the citizen or the property in the area of the Municipality concerned and not as a quid pro quo for concerned services rendered.

Nizar Ali v. Karachi Water and Sewerage Board in 2004 CLC 578; Karachi Municipal Corporation v. Messrs Karimi & Co. PLD 1967 Karachi 537; S.Z. Mehdi v. Government of Sindh and 3 others 1990 CLC 352 and Messrs Karimi & Company v. The Karachi Municipal Corporation 1974 SCMR 440 rel.

Ms. Saman Imtiaz for Appellant.

Abrar Hassan for Respondent.

Date of hearing: 30th October, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 786 #

2009 Y L R 786

[Karachi]

Before Syed Pir Ali Shah, J

AYESHA WOOLLEN MILLS---Plaintiff

Versus

Messrs INDUSTRIAL EXPORTS--- Defendant

Suit No.282 of 2003, decided on 8th July, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, Rr.2 & 11---Suit for recovery of money---Rejection of plaint, application for---Banking Company had filed application under O.VII, R.11, C.P.C. for rejection of plaint on the ground that plaint did not disclose any cause of action against it---Validity---Plaint showed that the plaintiff had specifically stated that the defendant was a Banking Company with whom the plaintiff established various letters of credit---Averments made in the plaint were only to be considered for rejection of plaint under O. VII, R.11, C.P.C. and plaint could only be rejected when, from the perusal of contents of plaint, it did not disclose proper and legal cause of action; when same was barred by any law; and when the same had been undervalued and insufficiently stamped---Grounds mentioned in the application under O. VII, R.II, C.P.C., prima facie, required evidence so that the plaintiff should discharge his burden of proof regarding his claim and to substantiate the same by way of documentary evidence as well---Controversy between the parties in the suit required proper appraisal of the evidence to be led by the parties---Legal pleas taken in the matter were also part and parcel of the written statement filed on behalf of defendant; Such legal objections and pleas could be reflected in the form of the issues for proper adjudication of the matter after the parties were afforded proper opportunity to lead their evidence---Summary rejection of the plaint was not just, proper and legal.

Abdul Qayyum Abbasi for Plaintiff.

Mansoor Sheikh for Defendant No.2.

S. Mazharul Ilaq for Defendant No.3.

YLR 2009 KARACHI HIGH COURT SINDH 788 #

2009 Y L R 788

[Karachi]

Before Mrs. Yasmin Abbasey, J

ALLAHDAD alias SAJJAD and another---Appellants

Versus

Mst. NAJMA and another---Respondents

Criminal Appeal No.287 of 2004, decided on 26th May, 2008.

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

----S.302(b)---Appreciation of evidence---Suspicions---Principle---Suspicion, however strong it may be, by itself cannot take the place of proof.

Yasir alias Ghulam Mustafa v. The State 2008 SCMR 336; Bhugdomal Gangaram and others v. State of Gujarat 1984 PSC 640 (sic); State of U.P. v. Krishna Gopal. and another 1988 MLD 1501 (sic); and Vijant Kumar and others v. State through Chief Ehtesab Commission, Islamabad and others PLD 2003 SC 56 ref.

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

----S. 302 (b) ---Appreciation of evidence---Principle---Conviction cannot be based on any other type of evidence, however convincing it may be, unless direct or substantive evidence is available---Even guilt of an accused cannot be based merely on high probabilities, which may be inferred from evidence in a particular case.

Muhammad Luqman v. The State PLD 1970 SC 10; Muhammad Noor v. Member-I, Board of Revenue; Balochistan and others 1991 SCMR 463 and Qalb-e-Abbas alias Nehola v. The State 1997 SCMR 290 ref.

----S. 302(b)---Appreciation of evidence---Lots of discrepancies were appearing in the statements of prosecution witnesses, which were not only contrary to each other, but even the documents prepared during investigation appeared to be suspected---Prosecution, thus, had failed to establish the guilt against the accused beyond any shadow of doubt---Accused were acquitted in circumstances.

Yasir Alias Ghulam Mustafa v. The State 2008 SCMR 336; Bhugdomal Gangaram and other v. State of Guajrat 1984 PSC 640(sic); State of U.P.V. Krishna Gopal and another 1988 MLD 1501 sic; and Vijant Kumar and others v. State through Chief Ehtesab Commission, Islamabad and others PLD 2003 SC 56; Muhammad Luqman v. The State PLD 1970 SC 10; Muhammad Noor v. Member-I, Board of Revenue; Balochistan and others 1991 SCMR 463 and Qalb-e-Abbas alias Nehola v. The State 1997 SCMR 290 ref.

Mehmood A. Qureshi for Appellants.

Abdul Jabbar Lakho for the State.

Date of hearing: 5th May, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 798 #

2009 Y L R 798

[Karachi]

Before Sabihuddin Ahmed, C.J and Faisal Arab, J

Mohtarma BENAZIR BHUTTO---Petitioner

Versus

FEDERATION OF PAKISTAN and another---Respondents

C.P. No.2067 of 2007, decided on 9th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---National Accountability Ordinance (XVIII of 1999), Ss.9 & 18---National Reconciliation Ordinance (LX of 2007), S. 7---Constitution of Pakistan (1973), Art. 199 Constitutional petition---Protective bail---Petitioner, who was accused of offence under National Accountability Ordinance, 1999 pending as Reference before Accountability Court, had sought protective bail---Pending petition, National Reconciliation Ordinance, 2007 was promulgated and under S.7 of the said Ordinance, National Accountability Ordinance, 1999 had been so amended that proceedings against petitioner stood withdrawn and terminated by operation of law---State counsel had stated that petitions had become infructuous---Counsel for the petitioner had not pressed the petitions which were dismissed, in circumstances.

Farooq Hamid Naek, Abu Bakar Zardari and Adnan Karim for Petitioner.

Rizwan Ahmed Siddiqui, D.A.-G. for Respondents.

Shafat Nabi K. Sherwani, D.P.-G. for the NAB.

YLR 2009 KARACHI HIGH COURT SINDH 799 #

2009 Y L R 799

[Karachi]

Before Nadeem Azhar Siddiqi, J

SAADULLAH KHAN AND BROTHERS (SKB) ENGINEERS AND CONSTRUCTORS, KARACHI and another---Plaintiffs

Versus

PROVINCE OF SINDH through Secretary, Works and Services Department, Government of Sindh, Karachi and another---Respondents

Suit No 883 of 2008 and C.M.As. Nos.6571, 8036 of 2008, decided on 25th September, 2008.

Arbitration Act (X of 1940)---

----S.20---Suit with the prayer for referring the matter to arbitration in terms of the provisions of the contract executed between the parties---State counsel had stated that defendants had no objection against referring the matter to arbitration, he however submitted that before approaching the arbitrator, the dispute was to be referred to the Engineer under clause of the conditions of the contract and only the decision of the said Engineer could be referred to arbitration---Chief Engineer, present in the Court, had categorically stated that neither the matter had been referred to the Engineer for his decision, nor any decision had been given by him---Said statement of the Chief Engineer was sufficient to resolve the controversy---Application filed under S.20 of the Arbitration Act, 1940 was allowed---Plaintiff would file his grievance before the Engineer within one week who would decide the same after notice to the concerned parties positively within specified period and would submit his report to the court---After decision of the Engineer, the matter would be referred to the arbitrator within one week who would positively decide the same within specified period---Till such time the matter was not decided by the Engineer and the arbitrator, the defendants would not insist on encashment of Bank guarantees/performance bonds furnished by the plaintiff.

Behad Ahmed for Plaintiffs.

Qazi Majid Ali, A.A.-G. along with Muhammad Sharif Nizamni, Chief Engineer/Employer for the Plaintiff.

Rehan Iqbal, Dy. Secretary, Works and Services Department, Government of Sindh and Hussain Bakhsh Shaikh, Executive Engineer, Foreign Aided Projects, Sukkur.

Bakhsh Ali Abro, Representative of Consultant KAMPSAX International.

YLR 2009 KARACHI HIGH COURT SINDH 814 #

2009 Y L R 814

[Karachi]

Before Salman Ansari, J

MUHAMMAD KASHIF---Applicant

Versus

THE STATE---Respondent

Cr. B. A. No.863 of 2008, decided on 13th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b) (c)---Bail, grant of---Further inquiry---Accused was in custody for the last more than 16 months and no witness had been examined--Said delay could not be attributed to accused---Recovery was on he border line of offence falling under Ss.9(b) and 9(c) of Control of Narcotic Substances Act, 1997; in said circumstances and facts, case of accused required further inquiry---Accused was admitted to bail, in circumstances.

Sherin Muhammad v. The State 2006 PCr.LJ 726; Mehboob Ali v. The State 2007 YLR 2968; Imtiaz Ali v. The State 2006 MLD 1961; Muhammad Nawaz v. The State 2007 MLD 1846 and Muhammad Farrukh Khan Zia v. The State 2008 MLD 608 ref.

Syed Nadeemul Haq for Applicant.

Ashfaq Hussain Rizvi, Special Prosecutor, ANF for the State.

YLR 2009 KARACHI HIGH COURT SINDH 819 #

2009 Y L R 819

[Karachi]

Before Abdul Rasheed Kalwar, J

MUHAMMAD ASHRAF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-833 of 2008, decided on 22nd December, 2008.

Criminal Procedure Code (V of 1898)---

----S.497:--Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of--Benefit of doubt---Accused had first been released in the case under S.169, Cr.P.C. and was robbed and deprived of his cash and valuable articles by the complainant police officer and in order to justify his arrest he had been falsely connected with the crime---Complainant police officer had made the recovery of 1040 grams of "Charas" from the accused in presence of his subordinates, but in the existence of recorded enmity between them, said recovery did not inspire confidence---By excess of 40 grams of "Charas" the offence had been aggravated to section 9(c) of the Control of Narcotic Substances Act, 1997---Accused had brought on record the mala fides against the complainant---Mashirs being subordinate to the complainant, foistation of "Charas" on accused could not be ruled out in circumstances---Recovery being doubtful, its benefit would go to accused even at bail stage---State Counsel had not opposed the bail application---Accused was admitted to bail accordingly.

Chaudhry Aftab Ahmed Warraich for Applicant.

Bahadur Ali Baloch for the State.

YLR 2009 KARACHI HIGH COURT SINDH 825 #

2009 Y L R 825

[Karachi]

Before Nadeem Azhar Siddiqi, J

MEEZAN BANK LIMITED, KARACHI---Plaintiff

Versus

Messrs KHALID JAVAID AND BROTHERS and 11 others---Defendants

Suit No.302 of 2008, decided on 18th September, 2008.

Civil Procedure Code (V of 1908)---

----O.XII, R.6---Judgment on admission---Scope---Admission must be clear, unambiguous, unqualified and unequivocal---Court on application of either party could dispose of such part of suit regarding which no dispute existed between parties.

Kazim Hassan for Plaintiff.

Abdul Sattar Lakhani for Defendants Nos.1, 2 and 4-10.

Asif Mehmood for Defendant No.11.

Nemo for other Defendants.

Nadeem Pirzada for S.I.T. E.

YLR 2009 KARACHI HIGH COURT SINDH 827 #

2009 Y L R 827

[Karachi]

Before Abdur Rahman Faruq Pirzada, J

GHULAM AKBAR NAREJO---Applicant

Versus

THE STATE---Respondent

Cr. Bail Application No.S-196 of 2008, decided on 5th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.395, 427, 452 & 34---Bail before arrest, grant of---F.I.R. in the case was not initially registered by complainant at police station, but later on an application under S. 22-A, Cr. P. C. was moved by the complainant before the Justice of Peace who passed order for registration of F.I.R. and subsequently F.I.R. was registered---Nothing had been recovered from any of accused persons---Mashirnama of recovery showed that robbed articles were found in an abandoned graveyard from where same were recovered by the police---Prosecution had admitted that alleged abductee was actually not abducted by accused persons, as such after due process of investigation, S. 364-A, P.P.C. was deleted---Prima facie S. 395, P.P.C. would not apply in the case, as only four persons were said to have committed alleged offence---At the most S.392, P.P.C. could be applicable in the case---Recovery of alleged robbed articles from an abandoned graveyard could raise some doubts with regard to the veracity of prosecution case---F.I.R. revealed that several persons of the locality including one who claimed to be eye-witness, witnessed the incident; however, as per statement of Assistant A.G., said eye-witness was not examined by the police under S.161, Cr. P. C. ---Statements of other persons from locality who, as per F.I.R., witnessed the incident, were not recorded by the police---Even the statement of servant of the complainant was not recorded, in respect of the allegation of abduction---Co-accused having been granted bail, same was also granted to accused in view of rule of consistency---Case of accused being fit for concession of bail, interim bail before arrest, earlier granted to accused was confirmed on the same terms.

Riazat Ali Sahar for Applicant.

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

YLR 2009 KARACHI HIGH COURT SINDH 831 #

2009 Y L R 831

[Karachi]

Before Munib Ahmad Khan, J

Mst. SUNBLE CAREEN---Decree-holder

Versus

D.C.A.S. (ADMN.) and others---Judgment-debtor

Execution Application No.14 of 2008, heard on 14th May, 2008.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 17---Execution of ejectment order---Arbitrator to whom matter was referred, gave award against the tenant/judgment debtor to hand over vacant possession of shop in question to the decree-holder---Said award was made rule of the Court and order of the Court making award rule of the Court having not been challenged by the tenant/judgment-debtor, it had become final---In view of no objection from either side, execution was allowed and judgment-debtor was directed to hand over the possession of shop in question to officer of the Housing society---Nazir of the Court was directed to get the shop vacated from the judgment-debtor in case of failure of the judgment-debtor to do so.

Muhammad Asif Malik for Decree-holder along with Sqn. Ldr. Nasim, Assistant Director Housing (Legal).

Date of hearing: 14th May, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 835 #

2009 Y L R 835

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam, JJ

MUHAMMAD AZEEM KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Misc. Application No.224 of 2008, decided on 28th October, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 561-A---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.5(7)---Penal Code (XLV of 1860), Ss. 420/468/471/109---Reduction of surety amount---Cheques issued by State Bank of Pakistan in favour of other persons had been deposited by accused in different accounts opened by him---According to charge sheet the amount against all the four accused persons had accumulated to Rs.83.00 Million, while Rs.39, 414 Million were deposited in the account of present accused and he and his wife had encashed the same---Trial Court had granted bail to accused subject to furnishing surety in the sum of Rs.40.00 Million vide impugned order---As per provision of S.5(7) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, where the charge shed-had specified the amount in respect of which the offence was alleged to have been committed, while releasing the accused on bail the amount of bail wanted not be less than the said amount---Four individuals were involved in the case and one person could not singularly commit such crime---Surety amount, therefore, could be divided among all the four accused the accused was liable to pay surety amount in the sum of Rs.21.00 Million---Surety amount fixed for the release of accused on bail by Trial Court in the sum of Rs.40.00 Million was reduced to Rs.21.00 Million accordingly.

Nisar Ahmad Dina v. The State in Criminal Miscellaneous Application No.194 of 2003 and Criminal Petition bearing No.49-K of 2004 ref.

Javed Ahmed, Chattari for Applicant.

Haider Ali, Federal Counsel for the State.

Date of hearing: 28th October, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 845 #

2009 Y L R 845

[Karachi]

Before S.A. Sarwana, J

Messrs HUSSAIN DEVELOPERS through Managing Partners---Plaintiff

Versus

PROVINCE OF SINDH through Secretary, Housing and Town Planning, Karachi and 6 others---Defendants

Suit No.648 and C.M.A. No.3688 of 1999, decided on 15th September, 1999.

Civil Procedure Code (V of 1908)---

----O. I, Rr.3, 10 & S.35-A---Impleading of party---Imposition of special costs---Counsel for defendant made an oral motion that said defendant could be deleted from the list of defendants as said defendant had been wrongly impleaded as a defendant in the suit---Counsel for plaintiff had submitted that he had made the said defendant as party in the case because the office of another defendant was situated in the building owned by said defendant and that Administrator of said defendant was also the Chairman of another defendant---Grievance of the plaintiff was against another defendant which had jurisdiction over the area where the property of the plaintiff was situated---Oral motion of the counsel for said defendant was granted and office was directed to strike off the name of said defendant from the array of the defendants---Every counsel has duty to check' the law and file the suit against appropriate persons and not implead parties unnecessarily thereby causing them unnecessary harassment and inconvenience---Counsel for the plaintiff did not carry out proper inquiry and impleaded said defendant on frivolous grounds when it had nothing whatsoever to do with the property in question---Plaintiff in circumstances would pay special costs of Rs.10, 000 under S.35-A, C.P. C. to the said defendant.

Khawaja Shamsul Islam for Plaintiff.

Chaudhry Muhammad Rafiq, A.A.-G. for Defendants Nos.1, 6 and 7.

Suhail H.K. Rana for Defendant

No.2 along with Sultan Khalid Masood Khattak, Chief Executive Officer.

Khalid Mahmood for Defendant No.3 along with Colonel Athar Ali Khan, Secretary, Defence Housing Authority.

Syed Muzaffar Imam for Defendant No.4/KDA.

Raja Sikandar Khan Yasir for Defendant No.5/KBCA.

YLR 2009 KARACHI HIGH COURT SINDH 854 #

2009 Y L R 854

[Karachi]

Before Amir Hani Muslim, J

SHAHID IQBAL---Plaintiff

Versus

MUHAMMAD LUQMAN and others---Defendants

Suit No.760 of 2007, decided on 13th November, 2008.

Civil Procedure Code (V of 1908)---

----O. I, R.10(2)---Application for deletion of names of defendants---Counsel for defendants had sought deletion of names of two defendants A & B from the array of the defendants on the ground that firm in question was the sole proprietorship of one defendant "C" who was father of said defendants "D", "A" & "B" and was owned by defendants "C" & "D "---Contention of counsel for the defendant was that defendants "A" & "B" having no concern with the business, they were neither necessary nor proper parties to the proceedings and their names should be struck off from the array of the defendants--No affidavit had been sworn either by the defendants "A" & "B" denying their business connection with the firm---Defendant "D" had sworn the affidavit claiming that he and his father, defendant "C" had the interest in the business of the firm---Names of defendants "A" & "B", held, could not be struck off from the array of the defendants as prayed by the counsel for the defendant, in circumstances.

Uzin Export Import Enterprises v. Union Bank of Middle East Ltd., PLD 1994 SC 95 and Port Services (Pvt.) Ltd. v. Trustees of the Port of Karachi, 2003 CLC 930 ref.

Miss Iqra Salim for Plaintiff.

Miss Mehreen Ibrahim for Defendants.

YLR 2009 KARACHI HIGH COURT SINDH 862 #

2009 Y L R 862

[Karachi]

Before Zafar Ahmed Khan Sherwani and Bin Yamin, JJ

ABDUL GHANI alias MOOSO and others---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.14 of 2005, decided on 7th November, 2008.

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

----Ss. 395, 395-A, 324, 353 & 149---Anti-Terrorism Act (XXVII of 1997), S.7(e)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Appreciation of evidence---Sentence, reduction in---Evidence produced on the point of dacoity in the form of the ocular testimony of three private persons, including the victims, the complainant and one of the prosecution witnesses, had been supported by third eye-witness and two official witnesses---Said witnesses were cross-examined at length by Advocate of accused persons, but nothing could be elicited affecting their credibility-Regarding the other charge of kidnapping for ransom under S.365-A, P.P.C. there were mere words of the complainant and prosecution witnesses that they were kidnapped for ransom by accused persons, but no other corroborative piece of evidence was available on the point of kidnapping; it could not be said, in circumstances, that accused persons had committed the offence of kidnapping for ransom as provided under S.365-A, P. P. C., read with S.7(e) of Anti-Terrorism Act, 1997---Two accused persons, who had been convicted under S.395, P.P.C., were sentenced to undergo punishment for life and fine and five years' R.I. and to pay fine under S.13(d) of West Pakistan Arms Ordinance, 1965---Imprisonment for life was the maximum punishment as provided under S.356, P.PC. for which the Trial Court was required to give reasons, but no reason in that regard had been given---Said sentence was reduced to five years in view of facts and circumstances of the case, which would meet the ends of justice---Amount of fine was also reduced accordingly---Sentence would run concurrently with the benefit of S.382-B, Cr. P. C.

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

----Ss. 395, 395-A, 324, 352 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)-- Appreciation of evidence---With regard to the case of third accused, no incriminating evidence was found on record against him, except the identification parade before the Judicial Magistrate in which he was identified by the complainant and prosecution witness---Same, however, had no legal value in view of the admitted fact which was deposed by the three witnesses; that it was the dark night when the incident took place and that said accused was not known to them previously--Besides that identification was made by those witnesses without reference to role of accused in the commission of offence---Nothing incriminating had been secured from the possession of accused or on his pointation-No offence, in circumstances, had been proved by prosecution against said accused---Accused was acquitted giving him benefit of doubt and was released.

Asif Ali Abdul Razzak Soomro for Appellants.

Azizul Haque Solangi for Respondent.

Date of hearing: 22nd October, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 867 #

2009 Y L R 867

[Karachi]

Before Muhammad Athar Saeed, J

ADNAN HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.398 of 2008, decided on 27th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Statements of the witnesses under Ss.161 & 164, Cr.P.C. and the F. I. R. , transpired that the complainant and the witnesses had all stated that the bullet which caused the death of the deceased, had been fired by co-accused, though some witnesses had stated that accused had also resorted to firing, but none of them had accused the applicant of firing the fatal bullet---Action of accused was spontaneous requiring further inquiry---Bail could not be denied to accused whose role in a murder was just that of instigator or who was accused only of ineffective firing and/or abusing or threatening the deceased---Accused had been in custody for more than two years for different reasons including seeking of adjournments by the complainant on some occasions, the case had not progressed and though the impugned order was passed in December, 2007, but still, despite passing of ten months, the statements of the complainant and witnesses could not be recorded---Accused, in circumstances, was entitled to grant of bail---Accused was admitted to bail.

Sher Muhammad v. The State 2000 SCMR 1451; Manzoor Hussain v. The State PLD 2008 Karachi 157; Riaz Ali v. The State 2008 SCMR 884 and Sher Khan v. The State 1980 SCMR 193 ref.

Ashraf Kazi for Applicant.

Masooda Siraj for the Complainant.

Ms. Rehana Akhtar, Assistant Prosecutor General, Sindh.

YLR 2009 KARACHI HIGH COURT SINDH 880 #

2009 Y L R 880

[Karachi]

Before Mrs. Qaisar Iqbal and Mehmood Alam Rizvi, JJ

MUHAMMAD IBRAHIM---Petitioner

Versus

THE STATE---Respondent

C.P. No.D-1584 of 2007, decided on 15th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498--- National Accountability Ordinance (XVIII of 1999), S.18(g)---Pre-arrest bail, grant of---Facts leading to the reference were that accused being holder of the Public office, allegedly had amassed wealth in his name and in the name of his family members---Investigating Officer after conducting investigation had concluded that accused had acquired assets disproportionate to his known legitimate source of income---Perusal of sources of income shown by accused, revealed that there appeared to be sufficient income to purchase the property in the name of his wife in the year 1997; however, that factum required evidence and deeper appreciation which could not be undertaken at bail stage because it could prejudice the case of the parties on tentative assessment of the material available on record---Allegations levelled against accused would only be determined at the conclusion of the trial after deeper analysis of the evidence---Prima facie allegations themselves would not constitute a bar against grant of bail in peculiar circumstances of the case---Accused, in circumstances was entitled to concession of bail---Interim bail already granted to accused was confirmed, in circumstances.

Abdul Aziz v. The State PLD 2003 SC 668 ref.

Muhammad Ashraf Kazi for Petitioner.

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

YLR 2009 KARACHI HIGH COURT SINDH 885 #

2009 Y L R 885

[Karachi]

Before Rahmat Hussain Jaffri and M. Afzal Soomro, JJ

WAQAR AHMED---Applicant

Versus

THE STATE---Respondent

Special C.N.S. Bail Application No.999 of 2005, decided on 29th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of--Prosecution had collected the evidence against accused in the shape of statement of co-accused, which was inadmissible in evidence---Second piece of evidence collected by the prosecution was builty (Transport receipt) under which 10 boxes containing hardware were transported from Lahore to Karachi which were allegedly received by accused and he had executed such receipt as alleged by the prosecution--Said boxes had not been connected with the consignment secured from the place of incident containing heroin powder---Without such connection it could not be held that boxes received by accused were the same boxes from which heroin powder was secured---Such pieces of evidence required deeper appreciation which could be undertaken by the Trial Court when the required evidence would be produced before the court---Only tentative assessment was to be made from the assessment at bail stage---Accused, in circumstances, was entitled to concession of bail which was granted.

M.M. Tariq for Applicant.

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

YLR 2009 KARACHI HIGH COURT SINDH 891 #

2009 Y L R 891

[Karachi]

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

Mrs. UMAHANI FIKREE through Attorney and 4 others---Petitioners

Versus

TAUFIQ FIKREE and 3 others---Respondents

Constitutional Petition No.D-545 of 2004, and Misc. A. No.2197 of 2006, decided on 13th September, 2006.

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

----Art. 199---Constitutional petition---Application for restoration of suit dismissed in default---Petitioner, in the present case, instead of attempting to seek restoration of suit kept sleeping and application for restoration was presented after 2-1/2 years of dismissal along with an application for- condonation of delay which was dismissed--- Validity--- Held, applicant himself could not be absolved of the responsibility to act vigilantly and his complete indifference for two and a half years which was far too long period to be explained---Constitutional petition against the order of dismissal of application was dismissed.

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

----Art. 199---Constitutional petition of High Court---Scope---High Court, in constitutional jurisdiction rarely interferes with the concurrent findings duly recorded by Civil Courts---Petition against such order was dismissed in limine.

Ali Mumtaz Shaikh for Petitioners.

S.A. Samad Khan for Respondents.

2009 Y L R 914

[Karachi]

Before Salman Ansari, J

MUHAMMAD YASEEN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.941 of 2008, decided on 8th October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 337H(i)/427/336/322---Bail, refusal of---Prima facie, it was established that accused was acting in gross violation of safety measures required for construction of a building and was also raising construction without any permission from the concerned authority---Bail was refused in circumstances.

Muhammad Nadeem v. The State 1998 MLD 1537 and Ali Dost v. The State 2006 PCr.LJ 80 ref.

Atta Muhammad v. The State 2005 PCr.LJ 1648 and Munir Hussain v. The State 1994 PCr.LJ 406 rel.

Kh. Muhammad Azeem for Applicant.

Ghulam Hyder Shaikh for the Complainant.

Asadullah Baloch, for the State.

YLR 2009 KARACHI HIGH COURT SINDH 923 #

2009 Y L R 923

[Karachi]

Before Ali Sain Dino Metlo, J

RUBINA KHAN---Petitioner

Versus

HUSSAIN ZAHEER SHAH and 2 others---Respondents

Constitutional Petition No. 475 of 2008, decided on 18th November, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Criminal Procedure Code (V of 1898), S.491---Constitutional petition---Custody of minor son of 2-1/2 years---Father (respondent) of the child had contended that he apprehended that petitioner (mother) shall remove the child outside the jurisdiction of the Court---Contention of the mother was that custody of the child be given to her with direction to produce the child in Court after one week for the purpose of meeting the child with father and also for talks for some reconciliation---Validity---Held, in view of the tender age of the child, his custody was directed to be given to the mother temporarily with direction to produce the child on a specified date; she shall furnish surety in the sum of Rs.500, 000 within three days and execute personal bond in the like amount binding herself not to remove the child outside the city and get her present address recorded in the Court.

Saathi M. Ishaq and Naseer Hussain for Petitioner with petitioner in person.

Muhammad Rafi with Respondent No.1 in person.

Syed Miran Muhammad Shah, Addl. A.-G. along with Inspector Attiq-ur-Rehman, S.H.O.

YLR 2009 KARACHI HIGH COURT SINDH 925 #

2009 Y L R 925

[Karachi]

Before Ghulam Dastagir A. Shahani, J

MUHAMMAD ASLAM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1117 of 2008, decided on 9th October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 392/397/413/216-A/109---Bail, grant of---Abscondance of accused---Effect---Co-accused had already been acquitted by Trial Court and allegations levelled against accused were yet to be determined at trial--Tentative assessment was to be made and no deeper appreciation was required at bail stage---No incriminating articles had been recovered from the possession or on pointation of accused--Bail could not be refused only on ground of abscondence---Bail was granted in circumstances.

Hashmat Khalid for Applicant.

Fazal-ur-Rehman for the State.

YLR 2009 KARACHI HIGH COURT SINDH 928 #

2009 Y L R 928

[Karachi]

Before Sajjad Ali Shah, J

TAHIR AHMED through Attorney---Petitioner

Versus

VTH ADDITIONAL DISTRICT AND SESSIONS JUDGE, (SOUTH), KARACHI and 5 others---Respondents

Constitutional Petitions Nos.S-540 and 541 and C.M.A. No.1628 of 2008, decided on 21st November, 2008.

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

----Ss. 15(2) (ii) (iv), (vii) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on grounds of bona fide personal need, default in payment of water and conservancy charges and impairing material value and utility of premises---Rent Controller and Appellate Court concurrently accepted ejectment application of the landlords and found the tenant liable to be ejected on all said three grounds---Ejectment application, affidavit-in-evidence and cross-examination of the witnesses of the landlords, had reflected that landlords had consistently maintained their version regarding their personal bona fide need in respect of premises in question---Landlords had produced documentary evidence to show that they had been exporting items produced by them to U.S.A. where two of the landlords were carrying business---Tenant had not controverted that landlords were not carrying on the business as pleaded; or that said two landlords were not running business in U.S.A.---Tenants in the entire cross-examination had asked no question regarding sufficiency or insufficiency of the premises already in possession of the landlords; nor any question was suggested that the premises in question was not required by the landlords, though suggestions were made that ejectment application was mala fide or not in good faith---Landlords though were owners of other three buildings, but it was not the case of the tenants that they had in their occupation or use any premises in the said buildings---No suppression of facts as' alleged by the tenants---No reason was available to upset concurrent finding of the courts below regarding bona fide need of the landlords---Landlords had produced receipt which reflected that beside monthly rental, the tenants were paying water and conservancy charges---Landlords further created demand vide letter, which was not paid by the tenants; though in the cross-examination, the tenant had suggested that the demand was managed, but had nowhere suggested that the tenants were not paying water and conservancy charges as was evident from various rent receipts produced on record---No reason was available to upset the concurrent findings on issue of default in payment of conservancy and water charges---Admitted position was that intervening wall between two shops had been removed by the tenants, however per counsel for the tenants said wall was removed after obtaining permission from the predecessor-in-interest of the landlords---Nothing was on record to show that removal of wall had impaired the value and utility of the premises---Findings of the Rent Controller on the question of imparing material value and utility, could not sustain---Order accordingly.

Syed Jamil Ahmed for Petitioners.

Ali Mumtaz for the respondents.

YLR 2009 KARACHI HIGH COURT SINDH 938 #

2009 Y L R 938

[Karachi]

Before Ghulam Dastagir A. Shahani, J

Syed NAVEED ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.859 of 2008, decided on 26th September, 2008.

Criminal Procedure Code (V of 1898)---

----S 497---Penal Code (XLV of 1860), Ss.365/376(2)/34--Bail, refusal of---Accused had been nominated in the F.I.R. with specific role of committing zina with complainant along with co-accused one by one, while another co-accused recorded their movies from mobile phone---Accused abducted complainant and her friend forcibly on gun point and committed offence of such nature together and extended threats to them---No enmity/ill-will was alleged against the involvement of accused--Bail could not be granted only on the ground of delay in such cases---Bail was refused in circumstances.

Tahir alias Tahira v. The State 2001 PCr.LJ 123; Muhammad Wail Farooq v. The State 2007 MLD 1313; Abdul Hameed v. The State 2004 SD 1133; Hazoor Bux v. The State 2006 PCr.LJ 1039; Mst. Hanifa Bibi and another v. The State 2006 YLR 2955; Muhammad Asif alias Kala v. The State 2007 PCr.LJ 1292 and Muhammad Ramzan v. The State 2007 PCr.LJ 587 ref.

Nasar Iqbal v. State PLJ 2000 Cr.C. Kar. 1319 rel.

Saathi M. Ishaque for Applicant.

Fazalur Rehman Awan for the State.

YLR 2009 KARACHI HIGH COURT SINDH 945 #

2009 Y L R 945

[Karachi]

Before Munib Ahmed Khan, J

Messrs PAK JUNAID FLOUR MILLS (PVT.) LTD.---Appellant

Versus

DARA FEROZ MIRZA and 2 others---Respondents

R.F.A. No.5 of 2007, decided on 9th February, 2009.

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

----S.17---Civil Procedure Code (V of 1908), S.12 (2) & O.IX, R.13---Ex parte decree, setting aside of----Service of process to tenant---Proof---Non-registration of tenancy agreement---Effect---Approbation and reprobation---Rent Controller had made all the required efforts towards service of process to tenant and notices were not only issued on rented premises but on the office of tenant as well---Service of process could not be effected on tenant, despite pasting of notices and publication, . therefore, Rent Controller proceeded ex parte and eviction order was passed--Tenant sought setting aside of ex parte eviction order but his application under S.12 (2) read with O.IX, R.13 C.P. C. was dismissed by Rent Controller---Plea raised by tenant was that agreement of tenancy relied upon by landlord was unregistered document which could not be relied upon and process was not served on tenant through modes prescribed under law---Validity---Tenant itself was signatory and beneficiary of agreement, through which it entered into the premises and followed terms and conditions contained therein, therefore, tenant was estopped under law to challenge its own deeds---Non-registration of agreement could not negate contract between parties while it might have effects towards monetary liability to fulfil deficiency towards payment of registration fee etc.---Such plea raised by tenant was nothing but approbation and reprobation and could not be entertained---Bailiff of Court collected information from employees in respect to concerned officials of tenant, which showed that bailiff approached officials of tenant and left some intimation in that respect, thus tenant was properly and legally served through all possible ways of service provided under law---High Court, in exercise of appellate jurisdiction, declined to interfere with eviction order passed by Rent Controller against tenant---Appeal was dismissed in circumstances.

PLD 1967 Lah. 1138; PLD 1968 Lah. 792; PLD 1984 SCMR 1305; 1989 CLC 2183; PLD 1981 Lah. 659; 1989 MLD 578; PLD 1996 SCMR 1703; 1987 CLC 1257; 1993 SCMR 226; PLD 1971 SC 124; PLD 1994 Pesh. 95; 1987 CLC 218; 1970 SCMR 130; PLJ 1994 Kar. 2254(sic); 1984 CLC 2869; PLD 1985 Lah. 181; PLD 1976 SC 781; PLD 1977 Kar. 221; 1993 SCMR 200; PLD 1970 SC 196 and PLD 1977 Pesh. 80 ref.

2008 SCMR 635 fol.

M.M. Aaqil Awan for Appellant.

Qadir H. Sayeed for Respondents.

Dates of hearing: 18th December, 2008 and 6th February, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 955 #

2009 Y L R 955

[Karachi]

Before Azizullah M. Memon and Arshad Noor Khan, JJ

Sherri CBE (CITIZENS FOR A BETTER ENVIRONMENT) and another---Petitioners

Versus

GOVERNMENT OF SINDH through Secretary, Land Utilization Department Board of Revenue, Karachi and others---Respondents

C.P. No.D-1277 of 2003, decided on 5th September, 2008.

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

----Art. 199---Constitutional petition---Raising of factual controversy by both parties---Validity---Such controversy would require evidence in full-fledged inquiry, which could be decided through civil suit---High Court, keeping in view exigency of matter involved, decided to get such matter examined by Official Assignee a Commissioner directing him to submit his report after carrying out full-fledged inquiry in presence of parties including site inspection, examining documents and taking assistance from expert to reach at correct conclusion about parties' claim.

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

----Art. 199--- Constitutional petition involving disputed questions of fact---Validity---Such facts could neither be entertained nor any inquiry could be entertained for decision thereof.

----S. 10(4)--- Karachi Development Authority Order (V of 1952), Arts. 92 & 93---Karachi Development Authority's claim to be in possession of State land as lessee thereof with permission of Collector in absence of written order of grant of alleged lease and proof of payment of lease money to Board of Revenue/Provincial Government---Validity---No person would be deemed to be a tenant or to have acquired any title, right or interest in State land in absence of written order of Board of Revenue/ Provincial Government---City Development Authority had failed to prove any valid right, title or interest in State land.

Abdul Rashid Khalid and others v.

Province of Sindh and another PLD 1987 Kar. 394; Muhammad Ramzan v. Member (Colonies), Board of Revenue, Punjab, Lahore and others 2003 YLR 427 and Sharif Haroon v. Province of Sindh through Secretary to the Government of Sindh, Land Utilization Department and another PLD 2003 Karachi 237 rel.

Ms. Rizwana Ismail.

Abid S. Zuberi.

Manzoor Ahmed.

Abdul Fatah Malik, Addl. A.-G. for Respondent.

Ahmed Pirzada argued partly.

YLR 2009 KARACHI HIGH COURT SINDH 975 #

2009 Y L R 975

[Karachi]

Before Azizullah M. Memon and Abdul Rehman Farooq Pirzada, JJ

Dr. TARIQ MASOOD and 2 others---Petitioners

Versus

IVTH ADDITIONAL DISTRICT JUDGE, KARACHI and 12 others---Respondents

Constitutional Petition No. D-388 of 2008, decided on 18th February, 2009.

Civil Procedure Code (V of 1908)---

----S.12(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Restoration of possession of suit-land to plaintiff by order of Trail Court during pendency of suit---Dismissal of appeal and revision---Application under S. 12(2), C.P.C., seeking possession of suit-land on ground to have purchased same from plaintiff---Dismissal of such application by Court below---Validity---Courts below had decided question of possession against appellant---Litigation between parties was still pending, thus applicant could not allege order of restoration of possession to have been obtained by fraud, misrepresentation or to be without jurisdiction---Until and unless such orders of Courts below were set aside, applicant could not claim any right of ownership in suit-land---Such application was not maintainable--High Court dismissed constitutional petition in circumstances.

Muhammad Aziz Khan for Petitioners.

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

Raja Shams-uz-Zaman for Respondents Nos.3 and 4.

Manzoor Ahmed for Respondent No.9.

Sathi M. Ishaq for Respondent No.13.

YLR 2009 KARACHI HIGH COURT SINDH 980 #

2009 Y L R 980

[Karachi]

Before Farrukh Zia, G. Shaikh, J

SHABIR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No.649 of 2008, decided on 3rd November, 2008.

Criminal Procedure Code (V of 1898)---

----S.497--Penal Code (XLV of 1860), S.324/34---Bail, refusal of---Contention was that no specific role had been assigned to accused in the commission of the offence and he was involved in the case only due to the application of S.34, P.P.C.---According to S.34, P.P.C. when a criminal act, is done by several persons in furtherance of the common intention of all, each of such persons is liable for such act in the same manner as if it were done alone by him---Even otherwise, now it had become a common practice that litigants were harmed and threatened in Court premises when they come to pursue their cases and such menace had to be stopped---Bail was declined to accused in circumstances.

2005, PCr.LJ 16; PLD 1915(sic) SC 20 and 1999 SCMR 1360 ref.

Ghous Bux Kaheri for Applicant.

Agha Ather Hussain, Asstt. A.-G. for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 984 #

2009 Y L R 984

[Karachi]

Before Ali Sain Dino Metlo, J

SARFARAZ---Applicant

Versus

THE STATE---Respondent

Bail Application No.1201 of 2008, decided on 22nd October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392/34---Bail, grant of---Further inquiry---Allegation against accused was that he along with others, robbed the complainant of mobile telephone set and cash amount---Memo. of recovery of car had shown that a car was recovered from accused, but the chassis number or the engine number of the car was not mentioned in the said memo.---Nothing was available to show that the engine number or the chassis number of the car recovered from accused tallied with the engine number or the chassis number of the car robbed from the complainant---In the absence of any evidence in that regard it could not be said that the car was actually one that was robbed from the complainant---Matter required further inquiry---Accused was not put to the identification of the complainant and no reason had been assigned for such omission---Only inference which could be drawn would be that either the complainant had refused to implicate accused or the police knew that the complainant would not implicate him---Both the inferences lent support to accused's plea of innocence---Case of accused being fit for the grant of bail, he was released on bail in circumstances.

Gul Muhammad Farooqui for Applicant.

Syed Miran Muhammad Shah, Add. A-G. for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 986 #

2009 Y L R 986

[Karachi]

Before Mrs. Qaiser Iqbal, J

ABDUL GHANI---Petitioner

Versus

Mrs. FARIDA---Respondent

Constitutional Petition No.516 and C.M.As. Nos.3062, 3063 of 2008, decided on 6th March, 2009.

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

----S.16(1) (2)---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Order to deposit tentative rent---Striking off defence of tenant for failing to comply with tentative rent order maintained by Appellate Court---Validity---Rent Controller vide order dated 20-12-2005 had directed tenant to deposit Rs.1,12,500 within 15 days after adjusting rent deposited in rent case---Amount of Rs. 1,08,000 was lying deposited in rent case filed by tenant, while tenant on 26-12-2005 deposited a sum of Rs.9,000 in rent case filed by landlady---Amount of Rs.1,17,000 instead of Rs.1,12,500 was lying deposited on 26-12-2005 in both such cases---Tenant had deposited such rent, but due to oversight Ledger Number of account had been wrongly mentioned, which resulted into impugned order---Concurrent findings of Courts below were not tenable in law---High Court set aside impugned orders and remanded case to Rent Controller for its fresh decision.

Mehrunnisa for Petitioner.

Respondent No.1 in person.

YLR 2009 KARACHI HIGH COURT SINDH 995 #

2009 Y L R 995

[Karachi]

Before Munib Ahmed Khan and Pir Ali Shah, JJ

SAIRNA SYED---Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI and 4 others---Respondents

Constitutional Petition No.D-1964 of 2007, decided on 18th January, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Vacation of house owned by City District Government---Petitioner who was widow of an employee of Military Accounts and was holding a house, had claimed that she and other legal heirs of her deceased husband could retain possession of said house for 5 years---Contention of City District Government was that deceased predecessor was not employee of City District Government and that house was given to him only due to some understanding between City District Government and Central Government; and. that City District Government was not applicable to the local body---Validity---Petitioner could not retain the house in question while deceased was obtaining pension and retirement benefits from Central Government.

Muhammad Mansoor Meer for Petitioner.

Zafar Ahmed, C.D.G.K. for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 1000 #

2009 Y L R 1000

[Karachi]

Before Syed Mahmood Alam Rizvi, J

IMRAN---Applicant

Versus

THE STATE---Respondent

Cr. Bail Application No.1124 of 2008, 14th October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302/324/394/34 -Bail, grant of---Accused was nominated in the F.I.R. with a specific role and a prosecution witness had also directly involved him in his statement recorded under section 164, Cr.P. C. but prosecution had also implicated the co-accused without any evidence, who had already been released on bail by High Court---F.I.R. was not lodged by an eyewitness---Prosecution story had material contradictions---Accused was in custody for the last more than one year and nine months and till now only the complainant had been examined in the case---Visit of the accused himself to the hospital where the deceased was brought in injured condition, had made his case one of further inquiry---Accused, for the aforesaid facts and circumstances and on the ground of rule of consistency, was entitled to bail and he was admitted to bail accordingly.

Nehal Hashmi for Applicant.

Haji Abdul Haji, A.A.-G. for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 1011 #

2009 Y L R 1011

[Karachi]

Before Munib Ahmad Khan and Khawaja Naveed Ahmed, JJ

KHILJI BILAL AZIZ---Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI through E.D.O. and another---Respondents

Constitutional Petition No. D-272 of 2007, decided on 21st February, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petitioner had sought issuance of directions to the authorities to give instruction to the builders to make proper arrangements for extinguishing the fire in the buildings---Counsel for authorities undertook that all necessary arrangements for existing buildings would be made---Undertaking given by the counsel for the authorities was accepted by High Court with direction to the Karachi Building Control Authority that while approving the proposed building plan, they must keep in mind that as to what arrangements had been made to combat the fire incidents; and ensure that proper arrangements were made and in case of emergency separate fire exits be provided keeping in view the height and density of the building.

Petitioner in person.

Zafar Ahmed, CDGK for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 1013 #

2009 Y L R 1013

[Karachi]

Before Anwar Zaheer Jamali, J

Mst. SHAMAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-701 of 2004, decided on 30th December, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV 1860), Ss.372 & 373---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.13/14---Bail, grant of---Further inquiry---When the parents of the girl had also disputed the case of prosecution and they had been joined as co-accused in the crime, case of accused as to her involvement in the commission of offence needed further inquiry---Was yet to be seen whether the little girl was purchased by accused; whether she was recovered from her custody; and whether she though was aged 4/5 years, was to be used in future for the purpose of prostitution---Accused according to the prosecution case, though was apprehended on spy information, but the police did not bother to take any private Mashir for the arrest of accused and alleged recovery of girl from her custody---Accused was released on bail, in circumstances.

Mumtaz Alam Leghari for Applicant.

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

YLR 2009 KARACHI HIGH COURT SINDH 1016 #

2009 Y L R 1016

[Karachi]

Before Mrs. Qaiser Iqbal, J

Mian SHIRAZ ARSHAD---Petitioner

Versus

VIIITH CIVIL AND FAMILY JUDGE, KARACHI (SOUTH) and 3 others---Respondents

Constitutional Petition No.S-112, C.M.As. Nos.47, 3127 of 2008 and 126 of 2009, decided on 6th March, 2009.

Civil Procedure Code (V of 1908)---

----S.114 & O.XLVII, R.1---Review---Scope---Only such errors in the judgment/order would justify review, which were self-evident, found floating on the surface, were discoverable without much deliberation and had a material bearing on the final result of the case---Review application could not be filed as an alternate of an appeal and the court could review its order only when it would affect materially, and cast shadow on the final result of the case---Application for review was maintainable only for correcting the error appearing in the order and not for correcting the wrong decision---Case which did not fall within the purview of review as provided under the law, application for review was not maintainable.

Irfan Ahmed v. II-Judicial Magistrate East, at Karachi 2006 MLD 135; Nadir Hassan v. 1st Additional District Judge and others 2004 YLR 2405; Mst. Shamero v. Sardaraz Khan and 8 others PLD 2001 Peshawar 54; Ch. Mehmood Ahmed v. Haji Muhammad Idrees and another 2001 YLR (SC AJ&K) 3237; Ranbir Prasad v. Sheobaran Singh AIR 1939 Allahabad 619; Mian Rafiq Saigol v. Bank of Credit and Commerce International Overseas Ltd. and another PLD 1997 SC 865 rel.

Ali Mumtaz Shaikh for Petitioner.

Iftikhar Javed Qazi for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 1023 #

2009 Y L R 1023

[Karachi]

Before Ali Sain Dino Metlo, J

MUHAMMAD AKHTAR---Applicant

Versus

THE STATE---Respondent

Crl. Bail Application No. S-884 of 2008, decided on 5th January, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Bail, grant of---Accused had remained in custody for about two years without any progress in the trial---Trial Court while granting bail to accused in the murder case had refused bail in the case of recovery of K.K. under S.13(e) of West Pakistan Arms Ordinance, 1965---When accused had been granted bail in main murder case, he remained in custody for about two years without any progress of case in jail---Place from where K.K. was recovered, was not in the exclusive possession of accused but was accessible to every body---Accused was directed to be released on bail, in circumstances.

Manzoor Hussain Larik for Applicant.

Imtiaz Ali Soomro, Asstt. A.-G. for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1024 #

2009 Y L R 1024

[Karachi]

Before Mrs. Qaiser Iqbal, J

Messrs MEHRAN DISTRIBUTORS through Proprietor and 2 others---Petitioners

Versus

UNITED BANK LTD. Through Engineering Division, Karachi and 2 others---Respondents

Constitutional Petition No.201 of 2005, decided on 6th March, 2009.

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

----S.15---Contract Act (IX of 1872), S.196---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Ejectment petition by Bank---Acceptance of ejectment petition by appellate Court after its dismissal by Rent Controller---Plea of tenant was that Bank had not filed ejectment petition through authorized agent; the Bank had not authorized any person through resolution of its Board of Directors to file ejectment petition---Validity---Tenant had not objected to maintainability of ejectment petition filed 12 years ago---In case of any flaw in presentation of power of attorney, benefit of S.196, Contract Act, 1872 could be extended---Power of attorney executed by Bank explicitly referred to all suits, proceedings and applications for purpose of taking legal actions---Bank had filed ejectment petition with signatures of its two attorneys, one of them had verified its averments---Attorney having signed and verified ejectment petition being recipient of rent from tenant also could be considered as landlord within meaning of Sindh Rented Premises Ordinance, 1979---Tenant had not raised such plea in written statement nor agitated same in evidence adduced by Bank-Such plea having not been raised before Rent Controller could not be agitated at appellate stage---Ejectment petition had been competently filed by attorney.

Habib Bank Ltd. v. Zelins Limited and another 2000 SCMR 472; Shahabuddin's case 1993 MLD 45 and 1997 MLD 3284 ref.

2009 SCMR 530; 2000 SCMR 1960; 1998 SCMR 593; 1985 CLC 2419 and Baboo Khan v. Maqbool Ahmed 1984 CLC 2599 rel.

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

---S.188---Power of attorney would be construed in terms of S. 188 of Contract Act, 1872---Person authorized would carry out function in manner authorized by power of attorney, otherwise same would be nullity in eye of law.

Shahab Uddin's case 1995 MLD 95 rel.

----S.4---Proceedings before Rent Controller are quasi judicial in nature.

(d) Administration of justice---

----Technicalities should not be over stretched while administering substantial justice to parties.

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

---S.15---Default in payment of rent, ground of---Payment of accumulative rent by tenant---Validity---Such payment would not be considered a proper payment.

S.M. Hyder for Appellant.

Zubair Qureshi for Respondent.

Date of hearing: 26th January, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1033 #

2009 Y L R 1033

[Karachi]

Before Farrukh Zia G. Shaikh, J

HUSSAIN BAKHSH and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.443 and M.A. No.1908 of 2008, decided on 17th October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.365-B---Bail, refusal of---Two daughters of the complainant had allegedly been abducted by the accused and their co-accused from his house---Unmarried daughter of the complainant had willingly married with one co-accused, who had been granted pre-arrest bail by Trial Court on that ground---Other daughter of the complainant had fully implicated the accused in her statements recorded under sections 161 and 164, Cr.P.C. levelling allegation of Zina against them, which was supported by the report of Chemical Examiner---Family honour being involved in the case, three days' delay in lodging the F.I.R. was not fatal to prosecution case, as people in the first instance in such cases make efforts to recover their victims and avoid going to police station---Sufficient incriminating material was available on record against the accused---Bail was declined to accused in circumstances.

Illahi Bux Jamali for Applicants

Agha Ather Hussain, Asstt. A.-G. for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1036 #

2009 Y L R 1036

[Karachi]

Before Abdur Rehman Faruq Pirzada, J

MUHAMMAD HASSAN---Applicant

Versus

STATION HOUSE OFFICER, SUKKUR and 2 others---Respondents

Criminal Miscellaneous Application No.149 of 2008, decided on 3rd November, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Application for registration of F.I.R.---Applicant had challenged the order passed by the Justice of Peace on his application filed under S. 22-A & 22-B, Cr.P.C.---Applicant had made a specific prayer that S.H.O. be directed to register the F.I.R. of applicant against accused persons, which he was bound to register under S.154, Cr.P.C.-S.H.O. Police Station concerned had filed his statement according to which the NC report of applicant was recorded in Roznamcha-book and subsequently the same was incorporated into F.I.R. also which had been duly investigated into---Counsel for the applicant had contended that actually the version of complainant was not correctly recorded in the F.I.R. and even thumb impression of the applicant was not obtained at Police Station---Validity---One F.I.R. registered by the applicant was on record---If the applicant felt aggrieved with the investigation of the police with regard to the contents of the F.I.R., then he could pursue proper remedy before the competent court under the relevant provisions of law.

Zulifqar Ali Sangi for Applicant.

Muhammad Iqbal Mahar, A.A.-G. for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 1038 #

2009 Y L R 1038

[Karachi]

Before Mrs. Qaiser Iqbal and Arshad Siraj Memon, JJ

MUHAMMAD YOUSUF through Attorney---Petitioner

Versus

CHAIRMAN, KARACHI ELECTRIC SUPPLY CORPORATION and another---Respondents

Constitutional Petition No. D-2345 and Misc. No.8611 of 2007, decided on 5th March, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Petitioner had invoked the constitutional jurisdiction of High Court seeking prayers against a Corporation to the effect that Corporation be restrained from issuing any notice as well as excess electric bill; that Corporation be directed to adjust the excess electricity bill; and 'to remove the C.T. operated meter installed---Corporation commanded majority of the share-holders, to the extent of 73% and was not performing any function in the affairs of the Federation or Provincial Government as a legal entity---Constitutional petition as framed and filed, was not maintainable.

Muhammad Dawood and others v. Federation of Pakistan & others 2007 PLC C.S 1046; Som Prakash Relehi v. Union of India and another AIR 1981 SC.212; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC. 244 and Maqsood Ahmed Toor v. Federation of Pakistan 2000 SCMR 928 ref.

Sathi M. Ishaque and Naseer Hussain Jafri for Petitioner.

Sohail Zafar Bhatti for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 1041 #

2009 Y L R 1041

[Karachi]

Before Syed Mahmood Alam Rizvi, J

UMAIR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.800 of 2008, decided on 13th October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302/324/394/34---Bail, grant of---Complainant was not an eye-witness of the occurrence and he did not state as to how he knew about the facts of the case as well as the name of the accused---F.I.R. was registered after a delay of 7/8 hours in which the presence of both the eye-witness ladies was not shown---Said eye-witnesses being mother and daughter had contradicted each other on material points and their conduct appeared to be highly doubtful---In their statements recorded under section 164, Cr.P.C. eye-witnesses had said nothing against the accused---Another eye-witness, who had claimed to have seen the accused beating and injuring the deceased, had failed to identify the accused in Court---Involvement of accused in the case, prima facie was highly doubtful and their case required further inquiry---Bail was allowed to accused in circumstances.

Habib Ahmed for Applicants.

Adnan Karim, A.A.-G. for the State

YLR 2009 KARACHI HIGH COURT SINDH 1048 #

2009 Y L R 1048

[Karachi]

Before Abdul Rasheed Kalwar, J

PEHLAWAN alias SHAMAS alias SHAMASUDDIN and another---Applicants

Versus

THE STATE-Respondent

Crl. Bail Applications Nos.464 and 25 of 2008, decided on 22nd September, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302/364/147/148/149---Bail, grant of---Accused were behind the bars for the last more than five years and conclusion of trial was not expected in near future---One of the accused persons was also entitled to bail on ground of old age---Accused could not be detained indefinitely---Bail was granted to accused persons, in circumstances.

Manzoor Ahmed Junejo for Applicant (in Crl. B. A. No.25 of 2008).

Zulfiqar Ali Sangi for Applicant (in Crl. B.A. No.464 of 2008).

Muhammad Iqbal Mahar, A.A.-G. for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1052 #

2009 Y L R 1052

[Karachi]

Before Mrs. Qaiser Iqbal, J

ZAHEERUDDIN BABAR---Petitioner

Versus

Mst. KISHWAR and 2 others---Respondents

Constitutional Petition No.454 and C.M.A. No.3261 of 2008, decided on 6th March, 2009.

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

----S.15---Constitution of Pakistan (1973), Arts. 199, 18 & 23---Constitutional petition---Bona fide personal need of shop by landlord---Objection of tenant regarding non-disclosure of nature of business in ejectment petition--- Validity--- Such objection would be irrelevant in absence of any provision of Sindh Rented Premises Ordinance, 1979-Such restriction, even if provided by law, would be hit by Art. 18 of the Constitution.

Khawaja Imran Ahmed v. Noor Ahmed and another 1982 SCMR 1152 rel.

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

----S.15---Bona fide personal need of landlord---Proof---Statement of landlord on oath, if consistent and not disproved in rebuttal, would be sufficient to prove such need.

Messrs F.K. Irani and Company v. Begum Feroze 1996 SCMR 1178 rel.

----S.15---Bona fide personal need of landlord---Plea of tenant that landlord by filing ejectment petition, in fact, intended to demand higher rent---Validity---Such plea would not cast doubt about bona fide personal need of landlord, if same was independently proved---Satisfaction of Rent Controller would be sufficient for determination of such need of landlord.

Nisar Ahmed v. Noor Muhammad Khan and 6 others 1990 SCMR 544 and Pirzada Rafiq Ahmed v. Ch Abdul Rehman 1980 SCMR 772 rel.

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

----S.15---Constitution of Pakistan (1973), Art. 23---Bona fide personal need of landlord---Scope stated.

The landlord has the absolute right to acquire and deal with his property in the manner best suited to him/her, and a tenant has no right to disentitle the landlord of his/her valuable right to acquire, deal and possess his/her property, which right is guaranteed by Article 23 of the Constitution.

Muhammad Mushaffay for Petitioner.

Islam Hussain for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 1058 #

2009 Y L R 1058

[Karachi]

Before Mushir Alam and Arshad Siraj, JJ

Rana MUNEER AHMED---Petitioner

Versus

KASB BANK LIMITED---Respondents

C.P. No.D-2095 of 2007, decided on 4th October, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petitioner had assailed the order of Single Judge 'of High Court ordering sale of 16 buses being plied under the supervision of official assignee of the High Court---Contention of petitioner was that Single Judge was not justified in observing that seating capacity of said 16 buses was 100 passengers, per bus while buses had seating capacity of 48 passengers only---Consolidated issues had been framed and matter was ripe for the evidence and it could be expeditiously adjudicated after the evidence of the parties was recorded---Notice was issued to the respondents and in the meantime, operation of the impugned order was suspended.

Salim Salam Ansari with Rana Azeem for Petitioner.

YLR 2009 KARACHI HIGH COURT SINDH 1069 #

2009 Y L R 1069

[Karachi]

Before Dr. Rana Muhammad Shamim, J

MIAN BUX and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-557 and M.A. No.2270 of 2008, decided on 29th October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302---Bail, grant of---Tractor which hit against the motorcycle of the deceased was neither being driven by the accused, nor it was in their control---Mere presence of accused at the place of occurrence was not indicative of any abetment, conspiracy or common intention on their part, unless the same was proved through evidence at the trial---No role had been attributed to accused in the commission of the offence---Case against accused required further inquiry into their guilt---Accused were admitted to bail in circumstances.

2002 PCr.LJ 707; 2007 PCr.LJ 1848; 2007 MLD 340 and 1999 SCMR 1320 ref.

Abdul Rasool Abbasi for Applicants.

Basharat Ahmed Jatt for the Complainant.

Bahadar Ali Baloch, State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 1073 #

2009 Y L R 1073

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD SHOAIB---Petitioner

Versus

Mst. FOUZIA and others---Respondents

Constitutional Petition No. S-28 and C.M.A. No.149 of 2006, decided on 30th January, 2009.

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

----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition-Suits for dissolution of marriage, maintenance and return of Jahez/dowry articles---Petitioner had invoked constitutional jurisdiction of High Court assailing the orders of the courts below, whereby the suit for dissolution of marriage, maintenance and return of dowry articles was decreed---Counsel for the petitioner did not contest the matter in respect of dissolution of marriage but contended that there was gross misreading of evidence in respect of the entitlement of respondent of dowry articles as depicted in the dowry list---Family Court had decided the issues involved in favour of the respondent pertaining to the dissolution of marriage, return of the dowry articles and maintenance---Appellate Court through the impugned judgment decided the issue regarding the dowry articles in favour of the petitioner and maintained the quantum of award of maintenance by the Family Court to the respondents---Counsel for the petitioner had undertaken to pay the maintenance due to the respondents at the rate settled by the Family Court and had agreed to pay maintenance of minor--Impugned judgment did not call for interference in view of undertaking given by the petitioner's counsel.

Sathi M. Ishaque for Petitioner.

Azizuddin Qureshi for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 1079 #

2009 Y L R 1079

[Karachi]

Before Farrukh Zia G. Shaikh, J

AKBAR alias BABLOO and another---Applicants

Versus

THE STATE---Respondents

Criminal Bail Application No.667 of 2008, decided on 28th November, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Bail application was pressed mainly on the ground of hardship and delay---Accused were in custody since last about four years, but the case had not yet proceeded---Such a long delay in the trial by itself, would be an abuse of the process of the court as the fair and speedy trial was the fundamental right of accused and no one could be detained in jail for an indefinite period---Accused were admitted to bail, in circumstances.

Abdul Majeed and 2 others v. The State 2003 MLD 19; Imran Khan alias Kami v. The State 2008 YLR 267 and Mahar Ali Shahi v. The State 2008 PCr.LJ 449 ref.

Ghulam Muhammad Khan Durrani for Applicants

Agha Ather Hussain, Asstt. A.-G. of Sindh for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1083 #

2009 Y L R 1083

[Karachi]

Before Salman Ansari, J

MEHMOOD LAKHANI---Appellant

Versus

Syeda ZUBAIDA KHATOON and 2 others---Respondents

First Rent Appeal No.25 of 2008, decided on 23rd January, 2009.

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

----S.17---Ejectment of tenant---Bona fide personal need of landlady---Default in payment of monthly rent---Deposit of rent in court---Scope---Expiry of tenancy and accepting of rent---Effect---Rent Controller passed eviction order against tenant on the ground that he had committed default in payment of monthly rent and shop in question was required by landladies for their personal use---Plea raised by tenant was that he had been depositing monthly rent in court and landladies had failed to prove their bona fide personal need of premises---Validity---Ignorance of deposit of rent on the part of landladies was considered mala fide on the part of tenant to deprive and force landladies to give in to his demands and not press for ejectment and also to save his money in case proceedings before Rent Controller were initiated and decided against tenant---By depositing rent in wrong forum would not absolve tenant of committing default in payment of rent for premises which was wilful---One landlady was widow of the owner and the remaining two were daughters who had no other source of income to support themselves and also considering that tenancy had expired long time back and was being continued as a statutory tenancy only because rent was being accepted, it should not be considered that landladies were willing party to such tenancy---Was not mandatory for landladies to disclose nature of business yet they had been able to prove bona fide requirement and need for personal use of demised premises---Was prerogative of landladies to enjoy fruits of their property and to use commercial premises to set up their business if they so intended---Tenant could not be permitted to extend tenancy to become life time tenant to utter financial loss of landladies---Tenant had become cause of constant nuisance and mental torture for landladies and they had proved their personal need of premises---Order passed by Rent Controller was maintained by High Court---Appeal was dismissed in circumstances.

Mujeebur Rehman v. Zafar Ali Khan 2004 CLC 189; Ghulam Nabi v. Nazir Ahmed 1993 MLD 2033; Muhammad Yamin v. Mashroofullah Khan 1980 CLC 848; Zohra Begum v. Pakistan Burmah Shell Ltd.; 1984 CLC 2769 and Habib Bank Ltd. v. Amanullah 1986 CLC 2917 distinguished.

Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398; Haji Ibrahim and others v. Habib Bank Ltd. and others PLD 2008 Kar. 361; Pakistan State Oil Company Limited v. Sikandar A. Karim and others 2005 CLC 3; Ch. Akbar Hussain v. Mrs. Zehra Bai 2002 SCMR 789; Raja Shahbaz Khan v. Muhammad Fazal Kiani 1988 CLC 811; Mst. Saira Bai v. Syed Anisur Rahman 1989 SCMR 1366; Sher Ahmed Jan v. Mst. Zubeda Nasreen 1989 CLC 1113; Muhammad Haleem Siddiqui and another v. Dr. Huma Khusro 1997 CLC 905; S. Tariq Saud v. Maroof Ali Shah 1990 YLR 394; Sardar Muhammad Yaqoob v. Muhammad Saleem 2000 CLC 274; Gohar Rashid v. Fazal Hasan Mazhar PLD 1995 Lahore 469; Bashir Ahmed and others v. Mukhtar Begum NLR 1990 Civil 297(sic); Ashiq Hussain v. Niaz Muhammad 2000 CLC 376; Lt. Col. Retd. Muhammad Hassan Safdar v. Malik Shabbir Ahmed and another 1994 CLC 286 and Haji Mohibullah and Co. and other v. Khawaja Bahauddin 1990 SCMR 1070 rel.

Muhammad Irfan Haroon for Appellant.

Nasir J.R. Shaikh Assisted by Mubarak for Respondents.

Date of hearing: 23rd October, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 1108 #

2009 Y L R 1108

[Karachi]

Before Farrukh Zia G. Shaikh, J

AYAZ ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.477 of 2008, decided on 21st November, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 34 & 337-H(ii)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Bail, grant of---Bail application was pressed mainly on the ground of hardship and delay---Accused was behind the bars for the last more than four and half years, but, in spite of specific directions issued by the High Court twice, the Trial Court had failed to conclude the trial---Such a long delay in conclusion of trial by itself, would be an abuse of the process of the court as the fair and speedy trial was the fundamental right of accused and no one could be detained in jail for an indefinite period---Accused was granted bail, in circumstances.

Ghulam Shabeer Dayo for Applicant.

Agha Ather Hussain, Asstt. A.-G. of Sindh for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 1112 #

2009 Y L R 1112

[Karachi]

Before Salman Ansari, J

KAMRAN---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.234 and M.As. Nos.4362 to 4364 of 2008, decided on 27th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Cancellation of bail, application for---Complainant had contended that accused was granted bail by the Trial Court without considering that sufficient evidence was available on record to connect him with the case; that Trial Court had not considered that F.I.R. was lodged on the day of incident, deceased was taken to the hospital and the empties tallied with the weapon recovered from accused---Contention raised required consideration--Pre-admission notice was issued to accused party and meanwhile order granting bail to accused was suspended, however no release order was issued as accused had not yet been released, till further orders.

M. Ashraf Qaiser for Applicant.

Ms. Shahida Jadoon, Standing Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 1117 #

2009 Y L R 1117

[Karachi]

Before Syed Pir Ali Shah, J

BANGLADESH BIMAN CORPORATION---Plaintiff

Versus

HAMIDUL ISLAM---Respondent

Suit No.1136 of 1999, decided on 8th July, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Suit for recovery of amount along with mark up/profit till its realization---One person who was citizen of China and other who was citizen of Pakistan, were partners, but they disputed being necessary parties for the proper adjudication of the matter, were not made party to the suit---Suit filed by the plaintiff was not maintainable, in circumstances---Suit otherwise was time barred and so also was barred by law of estoppel, waiver and acquiescence---Plaintiff had failed to show any proper legal cause of action for filing of the suit, which otherwise was beyond the territorial jurisdiction of the court---Suit filed by the plaintiff was neither maintainable nor sustainable in law; on the contrary suit was hit by law of limitation, estoppel and beyond the territorial jurisdiction of the court---Suit of plaintiff failed and was dismissed, in circumstances.

Azizur Rahman for Plaintiff.

Date of hearing: 1st April, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 1122 #

2009 Y L R 1122

[Karachi]

Before Anwar Zaheer Jamali, J

SAIN BAKHSH and 2 others---Applicants

Versus

THE STATE-Respondent

Criminal Bail Applications Nos.605 and 726 of 2004, decided on 30th December, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 353, 399, 402, 148 & 149--Bail, grant of--Further inquiry--State Counsel did not dispute that none from the police party had sustained any injury due to the alleged firing of accused during exchange of fire between accused and police party---Weapons/arms and ammunition allegedly recovered from accused and the empties recovered from the spot were not sent by the Investigating Officer to the Ballistic Expert---All the Mashirs of arrest and recovery of accused were police personnel--Accused had succeeded to make out a case of further inquiry in their favour within the provisions of S.497(2), Cr.P.C.-Accused were released on bail, in circumstances.

Abdul Rasool Abbasi for Applicants.

Anwar H. Ansari for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1124 #

2009 Y L R 1124

[Karachi]

Before Abdul Rasheed Kalwar, J

STATE LIFE INSURANCE CORPORATION OF PAKISTAN, KARACHI---Petitioner

Versus

Messrs VICTOR RESTAURANT through Partners and others---Respondents

Constitutional Petition No.S-414 of 2007 and Constitutional Petition Nos.S-53 of 2008, decided on 27th February, 2009.

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

----S.8---Fair rent, fixation of---Date of effectiveness of order of enhanced rent---Scope---Enhancement of rent being discretion of Rent Controller exercisable by giving convincing and plausible reason---No restriction imposed on Rent Controller under S.8 of Sindh Rented Premises Ordinance, 1979 about fixing such rate---Rent application being based on facts and circumstances collected upto date of its filling, the evidence as to rate of rent would be brought keeping in view the rates, rents, taxes and market values prevalent on date of its filing or prior thereto---Decision about such date, if made on consideration of facts and circumstances stated in rent application, would be fair and proper---Enhanced rent would be effective from date of filing of rent application.

Shahid Ahmed alias Shahid Mukhtar and 9 others v. Mst. Rasheeda Khatoon and 12 others PLD 1996 Karachi 494 rel.

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

----S.8---Constitution of Pakistan (1973), Art. 199--Constitution petition--Fair rent, fixation of---Concurrent findings about rate of rent given by three Courts below---Validity---High Court in constitutional jurisdiction could not substitute such factual findings by its findings---Such findings would not be open to interference in such petition---High Court dismissed such petition.

1989 SCMR 75 and PLD 1996 Kar. 494 ref.

Messrs Olympia Spinning and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 and Messrs Shamim Akhtar v. State Life Insurance Corporation of Pakistan PLD 2005 Karachi 554 rel.

State Life Insurance Corporation of Pakistan v. Messrs Ahmed and Brothers and 2 others 2008 CLC 610; State Life Insurance Corporation of Pakistan v. Habib Safe Deposit Vault Pvt. Ltd. (2008 CLC 517; Sultan Ali v. Mst. Khatija Bai 1995 CLC 1441; Habib Bank AG Zurich v. Nazir Ahmed Vaid and others 2007 MLD 131; Nazar Khan v. The Additional Sessions Judge-II, Quetta and 2 others PLD 1986 Quetta 214 and Muzaffar Khan and others v. Evacuee Trust Property 2002 CLC 1819 distinguished.

Muhammad Aziz Khan for Petitioner.

op R.F. Virjee for Respondents.

Dates of hearing: 16th and 17th February, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1136 #

2009 Y L R 1136

[Karachi]

Before Salman Ansari, J

MUHAMMAD ATIQ and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1177 of 2008, decided on 28th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 392 & 397/34---Bail, refusal of---Trial Court rejected bail application of accused persons for the reasons; that accused persons had been identified during identification parade by three prosecution witnesses; that statements under S.164, Cr.P.C. were also recorded whereby three prosecution witnesses had fully implicated accused persons; and that at the pointation of one of accused persons, looted articles were got recovered in presence of independent witnesses---No error was found in the findings of the Trial Court in its order of rejection of bail application of accused persons---Accused persons being not entitled to the concession of bail, application filed by them was rejected.

Muhammad Nawaz v. The State, 2007 PCr.LJ 1049; Tassawar Hussain v. The State, 2008 YLR 1968 and Shamsullah v. The State, 2008 YLR 1179 ref.

Naeem Iqbal assisted by Iqbal Hussain Shah for Applicants.

Ms. Kausar Naz Naqvi, State Council.

YLR 2009 KARACHI HIGH COURT SINDH 1137 #

2009 Y L R 1137

[Karachi]

Before Azizullah M. Memon and Arshad Noor Khan, JJ

SHEHRI: CITIZEN FOR A BETTER ENVIRONMENT and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

C.P. No.160 of 2007, decided on 9th September, 2008.

Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction---Scope---Disputed question of fact could neither be entered upon nor any inquiry could be held therein to arrive at truth or falsehood of the Same by means of a constitutional petition---Relevant parties ought to have had filed civil suits before the proper forum for recording the evidence to determine the disputed questions of facts involved therein---Constitutional petitions being not maintainable, were dismissed.

Rizwan Ismail for Petitioner (in C.P. No.D-160 of 2007).

Raja Qasit Nawaz Khan for Petitioners (in C.P. No.D-418 of 2007).

Aamir Aziz for Respondent No.2.

Dr. Farogh Naseem for Respondent No.3.

Masood Noorani, Addl. A.-G.

Ms. Sofia Saeed for Federal Government.

Abdul Haleem Siddiqui for Respondent No.3.

Manzoor Ahmed for CDGK.

YLR 2009 KARACHI HIGH COURT SINDH 1140 #

2009 Y L R 1140

[Karachi]

Before Sajjad Ali Shah, J

ABDUL KARIM---Applicant

Versus

THE STATE---Respondent

Crl. Revision Application No.S-62 of 2006, decided on 20th July, 2006.

Criminal Procedure Code (V of 1898)---

----S 498---Bail, grant of--Failure of accused to attend the court---Issuance of non-bailable warrants---Petitioner/accused who was granted interim bail, having failed to attend the court on one date, his bail application was dismissed and non-bailable warrants were issued to him---Counsel for the petitioner had submitted that absence of accused/petitioner before the court was beyond his control---Validity---Petitioner had undertaken to appear before the Trial Court on each and every date of hearing---State counsel had no objection if the non-bailable warrants issued to the petitioner were suspended and his bail application was restored to its original position---Non-bailable warrants issued against the petitioner were recalled and his bail application was restored to its original position; and the Trial Court was directed to decide his bail application on merits.

Mumtaz Alam Leghari for Applicant.

Anwar H. Ansari, State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 1144 #

2009 Y L R 1144

[Karachi]

Before Shamsuddin Hisbani, J

ALLAH DINO---Applicant

Versus

THE STATE-Respondent

Crl. Bail Application No.S-776 of 2005, decided on 6th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/504---Bail, refused of---Reasonable grounds appeared to believe that accused was apparently associated with the commission of the crime, which would not entitle him to the benefit of bail---Court, at bail stage had only to see whether accused was connected with the commission of crime or not and for that purpose, only tentative assessment of evidence was to be made and deeper appreciation was not called for---Sufficient material had been collected by the police during investigation of the case to connect accused with commission of the crime---No justification was available to enlarge accused on bail---Bail application was dismissed.

Syed Madad Ali Shah for Applicant.

Mumtaz Alam Leghari for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1145 #

2009 Y L R 1145

[Karachi]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

MUHAMMAD YOUNUS BALOCH through Attorney---Appellant

Versus

Mian PERVEZ AKHTAR and another---Respondents

H.C.A. No.1 of 2009, decided on 6th March, 2009.

Specific Relief Act (I of 1877)---

----S.42---Sindh Rented Premises Ordinance (XVII of 1979), Ss.2(f) & 15---Suit for declaration---Ejectment order passed against plaintiff on ground of personal need of defendant-company and default in payment of rent upheld upto High Court---Plaintiff alleged such ejectment order to be coram non judice for having been obtained by company by misrepresenting itself to be owner of property, while same belonged to its Chief Executive; that he came to know of Chief Executive's ownership from documents produced in another case later on---Rejection of plaint by Trial Court and Appellate Court---Validity---Plaintiff was not barred from raising plea of his ignorance about ownership of property---Sale-deed found mention of the name of Chief Executive of vendee-company---Auditor's Report showed acquisition of property by company, meaning thereby that price of property had been paid from company's account---Record of Excise and Taxation Department showed property to be owned by company---Chief Executive in his affidavit had stated that company had purchased property through him---Discrepancies in sale-deed could not be made basis for setting aside ejectment order passed by competent Courts after hearing parties---Assuming that property was not owned by company, even then ejectment proceedings were maintainable on ground of default in payment of rent as company had been receiving rent of property as its landlord---High Court dismissed appeal in circumstances.

Umar Hayat Khan v. Inayatullah Butt 1994 SCMR 572; Barkat Masih v. Manzoor Ahmed deceased through LRs, 2006 SCMR 1068; Mir Salah-ud-Din v. Qazi Zaheer-ud-Din PLD 1988 SC 221; Dr. Burjor N. Anklesaria v. Zenobia and another-1982 SCMR 98; Siraj v. Lal Bux and 3 others 1989 CLC 736; Mst. Maryam Bibi and others v. Muhammad Ali 2007 SCMR 281; Ziledar and 3 others v. Commissioner, Sukkur Division, Sukkur and 9 others 1994 CLC 932 and Rehmatullah v. Ali Muhammad 1983 SCMR 1062 ref.

Balal A. Khawaja for Appellant.

Qazi Faez Essa for Respondents.

2009 Y L R 1162

[Karachi]

Before Farrukh Zia G. Shaikh, J

RABEL alias RABO alias SIKANDAR---Applicant

Versus

THE STATE---Respondent

Crl. Bail Application No.371 of 2008, decided on 24th November, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11/16---Bail, grant of---State Counsel had conceded to the grant of bail to accused on the ground that as on the same footing, co-accused had been granted pre-arrest bail by the High Court and he had no objection if accused was enlarged on bail---Accused was granted bail, in circumstances.

Manzoor Ahmed Junejo for Applicant.

Ghulam Sarwar Korai for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1165 #

2009 Y L R 1165

[Karachi]

Before Munib Ahmad Khan, J

Mst. KHADIJA DAWOOD---Petitioner

Versus

1ST ADDITIONAL DISTRICT JUDGE, (KARACHI) EAST and others---Respondents

C.P. No.S-515 of 2003, decided on 12th December, 2008.

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

----S.15(2)(ii)---Contract Act (IX of 1872), 5S.196---Ejectment application---Maintainability---Counsel for tenant had challenged maintainability of ejectment application contending that same was filed by the Bank, but was not supported with two power of attorneys as required and that power of attorney of signatory itself had shown that he could act only in association with another attorney and not in his single capacity---Ejectment application before the Rent Controller was filed by the Bank with signatories of two persons while one of them had verified the same---Subsequently another person who appeared as an attorney and witness for the Bank, was cross-examined and he admitted that there was no resolution of Bank while the attorney was effective with the association of another attorney as two attorneys had to act jointly---Case remained pending for the last 12 years, but no objection was raised by the Bank towards maintainability of case by its officers/attorneys; in such a situation even if there was any flaw in the presentation of power of attorney at the relevant time, then benefit of S.196 of the Contract Act, 1872 could also be given; which had provided that the person on whose behalf an agent or attorney had acted, then irrespective of the defect in the power, the principal could ratify the act of attorney or agent.

Habib Bank Limited v. Zelins Limited and another 2000 SCMR 472 and 2004 SCMR 530 and 1998 SCMR 593 rel.

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

----S.15(2) (ii)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent---.Proof of default---Evidence on record had proved that there was a default of 8 months in payment of rent of the premises in question---Plea of the tenant was that rent had been paid as and when demanded by the landlord through receipt and since there was a practice of acceptance of accumulative rent, rent was paid as and when demanded and since the landlord avoided to receive the rent, 8 months rent was sent---Validity---Held, it was duty of a tenant to find out the landlord and make payment of rent without committing default---Payment of accumulative rent could not be considered as a proper payment----Receipt submitted, as well as the amount paid through pay order for 8 months had shown that the rent was offered by the tenant after the default was committed---Impugned order whereby the tenant was ordered to vacate the premises for default in payment of rent, could not be interfered with in constitutional petition.

Khalid Javed for Petitioner.

Abdul Haleem Siddiqui for Respondent No.3.

YLR 2009 KARACHI HIGH COURT SINDH 1171 #

2009 Y L R 1171

[Karachi]

Before Ghulam Rabbani, J

MUHAMMAD SALEH and 2 others---Applicants

Versus

THE STATE---Respondent

Crl. Bail Application No.S-318 of 2005, decided on 8th July, 2005.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S. 324/147/148/149/114---Bail, grant of---F.I.R. had been lodged by the complainant admittedly with a delay of 15 hours and 15 minutes after making consultations with his relatives---Enmity between the parties was evident from F.I.R.---Cross-case had also been registered by the accused party--Injuries allegedly caused to the prosecution witnesses by the accused did not fall within the prohibitory clause of section 497 (1), Cr.P.C.---Accused were armed with deadly weapons and if they had the intention to kill any of the prosecution witnesses they could have easily done so, particularly when the other side was unarmed---Case against accused, thus, needed further inquiry---Accused were admitted to bail in circumstances.

Aziz-ur-Rehman v. The State 1986 PCr.LJ 2716; Malik Kashif Zaheer alias Chand v. The State 1994 PCr.LJ 1776; Jan Muhammad v. Haji Noor Jamal and another 1998 SCMR 500; and Muhammad Haroon alias Haroon Rehman v. The State 2004 SCMR 89 ref.

Aijaz Shaikh for Applicants.

Mashooq Ali Sammo, Asstt. A.-G. for Sindh.

None present for the Complainant.

YLR 2009 KARACHI HIGH COURT SINDH 1178 #

2009 Y L R 1178

[Karachi]

Before Khawaja Naveed Ahmed, J

TAYYAB ALI, ALI BHAI KARIM JEE WAQF through Managing Trustee---Petitioner

Versus

MUHAMMAD IQBAL through L.Rs. and 2 others---Respondents

C.P. No. S-377 and C.M.A.2643 of 2007, decided on 4th December, 2007.

(a) Administration of justice---

----Relief, grant of---Scope stated.

The Courts in the interest of justice are not bound to grant the relief sought by the parties. The Courts in the interest of Justice can grant relief to the parties, which courts deem fit and proper in the circumstances of the case.

(b) Administration of Justice---

----Cases should not be decided on technicalities, but on merits.

----Relief not asked for in prayer clause of memo of appeal granted by Appellate Court---Validity---Appellate Court should not have granted such relief to appellant---Principles.

Mehmood Ahmed v. State Life Insuracne Corp. Pak 1998 CLC 1987 DB and Habibullah v. Zakir Ali PLD 2000 Karachi 238 ref.

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

----S.15-Ejectment petition---Application by subtenant/intervener for impleading him as respondent in petition, acceptance of---Order of Controller debarring intervener from filing written statement for his failure to file same within time---Effect---Intervener could cross-examine landlord and participate in proceedings till its conclusion including addressing final arguments before Rent Controller.

Naveed Ahmed Khan for Petitioner.

YLR 2009 KARACHI HIGH COURT SINDH 1182 #

2009 Y L R 1182

[Karachi]

Before Mrs. Qaiser Iqbal, J

GENERAL SALES (PVT.) LTD.---Plaintiff

Versus

Mrs. DAULAT---Defendant

Suit No.316 of 2003, decided on. 17th September, 2008.

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

----O.VII, R.11, O.XXXVII, Rr.2, 3, & Ss.11 & 12---Suit for recovery of amount---Rejection of plaint---Application for---Cause of action---Test---Test of cause of action was that if what plaintiff had stated was taken to be correct, would he be entitled to relief or not---if there be defect in the form of suit, opportunity had to be allowed to the party to correct that defect and to remove the deficiency, if any in court-fee--Vagueness of the plaint about the relief claimed, the deficiency in the court fee, the defective form of suit, the repugnancy of the compromise to the Islamic principles and the question of limitation, were all questions which would arise only when there was a cause of action---If there was no cause of action, all such subsequent questions would not arise--In the present case the plaintiff had clearly claimed that he had entered into a valid compromise with the defendants and that the rights of the plaintiff under the compromise were being violated---Such would afford a cause of action to the plaintiff and it would only be on merits that he could be defeated---If it was held that claim was not within time or the compromise was not in accordance with the law applicable to the parties, then it was a decision on merits which must take place in proper form---If any defect was found in the form of the suit or deficiency in court fee, then an opportunity had to be allowed to the party to correct that defect and to remove the deficiency.

Ahmed Din and others v. Muhammad Din 1998 MLD 829; Jewan and 7 others v. Federation of Pakistan through Secretary Revenue, Islamabad and 2 others 1994 SCMR 826; Haji Mitha Khan v. Muhammad Younus 1991 SCMR 2030; Mohiuddin Molla v. The Province of East Pakistan and 2 others PLD 1962 SC 119; Qalandar Din and 4 others v. Rasul Khan 1991 SCMR 525; Fayyaz Hussain v. Tahir Naseem PLD 1992 Karachi 423; Muhammad Azim v. Pakistan Employees Cooperative Housing Society Ltd. Karachi and 4 others PLD 1985 Karachi 481 and Abdul Hakim and 2 other v. Saadullah Khan and 2 others PLD 1970 SC 63 ref.

(b) Jurisdiction---

---Scope---Jurisdiction of the court---Jurisdiction of the court was based on the relief claimed and the court had power to pass all such orders as were required to satisfy the decree, unless any such order by express or by necessary implication was prohibited.

Shaukat Hayat for Plaintiff.

Badar Alam for Defendant.

YLR 2009 KARACHI HIGH COURT SINDH 1189 #

2009 Y L R 1189

[Karachi]

Before Farrukh Zia G. Shaikh, J

RIAZAT---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.329 of 2008, decided on 19th November, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324, 353/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(1)---West Pakistan Arms Ordinance (XX of 1965), S.13(3)---Bail, refusal of-Contents of the F.I.R. showed that allegation levelled against accused was that he in company of other accused, attempted to commit robbery on the complainant and his son and in order to save his Motorcycle, son of complainant resisted accused, which had resulted in receiving injury by his son; and at that time accused was armed with T.T. Pistol and was apprehended at the spot and the pistol was recovered from his possession---No case of bail having been made out, bail application was dismissed.

Muhammad Imran Shamsi for Applicant.

Muhammad Iqbal Mahar, Asstt. A.-G., Sindh for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1199 #

2009 Y L R 1199

[Karachi]

Before Khalid Ali Z. Qazi, J

Syed IMTIAZ H. RIZVI-.-Plaintiff

Versus

ABDUL WAHAB'---Defendant

Suit No.41 of 2004, decided on 5th December, 2008.

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

----O. VII, R.2---Contract Act (IX of 1872), Ss.188, 226 & 227-Power of Attorney Act (VII of 1892), S.2---Suit for recovery of amount---Extent of agent's authority---Exceeding the authority by agent---Plaintiff had exceeded the powers given to him under power of attorney---Where an act purporting to be done under a power of attorney was challenged as being in excess of authority conferred by the power of attorney, it was necessary to show that on a fair construction of the .whole instrument; the authority in question was to be found within the four corners of the instrument, either in express terms or by necessary implication---If a principal conferred his authority on a person as his agent, the agent could act only within the compass of the authority so conferred on him under the power of attorney---However, if such power was challenged, it would be the function of the court to see on a fair construction of the whole instrument, the authority in question, either in express words or by necessary implication---To sustain an act done by one person on behalf of others, a specific power to do such an act on his behalf had to be established---Power of attorney should confer only those powers as were specified therein so that the agent could neither go beyond the terms of power of attorney nor deviate therefrom.

Paboodan Goolabchand v. M.J.V Miller and another AIR 1938 Mad. 966; Gopi Chand and others v. Pohlaj Rai and others PLD 1992 Quetta 30; Muhammad Ali Rizvi Khan v. Muhammad Ali Zaki Khan and others 2007 MLD 54 and Muhammad Hussain v. Bashir Ahmed and others PLD 1987 Lahore 392 ref.

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

----O. VII, R.2---Contract Act (IX of 1872), Ss.188, 226 & 227---Power of Attorney Act (VII of 1892), S.2---Suit for recovery of amount---Plaintiff had failed to perform work assigned to him as mentioned in General Power of Attorney---Plaintiff's services were acquired being the Engineer/Architect and designer of the building structure for sports complex but plaintiff had failed to produce any document, drawing, plan, design and its approval in evidence with regard to construction of said sports complex to show performance of work/function assigned in General Power of Attorney till day of revocation of said General Power of Attorney---Where plaintiff had failed to prove that suit amount was due to him from defendant, such suit would merit dismissal--Defendant in his evidence had clearly stated that the plaintiff's claim was completely false---From the evidence on record it had been established that the plaintiff had failed to perform functions assigned to him by the defendant in General Power of Attorney---Defendant, in circumstances, revoked the same vide Revocation Deed and intimated to all concerned including the plaintiff; and also stopped payment of post-dated cheque---Suit of plaintiff was dismissed---Defendant had been established to have not issued post dated cheque to the plaintiff against any part payment of his consultancy fee and same was not encashed---Said cheque was delivered to the plaintiff by the defendant in consideration of the job, but plaintiff failed to perform his assigned work, contrary to that he misused his authority, acted against the interest of defendant---Plaintiff, in said facts and circumstances of the case was not entitled to receive disputed amount as he had not completed his assigned work---Suit was dismissed, in circumstances.

S. Zaki Muhammad for Plaintiff.

Shoukat Hayat for Defendant.

YLR 2009 KARACHI HIGH COURT SINDH 1217 #

2009 Y L R 1217

[Karachi]

Before Khawaja Naveed Ahmed, J

ABDUL AZIZ and another---Applicants

Versus

THE STATE---Respondent

Crl. Bail Application No.860 of 2008, decided on 28th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.489-B, C, 420 & 34---Bail, grant of---Further inquiry---From the contents of F.I.R. and recovery of currency notes, it was clear that accused had deceived the complainant and had deprived him of his valuable goods---Applicability of S.489-B, P.P.C. in the case, however, required further inquiry by way of evidence in the Trial Court---Pending such inquiry, bail was granted to the accused.

Sathi M. Ishaq for Applicants.

Haji Abdul Majeed for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1220 #

2009 Y L R 1220

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD HAROON---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.968 of 2008, decided on 29th September, 2008.

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

----S.497---Penal Code (XLV of 1860), S.302---Bail, refused of---Prosecution had closed its side and the case was now fixed for recording statement of accused under S.342, Cr.P.C.-Superior Court at the advanced stage of the case should refrain from passing any order on the bail application, as any finding on the tentative assessment of evidence given by it might prejudice the case of either party at the trial---High Court, keeping in view the said principle without making any observations and expressing any opinion regarding merits of the case, dismissed the bail application on the sole ground that the case was now ripe for judgment.

Syed Qaiser Hussain v. The State Crl. Bail Application No.6141 of 2008 ref.

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

----S.497---Penal Code (XLV of 1860), S.302---Bail---Case at advanced stage of trial---Principle---Superior court at the advanced stage of the cast should refrain from passing any order on the bail application, as any finding on the tentative assessment of evidence by the superior court may prejudice the case of either party at the trial.

Aamir Mansoob Qureshi for Applicant.

Muhammad Bux for the State.

M. Siddque, Complainant (in person).

YLR 2009 KARACHI HIGH COURT SINDH 1224 #

2009 Y L R 1224

[Karachi]

Before Salman Ansari, J

MUHAMMAD HASHIM SEHTO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.671 of 2008, decided on 15th December, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.221---Bail, grant of---Further inquiry---Bail application of accused was rejected by the Trial Court on the ground that his name had been mentioned in the F.I.R. with specific role of facilitating abscondance of high profile accused from the clutches of the police---No where it had been specified as to how accused had facilitated the accused in his abscondance who otherwise was granted bail by the Trial Court after holding his custody as improper---When no proper custody was shown with the police, allegations of facilitating such escape would require further inquiry---Even otherwise considering that no person received any injury from either side and the person who had allegedly absconded was granted bail by the Trial Court, accused was also entitled to the concession of bail, in circumstances---Accused was granted bail, in circumstances.

Syed Madad Ali Shah for Applicant.

Muhammad Azeem Panhwar for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1226 #

2009 Y L R 1226

[Karachi]

Before Azizullah M. Memon, J

SAIFUDDIN---Petitioner

Versus

Mst. MUBARAK SAWAL and another-Respondents

C.P. No.D-378 of 2001, C.M.As. No.3048 of 2002 and 672 of 2001, decided on 23rd February, 2009.

(a) Islamic Law---

----Maintenance---Maintenance of son having attained majority---Father not liable to maintain such son---Exceptional circumstances stated.

A father is bound to pay to the children/son only up to the age of attaining the majority, and that after the son attains such age of the majority, the son would not be entitled to receive maintenance allowance from the father, except in the exceptional circumstances, burden of which lies upon the son to prove that the circumstances around him are such that though he has attained the age of majority, even then the father would be liable to continue to pay to him towards maintenance, as otherwise his future well being would be at stake, and as and when such extraordinary circumstances are proved by the son, the Court may, in its discretion, direct the father to further go on paying the maintenance allowance to the son, even though he may have attained the age of majority.

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

----S.5 & Sched.---Suit for recovery of maintenance by son having attained majority and studying in 4th year of M.B.,B.S. class---Father claimed to be a retired person and dependent solely on profit received from Saving Certificates, the entire profit whereof was being spent by him on his medical treatment and purchase of medicine for himself and his ailing wife--Validity---Son had not shown that father was having any extra income so as to continue paying maintenance to him---Son was not entitled to claim any maintenance from father---Suit was dismissed in circumstances.

Mustafa Lakhani for Petitioner.

Khalid Mehmood Dhoon for Respondents Nos.3 and 4.

S. Ali Ahmed Tariq, Amicus Curiae.

YLR 2009 KARACHI HIGH COURT SINDH 1232 #

2009 Y L R 1232

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD IRSHAD---Applicant

Versus

S.H.O., POLICE STATION, KARACHI and 3 others---Respondents

Criminal Miscellaneous Application No.S-137 of 2007, decided on 30th August, 2007.

Penal Code (XLV of 1860)---

----Ss. 489-F & 506---Criminal Procedure Code (V of 1898), S.561-A---Appreciation of evidence---Applicant/complainant, had challenged the order passed in criminal case registered under Ss.489-F & 506, P.P.C., whereby case against accused persons was ordered to be disposed of in "C" class---Complainant lodged report that during the course of business accused persons had delivered him cheques which were dishonoured on presentation to the Bank---Anomaly appeared between the impugned order and the order passed by the Senior Superintendent of Police for transfer of the case, which appeared to be prior in time---Impugned order suffered from lack of inherent jurisdiction because, the report of the Investigating Officer, did not seem to be in consonance with law as the case already stood transferred to another Investigating Officer---Investigating Officer was directed to investigate the case, afford an opportunity to the complainant to probe relevant record and then submit its final report in terms of S.173, Cr. P. C., before the competent court of law for action.

Shafi Muhammadi for Applicant.

2009 Y L R 1247

[Karachi]

Before Salman Ansari, J

WAJID SHAMSUL HASAN---Applicant

Versus

THE STATE---Respondents

Criminal Bail Application No.2166 of 1996 and M.A. No.239 of 2009, heard on 25th February, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.494, 494-A, 502 & 561-A---Withdrawal from prosecution---Application for release of surety and return of surety amount---Permission to withdraw from the prosecution as required under S.494, Cr.P.C. having been allowed in the case, accused stood discharged under S.494(A), Cr.P.C.---Bail order though was recalled by the High Court, but notice was yet to be issued to the surety and no penalty was imposed---Where the prosecution against accused itself had been withdrawn, surety could not be penalized---Nazir of the court was directed to release amount of Rs. 1,00,000 deposited by the surety.

Mian Khan Malik for Applicant.

Jalil Zubedi, Standing Counsel for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1248 #

2009 Y L R 1248

[Karachi]

Before Mrs. Qaiser Iqbal, J

SHAHID HASHMI---Appellant

Versus

PROVINCE OF SINDH through Secretary to the Government of Sindh and another---Respondents

M.A. No.48 of 2005, decided on 6th March, 2009.

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

----Ss.19 & 20----Cancellation of declaration of a magazine---Appellant has assailed order passed by authorities whereby the declaration of Magazine was cancelled vide notification without notice to the appellant---Under S.19 of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, a declaration could be cancelled by the District Co-ordination Officer, after giving the printer and publisher an opportunity of showing cause against the proposed action; and holding an enquiry into the matter and after giving them reasonable opportunity, if he was satisfied under clause (1) (d) of S.19 of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002 he could cancel declaration---No explanation had been afforded as to why publishers and printers were not afforded an opportunity to show cause---Impugned order seemed to have been passed without taking into consideration requirement of S.19 of the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002---No serious efforts seemed to have been taken by the District Co-ordination Officer to find out the facts required to be proved for holding appellant's declaration as cancelled, which seemed to be unfair practice on the part of the authorized Officer---Matter was remanded to the authorities to decide the same afresh after hearing all the concerned parties, affording them an opportunity to produce evidence in support of their contentions---While deciding the matter, authorities would take into consideration all facts relevant under the law.

Government of the Punjab v. Dr. Ijaz Hasan Qureshi PLD 1985 SC 28; Mare v. Harding 1867 LR 2 QB 410; Abdul Majid v. The State PLD 1973 Lahore 448 and Sardar Khan Niazi v. Province of Sindh through Secretary, Information Department Government of Sindh and 3 others 2008 SLJ 310 ref.

Muhammad Junaid Farooqui for Appellant.

YLR 2009 KARACHI HIGH COURT SINDH 1252 #

2009 Y L R 1252

[Karachi]

Before Nadeem Azhar Siddiqui, J

ALI GHULAM LAGHARI and 4 others---Appellants

Versus

Chaudhary MUHAMMAD ASLAM GILL and 34 others---Respondents

Crl. Acq. Appeal No.S-100 of 2006 and M.A. No.4142 of 2007, decided on 23rd January, 2009.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss.3(i), (ii), 4, 6 & 9---Penal Code (XLV of 1860), S.34---Criminal Procedure Code (V of 1898), Ss.417, 250 & 265-K---Appeal against acquittal---Appellants/complainant had not disclosed their legal status in the land in question from which they were allegedly dispossessed by the accused persons without lawful authority--Jurisdiction under Illegal Dispossession Act, 2005 could only be 'invoked by owner or occupier of the property who was dispossessed without lawful authority---Apparently, accused were executing the approved Scheme of Government and had neither occupied the land without lawful authority nor dispossessed the appellants from the land---Court was empowered to acquit accused at any stage after hearing prosecution and accused, if it considered that there was no possibility of accused being convicted of any offence---Since neither the appellants were the owners or occupiers of the land in question nor they were dispossessed nor accused were land grabbers, appellants could not maintain the application under Illegal Dispossession Act, 2005---Trial Court, while acquitting accused, had not committed any error and had rightly passed the impugned order.

(b) Illegal Dispossession Act (XI of 2005)---

----Ss.3(i), (ii), 4, 6 & 9---Penal Code (XLV of 1860), S.34---Criminal Procedure Code (V of 1898), Ss.417, 250 & 265-K---Compensation---No provision existed in the Illegal Dispossession Act, 2005 for payment of compensation and same appeared to be imposed under S.250, Cr.P.C. as S. 9 of Illegal Dispossession Act, 2005 provided that unless otherwise provided, the pro-visions of Cr.P.C. would apply to all proceedings under the said Act---Section 250, Cr.P.C. empowered the Magistrate to award compensation to accused for false, frivolous or vexatious complaint against him---Power under S. 250, Cr. P. C. could be exercised after show-cause notice---Order showed that no show-cause notice for payment of compensation had been issued by the Trial Court---Order of the Trial Court was set aside only to the extent of payment of compensation to the accused---Case was remanded to the Trial Court to decide the amount of compensation after proper show-cause notice and after hearing the appellants.

Sikandar Khan v. Haji Abdul Rehman PLD 2007 Quetta 72; Muhammad Banaras v. State PLD 1992 Kar. 135; Rehmatullah v. Mst. Zahida and another 2008 YLR 1044; Rahim Tahir v. Ahmed Jan PLD 2007 SC 423 and Azmat Bibi v. Asifa Riaz PLD 2002 SC 687 rel.

S. Madad Ali Shah for Appellant.

Nandan A. Kella and Faiz Muhammad Memon for Private Respondents.

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

YLR 2009 KARACHI HIGH COURT SINDH 1259 #

2009 Y L R 1259

[Karachi]

Before Mrs. Qaiser Iqbal, J

ARIF ALI HAIDER---Appellant

Versus

ZULTEC (PVT.) LIMITED, PAKISTAN through Employee/Manager and another---Respondents

Civil Appeal No.11 of 2008, decided on 6th March, 2009.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2, 3 & S.96---Suit for recovery of amount---Leave to appear and defend suit---After leave was granted to the defendant upon furnishing security, defendant filed an application for extension of period to deposit the amount---Trial Court was obliged to decide the application of the defendant for extension of time to deposit the amount when his request was not acceded to---Impugned judgment and decree passed by the Trial Court, in circumstances, was passed without application of mind, which was not in consonance with law--Defendant was posted in the company of the plaintiff as Senior Accountant and purported to have embezzled a substantial sum---Averments in the plaint were general with regard to payment of considerations, no details had been provided---Even in reply to the leave application such explanations were found missing---For the purposes of adjudication of dispute between the parties in normal course,' evidence of both the parties ought to have been recorded--Allegations in the plaint read in juxtaposition to defence position taken in leave to defend application, did not inspire confidence---Trial Court in circumstances, had not come to the just conclusion for fair adjudication of the case---Parties were required to adduce evidence to prove their respective contentions, as defence taken by the defendant, in the eye of the law, was not illusory---Condition for furnishing security was based upon the pendency of counter F.I.Rs., a triable issue had been raised which required scrutiny at trial, which could not be treated as sufficient ground available under the law for imposing of condition of furnishing bank guarantee---Salient features inevitably had made out a case of interference and invalidation of impugned order---Impugned judgment was set aside---Case would be proceeded in accordance with the procedure provided under Code of Civil Procedure.

Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi 1998 SCMR 2268; Zain Yar Khan v. The. Chief Engineer, C.R.B.C. WAPDA, D.I. Khan 1998 SCMR 2419 and Abdul Rauf Ghauri v. Mrs. Kishwar Sultana and 4 others 1995 SCMR 925 ref.

F. Karim Durrani for Appellant.

YLR 2009 KARACHI HIGH COURT SINDH 1262 #

2009 Y L R 1262

[Karachi]

Before Bin Yamin, J

ALLAH DINO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.S-10 and M.A.L No.3527of 2008, decided on 5th January, 2009.

Criminal Procedure Code (V of 1898)---

----S. 426---Suspension of sentence---Accused, during the course of trial remained on bail for ten long years and during that period nothing was brought on record to show that he misused the facility of bail---Opinion of the Heart Specialist showed that accused was an acute case of cardiac disease and required continuous treatment---Accused was also advised to get angiography for the purpose of ascertainment about the cardiac disease from which accused was suffering--Case for grant of bail, in circumstances, was made out---Imprisonment awarded to accused was suspended and it was ordered that accused be released on bail.

Madad Ali Shah for Appellant.

Anwar H. Ansari, State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 1264 #

2009 Y L R 1264

[Karachi]

Before Syed Pir Ali Shah, J

MAZZAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-104 and M.A. No.230 of 2008, decided on 13th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 452, 337-H(ii), 504, 148 & 149---Bail, grant of---State Counsel had fairly conceded that two co-accused were let off by the police during investigation, while two other arrested co-accused had already been enlarged on bail by the Trial Court---Accused was the only one confined in jail and facing trial of the case in custody and his case was at par with case of co-accused who had been granted bail---Considering the rule of consistency, accused was also entitled for grant of bail and his bail could not be withheld as punishment---Accused was granted bail, in circumstances.

Abdul Rasool Abbasi for Applicant.

Anwar H. Ansari for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1268 #

2009 Y L R 1268

[Karachi]

Before Munib Ahmed Khan and Farrukh Zia G. Shaikh, JJ

NADIM AHMED ANSARI---Appellant

Versus

CITY DISTRICT GOVERNMENT through Director General---Respondent

High Court Appeal No.294 and C.M.A. No.2435 of 2007, decided on 15th February, 2008.

Law Reforms Ordinance (XII of 1972)---

----S. 3---High Court appeal---Suit for compensation---Contractual matter---Since irreparable loss and balance of convenience being not on the side of the appellant, decision of the Single Judge that if any loss could be estimated after decision of the suit, then the plaintiff could be compensated, was right---High Court appeal was dismissed with costs.

Shahensha Hussain for Appellant.

Manzoor Ahmed for CDGK.

YLR 2009 KARACHI HIGH COURT SINDH 1269 #

2009 Y L R 1269

[Karachi]

Before Sarmad Jalal Osmany, J

MUHAMMAD SALMAN---Applicant

Versus

THE STATE---Respondent

Crl. Bail Application No.555 of 2006, decided on 16th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Foreigners Act (XXXI 1946), Ss. 3(2) (a) (b), 13/14---Foreigners Order, 1951, S.5---Penal Code (XLV of 1860), Ss.420, 468, 471 & 109---Interim bail, grant of---Accused had stated that the only piece of evidence available against him was the police statement of co-accused which could not be relied upon by the prosecution for convicting him and that co-accused had nominated accused due to enmity---Interim bail before arrest was granted to accused, in circumstances.

Saathi M. Ishauq and S. Samiullah Shah for Applicant.

YLR 2009 KARACHI HIGH COURT SINDH 1270 #

2009 Y L R 1270

[Karachi]

Before Mrs. Qaiser Iqbal, J

WASEEM AHMED KHAN---Applicant

Versus

THE STATE and 2 others---Respondents

Crl. Miscellaneous Application No.183 of 2007, decided on 6th March, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.497(5) & 498---Penal Code (XLV of 1860), Ss.406, 420, 468 & 471/34-Pre-arrest bail, cancellation of---For claiming pre-arrest bail, an accused was not only required to make out a good prima facie case, but also that his intended arrest was tainted with mala fides on the part of the police or due to ulterior motive of causing humiliation and harassment to him---Nothing was on record to show that the police had acted with malice, in the matter of intended arrest of the accused persons--Investigating Officer present in the court had manifestly admitted that two accused were involved in a scam of misappropriation of huge amount as per statement of account placed on record as well as they were also required in other cases of similar nature registered at Police Station---Record did not show that there was malice on the . part of the police to connect the accused persons in the charged offence---Fact that accused were instrument in cheating, fraud, and manipulation thereby causing huge loss to the complainant by way of embezzlement could not be ignored---No justification existed for grant of pre-arrest bail to accused persons---Impugned order for bail before arrest was set aside and pre-arrest bail granted to the accused stood cancelled in terms of S.497(5), Cr. P. C.

Shaikh Zahoor Ahmed v. The State PLD 1974 Lah. 256; Murad Khan v. Fazal Subhan and others PLD 1983 SC 82; Mst. Qudrat Bibi v. Muhammad Iqbal and another 7003 SCMR 68; Mian Fazal Imran and another v. The State 2006 PCr.LJ 1030 and Khalid Mehmood v. Abdul Qadir Shah and State 1994 PCr.LJ 1784 ref.

Syed Naqi Mirza for Applicant.

Hassan Sabir for Respondent No.2.

Asadullah Baloch for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1275 #

2009 Y L R 1275

[Karachi]

Before Ghulam Dastagir Shahani, J

AGHA KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1050 of 2008, decided on 22nd September, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 32---Bail, refusal of---Bail was sought on the ground that accused was 80 years old patient, though as per National Identity Card accused was aged 57 years---In support of ailment of accused, neither any medical certificate, prescription of medicines had been filed nor it had been disclosed in file---Report of Laboratory test with regard to samples of narcotic substance sent to it, was positive---Delay of five days in sending sample to Chemical Examiner, was to be explained in evidence as tentative assessment was to be made at bail stage and no deeper appreciation was required at that stage---Even otherwise, each and every case was to be decided on its own merits---Presence of accused in a particular vehicle and recovery of huge quantity of charas from secret boxes, prima facie indicated the participation of accused in the offence---Bail application was not filed on behalf of accused on ground of hardship---Bail application, was dismissed, in circumstances.

Haji Muhammad Aslam v. The State 1992 MLD 997; Taj Ali Khan v. The State 2004 YLR 439; Mst. Iqbal Bibi v. The State 1995 PCr.LJ 1472 and Raza Muhammad v. The State 1991 PCr.LJ 341 rel.

Arafa Thebo for Applicant.

Nemo for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1279 #

2009 Y L R 1279

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD RAFIQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.89 of 2004, heard on 12th February, 2009.

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

----S. 302(b)---Appreciation of evidence---Confessional statement of accused was recorded by the Deputy Superintendent of Police without complying with the legal formalities---In absence of direct evidence, confessional statement would not be strong and would require deep scrutiny---Confessional statement having been recorded after three days of the occurrence, could not be acted upon---Delay of over 24 hours would be fatal to the acceptance of the confessional statement in law, if the prosecution had failed to explain the delay in recording the statement---Accused, in the present case, remained in Police custody before and for recording of his confessional statement for about three days---Trial Court while convicting accused had placed reliance on the confessional statement in absence of direct evidence---Prolonged detention of accused in Police custody, cast shadows as accused was not remanded to judicial custody after his confessional statement was recorded---Trial Court ought to have attended to the question of admissibility of confessional statement in the statement recorded under S.342, Cr. P. C., but no opportunity was afforded in that respect---Crime weapon was not sent to Chemical Examiner for examination as it was not stained with blood---Motive behind the incident, could not be established as evidence led by the prosecution, did not support the alleged motive in absence of direct or indirect evidence---Testimony of the complainant, who was brother of deceased, was hearsay as he was not an eye-witness---Complainant was supposed to disclose the names of those persons from whom he had received information about occurrence as well as alleged motive---Where in a blind murder, no direct ocular evidence was available, blood stained clothes could not be matched with blood group of the deceased---Ample evidence, was not adduced by the prosecution to create a link in a case of circumstantial evidence where each piece of chain was required to be connected---Recovery of iron pipe, blood stained shalwar used for wiping the blood and the marks of bite ' of the deceased on the finger of accused, did not create link for coming to an irresistible conclusion as the motive was shrouded in mystery---Conviction awarded to accused by the Trial Court could not be upheld, which was set aside and accused was acquitted from the charges levelled against him and he was directed to be released.

Naqibullah v. The State PLD 1978 SC 21 and Khan Muhammad v. The State 1981 SCMR 597, ref.

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

----Arts.37, 41 & 42---Criminal Procedure Code (V of 1898), S.164---Confession---Extra judicial confession---Ingredients essential to believe an extra judicial confession---Four ingredients essential to believe an extra judicial confession were; firstly, that the extra judicial confession was in fact made; secondly, that confession was voluntarily made; Thirdly, that it was truly made; and fourthly that the motivating force behind it was proved---Accused could not be believed to open his mouth with regard to the performance of his criminal acts unless and until a reason was behind the same---As against the maker himself his confession, judicial or extra judicial, whether retracted or not, could in law validly form, sole basis of conviction if the court was satisfied and believed that it was true and voluntary and was not obtained by torture coercion or inducement.

Muhammad Pervaiz v. The State 2007 SCMR 670; Muhammad Yousaf v. Muhammad Idrees and others 2004 MLD Lah. 910 and Sarfraz Khan v. The State 1996 SCMR 188 ref.

----S.302(b)---Criminal trial---Duty of Court---Proper and legal way of dealing with a criminal case, was that the court should first discuss the prosecution evidence in order to come to an independent finding with regard to the reliability of the. prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them; and then examine the statement of accused under S. 342, Cr. P. C.; the statement under S.340(2), Cr. P. C. and defence evidence---If the court would disbelieve/reject/exclude from consideration the prosecution evidence, then the court must accept the statement of accused as a whole without scrutiny---If the statement under S.342, Cr. P. C. was exculpatory, then he must be acquitted---If the statement under S.342, Cr.P.C. believed as a whole, would constitute some offence punishable under the Code/Law then accused should be convicted for that offence only---In the case of counter version, if the court believed that prosecution evidence was not prepared to exclude the same from consideration it would not straightaway convict accused but would review the entire evidence including the circumstance appearing in the case before reaching at conclusion regarding the truth or falsity of the defence plea/version--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, was the plea/version raised by 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 would not reject the defence plea as being false, but would go a step further to find out whether or not there was yet a reasonable possibility of defence plea/version being true---If the court found that though 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---Confessional statement was liable to be recorded as early as possible---In a blind murder case where no direct ocular evidence was available, reappraisal of evidence was necessary at the time of postmortem---Doctor ought to have determined the blood group of deceased from Chemical examination.

Khalid Javed and another v. the State 2003 SCMR 1419; Ashiq Hussain v. The State PLD 1994 SC 879 and Syed Sharifuddin Pirzada v. Sohbat Khan and 8 others PLD 1972 SC 363 ref.

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

----S. 154--- F.I.R. ---Importance---F.I.R. was normally considered as corner stone of prosecution case, unless it was created by some mala fide intention, or a wrong version of the complainant was recorded by the Investigating Agency.

(e) Criminal trial---

---Conviction---Basic principle of law was, that the conviction must be based on evidence beyond any shadow of doubt---Such principle was enshrined in the Hadith of Holy Prophet Muhammad (Peace be upon Him), because damage caused from erroneous sentence was irreparable---Principle that it was better to acquit guilty person than to punish an innocent one had been proclaimed by the Prophet of Islam (P.B. U.H.), which became the guiding principle for safe administration of justice.

The State v. Tariq Mahmood 1987 PCr.LJ 2173 rel.

Amir Mansoob Qureshi for Appellant.

Mrs. Shahida Jatoi and Haji Abdul Majeed for the State.

Date of hearing; 12th February, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1289 #

2009 Y L R 1289

[Karachi]

Before Syed Pir Ali Shah, J

ZIA-UD-DIN ZIA---Appellant

Versus

SHAH MUHAMMAD AJMAL and 2 others---Respondents

Criminal Appeal No.46 of 2007, decided on 2nd April, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.417 & 561-A---Appeal against acquittal---Dismissal of appeal---Application under S. 561-A, Cr.P.C. against dismissal order---Maintainability---Appellant and his counsel remained absent on date of hearing of appeal against acquittal of respondents, while respondents along with their counsel and State Counsel were present---Appeal having been dismissed, appellant had filed application under S. 561-A, Cr.P.C. for setting aside dismissal order---Validity---Impugned order of acquittal passed by the court being just and proper was upheld and appeal against acquittal was dismissed---Application under S. 561-A, Cr.P.C. was filed against orders which were final in all respects---Filing of application invoking powers of High Court under S.561-A, Cr. P. C. were untenable in the eyes of law---If at all appellant was aggrieved, he could have impugned order for proper remedy before the apex court, which was the proper forum---Present was not a civil matter, so that same could be reopened by way of filing interlocutory and miscellaneous applications---Application under S.561-A, Cr.P.C. was hardly maintainable so far as prayer contained in it was concerned---Application under S. 561-A, Cr. P. C. was dismissed.

Mehmood Habibullah for Appellant.

Syed Ahsan Raza for Respondents Nos. 1 and 2.

Muhammad Iqbal Kalhoro, A.P.G. Asadulah Baloch, State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 1291 #

2009 Y L R 1291

[Karachi]

Before Maqbool Ahmed Awan, J

ASHIQUE HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-864 of 2008, decided on 6th March, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.337-F(i), 504 & 506---Bail, grant of--Incident was said to have taken place in a thickly populated area i.e. the petrol pump, but no independent witness had been cited to corroborate the version of the complainant---If there was any intention of committing murder of complainant on the part of accused, he should have fired upon him instead of giving him butt blows---F.I.R., showed that ,complainant had not appeared before the Medical Officer for medical examination and no such certificate was available on the record---Enmity existed between the parties and in view of the fact that punishment did not fall within the prohibitory clause of S. 497, Cr.P.C. and accused having made out a case for grant of bail, he was admitted to bail, in circumstances.

Tariq , Bash4r v. The State PLD 1995 SC 34 rel.

Basharat Ahmed Jatt for Applicant.

Muhammad Aslam Sipio for the State.

2009 Y L R 1311

[Karachi]

Before Amer Raza Naqvi, J

GHULAM ABBAS ZAIDI through Attorney---Plaintiff

Versus

Col. Retd. SHAHBAZ-UL-HAQ and another---Defendants

Civil Suit No.877 of 2003, decided on 26th March, 2009.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Art.114---Specific performance of agreement to sell---Discretionary relief---Concealing of material facts---Principle of estoppel---Applicability---Plaintiff asserted that he had paid earnest money and alleged that defendant had denied executing sale deed in his favour---Plea raised by plaintiff was that balance consideration amount was to be paid by him after verification of title of plaintiff---Validity---Verification was to be done by plaintiff himself as he was already provided with copy of allotment order---Plaintiff had no doubt in his mind that property belonged to defendant as he got published advertisement for sale of suit property---Plaintiff earlier filed suit before lower court seeking cancellation of agreement in question but withdrew the same during the pendency of present suit---Nothing was mentioned in memo. of plaint regarding fact pertaining to earlier suit---Plaintiff referred to earlier suit only in his examination-in-chief after the fact for filing suit before lower court was brought on record by defendant in his pleadings and he had placed certified copy of memo. of plaint---Such act of plaintiff was highly inappropriate and besides the merits of the case---Plaintiff had thus disentitled himself from any relief from High Court by concealing such material fact, as the earlier suit was between the same parties and in respect of same property---Once plaintiff himself concealed the deal by way of praying for same relief before a court of law, he was stopped from changing the stand and claiming enforcement of documents which he sought to be cancelled before a court of law---Plaintiff himself was obliged to make inquiry and satisfy himself about ownership of property in question and if there was any doubt in that respect or any contrary information was received he should have lodged protest which he failed to do---Plaintiff did not produce any evidence that at relevant time he had sufficient amount to fulfil his commitment as mentioned in the agreement to sell---Plaintiff was not entitled to transfer of suit property in his name in view of agreement to sell between the parties---Suit was dismissed in circumstances.

2005 SCMR 977 ref.

(b) Administration of justice---

----Equity demands the matter to be decided in one way or the other if there is no legal impediment in doing so and no bar exists under the law in deciding the matter in equitable manner.

Badar Munir for Plaintiff.

Aftab A. Jafri for Defendant No.1.

Nemo for Defendant No.2.

Date of hearing: 19th March, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1325 #

2009 Y L R 1325

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

MAZAR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 288 of 2005, decided on 19th December, 2005.

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

----S. 9(c)---Appreciation of evidence---Statements of complainant and mashir of recovery who both were Police Officials, were contradictory to each other on some material points and said statements had not been supported or corroborated by other prosecution witness---Articles from which the charas was secured was not available in the court---Case property was sent to Chemical Analyzer after more than two months of the recovery---No explanation had been furnished for such delay in sending the case property to Chemical Analyzer---Discrepancies in the evidence and delay in sending the case property had created further doubt in the prosecution case---Defence taken by accused had been supported and corroborated by the certified true copies of the statements of the witnesses examined in the case---Case of the prosecution being highly doubtful, accused were entitled to the benefit of such doubt, which was accordingly given to them---Accused were acquitted of the charge giving them benefit of doubt.

Kumail Ahmed Shirazee for Appellants.

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

2009 Y L R 1358

[Karachi]

Before Azizullah M. Memon and Arshad Noor Khan, JJ

SARAH A. WASTI---Petitioner

Versus

KARACHI ELECTRIC SUPPLY CORPORATION through Director and another-Respondents

Constitutional Petition No. D-2319 of 2007, decided on 6th February, 2008.

Electricity Act (IX of 1910)---

----S.24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Failure to deposit electricity consumption charges--Petitioner despite specific direction, not only failed to make payment against the electricity consumption charges, but also was a defaulter in making payment of the monthly rent to the landlord---Petitioner, whose electricity was cut off due to said default, had filed constitutional petition for restoration of electricity connection---Validity---Controversy between the parties was to be determined only by means of recording of evidence which exercise could not be undertaken by High Court while entertaining proceedings under Art.199 of the Constitution--- Petitioner could approach the competent forum for the purpose of getting his grievance redressed--Petition was dismissed.

Adnan A. Karim for Petitioner.

Umer Farooq Khan and Kumail A. Shirazee for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 1364 #

2009 Y L R 1364

[Karachi]

Before Mrs. Qaiser Iqbal, J

TARIQ HABIB---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.296 of 2008, decided on 6th March, 2009.

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

----Ss.561-A, 190 & 173---Penal Code (XLV of 1860), S.365/506-B/337-A (i)--Quashing of order---Complainant was habitual in filing false cases against the accused, which were disposed of on the basis of report submitted by the Investigating Officer---Similarly on the receipt of a report for sanction Deputy District Public Prosecutor, despite endorsing his opinion, directly issued a direction to the Investigating Officer for submitting challan in the Court---Magistrate, without applying his judicial mind passed a stereotyped order without adhering to the provisions of law and examination of record, acting arbitrarily violating the principles of natu1 al justice-Magistrate thus had failed to exercise its discretion in a lawful manner by deciding the matter in a slipshod manner without giving cogent reasons and considering the material on record---For disposal of the investigating report, Magistrate was required under the law to act reasonably, fairly, justly and assigning reasons justifying his order---Impugned order having been passed by the Magistrate on the basis of report of the District Public Prosecutor without application of his own independent mind, was not warranted under the law and the same was quashed accordingly.

Muhammad Dian Sheller v. The State 2007 YLR 2038; Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304; Choudhry Muhammad Sharif v. The State 2006 PCr.LJ 518; Sofi Abdul Qadir v. The State and others 2000 PCr.LJ 520; Habib v. The State 1983 SCMR 370 and Muhammad Ashraf alias Bhullers' case 2008 YLR 1462 Lah. ref.

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

----Ss.561-A, 63 & 169--- Inherent jurisdiction---Scope---Court can rectify the injustice done in the case, when the, order was a result of mala fides on the part of the police in getting the accused discharged by Magistrate.

Muhammad Dian Sheller v. The State 2007 YLR 2038; Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187 and Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304 ref.

---S.173---Report of Police Officer--Scope-District Public Prosecutor is not competent to direct Investigating Officer to submit challan in the Court, as he is assigned the duty to submit an opinion which has no legal sanctity for the guilt of the accused.

Muhammad Ashraf alias Bhuller s' case 2008 YLR 1462 ref.

Amir Mansoob Qureshi for Applicant.

Ms. Shahida Jatoi, A.A.-G. and Haji Abdul Majeed, State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 1370 #

2009 Y L R 1370

[Karachi]

Before Nadeem Azhar Siddiqi, J

KHALID MEHMOOD---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.33 of 2009, decided on 8th April, 2009.

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

----S.561-A---Quashing of order/proceedings---Since allegations against the applicants were that cartons containing chars were stored at his premises, unless witness and Investigating Officer was examined, it could not be said that applicant was not involved in the matter and there was no probability of his conviction---Mere pendency of the case for a long time (16 years) could not be a sole ground for quashing the proceedings, unless it was shown that no probability of conviction existed.

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

----S.265-K---Power of court to acquit accused---Scope---Powers under S.265-K, Cr.P.C. could be exercised at any stage, provided that the Court, on hearing of the parties, had come to the conclusion that there was no probability of accused being convicted---For exercising said power, accused had to show that even if, material/evidence available on record was taken to be true, he could not be convicted.

S.M. Aamir Naqvi for Applicant.

S. Ahmed Ali Shah, Standing Counsel.

2009 Y L R 1404

[Karachi]

Before Nadeem Azhar Siddiqi, J

Sheikh MUHAMMAD YOUSAF---Applicant

Versus

THE STATE---Respondent

Special Criminal Revision Application No.2 of 2009, decided on 4th April, 2009.

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

----Ss.265-K & 439---Customs Act (IV of 1969), S. 156(1)(14)(77)---Acquittal of accused---Application for---Trial Court in impugned order had held that prima facie accused by filing forged and false import documents had committed an offence punishable under S.156(1) (14) (77) of Customs Act, 1969---Trial Court, before passing the order, had perused the record available with it and had rightly dismissed application filed by him under S.265-K, Cr. P. C. for acquittal---Counsel for accused had failed to show that from the material available on record, no case against accused had been made out and that there was no probability of his conviction---Powers under S. 265-K, Cr.P.C. could be exercised at any stage, provided that the Court, on hearing, of the parties, had come to the conclusion that there was no probability of accused being convicted---Accused had to show that if the material/evidence available on record was taken to be true, he could not be convicted, but accused had failed to do so---Accused/applicant had claimed amnesty, which was in respect of civil liability of payment of penalty and not criminal liability for forging and preparing false invoices-- Application of accused was dismissed.

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

----Ss.268-K & 439---Customs Act (IV of 1969), Ss.156, 179 & 185---Appreciation of evidence---Acquittal of accused, application for---Under provisions of S.156 of the Customs Act, 1969, most of the offences were adjudicatable by Customs Authorities under S. 179 of the Act and some were triable by a Special Judge appointed under S.185 of the Act---Some other offences were adjudicatable by the Customs Authorities as well as by Special Judge and in those offences the Customs Authorities and the Special judge had to exercise their jurisdiction independently---No bar existed, if both jurisdictions were exercised simultaneously, as both jurisdictions were concurrent---Trial Court observed that material was available on record and unless the evidence was recorded, accused could not be acquitted under provisions of S.265-K, Cr.P.C. and the parties were entitled to prove their respective case---Application of accused was dismissed in circumstances.

Ammar Yaseer for Applicant.

Nemo for Respondent.

Date of hearing: 3rd April, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1408 #

2009 Y L R 1408

[Karachi]

Before Muharram G. Baloch, J

ABDULLAH through L.Rs. and others---Applicants

Versus

MUHAMMAD IBRAHIM and others---Respondents

Civil Revision Application No.26 of 1998, decided on 20th March, 2009.

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

---S.9---Civil Court---Jurisdiction---Civil Courts have ultimate jurisdiction to adjudicate upon all suits unless barred as per S.9 of Civil Procedure Code, 1908.

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

----Ss.42 & 54---Title and possession---Proof---Concurrent findings of fact by Courts below---Suit filed by plaintiff was concurrently :decreed in his favour by Trial Court and Lower Appellate Court---Validity---Evidence of defendant in both the courts below was in respect of fact that he was in possession of suit plot and that no wide publicity was made while auctioning the same---Such was the only word against pleading of plaintiff---Whereas plaintiff proved his case that grant of suit plot in open auction was according to law and that he had been in possession of the same since year, 1973---Plaintiff also complied with conditions of grant, deposited price of plot and such entry was also kept in village form II of Record of Rights---Plaintiff was also issued letter of acceptance and Ijazatnama---Plaintiff also obtained 'No Objection Certificate' from Town Committee---Besides, the defendant had not participated in auction proceedings, therefore, he could not question legality or otherwise of auction conducted by Assistant Commissioner and confirmation made by Deputy Commissioner---High Court in exercise of revisional jurisdiction declined to interfere with concurrent findings of fact by two Courts below---Revision was dismissed in circumstances.

S. Zafar Ahmed v. Abdul Khaliq; PLD 1964 (WP) Karachi 149; Province of Punjab v. Muhammad Afzal Khan PLD 1977 Lah 1270 and Province of Punjab v. Rana 1989 MLD 1009 ref.

Asad Ali Shah for Applicant.

Muhammad Ismail Memon for Respondent No.1.

Nemo for Respondents Nos.2 to 6.

Date of hearing 5th March, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1414 #

2009 Y L R 1414

[Karachi]

Before Salman Ansari, J

NOOR AHMED---Applicant

Versus

GHULAM MUSTAFA and another---Respondents

Criminal Revision Application No.114 of 2008, decided on 9th February, 2009.

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

----Ss. 302/114/34---Criminal Procedure Code (V of 1898), Ss.204, 497 & 439---Revision application against show-cause notice issued by the Trial Court out of a direct complaint filed under Ss.302/114/34, P.P.C.---After recording the statements of the complainant and witnesses, complaint was registered against the applicant and other accused and bailable warrants were issued against them by the Trial Court---Surety was furnished and since then the applicant and the other accused were regularly attending the Trial Court for the last one and half years on each and every date of hearing---Offences alleged against applicants were non-bailable and when applicants appeared before the Trial Court in pursuance of bailable warrants issued under S. 204, Cr.P.C. for their appearance, the Trial Court without granting bail within the meaning of S. 497, Cr.P.C., released the applicants on the affidavit filed by the surety---Said procedure was not warranted by law---Trial Court was not justified in releasing applicants without granting bail---Trial Court was required to comply with provisions of S.497, Cr.P.C. in the direct complaint case---Show-cause notice though was issued at a belated stage, but no illegality was caused in issuance of the show-cause notice by the Trial Court---Revision application not being an application for pre-arrest bail, but as applicant had not approached the Trial Court or High Court for pre-arrest bail against the show-cause notice, had filed criminal revision application, which was liable to be dismissed---Criminal revision application was dismissed.

Noor Nabi and others v. The State 2005 PCr.LJ 505, Mazhar Ali Shah v. The State 1986 PCr.LJ 2359; Syed Muhammad Firdaus and. others v. The State 2005 SCMR 784; Sadiq Ali v. State PLD 1966 SC 589 and Muhammad Ayoob v. Muhammad Yakoob, PLD 1966 SC 1003 ref.

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

----Ss.91, 204, 496 & 497---Power to take bond for appearance---Section 91, Cr.P.C. granting power to take bond for appearance, could not be applied in isolation, but was to be applied and read with Ss. 496 & 497, Cr. P. C. for the purpose of release of an accused against whom a process was issued under S. 204, Cr.P.C. by the court after taking cognizance on any source of information, mentioned in S.190, Cr. P. C.

Habib Ahmed for Applicant.

Hakim Ali Khan for Respondent No.1.

Qaiser Abbas for Respondent No.2.

YLR 2009 KARACHI HIGH COURT SINDH 1422 #

2009 Y L R 1422

[Karachi]

Before Shamsuddin Hisbani, J

TALIB---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-703 and M.As. Nos.1492, 1493 of 2005, decided on 21st November, 2005.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.382---Bail, grant of---Further inquiry---Abnormal delay in the lodging of F.I.R.-Offence against accused did not fall within the mischief of S.382, P.P.C.---Co-accused had already been granted bail by the Trial Court---Accused was in custody for a considerable period---Allegation against accused needed further inquiry, as it had to be determined by the Trial Court after recording of evidence as to what offence had been committed by accused---Keeping in view the rule of consistency, accused was also entitled to the grant of bail.

Muhammad Sachal R. Awan for Applicant.

Mrs. Shahida Muhammad Ali Rind for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1427 #

2009 Y L R 1427

[Karachi]

Before Faisal Arab and Bin Yamin, JJ

ADNAN AHMED KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.41 of 2009, decided, on 26th March, 2009.

Criminal Procedure Code (V of 1898)---

----S.540---Application for recalling prosecution witness for further cross-examination---Application filed under S.540, Cr.P.C. before the Trial Court having been dismissed, counsel for applicant through criminal revision had sought recalling of prosecution witness for further cross-examination---Contention of applicant was that he did not seek recalling of all the witnesses, but only the witness who was also victim---Counsel had further contended that purpose of recalling witness was only to confront .him with S.161, Cr.P.C.---Validity---Cross-examination of said witness, was examined and it was found that said witness was not confronted with his previous statement---Application for recalling said witness was allowed only to the extent that the victim/witness would be recalled for cross-examination only for the purpose of confronting him with the statement made under S.161, Cr. P. C.

1991 PCr.LJ 877 rel.

Amir Mansoob Qureshi for Appellant.

2009 Y L R 1453

[Karachi]

Before Maqbool Ahmed Awan, J

ALI GUL---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.S-6 of 2006, decided on 26th March, 2009.

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

----S.13(d)---Appreciation of evidence---No Roznamcha entry had been produced by the prosecution in evidence to prove that the Police, in fact, left the Police Station for patrolling---Such lapse on the, part of prosecution had cut the root of the case of prosecution, rendering the entire episode shrouded in doubt---Said fact by itself was enough to disbelieve the prosecution version---F.I.R. showed that the alleged weapon recovered from the possession of accused was sealed at the spot and so also the cartridges, but same was not sent to the Ballistic Expert in order to see that said weapon was in working position or not---Prosecution also failed to produce any certificate as envisaged under S.510, Cr. P. C. ---Accused was not confronted with the crime weapon while recording his statement under S. 342, Cr. P. C.---No question was put to accused as to whether the pistol was licensed weapon---Every incriminating piece of evidence was to be brought to the notice of accused in his statement under S.342, Cr.P.C. and unless he was confronted with the material available in evidence against him, his conviction could not be sustained---Mashirs of recovery were Police personnel and no private person was appointed to act as witness of the alleged recovery of the weapon and no explanation whatsoever was provided in that respect---Even the record did not reflect as to whether any efforts were made to procure the person from locality to act as witness of recovery---Flagrant violation of S. 103, Cr.P.C. existed in circumstances---Alleged recovery of weapon, was rendered extremely doubtful---Conviction of accused passed by the Trial Court, was set aside, in circumstances.

Nazar Muhammad v. State 1996 PCr.LJ 1410; Abdul Sattar v. State 2002 PCr.LJ 51; Ashique Ali v. State 2002 PCr.LJ 450; Muhammad Arif v. State 2007 PCr.LJ 935; Abdul Majeed v. State 1998 PCr.LJ 1381 and Abdul Wadood v. State 2001 PCr.LJ 173 rel.

Fareed Ahmed Langra v. State 1998 PCr.LJ 1368 and 1997 MLD 1632 ref.

S. Madad Ali Shah for Applicant.

Bilawal Ali Ghunio for Respondent.

Date of hearing: 19th March, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1459 #

2009 Y L R 1459

[Karachi]

Before Maqbool Ahmed Awan, J

HABIB and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-388 of 2008, decided on 16th April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 147, 148, 149 & 109---Bail, grant of---Further inquiry---Delay of about 16 hours in lodging of the F.I.R. had not been plausibly explained---Delayed statements of prosecution witnesses examined by Investigating Officer after about 6/7 days, who were said to be eye-witness of the incident, had created serious doubt about their presence at the place of vardat and witnessing the incident--Letting off co- ; accused named in the F.I.R. had not been challenged by the complainant by moving the application for joining them as accused---Police report showed that accused named in challan had been falsely implicated by complainant party---Weapons were not recovered from accused and enmity was shown between the parties---Accused having succeeded in making out the case of further inquiry they were admitted to bail, in circumstances.

Kouro and another v. The State, reported in 2004 YLR 2434; Parial v. The State 2006 PCr.LJ 1212; Saleh alias Mohammad Saleh v. The State 2008 PCr.LJ 113; Mohammad Yasin v. The State 2008 MLD 438 and Ramzan and 3 others v. The State 2008 YLR 2086 rel.

Syed Madad Ail Shah for Applicants.

Muhammad Azem Panhwar, State Counsel.

Ayaz Hussain Tunio for the Complainant.

YLR 2009 KARACHI HIGH COURT SINDH 1471 #

2009 Y L R 1471

[Karachi]

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

SHAKIL SULTAN and another---Petitioners

Versus

Lt. Cdr. AHMED SAEED and another---Respondents

C.P.D. No.948 of 2008, decided on 15th January, 2009.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9(a) & 19---General Clauses Act (X of 1897), S.24-A---Criminal Procedure Code (V of 1898), S.156(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Issuance of notice to petitioner requiring him to join investigation before National Accountability Bureau (NAB)---Petitioner's plea was that disputed property was subject-matter of several cases pending in different Courts; and that NAB wanted to harass him and involve him in a false case--Statement of NAB's counsel before Court that enquiry against petitioner had been commenced with order of Chairman NAB; and that petitioner would neither be harassed nor any action against him would be taken against law---Effect---Government functionaries must act in a manner provided under statute and furnish reasons therefor--According to S.156(2), Cr.P.C., investigation in cognizable offence could not be called in question at any stage---Investigation by NAB could not be stayed in view of such statement of NAB's counsel---High Court disposed of petition in above terms.

A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 ref.

State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 rel.

Abdul Qadir Khan for Petitioners.

Ch. Muhammad Iqbal, ADPG, NAB.

YLR 2009 KARACHI HIGH COURT SINDH 1475 #

2009 Y L R 1475

[Karachi]

Before Syed Mahmood Alam Rizvi, J

MUMTAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-366 of 2008 decided on 10th September, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 148, 149, 504 & 337-H(ii)---Bail, refusal of---Accused were absconders for the last 13 months and for the last two years witnesses were knocking the door for their evidence, but their wishes had not been fulfilled due to conduct of accused persons--No doubt no specific injury had been assigned to accused persons, but their conduct, prima facie, had shown that they were avoiding to proceed with the case; in such circumstances accused having not come to the court with clean hands, were not entitled to bail---Bail application was dismissed, in circumstances.

Haji Ahsan Ahmed Memon for Applicant.

Jai Jai Veshnu Mangay Ram for the Complainant.

Naimatullah Burgri for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1479 #

2009 Y L R 1479

[Karachi]

Before Sajjad Ali Shah, J

MUHAMMAD HASSAN---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.S-40 of 2009, decided on 6th March, 2009.

Penal Code (XLV of 1860)---

----Ss.506(2), 471, 468 & 420---Criminal Procedure Code (V of 1898), Ss.561-A & 173---Quashing of order---Investigating Officer had recommended the disposal of the case in `B-class'---Judicial Magistrate however, rejected the recommendation and directed the Investigating Officer to file challan within one month---Validity---Where report of Investigating Officer was in positive, a proper challan on the pro forma within the meaning of clause (b) of subsection (1) of S.173, Cr.P.C. was to be filed---However, in cases where the opinion of the Investigating Officer was in negative, the Investigating Officer normally would file the report giving details of investigation and the reason for reaching the conclusion---Report of Investigating Officer seeking disposal of the case under B-class reflected that it had not been filed in the Pro forma prescribed within the meaning of S.173, Cr. P.C.---Magistrate, in circumstances, was well within his right to direct Investigating Officer to file challan---No case for interference having been made out, application was dismissed.

Muhammad Ashraf alias Bhullar v. The State 2008 YLR 1462; Muhammad Akbar v. The State 1972 SCMR 335; Safdar Ali v. Zafar Iqbal 2002 SCMR 63; Hidayatullah v. The State 2006 SCMR 1920 and Manzoor Shaikh v.. The State 2005 YLR 3244 rel.

Rana Muhammad Siddique Khan for Applicant.

Madad Ali Shah and Zahoor Ahmed Baloch Amicus Curie.

Allah Bachayo Soomro, Additional Advocate-General for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1486 #

2009 Y L R 1486

[Karachi]

Before Rahmat Hussain Jafferi and Muhammad Afzal Soomro, JJ

MUHAMMAD JAMIL SHARIF and others---Appellants

Versus

THE STATE---Respondent

Spl. Anti Terrorism Jail Appeal No. 42 of 2005, decided on 21st April, 2007.

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

----S.365-A---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Allegation against accused was of receipt of ransom amount, ear rings and then recovery of the abducted child from his possession---Fact of abduction of child by accused had been established from the evidence of the complainant---Evidence of complainant further revealed that accused contacted the complainant and demanded the ransom amount for the recovery of the child which was to be paid to the culprits---Statement of the complainant was fully supported by the prosecution witnesses--Ransom amount and ear rings were also secured from accused---Counsel for accused had not challenged the oral evidence seriously---Prosecution had proved the case against accused---Accused had accepted the ransom amount and ear rings---Child was secured from the possession of accused and the ransom amount and ear-rings were also secured from him---Said evidence was sufficient to connect accused with the commission of crime---Not necessary that each and every detail should be mentioned in the charge---During trial accused was not prejudiced in his defence-Error, if any in the charge, had not prejudiced accused in his defence---Error could be cured under Ss. 225, 535 & 537, Cr.P. C.-Appeal of accused was dismissed.

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

----S.365-A---Anti-Terrorism Act (XXVII of 1997), S. 7---Appreciation of evidence---Allegation against co-accused was of mere presence in the house from where he brought out the child--- Wife of co-accused was also present in the house who was also arrested along with co-accused--- Wife of co-accused was released by the Police---Case of co-accused was similar to that of his wife---No other piece of evidence was collected by the Investigating Officer---Rule of consistency demanded that he should be given same treatment as given to his wife--A.A.G. had also not supported the case against co-accused---Case of the prosecution against co-accused having not been proved beyond any reasonable doubt, his appeal was allowed.

Syed Mohsin Imam for Appellants.

Habib Ahmed for Respondent.

Date of hearing: 16th April, 2007.

YLR 2009 KARACHI HIGH COURT SINDH 1492 #

2009 Y L R 1492

[Karachi]

Before Sajjad Ali Shah, J

RAFIQUE AHMED and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-358 of 2008, decided on 2nd February, 2009.

Criminal Procedure Code (V of 1898)---

----5.498---Penal Code (XLV of 1860), 5.364/34---Interim pre-arrest bail, confirmation of---Accused persons were on family terms with alleged abductee and per contents of F.I.R. accused had taken alleged abductee on the pretext to get her treated by a neuro-surgeon as she had some problem regarding her mental health--Without alleging any enmity, the complainant, after narrating a story whereby her sister was abducted, had concluded that she had been murdered, which assertion had been proved wrong as alleged abductee was alive--Was yet to be determined as to whether the offence would fall under S.364, P.P.C.-Interim pre-arrest bail granted to accused persons was confirmed, in circumstances.

Muhammad Sachal R. Awan for Applicants.

Muhammad Azeem Panhwar, State Counsel along with SIP Ghulam Sarwar I/CI/O Police Station Hala.

YLR 2009 KARACHI HIGH COURT SINDH 1496 #

2009 Y L R 1496

[Karachi]

Before Syed Mahmood Alam Rizvi, J

MUHAMMAD MAJID KHAN---Plaintiff

Versus

Mst. FAREEHA TAHIR and another---Defendants

Civil Suit No.480 of 2004, decided on 16th March, 2009.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of sale agreement---Plot jointly owned by defendant and her sister---Receipt of earnest money by defendant after agreeing to sell suit plot to 'plaintiff---Defendant's plea was that agreement was conditional as her sister had not agreed to sell plot, thus, she was ready to refund earnest money---Closure of plaintiff's evidence for his failure to produce same before Commissioner---Evidence produced by defendant not cross-examined by plaintiff---Effect---Plaintiff could neither substantiate his claim nor rebut defendant's contention--Suit was dismissed in circumstances.

2001 CLC 595; 2002 CLC 1367; 2007 MLD 1978; 2004 SCMR 595; 2005 SCMR 1408; PLD 2004 Pesh. 104; PLD 1995 Kar. 388; PLD 2004 Kar. 543; 2001 SCMR 1700 and 2008 CLD 412 ref.

Muhammad Majid Khan for Plaintiff.

Salim Salam Ansari for Defendants.

Date of hearing: 9th February, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1501 #

2009 Y L R 1501

[Karachi]

Before Amir Hani Muslim and Muhammad Iqbal Mahar, JJ

KHANJI---Appellant

Versus

RAMESH and 2 others---Respondents

Criminal Acquittal Appeal No. D-61 of 2008, decided on 16th April, 2009.

Penal Code (XLV of 1860)---

----S. 302/34---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal--Benefit of doubt---Alleged incident was un-witnessed one as none of the complainant party had seen any person committing murder of deceased, because neither the complainant nor the prosecution witnesses were present at the place of incident at the time of occurrence---Prosecution witness who was said to have witnessed the incident, had not supported the prosecution case---So far as statement of female co-accused under S.164, Cr.P.C. was concerned, it could be said that. at the time of incident she was pregnant and after six days of the incident, she gave birth to a baby; in such situation it was absolutely unbelievable that she was seen by the deceased in objectionable position with male accused for ten minutes---Record did not reveal as to how female accused was made accused in the case---Injuries on the body of male accused had not been explained. by the prosecution---Material contradictions were found in the deposition of prosecution witnesses, which had created doubts and the chhuri allegedly recovered from female accused too was not bloodstained---No misreading of evidence was found in evidence produced by the prosecution nor impugned judgment, suffered from any infirmity and the Trial Court had rightly acquitted accused persons giving them benefit of doubt.

Syed Jawaid I. Bukhari for Appellant.

Syed Madad Ali Shah for Respondents Nos. 1 and 2.

Muhammad Azeem Panhwar, State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 1507 #

2009 Y L R 1507

[Karachi]

Before Salman Ansari, J

MUHAMMAD ARSHAD BHATTI and another---Applicants

Versus

MUHAMMAD BUX and another---Respondents

Criminal Revision Application No.118 of 2007, decided on 4th February, 2009.

Illegal Dispossession Act (XI of 2005)---

---Ss. 3/4---Prevention of illegal possession of property---Applicants were aggrieved of and dissatisfied with the order of the Addl. Sessions Judge who had dismissed application under Ss.3/4 of Illegal Dispossession Act 2005 with the observation that dispute between the parties was of civil nature---Validity---Applicants were proper allottees of the plots in question, the copies of the `Sanad' had been attached and the report of the S.H.O. concerned was that respondent had forcibly occupied said plots---Allowing criminal revision, filed by the applicants against the order of the Addl. Sessions Judge, case was remanded by High Court to the Sessions Court with directions that the matter be heard and decided according to the merits of the case which appeared to be case of illegal dispossession.

Muhammad Nawaz Abbasi for Applicants.

Ms. Farkhanda Mangi for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1511 #

2009 Y L R 1511

[Karachi]

Before Khalid Ali Z. Qazi, J

SHAFIQ-UZ-ZAMAN KHAN through Attorney---Plaintiff

Versus

YOUNUS AHMED KHAN and 3 others---Respondents

Civil Suit No. 2 and C.M.As. Nos. 16 & 17 of 2009, decided on 21st April, 2009.

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

----S.42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Default in performance of sale agreement---Plaintiff was owner of suit property and entered into sale agreement with defendants who failed and neglected to specifically perform their part of contract within stipulated period---Plaintiff in support of his case filed copy of registered lease deed of suit property and other allied documents with regard to his ownership and defendants admitted existence of dispute between parties---Effect---Disputed question of fact between parties required deeper appreciation of evidence which could properly be thrashed out at the time of trial---From tentative assessment of material available on record, plaintiff had made out a prima facie case---Balance of convenience was also in favour of plaintiff as great inconvenience would be caused to him being owner of property, in exercising his legal rights to deal with property as per law---Irreparable loss would be caused to plaintiff if injunction was refused, therefore, High Court allowed interim injunction in favour of plaintiff---Application was allowed in circumstances.

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

----S.42---Civil Procedure Code (V of 1908), O.XI, R.12 & S.151-Impounding of original documents---Scope---Plaintiff was owner of suit property and entered into sale agreement with defendants who failed and neglected to specifically perform their part of contract within stipulated period--Plaintiff sought impounding of all original document of suit property by High Court which were in possession of defendants---Validity---When plaintiff had made out prima facie case in his favour and defendants failed to oblige their contractual obligations as well as dealing of property in question, great apprehension of misusing of original documents was involved---High Court for protection of valuable rights of both the parties and for avoiding future legal complications and for proper adjudication of case directed defendants to deposit original title documents of suit property available with them in Court---Application was allowed accordingly.

Mehmood Abbas for Plaintiff.

Abdul Khaliq for Defendants.

YLR 2009 KARACHI HIGH COURT SINDH 1525 #

2009 Y L R 1525

[Karachi]

Before Mrs. Yasmin Abbasey and Abdur Rahman Faruq Pirzada, JJ

Mst. BENAZEER and another---Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION PANO AKIL and 4 others---Respondents

Constitution Petition No. D-666 of 2007, decided on 29th October, 2008.

Constitution of Pakistan (1973)---

----Art. 199--Constitutional petition---Allegation of violating order of the Court by the authorities---Authorities vide order were directed not to harass the petitioners and also not to arrest them till next date of hearing---Petitioners had alleged that authorities had violated said order--Petitioner had confounded that authorities in order to harass the petitioners and put them under pressure raided their house and arrested brother and nephew of petitioner and also had beaten one female and subsequently said both persons were released on bail under the orders of Sessions Judge---Allegation as levelled by the applicant of violating order of the court, did not seem to be proved, because as per said order, authorities were restrained only to the extent of the Petitioner and not to his full family, if any of them committed any crime---Counsel for the petitioners could not prove that petitioners were abducted as alleged by and said allegation was not made in application under disposal---Authorities, in circumstances had not violated any order of the court---After investigation challan having been submitted in the court, proper course for the petitioners would be to appear before that court and pursue the matter, if so advised.

Ghulam Shabir Shar for Petitioners.

Zulfiqar Ali Sangi for Respondent No.4.

Imtiaz Ali Soomro, Assistant Advocate General along with Mir Ahmed Chandio SPO, Abdul Sattar in-charge S.H.O., Pano Akil, Muhammad Abdullah Sangri, SIO. Pano Akil, Shamshad Hyder Shah, (Investigating Officer in Crime No.152 of 2007).

YLR 2009 KARACHI HIGH COURT SINDH 1530 #

2009 Y L R 1530

[Karachi]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

BOARD OF SECONDARY EDUCATION-Petitioner

Versus

PROVINCIAL OMBUDSMAN and others---Respondents

C.P. No.D-345 of 2008, decided on 3rd March, 2009.

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

----Ss.9 & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of case---Petitioner against whom complaint was filed in the Regional Office of Provincial Ombudsman at place M', filed application for transfer of case filed at placeK'---After calling the case file complainant, had applied for re-transfer of the case to the Regional Office as the complainant was resident of place M'---Grievance of petitioner was that it being an Education Board difficult for the petitioner to attend proceeding at place "M"---Petitioner Board was expected to approach the Provincial Ombudsman and file proper application giving reasons why the matter should be heard at placeK' and not at place and Ombudsman could pass appropriate orders on such application---Orders passed by the Ombudsman for hearing the matter at place `K' or at place M' were of administrative nature, which normally could not be interfered with in exercise of constitutional jurisdiction---Constitutional petition was dismissed.

Syed Masroor Ahmad Alvi for Petitioner.

YLR 2009 KARACHI HIGH COURT SINDH 1533 #

2009 Y L R 1533

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD ASIF---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.S-155 of 2007, decided on 2nd March, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.22-A, 22-B & 561-A---Registration of criminal case---Quashing of orders of Justice of peace---Application for---Earlier direct complaint against seven persons was filed by the respondent alleging that staff of Union Council along with others attacked her house and forced her to shift from their houses, demolished roof of the house and took away house hold articles---Said direct complaint was dismissed and complainant/ respondent, after waiting for about one year, had filed application before Justice of Peace under Ss. 22-A & 22-B, Cr.P.C. for registration of F.I.R. against same person against whom the earlier direct complaint was filed which was dismissed---Direct complaint as well as subsequent application filed by respondent complainant had shown that offence pleaded in the subsequent application was the same as pleaded in the earlier direct complaint which was dismissed---Mala fide of the complainant was apparent on the record for the reason that subsequent application was filed after one year of the dismissal of direct complaint---Justice of Peace had not taken note of the fact that earlier direct complaint on the same facts was dismissed and had thus committed an error---Not always necessary to direct the Police to register the F.I.R., if on the face of it application filed by the complainant appeared to be mala fide---No doubt before passing the order of registration of F.I.R., no enquiry was necessary, but Justice of Peace had to apply his mind to form an opinion about the commission of a cognizable offence and it was not obligatory for the Justice of Peace to issue direction in every case irrespective of the facts and circumstances of the case---Filing of subsequent application for registration of F.I.R. was abuse of process of court which could not be allowed---Both the orders of the Justice of Peace being not legal and proper, were quashed.

Habibullah v. Political Assistant, Dera Ghazi Khan and others 2005 SCMR 951 and Syed Sakhawat Hussain Shah v. S.H.O. Police Station Kalar Syedan Rawalpindi 2005 PCr.LJ 607 rel.

Syed Madad Ali Shah and Hidayatullah Abbasi for the Applicant.

Mumtaz Alam Leghari, Asstt. A.-G. .

Muhammad Aslam Bhatti for Respondent No.2.

YLR 2009 KARACHI HIGH COURT SINDH 1540 #

2009 Y L R 1540

[Karachi]

Before Salman Talibuddin, J

M. ZEKAR and 18 others-Applicants

Versus

LAL TAJ KHAN and another---Respondents

Suit No. 1424 of 2007 and C.M.As. Nos. 6269, 6362, 6419 of 2008 and 9150 of 2007, decided on 17th April, 2009.

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

----Reglns. 7-2, 7-5 & 7-7---Sindh Buildings Control Ordinance (V. of 1979), S. 14---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2--- Specific Relief Act (1 of 1877), Ss.42 & 56---Suit for declaration and permanent injunction by tenants apprehending their dispossession from premises by its owner---Grant of temporary injunction--Application by Karachi Building Control Authority (K.B.C.A) for impleading as party in suit and vacation of stay order as suit premises classified as Dangerous Building Category-I required immediate demolition--Validity--Record showed that K.B.C.A after conducting inspection of premises by Technical Committee had issued notices to tenants and owner of premises under S. 14 of Karachi Building Control Ordinance, 1979---Presumption of truth attached to report of such committee, though rebuttable, but mere denial without anything more could hardly be considered sufficient for such purpose---Tenants and owner had admitted - service of such notices---Report of Structural Engineer from Pakistan Engineering Council appointed by Court with consent of tenants had concurred that premises was dangerous requiring immediate demolition---Karachi Building Control Authority could demolish a building classified to be dangerous after clearing same from occupiers thereof---Vacation of stay order would have an adverse effect on occupiers of suit premises, but same could not be greater than loss of life of occupiers and others in case of its collapse, which risk could not be taken at any cost---High Court vacated stay order, directed tenants to vacate premises within five days and directed K.B. C.A. to demolish same in accordance with prescribed procedure.

Muhammad Aftab v. K.B.C.A 1999 YLR 529 ref.

(b) Contempt of Court Ordinance (I of 2004)---

----S. 7(c)---Criminal contempt, commission of---Notice of inspection of building issued to plaintiff by Karachi Building Control Authority (K.B.C.A)---Letter of plaintiff received by K.B.C.A with reference to such notice alleging same to be issued without proper investigation and that building was not dangerous---Plaintiff's plea in counter-affidavit filed in suit was that K.B.C.A had neither given him any such notice nor provided him an opportunity of hearing before alleged inspection---Validity---Such statement on oath of plaintiff was a false statement and h deliberate and contumacious attempt to interfere with the course of justice and was abuse of the process of Court---High Court directed plaintiff to show cause within ten days, why action should not be taken against him for contempt of Court.

K.A. Wahab for Applicants.

Shahid Jamil for Respondent No.2.

Abdul Rehman Malik for Defendant No.1.

YLR 2009 KARACHI HIGH COURT SINDH 1559 #

2009 Y L R 1559

[Karachi]

Before Amir Hani Muslim and Mrs. Yasmeen Abbasey, JJ

CITIZEN WELFARE SOCIETY---Petitioner

Versus

CHIEF CONTROLLER OF BUILDINGS and others---Respondents

C.P. No.D-1654 of 2006, heard 8th March, 2007.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Contempt of Court---Demolition of unauthorized construction---High Court vide its order had directed authorities to take action against unauthorized conversion without discrimination---Complaints against the petitioner were that it had converted the residential property into commercial---Counsel for the petitioner had alleged that petitioner's construction had been demolished under the garb of said order of the High Court---In said order of the High Court, there was no direction to demolish premises that were being used for the purpose other than for which the premises were being leased out---Authority was directed to remove the encroachment of the entire locality, but Authority instead opted to write to the Karachi Building Control Authority for demolition of the petitioner's office which was being run in residential premises which was very strange attitude of the Authority who being a public servant was required to remove the encroachment of the entire area, but it in defiance of order of the High Court had, prima facie, settled score with the petitioner---Prima facie allegations or contempt against Authority having been established, responsible officers of the Authority were directed to appear in the court and court would frame the charge against said officers.

Mrs. Kausar Amin for Petitioner.

Munir Ahmed for Respondent No.1.

Manzoor Ahmed and Kashif Hanif for Respondent No.2.

Sarwar Khan A.A.-G., for Respondent No.3.

Ch. Khalid Rahim for Respondent No.4.

Asif Jetha, Advocate for the Town Nazim Korangi.

YLR 2009 KARACHI HIGH COURT SINDH 1562 #

2009 Y L R 1562

[Karachi]

Before Salman Ansari, J

SOOF and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.49 of 2007, decided on 30th January, 2009.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Complainant in his statement under S.154, Cr.P.C., had not named any person, nor had appeared in the court to give evidence as he was not traceable despite Non-Bailable Warrants' were issued for his arrest---Prosecution witness who was present in car along with others at the time of incident, in his ocular evidence had also not named any person in his statement under S.161, Cr.P.C.--Said witness in identification parade picked out accused and at the same time he stated in his cross-examination that he had not given any description (Hulya) of accused in his statement under S.161, Cr. P. C.; and that at the time of identification both accused were handcuffed---Taking into consideration that it was night time incident when it was totally dark and that said witness had stated in cross examination that there were 15 dummies along with accused, both accused were handcuffed, identification parade would not be considered to have been properly conducted as accused could easily be picked out---Mistake in circumstances, was in the identification of accused by said witness who was one of 3 witnesses to the incident and who had stated that he had identified accused as he had pointed out revolver at his temple---Prosecution witness who was an eye-witness and was sitting in the car at the time of incident, produced Mashirnama; in his cross-examination had stated that he had named accused in his statement under S.161, Cr.P.C.---Considering that the complainant in his statement under S.154, Cr. P. C. had not named any culprit, it would not be reasonable to accept that said witness had named accused in his statement under S.161, Cr.P.C.---No empty or pellet of a bullet or cartridge was recovered, no blood stains were found; it would not be safe to accept said witness's evidence---Three witnesses present at the time of incident had not identified the three culprits who had allegedly stopped the car in which deceased along with others was travelling---Identification parade which was conducted after a belated period, had lost its evidentiary value---Prosecution had failed to connect accused with the death of deceased caused by the weapon recovered at the pointation of one of accused persons as no ballistic examination of the weapon was conducted nor any empties or pellets were recovered to determine the weapon used in the offence, whether it was same that was recovered at the pointation of accused and such recovery also did not inspire confidence---Prosecution, in circumstances, had failed to prove the case against, accused persons, beyond reasonable doubt---Conviction and sentence awarded by the Trial Court to accused, were set aside and the accused were acquitted and released, in circumstances.

Mazharuddin Dharaj for Appellants.

Assadullah Baloch for the State.

Date of hearing: 31st January, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 1570 #

2009 Y L R 1570

[Karachi]

Before Mrs. Qaiser Iqbal, J

Mst. AQEELA MAJEED KHAN---Applicant

Versus

ABDUL JABBAR KHAN---Respondent

Civil Revision Application No.233 and of 2003, C.M.A. Nos. 3243 & 3244 of 2008 decided on 25th March, 2009.

Civil Procedure Code (V of 1908)---

----Ss.115 & 151---Limitation Act (IX of 1908), S.5---Dismissal of revision in default and for non-prosecution-Application for restoration---Limitation---Applicant who was 81 years old lady, her revision application having been dismissed in default and for non prosecution, she filed application for setting aside order, of dismissal and for restoration of revision application---Counsel representing the applicant had expired and after his death neither the applicant had any information about the date of hearing nor any intimation notice was sent to the applicant by the court for appearance in person---Question of vigilance of applicant found support from her affidavit as her son when came to know about the dismissal of the revision and death of counsel for applicant, he resorted to file application for restoration within six days from the date of knowledge---Applicant, in circumstances, had set up a sufficient cause requiring interference in the impugned order as the parties were entitled to a hearing on merits---Impugned order whereby revision was dismissed in default and non-prosecution, was set aside and revisional application was restored to its original position subject to payment of cost.

Zulfiqar Ali v. Lal Deen 1974 SCMR 162; Iqbal Ahmed v. Mst. Sharif un Nisa and others PLD 1956 Lah. 1089; Farman Ali v. Muhammad Yousuf Ali 1990 CLC 1936 Lah.; Muhammad Sharif v. Settlement Department and others 1989 MLD 3342 and Fazal Hussain and Mst. Musharraf Sultana PLD 19.92 Lah. 250 rel.

Mansoorul Haq Ansari for Applicant.

Syed Tassawar Hussain Rizvi for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 1575 #

2009 Y L R 1575

[Karachi]

Before Mrs. Yasmin Abbasey and Abdul Rasheed Kalwar, JJ

QURBAN ALI SHAIKH---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

C.P. No.D-495 of 2008, heard on 25th September, 2008.

Contract Act (IX of 1872)---

----S.37---Constitution of Pakistan (1973), Art.199---Constitutional petition---Obligation of parties to contract---Cancellation of contract without notice---Auction of vegetable market was confirmed in favour of the petitioner, agreement was executed between the petitioner and authorities and execution of contract was confirmed and contract was finalized---Market was handed over to the petitioner, but he was not allowed to deposit first instalment of contract and petitioner deposited same under protest in account of the authorities---Contract, however, was cancelled by the authorities without any show-cause notice and prior intimation to the petitioner and thus the petitioner was illegally dispossessed from the vegetable market---Action taken by authorities of cancelling the agreement without any show-cause notice and any cogent reason merely on the basis that previous administration had granted illegal sanction to the petitioner, was nothing, but based on mala fide intention---Authorities were directed to hand over possession of vegetable market to the petitioner within specified period.

Ms. Mukesh Kumar G. Karara for Petitioner.

Imtiaz Ali Soomro, Asstt. A.-G., for Respondent No.1.

Date of hearing: 25th September, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 1577 #

2009 Y L R 1577

[Karachi]

Before Salman Ansari, J

BASHIR AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.394 and 397 of 2004, decided on 15th January, 2009.

Penal Code (XLV of 1860)---

----Ss. 302/324/337-A(ii)/337-L(ii)/34---Appreciation of evidence---Deceased had been proved to have died due to his having received two injuries on his chest, both incised wounds; and the third incised wound on the occipital area---Post-Mortem Examination Report showed that death of deceased was caused by acute chest injury resulting from some sharp weapon---Role played by accused in common intention to cause the death of deceased needed careful scrutiny---Allegations of common intention, hinged only on the evidence of complainant to whom deceased had made dying statement to the effect that accused and one co-accused had caught hold of him, another co-accused inflicted chitty blow on him and that accused hit him with hands---Such was controverted by the evidence that deceased had received only one injury caused by a hard and blunt object, that being a bat recovered from the spot, which according to the other injured witness was used by another co-accused---No injury, in circumstances was caused to the deceased by accused and the piece of evidence roping accused in having common intention to murder deceased, should safely be discarded---Appeal was allowed to the extent that conviction and sentence recorded by the Trial Court on the charge of Qatl-e-Amd under S. 302, P.P.C. to undergo life sentence awarded to accused, was set aside, while the conviction and sentence awarded to him under S.324, P.P.C. for attempt to commit Qatl-e-Amd and injuries to prosecution witnesses, was maintained---Accused was to be released from jail, if having already undergone the sentence imposed by the Trial Court on him under provisions of S.324, P.P.C.---Appeal to the extent of other accused persons was dismissed.

Aurangzeb for Appellant (in Criminal Appeal No394 of 2004).

Ms. Amna Ansari for Respondent (in Criminal Appeal No394 of 2004).

Shahadat Awan for Appellant (in Criminal Appeal No. 397 of 2004).

Ms. Amna Ansari for the State (in Criminal Appeal No. 397 of 2004).

Date of hearing: 29th October, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 1582 #

2009 Y L R 1582

[Karachi]

Before Mrs. Qaiser Iqbal, J

CANTONMENT BOARD MALIR through Executive Officers Karachi and 3 others---Applicants

Versus

Dr. Syed SHAMIM UR REHMAN---Respondent

Civil Revision Application No.133 and C.M.As Nos. 3266 and 3267 of 2008, decided on 6th March, 2009.

Specific Relief Act (1 of 1877)---

----Ss.42 & 54----Constitution of Pakistan (1973), Arts. 4 & 5---Suit for declaration and permanent injunction---Approval of auction of suit plot by Cantonment Board in year, 1982 in favour of plaintiff as highest bidder---Payment of entire bid money to Board by plaintiff---Decision of Board to return such paid-up amount to plaintiff due to imposition of ban in year 2001 on execution of lease deed---Validity---Lawful bid of plaintiff was accepted subject to deposit of bid amount, which he had already deposited and had not violated any law---Board had been utilizing amount paid to them---Subsequent imposition of ban would not apply to cases, which had already been sanctioned for execution of lease deed subject to payment of dues---Plaintiff cannot be allowed to suffer due to failure of Board to finalize such matter by executing lease deed in time---Board was estopped to pass an order for return of bid amount already paid by plaintiff---Impugned order was discriminatory being violative of provisions of Arts.4 and 5 of the Constitution---Suit was decreed by delivering possession of suit plot to plaintiff and executing lease deed in his favour through Nazir of Court.

Mst. Rehana Asghar v. Military Estate Officer Lahore Circle Lahore and 2 others 2005 MLD 28 Lah.; Ibrahim v. Mst. Rajji PLD 1956 (W.P.) Lah. 609; I1am Din v. Muhammad din PLD 1964 SC 842; Faiz Elahi v. Shamir 1991 CLC 2005; Syed Ali Shah v. Government of Pakistan Ministry of Defence 1994 CLC Lah. 369; Federation of Pakistan v. Choudhry Muhammad Aslam 1986 SCMR 916; Shrim Munir and others PLD 1990 SC 295 and Government of Pakistan Secretary Ministry of Religious Affairs and 3 others 1992 CLC 219 ref.

Ashraf Ali Butt Applicant.

Shaikh Abdul Majid for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 1601 #

2009 Y L R 1601

[Karachi]

Before Munib Ahmad Khan, J

SHAHAB SHAHZAD MIRZA---Appellant

Versus

NADEEM AHMED---Respondent

H.C.A. No.250 of 2006, decided on 28th October, 2008.

Contract Act (IX of 1872)---

---S.55---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement of sale---Interpretation of sale deed---When there was dispute in respect to the interpretation of deed of sale, the Court had to consider the relevant documents---As a rule, normally time was of the essence of the contract in a movable property, but in respect to the immovable property, time could not be taken as essence of contract unless it was specifically fixed under the contract---Since there was some time fixed in the contract, it was to be interpreted in the light of clauses of the agreement, the conduct of the parties, the correspondence following the agreements as well as action and inaction by the parties at the relevant time.

PLD 1983 SC 344; 1995 SCMR 1431; 1998 SCMR 2485; 2003 YLR 110 and 2003 YLR 93 ref.

Abdul Waheed Kanjo for Appellant.

Ishrat Alvi for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 1604 #

2009 Y L R 1604

[Karachi]

Before Ghulam Dastagir A. Shahani, J

Malik DILNAWAZ---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.226 of 2008, decided on 5th November, 2008.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), Ss. 506-B/504/451/338---Quashing of proceedings---Application for---Investigating Officer recommended for disposal of the case against applicant/accused under 'C' class as according to Investigating Officer applicant was innocent and was implicated with mala fide intention---Magistrate, however, disagreed with the report of Investigating Officer---Said order of the Magistrate had been impugned by the applicant in his application---Recommendation of Investigating Officer for disposal of the F.I.R. as C-class case on the ground that the complainant had failed to produce her witness, prima facie, was unjustified and without merit---Nothing was on record that complainant or witnesses were called by serving a notice, though it was the duty of the Investigating Officer to investigate the matter---Only recording of F.I.R. was not sufficient as same was only information and could be recorded by anyone and matter was to be investigated in accordance with law---Prima facie, at that satage directions issued by the concerned Magistrate, were proper, legal and in accordance with law---Magistrate was duty bound to scrutinize the matter when report was submitted before him; though it depended upon the Magistrate to agree or disagree, as opinion of the Police was not binding upon him---Merits of the case were to be considered and determined at the trial---No illegality or material irregularity and violation of law was pointed out by the counsel appearing for the applicant/accused---No indulgence of High Court was necessary, in circumstances.

Sardar Sher Afzal for Applicant.

Ms. Fatima Jameela Jatoi for the State.

2009 Y L R 1627

[Karachi]

Before Azizullah M. Memon and Abdur Rehman Faruq Pirzada, JJ

MUHAMMAD ASHRAF and another---Appellants

Versus

Mst. KOKAB BENAZIR FATIMA and 5 others---Respondents

H.C.A. No.197 and C.M.As. Nos. 1137 and 1138 of 2008, decided on 13th March, 2009.

Specific Relief Act (I of 1877)---

----Ss. 12 & S6---Contract Act (IX of 1872), S.187---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for specific performance of sale agreement, permanent injunction and damages---Suit property belonging jointly to defendants being brothers' and sisters inter se---Plaintiff's plea was that defendant for himself and as attorney of co-defendants agreed to sell him suit property---Rejection of plaint, application for---Plea of co-defendants was that they had not authorised to execute such agreement on their behalf in favour of plaintiff---Validity---Evidence would be required for determining question, whether co-defendants had authorized defendant to execute such agreement on their behalf---Prayers of damages and permanent injunction made in plaint would also require recording of evidence---Application for rejection of plaint was dismissed in circumstances.

PLD 1963 SC 244 and 2008 SCMR 236 ref.

Abdul Qadir Khan for Appellants.

S.M. Gharib Nawaz Daccawala for Respondent No.1.

None else present for other Respondents.

Date of hearing: 13th March, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1637 #

2009 Y L R 1637

[Karachi]

Before Arshad Noor Khan and Muhammad Athar Saeed, JJ

Ch. ZULFIQAR ALI and others---Petitioners

Versus

THE STATE---Respondent

C.P. No.D-1657 of 2008, decided on 9th February, 2009.

National Accountability Ordinance (XVIII of 1999)---

----Ss.16-A, 18(g) & 24(b)---Constitution of Pakistan (1973), Art 199---Constitutional petition---Bail, grant of---Accused had been in custody for almost four years and it did not seem possible that the reference against accused could be finalized within a period of one month---Even otherwise though the non following of the procedure provided under S.16-A of the National Accountability Ordinance, 1999 could not vitiate the proceedings, but carrying on of the reference against accused almost for four years was beyond the comprehension of the court; and it was apparent that the delay had occurred due to non-availability of the Special Prosecutor---Accused was admitted to bail, in circumstances.

Ch. Zulfiqar Ali v. The State PLD 2002 SC 540; Ghulam Hussain.v. The State 2008 MLD 350; Khawaja Muhammad Khan Tanoli v. The State 2008 MLD 352 and Ayaz Younus v. The State 2006 MLD 452 ref.

Shafaat Nabi Khan Sherwani for Petitioner.

Ch. Muhammad Iqbal, D.P.G.A., NAB for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 1648 #

2009 Y L R 1648

[Karachi]

Before Mrs. Qaiser Iqbal, J

SHAMSUL ARFIN and others---Petitioners

Versus

KBCA and others---Respondents

C.P. No.162 of 2007, heard on 16th January, 2009.

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

----Ss. 15(2)(vii), 15-A & 21---Limitation Act (IX of 1908), Act 181---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenants on ground of personal bona fide need of landlord---Execution of ejectment order---Restoration of possession of the premises---Applications for---Rent Controller allowed ejectment application filed by respondent/landlord on ground of personal bona fide need and Appellate Court maintained judgment of Rent Controller---In the second round of litigation the petitioners/tenants filed application under S.15-A of Sindh Rented Premises Ordinance, 1979 for restoration of the possession of the premises alleging that landlord had committed fraud disobeying the undertaking submitted before the Supreme Court---Petitioners/tenants had failed to produce any evidence to demonstrate re-leting of premises by the landlord or any violation committed by the landlord after getting the premises vacated---Tenants filed application under S.15-A of Sindh Rented Premises Ordinance 1979 after more than 45 months of vacation of the premises---One year's period provided under the statute was available to the tenants to invoke S.15-A of Sindh Rented Premises Ordinance, 1979, whereas tenants remained silent for 45 months---Even if Art.181 of Limitation Act, 1908 was extended to the benefit of the tenants, applications filed by them for restoration were not maintainable in law being barred by limitation---Legislature had taken care to regulate the conduct' of landlord by enacting S.15-A of Sindh Rented Premises Ordinance, 1979 to forestall misuse of orders, if any, by the landlord after ejectment order on personal need was obtained and had provided complete check up on the landlord for restoration of the possession to the tenant and penalty provided thereto on the appraisal of the undertaking, to the effect that the property would be used by the landlord for personal use and would not be relet to any other party---Counsel for petitioner had admitted that landlord had not relet the premises---No fraud or misrepresentation or violation of S.15-A of Sindh Rented Premises Ordinance, 1979 was spelled out from the circumstances emerging from the record of the case---Constitutional petitions filed by the petitioners, being not sustainable in law, were dismissed.

2001 SCMR 668; Dr. M. Murtaza Hussain v. Muhammad Mustafa PLD 1986 Kar. 199; Mazharuddin v. Hussain Bakhsh and others PLD 2005 Kar. 205; Muhammad Bashir v. Sakhawat Hussain 1991 SCMR 846; Kh. Ashraf Ahmed and others v. Ashiq Hussain Bhatti and others 1991 CLC 1164; S. Muhammad Saeed through legal heirs v. Messrs Glamour Properties (Pvt.) Ltd. Karachi 1955 CLC Kar. 316; Jannat ul Haq an 2 others v. Abbas Khan and 8 others 2001 SCMR 1073 and Muhammad Yousuf through legal heirs and others v. Noor Din and others PLD 2002 SC 391 ref.

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

----Art.199---Constitutional jurisdiction---Scope---Scope of constitutional jurisdiction was very limited and Constitutional petition would not warrant interference in the concurrent findings of two courts below.

Siddique Mirza for Petitioner.

Mushtaq A. Memon and Shahid Ali Ansar for Respondent No.1.

Date of hearing: 16th January, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1653 #

2009 Y L R 1653

[Karachi]

Before Muhammad Athar Saeed and Arshad Noor Khan, JJ

AKHTAR H. ASKARI---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and 2 others---Respondents

Constitutional petition No.D-2055 of 2006, decided on 16th October, 2008.

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

----S.2---National Reconciliation Ordinance (IX of 2007) Preamble---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Removing name from Exit Control List---Petitioner had prayed that his name be directed to be removed from Exit Control List---Counsel for the petitioner had filed a letter issued by National Accountability Bureau, where information was given by the Authorities that in view of the National Reconciliation Ordinance, 2007, by operation of law the proceedings against the petitioner stood terminated---Despite the fact that present constitutional petition was pending for the last two years, no substantive material had been placed before the High Court in support of putting the name of the petitioner in Exit Control List--Allowing petition, authorities were directed to remove the name of the petitioner from the Exit Control List.

Wasim Akbar for Petitioner.

Iqbal Chaudhry, A.D.P.G. NAB.

Rizwan Siddiqui, D.A.-G.

YLR 2009 KARACHI HIGH COURT SINDH 1666 #

2009 Y L R 1666

[Karachi]

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

GHULAM NABI SHAIKH---Appellant

Versus

PAKISTAN EMPLOYEES' COOPERATIVE HOUSING SOCIETY and 4 others---Respondents

High Court Appeal No.263 of 2007, decided on 20th March, 2009.

Law Reforms Ordinance (XII of 1972)---

----S.3---Limitation Act (IX of 1908), Arts.12 & 151---Civil Procedure Code (V of 1908), S.114, O.XLVII & R.1---High Court appeal---Limitation---Review application---On date when counsel for the appellant came to the court for filing appeal, there was disturbance in the High Court and senior members of the bar were not allowed to enter the premises---When counsel for the appellant tried to enter the court, Police arrested , him from the gate, but later on released him---On that date appeal to be filed was in time, but due to said circumstance counsel had to file appeal on the next day---Delay of one day in filing appeal was liable to be condoned in circumstances---Delay was rightly condoned and review application filed by respondents against condonation of delay, was dismissed.

Khawaja Muhammad Afzal and another v. Sh. Muhammad Sadiq 1988 SCMR 179; Abdul Subhan and 3 others v. Chief Settlement and Rehabilitation Commissioner, Pakistan and 2 others 1987 MLD 2736; Yaqeen-ud-Din and others v. Abdul Majid and others 1975 SCMR 305; Sh. Bashir Ahmed v. Mudassar Hayat 2005 SCMR 1120; Cooperative Model Town Society v. Mst. Asghari Safdar and others 2005 SCMR 931; Muhammad Ramzan v. Mst. Alah Wasai and 3 others 2006 MLD 1577; Amanullah Khan and 5 others v. Mst. Hayat Bibi and 4 others 2006 CLC 1546; Muhammad Siddique and 10 others v. Raj Begum and 39 others 2008 CLC 61; Sabu Ram v. Heman Das 1973 SCMR 555; Peninsular and Oriental Steam Navigation Col. Pfizer Laboratories Ltd. Karachi 1980 CLC 1972 and Shujjat Hussain v. Muhammad Habib and another 2003 SCMR 176 rel.

Mirza Sarfaraz Ahmed for Appellant.

Mushtaq, A. Memon for Respondents.

Date of hearing: 23rd February, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1672 #

2009 Y L R 1672

[Karachi]

Before Khilji Arif Hussain and Syed Mahmood Alam Rizvi, JJ

ATA-UR-REHMAN---Appellant

Versus

FAHEEM AHMED---Respondent

H.C.A. No. 194 of 2007, decided on 16th December, 2008.

Specific Relief Act (I of 1877)---

----S.12---Law Reforms Ordinance (XII of 1972), S.3---Suit for specific performance of sale agreement---High Court appeal---Vendor agreed to sell suit property to vendee for total sale consideration of Rs.12,000,000 and out of said sale consideration Rs.2,000,000 were paid by the vendee to the vendor at the time of signing of agreement of sale and balance sale consideration was payable at the registration of conveyance deed---Case of vendor was that vendee could not complete the transaction within the stipulated period as he did not possess sufficient funds and he failed to complete transaction---Single Judge of High Court decreed the suit with direction to the vendee not only to deposit the balance sale consideration, but also pay additional amount being the element of interest---Counsel for vendor had contended that vendee was not entitled to the equitable relief of specific performance as he had failed to perform his part of obligation for want of sufficient funds; on the other hand counsel for the vendee had contended that as per terms of agreement of sale, vendor was required to provide before execution of registered sale deed in favour of vendee, B-Lease of suit property and completion certificate issued by the Cantonment Board----Completion certificate was issued to the vendor, but B-Lease was not issued till filing of suit for specific performance by the vendee---Registered conveyance deed could be executed only after B-Lease was issued by the Pakistan Defence Officers Housing Authority in favour of the vendor, which was not issued in his favour---Vendor being not in a position to perform his part of obligation and he having failed to make out marketable title of property within stipulated time, he had failed to make out a case for interference in the judgment and decree passed by the Single Judge.

Abdul Hamid v. Abbas Bhai-Abdul Hussain PLD 1959 (W.P.) Kar. 629; Muhammad Sharif v. Mst. Fujji alias Phaji Begum Legal Heirs and another, 1998 SCMR 2483; Muhammad Sharif v. Mst. Fajji and others 1996 CLC 883; Koyana Suryanarayana Reddy v. Co. Chellayyamma 1990 MLD 443; Tasawar Khalil and another v. Matinur Rahman PLD 1993 Kar. 780; Mst. Amina Bibi v. Mudasar Aziz PLD 2003 SC 430; Abdul Hamid v. Abbas Bahi Abdul Hussain PLD 1962 SC 1; Zaheer Ahmed v. Abdul Aziz 1983 SCMR 559; Bahawood-Deen v. B.G. Desouza PLD 1974 Quetta 36; Ghulam Nabi v. Muhammad Yaqib PLD 1983 SC 344; Essabhoy v. Sabhoor Ahmed PLD 1973 SC 497; Musarat Shaukat Ali v. Safia Khatoon 1994 SCMR 2189 and Sandoz Limited v. Federation of Pakistan 1995 SCMR 1431 ref.

Anwar Muhammad Siddiqui for Appellant.

Naveedul Haq for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 1688 #

2009 Y L R 1688

[Karachi]

Before Ms. Soofia Latif, J

MUHAMMAD YOUSAF---Plaintiff

Versus

IRFAN and 4 others---Defendants

Suit No. 1109 of 2003, decided on 13th May, 2009.

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

----Ss. 39 & 42---Cancellation of document---Declaratory suit---Maintainability---Suit for cancellation of instrument lies through declaration for cancellation of instrument declaring it to be void and voidable.

(b) Words and phrases---

----`Instrument'---Meaning.

Chamber's English Dictionary and Black's Law Dictionary ref.

----Ss.202 & 203---Irrevocable power of attorney---Scope---There are only two kinds of power of attorney, firstly special and secondly general---Word "irrevocable" mentioned before or after text cannot place any embargo to powers of executant to revoke it at any time---Once relationship between principal and agent is created by contract, the incident of contract of agency are governed and have to be determined by applying provisions of Contract Act, 1872---Terms of power of attorney make power of attorney irrevocable or impose restrictions or circumstances to limitation within which power of revocability should be exercised but within the region of contract---There is no reason to exclude right of revocation which is recognized under S.203 of Contract Act, 1872.

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

----Ss.39 & 42---Contract Act (IX of 1872), Ss.202 & 203---Cancellation of document--Irrevocable power of attorney---Scope---Plaintiff sought declaration to the effect that transfer of suit property in favour of defendants by his attorney was fraudulent and based upon forged receipts---Validity---Agent of plaintiff acquired an interest in suit property forming part of agency within the meaning of S.202 of Contract Act, 1872---Plaintiff could not revoke authority by his own act by investing fact of irrevocability of general power of attorney in the deed itself---Plaintiff also incurred such liability by operation of law as contained in S.202 of Contract Act, 1972---Plaintiff had entailed his legal disability by his own act by inserting fact of irrevocability of general power of attorney in the deed itself as also in the collateral agreement thus incurring liability by operation of law as contained in S.202 of Contract Act, 1872---Cancellation deed of such power of attorney had no legal effect and same could not operate against authority of general attorney given to him by general power of attorney itself---Attorney on the basis of the power got executed conveyance deed under the law in favour of defendants who proved that they were bona fide purchasers having paid, valuable consideration for purchase of suit property---Rights acquired by defendants in suit property could not be allowed to be defeated only for the reasons that they had purchased suit property for less than prevailing market price---Defendants had purchased suit property in good faith for value and sale deed was neither fraudulent nor invalid and it could not be cancelled---Suit was dismissed in circumstances.

PLD 1979 Kar. 22; Haji Dawood v. Mst. Rahima Bibi PLD 1976 Kar. 316; 2004 CLC 1500; Abdul Rahim v. Mukhtar Ahmed and others 2001 SCMR 1488; Anis Fatima v. Anwar Hussain 1992 CLC 2137; PLD 1972 SC 25; Sarsher Ali v. Roberts Cotton Association Ltd. and another PLD 1963 SC 244; Calcutta Law Journal Volume XVIII, 1913 Pages 621 and 251 Indian cases 1934 pages 173 rel.

PLD 1986 SC 519; PLD 1986 Pesh. 109; PLD 1996 Pesh. 86: PLD 1994 Kar. 194; 2001 SCMR 1488 and 1992 CLC 2137 distinguished.

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

----S.41---Ostensible owner---Bona fide purchaser for valuable consideration---Necessary ingredients---Provision of S.41 of Transfer of Property Act, 1882, intends to protect bona fide purchaser for value and it provides exception to general rule that transferor cannot transfer upon his transferee a better title than he himself has---Reasonable care and good faith are necessary ingredients to invoke provision of S.41 of Transfer of Property Act, 1882---Reasonable care means such care as an ordinary man of business or person of ordinary prudence would take---It is a question of fact depending on circumstances of each case.

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

----S.41---Transfer by ostensible owner---Principle---Law protects and guards interest of third parry and unless it is shown that he acted in bad faith, sale deed cannot be cancelled.

Kanhaiya Lal and another v. Ganga Baklish Singh AIR 1919 Oudh 201 rel.

Imran Ahmed for Plaintiff.

Muhammad Yasin Azad for Defendants.

Date of hearing: 19th March, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1707 #

2009 Y L R 1707

[Karachi]

Before Maqbool Baqar and Abdur Rehman Farooq Pirzada, JJ

Mrs. HAJRA BEGUM---Petitioner

Versus

BOARD OF TRUSTEES, ISLAMABAD and another---Respondents

C.P. No.D-1016 of 2007, decided on 19th May, 2009.

Abandoned, Properties (Takingover and Management) Act (XX of 1975)---

----Ss. 2(a)(f) & 15---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Abandoned property, declaration of---Purchase of mortgaged plot through registered agreement dated 3-2-1970 and delivery of its possession and lease deed by vendor or vendee on 4-3-1970---Execution of irrevocable power of attorney by vendor in favour of husband of vendee for executing sale-deed in her favour after redeeming plot from House Building Finance Corporation---Execution of sale-deed on 26-5-1975 by attorney of vendor in favour of vendee after redeeming plot on 16-4-1974 from such corporation on payment of its dues---Order of authority declaring such plot to .be abandoned property---Validity---Nothing on record to show that vendor was domiciled in East Pakistan or had either left Pakistan or ceased to be a citizen of Pakistan---Such plot could not be said belonging to a "specified person" as defined in Abandoned Properties (Takingover and Management) Act, 1975---Sale-deed in favour of vendee could not be executed before redemption of plot from such corporation---High Court set aside impugned order for being without jurisdiction.

Muhammad Rafiullah v. The Board of Trustees for Abandoned Properties and another 1987 MLD 558 rel.

Shahenshah Hussain for petitioner.

Syed Tariq Ali, Federal Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 1724 #

2009 Y L R 1724

[Karachi]

Before Mrs. Yasmin Abbasey and Muhammad Ismail Bhutto, JJ

JAN ALAM---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 60 of 2007, decided on 8th April, 2009.

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

----S. 9(c)---Appreciation of evidence---Despite having known during investigation the actual owner of case property and transportation of the same through the truck of co-accused, Investigating Officer did not try to reach the main culprit---Purpose of Control of Narcotic Substances Act, 1997, was to control and prevent- the spread of narcotic substance by detecting the very first source, which was disturbing the peace and tranquility of society and not to involve a person just to show the surface efficiency in detection of crime---Police was competent under the law to carry out investigation to submit correct and true facts brought in their knowledge, even after submission of challan for proper adjudication of the case---Out of 100 packets of "Charas" recovered from the truck sample was taken only from three packets---Substance sent to Chemical Examiner was found totally different from one recovered in the case---Defence of accused that he just took the lift from the actual driver of the truck who had been released by the prosecution and he had been falsely involved in the case, could not be overlooked in toto---Non-association of independent person despite the recovery having taken place at public place was itself a question mark in such circumstances---Prosecution had failed to prove its case against the accused who had spent five years of his life in jail and this period of detention would be termed as illegal confinement, which could not be returned back to him--Accused was acquitted in circumstances.

Amanat Ali v. State 2008 SCMR 991; Sher Khan v. State 2003 MLD 259; Tariq Pervez v. State 1995 SCMR 1345 and Ali Hassan v. The State PLD 2001 Kar. 369 ref.

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

----S. 9(c)---Appreciation of evidence---Benefit of doubt---Many circumstances creating doubts are not necessary---Single circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, makes him entitled to its benefit not as a matter of grace and ,concession, but as a matter of right.

Tariq Pervez v. State 1995 SCMR 1345 ref.

----Ss. 25 & 9(c)---Criminal Procedure Code (V of 1898), S.103---Search and arrest, mode of---Exemption of S. 103, Cr.P.C.---Effect---Exclusion of S. 103, Cr.P.C. from being applicable to cases under the Control of Narcotic Substances Act, 1997, may provide a legal technical support to the admissibility of the evidence of official witnesses, but it does not make them reliable---Legislation cannot make a man moral---Evidence of such official witnesses should always be examined keeping in view the fact that in present society having unfortunately the prevailing moral values, a subordinate official is seldom expected the tell the truth against the expressed or implied instructions of his superior.

Ali Hassan v. The State PLD 2001 Kar. 369 ref.

Abdul Baqi Jan Kakar for Appellant.

Fazal Muhammad Khokhar, Special Public Prosecutor for Excise cases for Respondent.

Date of hearing: 8th April, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1738 #

2009 Y L R 1738(1)

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.116 of 2007 and M.A. No.5738 of 2007, decided on 23rd January, 2008.

Criminal Procedure Code (V of 1898)---

----S.439---Revision petition---Restoration of dismissed revision petition, application for---Maintainability---Revision petition was dismissed by the order of the High Court that impugned order passed by the Trial Court did not need any interference---Counsel for the petitioner had filed application for restoration of revision petition---Revision petition having been disposed of on merits, application for restoration of revision petition was not maintainable.

Ms. Mehmooda Qasim for Applicant.

Afsheen Aman for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1748 #

2009 Y L R 1748

[Karachi]

Before Ms. Soofia Latif, J

ALI SHER---Plaintiff

Versus

FAKHRE ALAM SHAH---Defendant

Suit No. 1631 of 2007, in C.M.As. Nos.10648 of 2007 and 3804 of 2008, decided on 29th April, 2009.

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

----O. XXXIX, Rr.1 & 2---Interim injunction, grant of---Principles---Person who seeks. temporary injunction must satisfy Court firstly, that there is serious question to be tried in suit and that on facts before Court there is probability of his being entitled to relief asked for by him; secondly, that Court's interference is necessary to protect him from that species of injury which Court calls irreparable before his legal rights can be established on trial; and thirdly, that comparative mischief or inconvenience which is likely to issue from withholding injunction will be greater than that which is likely to arise from granting it.

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

----S.12---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Specific performance of agreement to sell---Facts to be proved---To obtain injunction in suit for specific performance, plaintiff must prove existence of contract and to show prima facie that agreement upon which he is basing his claim for specific performance is lawful contract' and has binding force in law.

Khayaban-e-Iqbal (Pvt.) Ltd. v. Mustafa Haji Muhammad 1996 CLC 1758 rel.

----O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Prima facie case---Scope---In order to make out prima facie case necessary for granting interim injunction, plaintiff need not to establish his title---It is enough if plaintiff can show that he has fair question to raise as to existence of right which he alleged and can satisfy Court that pending decision of suit his right in disputed property be preserved.

Delbaz Khan v. The State PLD 1959 Lah. 264 rel.

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

----Ss.12 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Forcible dispossession---Prima facie case---Proof---Plaintiff claimed that on the basis of agreement to sell, he was in possession of two excavator machines but defendant wanted to dispossess him forcibly---Validity---To obtain temporary injunction plaintiff had good prima facie case as he had been in possession of two excavator machines since 10-3-2005, which possession should not be interfered with till decision of suit---Plaintiff would suffer irreparable loss if injunction was refused at such stage and purpose of suit would be frustrated and he might not be able to get possession of machines in question again without difficulty, if he ultimately would succeeds to prove his title over the' machines on the basis of sale agreement through evidence---Balance of convenience was also in favour of plaintiff---Defendant would not suffer any injury if injunction was granted as even after grant of injunction he could claim possession of machines in question in the manner as required by law and injunction order would in no way restrict defendant's legal right---High Court restrained defendant from interfering in possession of machines in question which was with plaintiff---Application was allowed accordingly.

Administrator Auqaf Department and 4 others v. Abdul Rauf and 3 others 2005 MLD 1219; Shahzada Muhammad Umer Baig v. Sultan Mehmood Khan and another PLD 1970 SC 139; Malik Muhammad Ishtiaq v. Abida Parveen 2006 YLR 20; Khayaban-a-Iqbal (Pvt.) Ltd. v. Mustafa Haji Muhammad 1996 CLC 1758 and Delbaz Khan v. The State PLD 1959 Lah. 264 ref.

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

----O. XXXIX, Rr.1 & 2---Interim injunction, grant of---Balance of convenience---Duly of Court---Scope---Court should weigh amount of substantial mischief that is likely to be done to plaintiff, if injunction is refused---Court has to compare mischief which is likely to be caused to the other side if injunction is granted.

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

----O. VII, R. 11---Rejection of plaint---Principles---While considering application under O. VII, R.11 C. P. C., averments of plaint are to be considered as true and thereafter if plaint comes within any clause of O. VII, R.11 C.P. C., then it should be rejected---Such rule is merely of procedure and may be applied at any stage of the suit---Power to reject plaint should not be exercised except in very exceptional circumstances in a case where Court comes to the conclusion that even if all allegations are to be proved, plaintiff could not be entitled to any relief---If there is any serious question to be tried, proper course is to let the suit proceed and then determine the matter on preliminary issues.

AIR 1921 Sind 106; AIR 1933 Sind 1; PLD 1954 Sind 70 Pahloomal Motiram v. Abdul Quddus Behari and 8 others PLD 1971 Kar. 250; Shahnaz Abbas v. Pace (Pakistan) Ltd. through General Manager 2005 CLC 856; Mst. Nasreen Begum and others v. Province of Punjab through District Collector 2006 MLD 775; Farzand Ali v. Fateh Muhammad 2005 CLC 1223; Sarwar Khan v. Habibullah 2004 CLC 1312; Abdul Rehman v. Sher Zaman and another 2004 CLC 1340; Haji Shaukat Ali v. Abdul Rasheed 2004 CLC 755; Rafiq Ahmed Khan v. Province of Punjab and others 2004 SCMR 1065; Mst. Kulsoom Fatima v. Wazir Ali 1991 MLD 1810; Bare Muhammad v. Mst. Aziza Begum 2001 CLC 761; Mst. Bilqees and others v. Bhana PLD 1980 Lah. 322 and Mst. Surraya Bai v. Government of Pakistan PLD 1973 Lah. 372 rel.

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

----Ss.12 & 54---Civil Procedure Code (V of 1908), O. VII, R.11---Rejection of plaint---Procedure---Defendant sought rejection of plaint on the basis of averments made in written statement---Validity---If at such stage plaint was rejected on the grounds taken by defendant in application under O. VII, R.11, C.P. C., then it would amount to rejecting it on the basis of averments made in written statement and in affidavit annexed with the application and not on the plaint itself---It would be open for defendant to raise such issue at trial and establish the same through evidence---High Court declined to reject the plaint on the basis of averments made in written statement--Application was dismissed in circumstances.

Ghulam Nabi Shaikh for Plaintiff.

Ghulam Shabbir Babar for Defendant.

YLR 2009 KARACHI HIGH COURT SINDH 1758 #

2009 Y L R 1758

[Karachi]

Before Khalid Ali Z. Qazi, J

ALI MUHAMMAD MAHRIO and others---Plaintiffs

Versus

CDGK and others---Defendants

C.M.A. No.1447 of 2007, decided on 25th April, 2008.

(a) Specific &fief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent, injunction---Plaintiffs/applicants who were owner of plot situated in a Co-operative Housing Society, filed application under O.XXXIX, Rr.1, 2, C.P. C., seeking orders restraining defendants from installing a C.N.G. Station. at the plot adjacent to his plot---Plaintiff's had contended that residential status of the area concerned and the safety of the occupants and residents of the area would be seriously affected in case the defendant was allowed to install a C.N.G. Station; .it was alleged that the conversion of residential plot into C.N.G. Station was in total violation of the procedure laid dawn under Building and Town Planning Regulations---Plaintiffs had contended that plot in question was situated in the residential area and residential plots were located around the same and it would be highly unjustified, if such conversion was allowed or the defendant was allowed to install C.N.G. Station on the that plot---Validity---Area whereupon C.N.G. filling station was proposed to be constructed had been in use as commercial area and all the residential plots had been converted from residential to commercial, including the plot of the plaintiff---Various commercial activities were already being carried out on the same Road which included C.N.G. Station as well, but the plaintiff raised no objection in respect of the other plots on the same Road---Plaintiffs had got no legal character, right or status in the property in question and could be hit under S.42 of Specific Relief Act, 1877---All permission, No Objection certificate and licenses had been obtained by the defendant after substantial violation of any rules, regulation and law had been made and in tentative assessment no cause accrued to the third party---Plaintiffs had no prima facie case--Balance of convenience was also not in favour of the plaintiff as great inconvenience would be caused to the owner of the subject property who was exercising his legal rights to deal with the property as per law---No irreparable loss would be caused to the plaintiff, if injunction was refused to them because the loss, if any, could be compensated in the shape of damages---Application for grant of injunction was dismissed and interim order passed earlier was vacated.

PLD 2007 SC 472; 2008 SCMR 133; 2004 CLC 767; 1984 CLC 340 and PLD 2006 Lah. 339 ref.

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

----O.XXXIX, Rr.1 & 2---Relief of injunction---Injunction was discretionary and court was not to grant same 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 to assess all the circumstances obtaining in suit and more so, to equitable relief---Discretion vested in a court of law which had to be exercised judiciously and equitably ensuring all times, that the twain of law and justice were adequately applied and administered.

2000 SCMR 780 rel.

Imtiaz Agha for the Plaintiff.

Tahawar Ali Khan for the Defendant No. 1.

Iqbal Memon, Advocate for the Defendant No.2.

Raja Qureshi, Advocate for the Defendant No.3.

Salahuddin Ahmed, Advocate for the Defendant No.4.

YLR 2009 KARACHI HIGH COURT SINDH 1767 #

2009 Y L R 1767

[Karachi]

Before Khalid Ali Z. Qazi, J

VENU G. ADVANI---Plaintiff

Versus

Messrs TRADESMAN INTERNATIONAL (PVT.) LTD. through Chief Executive

and 2 others---Defendants

Suit No.149 and C.M.As. Nos. 484, 6515 of 2007, decided on 22nd May, 2009.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O.XXXVIH, R.5---Attachment of property before judgment---Principles---Plaintiff sought attachment of suit property before passing of decree on the ground that defendant was about to dispose of property and withdraw entire amount from bank accounts with intent to obstruct decree that would be passed against him---Validity---Court, if satisfied by affidavit or otherwise that defendant, with intent to obstruct or delay execution of any decree that might be passed against him was about to dispose of the property, at any stage of suit, it could pass an order under O. XXXVIII, R.5 C. P. C.---Allegations contained in supporting affidavit of plaintiff were denied by defendant in counter affidavit but no rejoinder from plaintiff's side had been filed---Fact that no specific allegation had been mentioned in affidavit of plaintiff against defendant and that defendant had not transferred any property to any one prior or after institution of the suit, plaintiff failed to make out prima facie case to establish intention of defendant to attract provisions of O. XXXVIII, R.5 C.P.C.-Application was dismissed in circumstances.

Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089; Pakistan Cement industries Ltd. v. Teekayef Trading Co. PLD 1971 Lah. 522; West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement) 2007 SCMR 1318 and Lt. Muhammad Sohail Anjum Khan and others v. Abdul Rasheed Khan ,and others 2003 MLD 1095 ref.

Mirza Sarfraz Ahmed for Plaintiff.

Tahir Mehmood for Defendant No.1.

Asif Ali for Defendant No.3.

Date of hearing: 18th May, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1777 #

2009 Y L R 1777

[Karachi]

Before Muhammad Karim Khan Agha, J

HASHIM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.402 of 2009 and 550 of 2008, decided on 28th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.396 & 397---Bail, grant of---No doubt it was a very serious case and in such cases bail was rarely granted, especially where strong linkage of accused appeared to be with the crime---However, it was the obligation of the State to prove its case against accused beyond any reasonable doubt and until that time, accused was presumed to be innocent---Undue delay had occurred in the trial of the case and it had not been concluded within a period of six months---Nearly a year had passed, but the trial had not been completed despite direction of the High Court that trial be completed within the six months---Such was the violation of the order of the Court---Case had not proceeded due to no fault of accused---Out of 14 prosecution witnesses, only 4 witnesses had been examined---Accused was in jail for the last six years and there was little prospect that the trial could be concluded in the near future, even if High Court was to give further directions---Constitution of Pakistan had provided that no person should be deprived of his liberty, unless in accordance with law---If a person was detained under the law then he should be tried and dealt with expeditiously---To detain someone for over six years was an abuse of process of law by the prosecution, whose obligation was to ensure that the trial was expeditious---Bail could be granted in hardship cases, even in the cases where the offences were of serious nature---Accused was admitted to bail, in circumstances.

Hidayatullah v. State 2007 YLR 1311 rel.

Ajab Khan Khattak for Applicant.

Fazal-ur-Rehman Awan for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1800 #

2009 Y L R 1800

[Karachi]

Before Azizullah M. Memon and Abdul Rehman Farooq Pirzada, JJ

MUHAMMAD RAUF QADRI JUNADI---Petitioner

Versus

CITY DISTRICT GOVERNMENT KARACHI and others---Respondents

C.P. No.D-1205 of 2007, decided on 15th January, 2009.

Constitution of Pakistan (1973)---

----Art. 189---Decisions of superior court binding on other courts---Principles of law laid down by the Supreme Court are not only binding on all the government departments but the government functionaries serving therein are also duty bound to follow such principles in letter and spirit, and in case of violation of the dicta laid down by the superior courts, the concerned officials shall have to be proceeded against under the law of contempt---Law Officers were also supposed to guide the concerned officers properly with regard to settled principles as laid down by the superior courts.

1999 SCMR 2883 ref.

Nasir Rizwan Khan for Petitioner.

Shaikh Riaz Ahmed for the CDGK.

Abdul Rasheed Nizamani for Respondent No.4. .

M. Sarwar Khan, Addl. Advocate-General.

YLR 2009 KARACHI HIGH COURT SINDH 1801 #

2009 Y L R 1801

[Karachi]

Before Khalid Ali Z. Qazi, J

MUHAMMAD JAMIL---Plaintiff

Versus

Mr. VALLEY---Defendant

Suit No.1208 of 2007, decided on 19th May, 2009.

Specific Relief Act (I of 1877)---

----Ss.8, 42 & 54---Civil Procedure Code (V of 1908), O.IX, R.6---Ex parte decree---Non-appearance of defendant---Extensive chances were given to defendant to produce his defence but he failed to appear before Court to contest the matter---Documents annexed with plaint as well as exhibited at the time of cross-examination had also gone unchallenged due to non,-appearance of defendant---Effect---By not filing written statement, defendant failed to refute and negate facts narrated in plaint as well as pointed out at the time of hearing arguments---Documents produced by plaintiff and facts narrated in memo. of plaint had gone unrebutted and unchallenged, therefore, plaintiff

successfully proved his case---Contentions stated in memo. of plaint and affidavit in evidence were in support to each other, hence plaintiff was entitled for relief claimed by him in the suit---As plaintiff failed to produce any substantial material on record in support of his claim of damages and mesne profit, therefore, the same was declined---Suit was decreed accordingly.

Salman Hamid for Plaintiff.

None Present for Defendant.

Date of hearing: 11th May, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1803 #

2009 Y L R 1803

[Karachi]

Before Salman Ansari, J

Haji MUHAMMAD AMEEN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 397 of 2004, decided on 15th January, 2009.

Penal Code (XLV of 1860)---

----Ss. 302/324/34---Appreciation of evidence---Deceased had been proved to have died due to his having received two injuries on the chest, one on the right side and the other on his left, both incised wounds---Post mortem report showed that death of deceased was caused by acute chest injury as a result of some sharp weapon---Role played by accused in common intention to cause the death of deceased, however, would need careful scrutiny---Insertion of S.34, P.P.C., in circumstances hinged on the evidence of complainant to whom deceased had made a dying statement; that he was caught hold of by co-accused and accused and other co-accused caused Chhurry injuries and other co-accused caused danda blows--Such was controverted by the evidence that deceased had received only one injury caused by a hard and blunt object---No injury in circumstances, was caused to deceased by accused and the piece of evidence roping accused in having common intention to murder deceased, should safely be' discarded---Appeal was allowed to the extent that the conviction and sentence recorded by the Trial Court on the charge of Qatl-e-Amd under S. 302, P.P.C. to undergo life sentence awarded to accused was set aside; while the conviction and sentence awarded to said accused under S.324, P.P.C. for attempt to commit Qatl-e-Amd and injuries to the prosecution witnesses, was maintained---Accused was directed to be released from the jail, if he had already undergone the sentence imposed by the Trial Court.

Aurangzeb and Shahadat Awan for Appellants.

Ms. Amna Ansari for the State.

Date of hearing: 29th October, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 1808 #

2009 Y L R 1808

[Karachi]

Before Amir Hani Muslim and Muhammad Iqbal Mahar, JJ

ABDUL KARIM---Appellant

Versus

THE STATE and 4 others---Respondents

Criminal Acquittal Appeal No.D-204 of 2007, decided on 9th April, 2009.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), S. 417(2-A)---Appeal against acquittal---Four months' unexplained delay in lodging the F.I.R. showed the same having been registered after consultation--Incident was unseen---Joint extra judicial confession allegedly made by accused before interested persons was inadmissible in evidence---Recovery of blood-stained iron rod having not been sent to chemical examiner, was of no consequence---Material contradictions in prosecution evidence had made the case doubtful---Accused respondents after acquittal by trial Court had gained double presumption of innocence----Impugned judgment did not suffer from any infirmity---Appeal against acquittal of accused was dismissed in limine in circumstances.

Noor ul Haq Qureshi for Appellant.

Muhammad Azeem Panhwar for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1814 #

2009 Y L R 1814

[Karachi]

Before Arshad Noor Khan, J

Messrs SHADAB DEVELOPERS through Managing Partnership and another---Plaintiffs

Versus

ABDULLAH through Attorney and 9 others---Defendants

Suit No. 1400 of 2004, C.M.As. Nos.5950, 5736 decided on 10th June, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XII, R.6---Suit for declaration, injunction and directions---Pending suit, compromise application was moved for settlement of the dispute---Defendants, in any way, could not be treated as owner of the land in question and since they were not the owners of property in dispute, they could not settle their dispute with regard to the property for which they were no more owners---Compromise application appeared to be a collusive application and an attempt to obtain the land in question by way of decree of the suit---Compromise arrived at between the parties was, therefore, not accepted by High Court.

Muhammad Farogh Naseem for Plaintiff.

Khawaja Muhammad Zahir for Defendants Nos. 1 to 5.

Ahmed Pirzada for Defendants Nos.6 to 9.

YLR 2009 KARACHI HIGH COURT SINDH 1822 #

2009 Y L R 1822

[Karachi]

Before Faisal Arab, J

SIKANDAR MALLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-181 of 2007, decided on 22nd May, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Offences Against Property ( Enforcement of Hudood) Ordinance (VI of 1979), S.20---Penal Code (XLV of 1860), Ss.382, 148, 149 & 34---Bail, grant of---Since co-accused against whom some allegations were levelled in the F.I.R., had been granted bail by the High Court accused could also be enlarged on bail on the ground of rule of consistency---Accused was admitted to bail, in circumstances.

Ghulam Sajjad Gopang for Applicant.

M. Azeem Panhwar for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1827 #

2009 Y L R 1827

[Karachi]

Before Khalid Ali Z. Qazi, J

MEER HASSAN alias AMEER HASSAN---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary Port and Shipping, Islamabad and another---Defendants

Suit No. 1229 of 2007 C.M.As. 8219 of 2007 and 4332 of 2008, decided on 21st May, 2009.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O. VII, R.11---Rejection of plaint---Multiple prayers---Effect--Plaintiff claiming to be owner of suit plot had sought direction to authorities for execution of lease in his favour---Authorities sought rejection of plaint on the ground of absence of cause of action---Validity---In prayer clause, plaintiff not only sought relief for declaration that he was owner of suit plot and direction for execution of lease deed but also sought direction to demolish structure on suit plot---Plaintiff sought further direction to scrutinize and forward construction plan to Building Control Authority in accordance with law---Plaint could not be rejected in piecemeal---Even if one prayer was maintainable, plaint could not be rejected under O. VII, R.11 C.P. C.--High Court declined to reject the plaint filed by plaintiff---Application was dismissed in circumstances.

Anwer Hussain Surya v. Sumari Builders 2008 CLC 418; Ardeshir R. Cowasjee and others v. CDGK and others 2008 CLC 1166; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Jearem and 7 others v. Federation of Pakistan and 2 others 1994 SCMR 826 and General Sales (Pvt.) Ltd. v. Mrs. Daulat 2009 YLR 1182 ref.

Raees Ghulam Sarwar v. Mansoor Sadiq Zaidi PLD 2008 Kar. 458 fol.

Ziaul Haq Makdoom for Plaintiff.

Safdar Mehmood for Defendant No.2.

YLR 2009 KARACHI HIGH COURT SINDH 1834 #

2009 Y L R 1834

[Karachi]

Before Munib Ahmad Khan and Dr. Rana Muhammad Shamim, JJ

HABIB-UR-REHMAN and 7 others---Petitioners

Versus

CITY DISTRICT GOVERNMENT (K.B.C.A., WING), KARACHI through Chief Controller and 6 others---Respondents

Constitutions Petition No.D-467 of 2005, decided on 16th September, 2008.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Claim of the petitioner was that he had purchased 13-37 acres land from two Survey Nos. and had got a lay out scheme approved---Counsel appearing for respondents had submitted that a total 13-26 acres of land was sold while one of the respondents got an approved lay out plan on 14-22 acres---Petitioner had further submitted that certain illegal constructions had been raised by respondents on several plots---Validity---Petition of the petitioner could not be entertained by the High Court in its constitutional jurisdiction as factual issues were involved in the case---Petition was dismissed.

Raja Sikandar Khan Yasir for Petitioner No.1.

Kausar Ali for Petitioner No.1.

Shaikh Munir-ur-Rehman for Respondent No.3.

Neel Keshav for Respondents Nos.4 to 6.

Ms. Afsheen Aman for the K.B.C.A.

Miran Muhammad Shah, A.A.-G.

YLR 2009 KARACHI HIGH COURT SINDH 1846 #

2009 Y L R 1846

[Karachi]

Before Khadim Hussain M. Shaikh, J

KALEEM-UL-REHMAN and 11 others---Applicants

Versus

Mst. HASHIMAN and 9 others---Respondents

Civil Revision Applications Nos. 36 & 37 of 2007, decided on 2nd April, 2009.

Civil Procedure Code (V of 1908)---

----S.115 [as amended by Code of Civil Procedure (Amendment) Act (VI of 1992), S.3]---Limitation Act (IX of 1908), S.5---Revision---Limitation---Delay, condonation of---Revision application was filed in case-after 105 days of impugned judgment, whereas under S.115, C.P.C. (as amended), revision applications were to be filed within 90-days of the decision of subordinate court---Delay of each and every day was to be explained with justification to make out the case for condonation of delay, but applicants had failed to explain the delay in filing revision application---No substance was found in application under S.5 of Limitation Act, 1908 for condonation of delay, same was dismissed.

Ghulam Qadir Tunio for Applicants.

Mukhtair Ahmed Khoso for Respondent No.1.

Date of hearing: 2nd April, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1848 #

2009 Y L R 1848

[Karachi]

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

BANDESH ALI---Petitioner

Versus

MUMTAZ ALI ABRO, MANAGER, A.D.B.P., KHAIRPUR NATHAN SHAH, DISTT. DADU and others---Respondents

Constitutional Petition No. D-296 of 2003, decided on 20th November, 2003.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Maintainability---Factual controversy had been raised in the petition, which was whether any amount of money was forcibly taken from the petitioner by the respondent---Said controversy could not be addressed in constitutional petition---Petition was disposed of with observations that the petitioner could take recourse to other legal remedies including both civil and criminal---Police Authorities were directed to proceed against the respondent only if a cognizable offence was made, out and the petitioner approached them in that regard.

Habibullah G. Ghori for Petitioner.

Muhammad Bachal Tunio, learned Addl. A.G. is present.

Respondent No.1 is present.

Khadim Hussain Shaikh, learned counsel filed power on behalf of Respondent No.1 which is taken on record.

YLR 2009 KARACHI HIGH COURT SINDH 1867 #

2009 Y L R 1867

[Karachi]

Before Khadim Hussain M. Shaikh, J

GOVERNMENT OF PAKISTAN through Secretary, Water and Power Department Islamabad and 3 others---Appellants

Versus

YAR MUHAMMAD and another---Respondents

Civil Appeal No. S-5 of 2001, and M.A. No. 139 of 2007, decided on 29th May, 2009.

Civil Procedure Code (V of 1908)---

----S.96---Wes Pakistan Civil Courts Ordinance (II of 1962), S.7 [as amended by Sindh Civil Courts (Amendment) Ordinance (XXX of 2002)]---First appeal---Transfer of appeal---Pecuniary jurisdiction of District Judge---Appeal against the judgment of Civil Judge was filed by the appellant before the High Court as the matter was beyond the pecuniary jurisdiction of District Judge---By virtue 'of 'West Pakistan Civil Courts Ordinance, 1962, as (Amended) pecuniary jurisdiction of. District Court being unlimited, appellant prayed for transfer of appeal to the court of District Judge---Pecuniary jurisdiction of District Judge being unlimited, appeal stood transferred to the court of District Judge for its disposal according to law.

Azizullah A. Shaikh for Appellants.

Naimatullah Bhurgri for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1874 #

2009 Y L R 1874

[Karachi]

Before Mrs. Qaiser Iqbal, J

ZUFRAN KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.94 of 2008, decided on 17th September, 2008.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), S.161---Prevention of Corruption Act (II of 1947), S.5(2)---Pakistan Criminal Law Amendment Act (XL of 1958), S.6(5)---Quashing of proceedings---Application for---Application filed by the applicant under S. 249-A, Cr.P.C. before the Trial Court having been dismissed, applicant had filed application under S.561-A, Cr.P.C. for quashing of proceedings against him---After submission of report under S.173, Cr. P. C. before the Trial Court, prosecution did not resort to the appropriate Government for seeking sanction for prosecution of the applicant; at the time of taking cognizance---No sanction was available before' the Special Judge nor any letter was written to the competent Authority for grant of sanction---Pre-requisite for taking cognizance in the matter, in circumstances, was missing as the proceedings proposed to be dropped against the applicant were not based upon sufficient evidence---Sanction to prosecute the applicant having not been obtained from the competent Authority under S.6(5) of Pakistan Criminal Law Amendment Act, 1958 by the prosecution, there were no basis for the Trial Court to proceed with the prosecution against the applicant--Impugned order was set aside and allowing application under S.561-A, Cr.P.C. proceedings were quashed and applicant was acquitted from the charges levelled against him.

Qazi Khalid Saif Ullah v. Sh. Lutfur Rehman, Special Judge, Anti-Corruption 1986 PCr.LJ 2619 and Dr. Nazir A Shaikh v. The State 1989 PCr.LJ 1361 ref.

Malik Mehar Awan for Applicants.

Adnan Karim, A.A.-G.

Zafar Ahmed Khan, Additional Prosecutor-General.

YLR 2009 KARACHI HIGH COURT SINDH 1881 #

2009 Y L R 1881

[Karachi]

Before Muhammad Karim Khan Agha, J

MUHAMMAD IDREES QURESHI---Petitioner

Versus

MUHAMMAD KASHIF KHAN and 2 others-Respondents

C.P. No.218 of 2009, decided on 4th June, 2009.

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

----Ss. 2(F) (J), 10 & 15(2) (ii) (iii) (a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on grounds of default in payment of rent and subletting---Mode of payment of rent in case of refusal of landlord to accept rent---Petitioner, who was real tenant had been paying rent of premises, but subsequently when landlord allegedly refused to accept rent, the tenant tendered rent with Rent Controller on miscellaneous application---Alleged sub-tenant was real brother of the petitioner/tenant through him rent was being paid to the landlord---Contention of tenant was that he offered to pay the rent to the landlord and when landlord refused to accept the same, he deposited the amount in the Court---Under provisions of S.10 of Sindh Rented Premises Ordinance, 1979 three modes of payment of rent had been provided, firstly rent should be paid directly to the landlord, secondly in case of refusal or avoidance on the part of landlord rent could be sent through postal money under A.D. and thirdly rent could be deposited with Rent Controller within whose jurisdiction premises was situated---Since the landlord allegedly refused to accept the rent from the petitioner/tenant, the burden shifted to the petitioner to prove that he had tendered the rent to the landlord according to S.10 of Sindh Rented Premises Ordinance, 1979---Court below found petitioner as wilful defaulter, because he had simply started paying rent directly into miscellaneous rent case without being able to prove that he attempted to tender the same to the landlord directly or through pay order which was required before adverting to paying the rent into the miscellaneous rent case---Petitioner, had not been able to produce any postal receipt for the rent which he allegedly sent in terms of S.10(4) of Sindh Rented . Premises Ordinance, 1979---Key to S.10(3) of Sindh Rented Premises Ordinance, 1979 was to prove that the landlord had refused to accept rent, but the petitioner, apart from his own statement, had produced no other evidence that landlord had refused to receive the rent---Petitioner, in circumstances, had failed to prove that he had complied with S.10 of the Sindh Rented Premises Ordinance, 1979---Tenant was rightly held to be real tenant and not sub-tenant, but Authorities had rightly held the tenant as proved to be wilful defaulter in payment of rent---Petitioner was liable for eviction from the suit premises---Petitioner, however was given one year to hand over the vacant possession of the suit premises to the landlord.

Mrs. Freni A. Caving v. Mrs. Dhunmai Phiroze Dalai PLD 1991 SC 265; Muhammad Shafi and Others v. Sultan 2007 SCMR 1602; Trading Corporation of Pakistan Pvt. Ltd. v. Meers Nidera Handeles Scompagnie B.V. 2007 CLC 462; Zulfiqar and others v. Shandat Khan PLD 2007 584; Mrs Shamim Akhtar v. State Life Insurance Corporation PLD 2005 page 554; Messrs Mehraj Pvt. Ltd, v. Miss. Laima Saeed and others 2003 MLD 1033; Zainab v. Mujeeb Ali and another 1993 SCMR 356; PLD 1996 Karachi 440; Pakistan State Oil Co. Ltd. v. Sikandar A. Karim 2005 CLC 3 and PLD 1989 SC 503 and Khuda Bux v. Muhammad Yaqoob and others 1981 SCMR 1979 ref.

Latif-ur-Rehman Khan Survery for Petitioner.

Zayyad Khan Abbasi for Respondent No.1.

YLR 2009 KARACHI HIGH COURT SINDH 1893 #

2009 Y L R 1893

[Karachi]

Before, Anwar Zaheer Jamali, J

MUHAMMAD SHARIF through LRs and 5 others---Petitioners

Versus

VTH ADDITIONAL DISTRICT AND SESSIONS JUDGE (CENTRAL) KARACHI and 8 others---Respondents

Constitution Petition No. S-663 of 2004, decided on 11th September, 2006.

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

----Ss.15(2) (ii) & 21---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Ejectment of tenant on ground of default in payment of rent---Respondents, who were legal heirs of original landlord filed ejectment application against tenant who was predecessor-in-interest of petitioners on the ground of default in payment of rent of shops in question for relevant period---Tenants claimed that they had paid rent to the landlords in cash, but landlords denied receipt of said rent---Rent Controller dismissed rent application filed by the landlords concluding that in the past, landlords/respondents had received rent from. the predecessor-in-interest of the petitioners in lump sum---On filing appeal Appellate Authority after taking into consideration the evidence available on record found that petitioners' predecessor-in-interest was defaulter in the payment of rent and set aside order of Rent Controller and ejectment of the petitioners was ordered---Petitioners/tenants had filed constitutional petition against judgment of Appellate Authority---Predecessor-in-.interest of the petitioners could not produce any evidence oral or documentary to prove payment of disputed rent of the shops in question---Findings of the Appellate Authority that the petitioners' predecessors had committed default in the payment of rent of disputed shops, were correct both on facts and law, which required no interference---In absence of any misreading of evidence in the order of the Appellate Authority, said order could not be interfered with by High Court in exercise of its constitutional jurisdiction.

Muhammad Alam v. Noor Muhammad 1973 SCMR 606; Dr. Syed Waris Ali Tirmizi v. Mst. Liaquat Begum 1980 SCMR 601; Alif Din v. Khadim Hussain 1980 SCMR 767; Mrs. Aleema Ahmed v. Amir Ali PLD 1984 SC 32 and Muhammad Alimullah v. Ziaul Islam PLD 1973 Kar. 56 ref.

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

----Art.199---Constitutional jurisdiction---Scope and purpose---Mere reappraisal of evidence to see whether any other view was also possible, was not the purpose of exercise of constitutional jurisdiction by the High Court.

Messrs Mehraj (Pvt.) Ltd, v. Miss Laima Saeed 2003 MLD 1033 ref.

Ms. Kausar Amin for Petitioners.

Shaikh Abdul Majeed for Respondents Nos. 3(i) to (ix).

YLR 2009 KARACHI HIGH COURT SINDH 1896 #

2009 Y L R 1896

[Karachi]

Before Anwar Zaheer Jamali, C.J. and Zafar Ahmed Khan Sherwani, J

Mrs. FARIDA and others---Petitioners

Versus

NEW ALLIED ELECTRONICS INDUSTRIES (PVT.) LTD. and others---Respondents

C.P. No.1113 of 2008, decided on 1st November, 2008.

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

----S. 192(2) & Vth Sched.---Karachi Building and Town Planning Regulations, 2002, Reglns.18-51,1 & 49---Constitution of Pakistan (1973), Art.199---Constitutional petition---Commercialization of residential plot---Objection to---Petitioner moved an application to the Authority raising objection with regard to conversion of the plot in question from residential to commercial with specific objection on the construction of eight storeyed building, apprehending nuisance and increase of problems of sewerage etc. for the residents of the entire Block---Validity---Commercialization of any plot by allowing change of land use was a prerogative of the Authority/City District Government and such powers could not be interfered with, but only if all the laws, rules, bye-laws and regulations issued from time to time in that regard by the competent authority had been complied with---Only requirement for the commercialization of any plot by allowing change was public notice calling for objections from the people who could be affected on that account---Petitioner had admitted that such objections were demanded by the authorities, which were filed by the residents of the locality including the petitioners who were accordingly heard---Said requirement had been fulfilled before allowing the commercialization by the Authority---Mere fact that any formal communication was not made by the authorities in that regard, could not be a ground to interfere by the High Court in the functions of the independent statutory body under its constitutional jurisdiction---Petitioners had contended that entire locality where the plot in question was situated was residential area and uptill now no commercial multistoreyed building had been constructed in its vicinity---Contention was misconceived because it was a matter of fact that the entire area concerned had become commercial and multistoreyed buildings and still new ones were being raised---Though it was the prerogative of City District Government to approve the commercialization policy, but such powers were general in nature which were subject to approval of Government, which was binding being statutory in nature---Notifications issued by the City District Government was prima facie proof that acts referred to in those Notifications had been performed in accordance with the law, bylaws and regulations---Other plea of the petitioners was that a 'Jamatkhana' was on the plot adjoining to the plot in question and Agha Khan community attended to their religious obligations as well as social gatherings and on account of construction of the multistoreyed buildings said community would be affected which would amount to violation of their constitutional right of worship---Claim of the petitioner appeared to be on a weak wicket as same was based on mere presumption and not on solid evidence, whereas the case of authorities was on better footings---High Court, in circumstances, declined interference in the progress of the project of construction---Petition being devoid of merit, was dismissed.

1999 SCMR 2883; PLD 2006 Kar. 63; 2006 YLR 2637; 2005 SCMR 1967 and Jawaid Mir Muhammad's case PLD 2007 SC 472 rel.

Anwar Mansoor Khan for Petitioner.

Qazi Faez Isa for Respondent No.1.

Mushtaq A. Memonfor Respondent No.2.

Manzoor Ahmed for Respondent No.5.

Date of hearing: 25th September, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 1914 #

2009 Y L R 1914

[Karachi]

Before Zafar Ahmed Khan Sherwani, J

Syed MOINUDDIN---Plaintiff

Versus

ABDUL REHMAN KHAN and others---Defendants

Suit No. 1381 of 1999, decided on 12th March, 2009.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration and damages---Case of plaintiff against defendants was that said defendants acted with such mala fide intention that same prompted other defendants to pass illegal orders against the plaintiff on account of which his salary for about 33 months was stopped and his image and reputation was tarnished among common people---To prove said issues the plaintiff had examined himself and three witnesses, but the entire evidence on record did not show any such act of the defendants, which could be labelled as mala fide; and sufficient to make harassment to the plaintiff on account of stoppage of his salary---For obtaining a decree for damages, plaintiff was to prove through a tangible evidence; firstly that the acts of those defendants were mala fide and collusive in order to cause loss of reputation or fiscal loss; secondly on account of those acts, such damages were actually sustained by the plaintiff and that he required equitable redressal---Plaintiff had failed to produce any evidence to prove the same---Nothing was on record to the effect that the entire salary was stopped on account of any act of defendants for which the plaintiff was entitled for the damages---Said issues were decided in negative---Suit was dismissed, in circumstances.

Ghulam Rasool for Plaintiff.

Syed Masroor Ahmed Alvi for Defendants Nos. 1 and 8.

Date of hearing: 3rd February, 2009.

2009 Y L R 1952

[Karachi]

Before Ali Sain Dino Metlo, J

MUHAMMAD MAROOF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-287 of 2009, decided on 25th May, 2009.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Bail, grant of---Both Investigating Officers after examining a large number of independent eye-witnesses, came to the conclusion that out of four accused persons, offence was committed only by one accused, and other three including accused, were innocent and that complainant party had exaggerated the number of accused by falsely implicating other three---At the time of filing charge-sheet accused was in judicial custody and Investigating Officer requested the Magistrate to release him as in investigation he had been found innocent, but the Magistrate did not agree to the opinion of the Police and did not release accused---Opinion of Police Officers could not be termed as mere ipse dixit or arbitrary as same was based upon statements of a large number of independent eye-witnesses belonging to place where incident had taken place---Moreover on the basis of same material and same opinion two co-accused had already been granted bail---Equally placed persons were to be treated equally---Case of co-accused being identical to accused, he was entitled to the same treatment on the principle of consistency and equal treatment---Accused was admitted to bail, in circumstances.

Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68; Muhammad Safdar and others v. The State 1983 SCMR 645; Ajmal Khan v. Liaquat Hayat and another PLD 1998 SC 97 and Miandad v. The State 1992 SCMR 1418 rel.

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

----Ss.156 & 161---Investigation in criminal case---Unlike civil cases, criminal cases Pass through the process of investigation before coming to the court---Importance of Investigating Officer's report could be understood from the fact that under the law cognizance was taken on the basis of the report of the Investigating Officer and not on the basis of F.I.R. or statement of a witness under S.161, Cr. P. C. ---Investigating Officer had the advantage and first opportunity of making spot inquiry---His opinion and the material collected by him, in circumstances, could not be ignored, unless found to be arbitrary.

Asif Ali Abdul Razak Soomro for Applicant.

Awan Rahmatullah Nadeem for the Complainant.

Muhammad Akram Shaikh, State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 1958 #

2009 Y L R 1958

[Karachi]

Before Khalid Ali Z. Qazi, J

ABDUL MALIK through Attorney-Plaintiff

Versus

Haji ZAHOOR AHMED and 2 others---Defendants

Suit No.1418 of 2007 and C.M.As. Nos.2812 of 2009, 9148 of 2007, decided on 15th April, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & S.151---Suit for declaration and injunction---Application for restraint order against construction and operation of the proposed C.N.G. Station---Plaintiff along with suit had filed application seeking an order of restraint against the construction and operation of proposed C.N.G. Station on plot in question---Case of the plaintiff, who himself was running C.N.G. Station in the locality, was that suit plot owned and occupied by the defendants, on which C.N.G. Station was proposed to be constructed, was at the distance of less than 200 meters from his Filling Station---Plaintiff had sought restraint order against the construction and operation of the proposed C.N.G. Station raising certain objections---City District Government had taken the stance that case of construction of C.N. G. Station had been processed according to the Karachi Building Town Planning Regulations, 2002---Plot in dispute was converted from commercial-cum-industrial to C.N.G. by City District Government and defendants had completed all the legal formalities and had also obtained all necessary N. O. Cs./permissions--- Notification regarding distance of 0.75 K.M. from one C.N.G. Station to another C.N.G. Station could not be applied retrospectively in the case--Averments of easementary rights of the plaintiff, would require evidence and no inference could be drawn at that stage, in circumstances---Plaintiff/applicant had not made out a prima facie case, balance of convenience also lay in allowing the defendants to complete, start and run the C.N. G. Station on plot in dispute---In view of heavy investment made by the defendants irreparable loss was likely to cause to the defendants in case the injunction was allowed to operate---Application for restraint order filed by the plaintiff/ applicant was dismissed, in circumstances.

Elahi Cotton Mills Ltd. and others v. Federation of Pakistan and 6 others PLD 1997 SC 582 and Jawaid Mir Muhammadi and others v. Haroon Mirza and others PLD 2007 SC 472 rel.

Khalid Hameed for Plaintiff.

Syed Shoa-un-Nabi for Defendant No.1.

Khalid Mehmood Dhoon for Defendant No.2.

Tahawur Ali Khan for C.D.G.K.

YLR 2009 KARACHI HIGH COURT SINDH 1965 #

2009 Y L R 1965

[Karachi]

Before Arshad Noor Khan, J

GUL MUHAMMAD---Applicant

Versus

SARDAR BAKHSH and others---Respondents

K.A. No.S-36 and C.M.As. Nos.147, 148 of 2009, decided on 27th April, 2009.

Islamic law---

----Pre-emption---Performance of Talbs---Requirements---Talb-e-Ishhad and Talb-e-Muwathibat must be made as soon as possible and delay in making such Talbs spoils the case of pre-emptor---Talb-e-Muwathibat is necessary to be mentioned in the pleadings and the said Talb puts a limitation on the prospective' . of a pre-emptor that he must express his intention to pre-empt immediately and in case of involvement of limitation of any kind, he has to specify the date and time of the commencement of the limitation or his knowledge so that the limitation be computed accordingly---Where in a suit the details of making Talb-e-Muwathibat had not been given or were suppressed in the plaint; the pre-emptor would be deemed to have failed to prove the performance of said Talb---Principles.

Muhammadan Law (by Mulla) section 230 and Akbar Ali Khan v. Mukamil Shah 2005 SCMR 431 fol.

PLD 1964 Dacca 460; PLD 1969 Dacca 64; Muhammad Ibrahim v. Taj Muhammad 1985 CLC 3000; Sundri Bai v. Ghulam Hussain 1982 CLC 2441 ref.

Applicant in person.

YLR 2009 KARACHI HIGH COURT SINDH 1975 #

2009 Y L R 1975

[Karachi]

Before Khalid Ali Z. Qazi, J

IMAM ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-927 and M.A. No.3897 of 2008, decided on 9th February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.382---Bail, grant of----Further inquiry---Name of accused appeared in the F.I.R. with specific allegation that he along with other co-accused duly armed with deadly weapons during the odd hours of the night committed theft of buffalo of the complainant party---More so, the stolen buffalo was alleged to have been recovered by the concerned Police, during the course of investigation from accused---Material available on record, prima facie had shown that accused was apprehended by the Police along with co-accused---Accused had made out a case of further inquiry as envisaged under subsection (2) of S. 497, Cr. P. C. in circumstances---Accused was admitted to bail, in circumstances.

2006 PCr.LJ 1015; 2006 PCr.LJ 1736 and 1999 PCr.LJ 1050 ref.

Zulfiqar Ali Jatoi for Applicant.

Agha Athar Hussain, Asstt. A.-G. for the State.

Dhanraj for the Complainant.

YLR 2009 KARACHI HIGH COURT SINDH 1979 #

2009 Y L R 1979

[Karachi]

Before Gulzar Ahmed and Malik Muhammad Aqil Awan, JJ

Mrs. TAHIRA ALI and another---Petitioners

Versus

PROVINCE OF SINDH through Home Secretary, Government of Sindh

and 3 others---Respondents

Constitutional Petition No.D-547 of 2005, decided on 16th June, 2009.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S.3---Constitution of Pakistan (1973), Art. 199--- Constitutional petition---Preventive detention---Claim for monetary compensation for detention period---Detention order passed against the petitioners having been withdrawn after 17 days of passing of said order, the petitioners/detenus, demanded grant of monetary compensation for detention period at the rate of Rs.5,000 per day for each detenu---Validity---Plea was repelled with the observation that the question of legality of impugned detention order could not be gone into after release of the detenus simply for facilitating them to institute another proceeding against the detaining authority---After release of the petitioners during pendency of the petition, same had become infructuous and question of illegality of detention order would become only of the academic interest which could not be adjudicated upon with such reasons---Petition was dismissed, in circumstances.

Irshad Ali v. Abdul Hameed

Khakhram 2004 PCr.LJ 599; Syed Hassan Ali Shah v. S.H.O., Police Station Dadu and others PLD 2006 Kar. 425; Government of Sindh and others v. Mst. Najma 2001 SCMR 8; Mazharuddin v. The State 1998 PCr.LJ 1035; Muhammad Azim Malik v. A.C. and S.D.M. Preedy (South) Karachi and others PLD 1989 SC 266; Ali Ahmed v. Muhammad Yakoob Almani PLD 1999 Kar. 134; Sarfaraz Ahmed v. Government of Sindh 1988 PCr.LJ 1302 and Lever Brothers Pakistan Ltd., v. Senior Member, National Industrial Relations Commission PLD 1986 Lah. 90 ref.

Rasheed A. Razvi for Petitioners.

Mrs. Haleema Khan, A.A.-G. for Respondents.

Date of hearing:- 15th May, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 1987 #

2009 Y L R 1987

[Karachi]

Before Amer Raza Naqvi, J

SUHINO KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-84 of 2009, decided or 13th April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of--Three thousand grams of charas in 6 pieces were allegedly recovered from accused, out of which 100 grams were sent to Chemical Examiner and the report was found in positive---Prosecution was duty bound to take sample from each piece of charas, whereas only one sealed packet was sent to Chemical Examiner; and it was mentioned that the sample was taken out from each packet---Prosecution should be very careful while maintaining the record when narcotics were recovered in many pieces and sample from each piece should be sent to Chemical Examiner---When slight change in the quantum of substances could affect very seriously, the liberty of accused, prosecution should be very careful in sending the substances to Chemical Examiner---Accused having made out case for grant of bail, he was granted bail, in circumstances.

PLD 2008 Kar. 14; 2007 MLR 1092; 2009 PCr.LJ 102 and 2003 SCMR 573 ref.

Bakhshan Khan Mahar for Applicant.

Ali Hyder Dareshani for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1990 #

2009 Y L R 1990

[Karachi]

Before Khadim Hussain, M. Shaikh, J

ABDUL RAZAK KHOSO---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.S-19 of 2009, decided on 9th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of surety bond-Accused for whom applicant stood surety by furnishing bail bond, jumped the bail and became fugitive from law---On failure of applicant to secure the availability of said accused, applicant was proceeded against under the provisions of S. 514, Cr.P. C. and his surety bond was forfeited in full---Applicant had contended that . he stood surety for accused on humanitarian grounds without any monetary benefit---Validity---Nothing was on record to show, if the applicant had gained any monetary benefit by standing surety for accused---Financial position of the applicant was also stated to be unsound and in view of the principle of keeping balance between undue leniency and undue severity, amount of surety bond of applicant was reduced from Rs. 2,00,000 to Rs.1,00,000.

Ahmed Ali M. Shaikh for Applicant.

Nisar Ahmed G. Abro for the State.

YLR 2009 KARACHI HIGH COURT SINDH 1997 #

2009 Y L R 1997

[Karachi]

Before Salman Ansari, J

SHARIF and another---Applicants

Versus

THE STATE---Respondent

Cr.B.A. No.S-736 of 2008, decided on 28th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497 (2)---Penal Code (XLV of 1860), S.337-F(ii)---Bail, grant of---Further inquiry---Accused remained in custody for more than one year---Accused was alleged to have caused pistol butt blow on the left arm of the complainant, which was not a vital part of the body and said injury had been described as "Shajjah-e-Mudiha"---Said injury fell under S.337-F(ii), P.P.C., which did not fall within prohibitory clause of S. 497, Cr. P. C. ---Co-accused, who had caused butt blow of his gun on the head of the injured, was granted boil by the High Court---Delay in lodging the F.I.R., had not been satisfactorily explained, making case of accused, one of the further inquiry--Accused was released on bail, in circumstances.

1994 SCMR 2051 ref.

Riazat Ali Sahar for Applicants.

Mukhtiar Ahmed Khanzada State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 2000 #

2009 Y L R 2000

[Karachi]

Before Khalid Ali Z. Qazi, J

PAKISTAN REFINERY LIMITED---Plaintiff

Versus

INTERNATIONAL SCHOOL OF CHOUEIFAT through Principal Officer and

another---Defendants

Suit No.1046 and C.M.As. Nos.7585 and 7985 of 2008, decided on 15th May, 2009.

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

----Ss. 42 & 54----Civil Defence Act (XXXI of 1952), S. 9----Civil Defence (Special Powers) Ordinance (VI of 1951), Ss. 2 & 6---Civil Defence (Special Powers) Rules, 1951, R.10---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2--- Constitution of Pakistan (1973), Arts, 4. 23 & 24---Interim injunction, grant of---Civil defence notification---Emergency situation---Grievance of plaintiff refinery was that construction of school being raised by defendant was without clearance of Key Point Intelligence Division---Validity---No notification in terms of provisions of Civil Defence Act, 1952, Civil Defence (Special Powers) Ordinance, 1951 and Civil Defence (Special Powers) Rules, 1951, had ever been issued by authorities regarding suit land---No restriction had been imposed under any provision of Civil Defence Act, 1952, or law imposing restrictions in respect of defendant's property---Provisions of rules which were subservient to Civil Defence Act, 1952, could not be imposed against the property of defendant---Provincial Government did not exercise its power in such regard for imposition of restriction to restrain defendant from raising any construction over plot in question---On the contrary, Provincial Government allotted the plot to defendant for establishing of school/educational institution and Cantonment Board had approved building plan of defendant---When no restrictions were imposed under any provision of Civil Defence Act, 1952, then provision of R.10 of Civil Defence (Special Powers) Rules, 1951, could not be invoked to imply the restrictions, which was subservient thereto---High Court did not find any illegality or irregularity in raising school building on plot in question, as permission to construct school building and approval of building plan was done by authorities enjoying powers to do so under Cantonment Laws---Defendant was owner of plot in question, who had acquired fundamental rights to hold and enjoy property rights as guaranteed under Arts. 4 and 23 of the Constitution protecting or safeguarding rights of easement and safety of owner---Fundamental rights of defendant in respect of ownership of their plot could not be violated or infringed---Plaintiff had no prima facie case and balance of convenience was also not in its favour, as great inconvenience would be caused to plaintiff if injunction would be refused because loss if any could be compensated in shape of damages which had already been claimed---High Court declined to grant interim injunction in favour of plaintiff restraining construction of defendant---Application was dismissed in circumstances.

PLD 1951 Central Statutes at Page No.398; PLD 1951 Central Statute Page 387 and Ch. Muhammad Ishaq Advocate v. Cantonment Executive Officer, Chunian, District Qasur and another PLD 2009 Lahore 240 ref.

(b) Interpretation of statutes---

----Enforcement of rights---Principle--While construing and enforcing such rights, generous and purposive interpretation should be made of fullest possible meaning and amplitude must be given conforming to real spirit of rights.

Ch. Muhammad Ishaq Advocate v. Cantonment Executive Officer, Chunian, District Qasur and another PLD 2009 Lahore 240 rel.

----Arts.4, 23 & 24---Use of property---Imposing of restriction---Principle---When a restriction, which is not otherwise imposed by law, is trusted upon an owner regarding free use of his property, it is clear case of breach of fundamental rights of owner of property.

Rashid Anwar for Plaintiff.

Dur Muhammad for Defendant.

YLR 2009 KARACHI HIGH COURT SINDH 2014 #

2009 Y L R 2014

[Karachi]

Before Nadeem Azhar Siddiqi, J

HAMZ ALI alias HAMZO and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-709 of 2008, decided on 23rd January, 2009.

Criminal Procedure Code (V of 1898)---

---S. 498---Penal Code (XLV of 1860), Ss.324, 337-A(i), 337-F(i), 147, 148 & 149---Bail before arrest, refusal of--Injured got 16 injuries out of which three were caused from sharp cutting weapon and the rest by hard and blunt substance--Injuries had been confirmed by the medical report as well by the Special Medical Board---Injuries on the person of accused persons were sufficient to connect accused persons with the commission of offence---Bail before arrest could be granted in extraordinary circumstances where prima facie mala fides were apparent on the part of prosecution or accused had been falsely involved in the case---Mere allegation to grant pre-arrest bail in a case falling under prohibitory clause of S.497, Cr.P.C. was not sufficient---Bail was declined.

Bahadur Khan Niazi v. Alam Khan and 2 others PLD 2000 Karachi 74 and Rehmatullah. and another v. The State PLD 2008 Karachi 170 ref.

Abdul Razzak Leghari for Applicants. .

Anwar H. Ansari, State Counsel.

S. Madad Ali Shah for the Complainant.

YLR 2009 KARACHI HIGH COURT SINDH 2018 #

2009 Y L R 2018

[Karachi]

Before Khalid Ali Z. Qazi, J

Mst. JAMILA----Plaintiff

Versus

Messrs YADGAR SERVICE STATION/CALTEX PETROL PUMP and 3 others---Defendants

Suit No.926 and C.M.As. Nos.7180, 5945 of 2005, decided on 18th May, 2009.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Interim injunction, grant of---Prima facie case---Proof---Actionable nuisance---Plaintiff was residing in neighborhood of petrol pump owned by defendants where they had installed industrial generator for Compressed Natural Gas unit---Plea raised by plaintiff was that installation of generator in her neighborhood had caused nuisance to her and it was safety hazard---Validity---Act to become actionable nuisance, it must have satisfied the test of reasonableness---Suit property was situated in heart of the city at Saddar, which was one of the busiest areas of city---Petrol pump site situated at cross roads of two major arteries was reasonably excepted to be equipped with Compressed Natural Gas facilities with a generator of industrial capacity to be used in the events of electricity break downs---Traffic sound at the location was much higher than the sound of any generator or Compressed Natural Gas facilities, which position had not been disputed by plaintiff, therefore, no case for injunction was made out by plaintiff---Defendants were expected to comply with all codal formalities and procedures prescribed by competent authorities with regard to safety---It was not the case of plaintiff that such codal formalities/ procedures had not been complied with by defendants---Defendants had filed necessary approvals from Oil and Gas Regulatory Authority---High Court declined to grant interim injunction in favour of plaintiff---Application was dismissed in circumstances.

Shaikh Muhammad Anwar v. Shaikh Muhammad Iqbal 1984 CLC 103; Nasee Ahmed v. Hafiz Muhammad Ahmed 1984 CLC 340; Fazal Din v. Mst. Robeena Aurangzeb 1983 CLC 1280; Mashkoor Khan v: Province of Sindh 1971 SCMR 572; A. Razzak Adamjee v. Messrs Datari Construction Co. Ltd. 2005 SCMR 142; Abdul Rashid v. Mahmood Ali Khan 1994 SCMR 2163; Syed Hussain Ali v. Ahmed Bux 1992 MLD 2000; Abdul Razzak Adamjee v. Director General, KDA 1995 MLD 803; Mst. Seema v. Messrs Millennium Developers 2003 CLC 632; Fazlur Rehman V. Younas Ali Gilani 1999 MLD 1565; Muhammad Yaqoob v. Health Officer Municipal Committee, Hyderabad 1973 SCMR 184;Multiline Associate v. Ardeshir Cowasjee PLD 1995 SC 423; Amin v. Navaid Hussain 2008 SCMR 133; Irshad Hussain v. Province of Punjab PLD 2003 SC 344; St. Helen's Smelting Co. v. Tipping (1865) 11 H.L.C. 642 available in "Case book on Tort" by Weir, 6th edition, at p. 368; Sturges v. Bridgman (1879) 11 Ch. D. 852 at 865; Rafat Ali v. Sugni Bai AIR 1999 SC 283 and Ehanwar Lal v. Dhanraj AIR 1973 Raj. 213 ref.

Munir Bhutto for Plaintiff.

Pooja Kalpana for Defendant.

YLR 2009 KARACHI HIGH COURT SINDH 2034 #

2009 Y L R 2034

[Karachi]

Before Ms. Soofia Latif, J

Syed ANWAR ALI---Plaintiff

Versus

Syed HAMID UMER---Defendant

Civil Suits Nos.1533 of 2001 and 131 of 2002, decided on 6th May, 2009.

(a) Specific Relief Act (I of 187)---

----Ss. 12, 42 & 54---Suit for specific performance of contract, declaration, injunction and recovery of amount---Plaintiff filed affidavit-in-evidence for proof of his claim, but neither he appeared in the Court for his own cross-examination nor cross-examined the defendant, though several opportunities were given to him---Statement made by the plaintiff in his affidavit-in-evidence, in circumstances, could not be taken into consideration----Non-appearance of the plaintiff in Court; the absence of affirmative statement in support of plaint and absence of cross-examination of defence witness, would give rise to an adverse presumption against the plaintiff---Such were good enough factors to safely assume that agreement in favour of the plaintiff was not executed as defendant had categorically denied its execution and his evidence had gone unrebutted and unchallenged---Onus to prove the execution of agreement initially lay upon the plaintiff and it was for him to exhaust all satisfactory modes of its execution as there was clear dispute about the execution of agreement and doubts cast on its genuineness and the plaintiff in order to remove all suspicions, must produce all the marginal witnesses and scribe of the deed--If he discharged that onus, then it would shift to defendant to prove otherwise, as to disentitle, the plaintiff to relief claimed for---Plaintiff had failed to discharge his onus by coming into the court for cross-examination and also to cross-examine the defendant---As the plaintiff did not prove the execution of agreement from his own evidence, it would give rise to adverse presumption against the plaintiff and was good enough to safely assume that no agreement had been executed in his favour in respect of alleged contract by the defendant.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.79---Suit for specific performance of contract---Section 12 of Specific Relief Act, 1877, did not provide any right to the plaintiff to claim such relief---Such relief being discretionary in nature could not be claimed as of right---Discretion must be exercised on sound judicial principles---1n the present case, the plaintiff had not proved the execution of agreement by giving his own evidence and by cross-examining the defendant---Even he did not produce any attesting witness of agreement in terms of Art.79 of Qanun-e-Shahadat, 1984 which had revealed that the document required to be attested, would not be used in evidence, until two attesting witnesses at least had been called for the purpose--Agreement appeared to be a forged and fabricated document---Suit for specific performance, in circumstances, was not maintainable under provisions of S.12 of Specific Relief Act, 1877 as no privity of contract existed between the plaintiff and defendants.

Wali Muhammad v. Sardar Muhammad 1998 MLD 536; Abdul Shakoor v. Province of the Punjab 2005 SCMR 1673 and Mst. Bilqees and others v. Mst. Khan Bibi and others 2003 MLD 185 ref.

---Ss.12 & 54---Suit for specific performance and permanent injunction---Plaintiff along with suit for specific performance, had also sought relief of recovery of amount and permanent injunction---Plaintiff in such a suit must prove the existence of contract which he failed---In the present case suit for specific relief being not maintainable, subsequent reliefs asked for were also not maintainable.

(d) Tort---

----Suit for damages---Plaintiff sought relief for damages of Rs. 10, 00, 000 for mental agony, torture and shattering of. reputation/good will caused to him by the defendant by forging his signature on the false and fraudulent agreement---Plaintiff in his affidavit-in-evidence had not stated a single word about it nor he produced any convincing evidence to prove as to what kind of mental shock and torture was caused to him due to the act of defendant; and what amount he spent on his treatment---No doubt the defendant had failed to lead his evidence and also failed to cross-examine the plaintiff, but the plaintiff could not take any benefit of any weakness of the defendant---Party approaching the court for seeking some relief had to stand on his own legs for that purpose and no benefit of any weakness in the -case of the opposite party could be extended to him---Plaintiff having failed to establish his claim for damages, suit was dismissed.

M.D. Anwarullah Mazumdar v. Tamina Bibi and other 1971 SCMR 94; Haji Muhammad Sarwar Khan v. Hussain Nawab 1992 CLC 1915 and Mst. Zainab and another v. Majeed Ali and another 1993 SCMR 356 ref.

Moin Azhar Siddiqui for Defendant No.1.

Date of hearing: 7th April, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 2049 #

2009 Y L R 2049

[Karachi]

Before Syed Mehmood Alam Rizvi and Maqbool Ahmed Awan, JJ

DODO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.D-176 of 2006, decided on 28th April, 2009.

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

----S. 9(c)---Police Rules, 1934, Rr.25.3 & 25.4---Appreciation of evidence---Accused was not produced before the area Police Station which was 5/6 k.m. away from alleged place of recovery and instead the officials brought accused at the CIA Centre after a travel of 25 k.ms., which had shown that on no occasion accused was ever produced before the Police Station with the contraband---No investigation was ever assigned to any Police Official of the concerned Police Station which was a clear violation of the order of Supreme Court---Arrest and investigation conducted by the complainant/Police Official being a clear flouting of the order of the Supreme Court, same could not be declared legal---CIA Officials had also violated the provisions of S.166(1) & (4) of Cr.P.C. and Chapter XXI, Rr.25.3 & 25.4 of Police Rules, 1934 as prior to arrest of accused they should have informed the area Police Station, and if arrested, he should have been produced before the concerned S.H.O.---CIA had no authority to detain accused for 5 hours without registration of the F.I.R.; they should have produced him and the contraband before the area Police and that was. the duty of the concerned S.H.O. to deliver the investigation to any of his subordinates; and thereafter the CIA Official could have taken the investigation after obtaining the order from the competent Authority, which was lacking in the case---Investigation conducted by CIA Official being illegal, void and without lawful authority, impugned judgment was not sustainable in law---Impugned judgment was set aside and accused was acquitted.

State v. Bashir PLD 1997 SC 408; 376 US 643; Dollree Mapp v. Ohio 81 SCT 1684 and Harikisandas Gulab Das and Sons and another v. The State of Masure and another (1971) 27 STC 434 ref.

(b) Interpretation of Statutes---

----Every word used by the Legislature must be given its true meaning; and all provisions be construed together in a harmonious manner---It would not be legal and proper to apply one provision of law in isolation to the other as no redundancy could be attributed to the Legislative organ of the State.

Syed Madad Ali Shah for Appellant.

Bilawal Ali Ghunio for the State.

Date of hearing: 8th April, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 2056 #

2009 Y L R 2056

[Karachi]

Before Aamir Raza Naqvi, J

RANI and another---Petitioners

Versus

PROVINCE OF SINDH through Secretary Home Department, Karachi and 6 others---Respondents

C.P. No.S-254 of 2009, decided on 10th April, 2009.

Constitution of Pakistan (1973)---

----A rt.199---Constitutional petition--Counsel for the petitioners, had stated that petitioners being legally wedded husband and wife, could not be declared as karokari---Only prayer in the petition was that declaration of alleged karo-kari was illegal and that havoc and harassment could not be caused to the petitioners---Sanctity of home was guaranteed under the Constitution and so also protection of family---Petitioners being husband and wife were entitled to such protection---Allowing constitutional petition, authorities were directed not to cause any harassment to the petitioners, in any manner---Police functionaries were also directed to provide every security to the petitioners as and when required.

Yasir Arafat Shar for Petitioner.

Dareshani Ali Hyder "Ada" for the State along with Sarfraz Ahmed Mangi, SH.O. Police Station New Pind Sukkur.

YLR 2009 KARACHI HIGH COURT SINDH 2060 #

2009 Y L R 2060

[Karachi]

Before Muhammad Iqbal Mahar, J

MUHAMMAD RASHID---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.262 of 2009, decided on 21st May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Two versions of one incident---Presence of accused at the place of incident was not shown by the complainant in one F.I.R. whereas in the present F.I.R., it was alleged that co-accused had instigated the accused---Unexplained delay of five days in lodging the F.I.R.-Case against accused requiring further inquiry as envisaged by S.497(2), Cr.P.C., accused was admitted to bail, in circumstances.

Muhammad Yaseen for Applicant.

Ms. Farkhanda Mangi for the State.

YLR 2009 KARACHI HIGH COURT SINDH 2067 #

2009 Y L R 2067

[Karachi]

Before Munib Ahmad Khan, J

ISRAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.412 of 2009, decided on 8th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4--Penal Code (XLV of 1860), Ss.322/337-H(i)---Bail, grant of---Further inquiry---File and Police papers revealed that age of accused was less than eighteen years and he could be termed as a juvenile---No direct evidence was available to show that accused was in the chain, which was procuring and selling 'Katchi Sharab'---Factual position needed further investigation, accused was admitted to bail, in circumstances.

PLD 2002 Kar 18 ref.

Saathi M. Ishaque along with Naseer Hussain Jafri for Applicant.

Qazi Wali Muhammad for the State.

YLR 2009 KARACHI HIGH COURT SINDH 2070 #

2009 Y L R 2070

[Karachi]

Before Aamer Raza Naqvi, J

GHULAM QADIR through Attorney---Petitioner

Versus

PROVINCE OF SINDH through Home Secretary through A.A.-G., Sukkur and 5 others---Respondents

Constitutional Petition No.S-32 of 2009, decided on 7th April, 2009.

Sindh Irrigation Act, 1879---

----S. 91(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Change of water course---Counsel for the petitioner had submitted that water course - in question had already been changed and such change could not be recalled---Contention of the counsel for the authorities was that water course was recommended to be changed, but the other khatedars of the area having denied to have given "no objection," change of water course, had not been effected---Contention of the parties appeared to be factual controversy which could not be resolved in constitutional proceedings, particularly in view of S.91(2) of Sindh Irrigation Act, 1879, wherein the procedure had been prescribed for change of sources. of water supply---Petition was disposed of with the directions that the Canal Officer, would give holders of the land likely to be affected a notice for the change of water course sought by the petitioner and would pass orders after giving a reasonable opportunity of being heard to all concerned and that in case no settlement was arrived at after such hearing, the parties would be at liberty to avail remedy as provided in S. 91(2) (iii) of Sindh Irrigation Act, 1879.

Farman Ali Kansero for Petitioner.

Agha Athar Hussain Pathan, Astt. A.-G. along with Gul Hassan Memon, Executive Engineer, Irrigation East Division, Khairpur and Sharafuddin Bhambhan, Asstt. Executive Engineer, Irrigation Faiz Ganj Sub-Division.

YLR 2009 KARACHI HIGH COURT SINDH 2076 #

2009 Y L R 2076

[Karachi]

Before Faisal Arab and Bin Yameen, JJ

THE STATE through Chairman---Petitioner

Versus

ABDUL GHAFFAR SHEIKH---Respondent

Criminal Accountability Acquittal Appeal No.1 of 2009, decided on 29th May, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 417 & 265-K---National Accountability Ordinance (XVIII of 1999), S.32---Appeal against acquittal---Accountability Court acquitted the respondent on the ground that beneficiary of the cheques himself subsequently deposited the amount in the account of State Life Insurance Corporation---Enquiry report did not show that respondent personally benefited himself in any manner---In view of the admitted position that beneficiary of the cheques had voluntarily returned the amount, said to have been fraudulently withdrawn after making additions in the cheques; and the enquiry report describing negligence on the part of the respondent as only a procedural lapse, there was no likelihood of any conviction on the basis of such material and acquittal order was rightly passed under S.265-K, Cr. P. C.

Muhammad Aslam Butt, D. P. G. A. NAB for Appellant.

Ghulam Rasool Mangi for Respondent

YLR 2009 KARACHI HIGH COURT SINDH 2077 #

2009 YLR 2077

[Karachi]

Before Syed Mahmood Alam Rizvi and Maqbool Ahmed Awan, JJ

AZIZULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.D-99 and Confirmation Case No.7 of 2006, decided on 29th May, 2009.

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

----Ss.302(b) & 324---Appreciation of evidence---Number of injuries shown by Medical Officer in post-mortem report, had belied the entire story of the prosecution, because the multiple injuries which damaged the external part of the body of the deceased, could not be caused with one fire---Statements under S.161, Cr.P.C. of the witnesses were recorded with sufficient delay and that had not been properly explained by the prosecution; which too had shown that the witnesses had not seen the incident and the story had been concocted in order to implicate accused---Witnesses were not unanimous about the distance they were away from or near to the deceased---Witnesses were also not unanimous on the point of firing made by accused---Facts had shown that entire investigation was completed before the registration of F.I.R., which practice had been deprecated and not relied upon by the apex court in number of cases---Co-accused, who were present at the time of incident and had actually participated in the commission of offences and not only that but had also instigated accused who had committed the murder of deceased, were acquitted---Trial Court, in circumstances, had committed serious illegality while not extending the same treatment to accused on the basis of same evidence brought on record---In the present case, there appeared improvements, delay in recording of statements under S.161, Cr. P. C., contradictions, defective investigation and enmity---Injuries did not tally with the fires made by accused and benefit on the basis of same evidence was to be given to co-accused, which not given---All that had suggested that the prosecution had failed to establish the charge against accused---Record showed that number of houses surrounded the place, where the incident was said to have taken place, but no independent witness had been examined---Conduct of the witnesses had shown that they were not trustworthy and their evidence was not credible to be relied upon for passing the conviction against accused---Prosecution had not been able to prove the case against accused as contradictions were in the deposition of the complainant as well as prosecution wit?nesses and time of occurrence, which were material and would render the evidence unworthy---Conviction and sentence awarded to accused, were set aside and he was acquitted, in circumstances. ?

2008 SCMR 95; 2009 SCMR 237; PLD 2008 SC 349; 2002 PCr.LJ 690; 1999 YLR 496; 2001 YLR 1673; 2007 YLR 22; 1993 SCMR 550; 2006 SCMR 1217; 2009 SCMR 84; 1989 SCMR 428; 1999 SCMR 40; 2008 SCMR 6; 2004 SCMR 220 and 2003 MLD 1583 ref.

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

----S.342---Statement of accused recorded under S. 342, Cr. P. C. ---Case of prosecution was to be considered along with the statement of accused under S. 342, Cr.P.C. and if any slightest doubt was created in the case of prosecution, then the said statement of accused was to be believed and accused could be acquitted.

----Evidence---Evidence of interested witness---Evidence of interested and related inter se witnesses must be corroborated by the independent quarters.?

Madad Ali Shah for Appellant.

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

Date of hearing: 28th April, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 2086 #

2009 Y L R 2086

[Karachi]

Before Munib Ahmad Khan, J

TRUSTEES OF THE PORT OF KARACHI---Applicant

Versus

ADAMJEE INSURANCE CO. LTD. and others---Respondents

R.A. No.162 of 1991, decided on 28th April, 2009.

(a) Karachi Port Trust Act (I of 1877)---

----S. 49---Non-clearance of goods---Removal of goods to public warehouse---Procedure---Karachi Port Trust has power to remove goods to any shed if within given five days goods are removed from Wharf---When goods are being removed, a notice should be given to consignee.

(b) Karachi Port Trust Act (I of 1877)---

----S.87---Bar to civil suit---Pre-condition--Suit has been prohibited under S.87 of Karachi Port Trust Act, 1877, until notice in writing has been sent, giving therein cause and further action to be initiated within six months.

----Ss.49 & 87---Civil Procedure Code (V of 1908), S.115---Removal of goods to warehouse---Non-issuance of notice to consignee---Bar against filing civil suit---Applicability---Loss caused to consignment---Responsibility---Both the Courts below concurrently held Karachi Port Trust responsible for loss caused to consignment of plaintiff---Plea raised by Karachi Port Trust was that filing of civil suit was barred under S.87 of Karachi Port Trust Act, 1877, as date of cause of action to file suit was from the date of landing of consignment or its removal to shed---Validity---Date of cause of action, under S.87 of Karachi Port Trust Act, 1877, was from the date of notice on which intimation was given to consignee---Plea of Karachi Port Trust was not correct as even if Karachi Port Trust was removing goods to its shed or to bounded warehouse, then it was duty of Karachi Port Trust, under law to act like prudent person and it should have taken all cares to safeguard goods or at least to minimize loss which could be occurred in handling and storage---No law had given licence to any person having authority or domain over an entrusted property to misuse that authority or to put that property contrary to safety and security requirements---Karachi Port Trust was responsible in all respects to the goods remained with it till action in respect to the goods would have been finalized in accordance with law---It could not be absolved of its liability, when goods were pilfered due to negligence of officials of Karachi Port Trust---Both the Courts below had taken care of evidence in detail and High Court concurred with their opinions by observing that no illegality or material irregularity had been committed in the judgments passed by the Courts below---Revision was dismissed in circumstances.

AIR 1974 SC 943 and PLD 1975 Kar. 425 distinguished.

Safdar Mehmood for Applicant.

Jamil Khan for Respondent.

Date of hearing: 28th April, 2009.

2009 Y L R 2113

[Karachi]

Before Munib Ahmed Khan, J

Mst. SUGHRA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.91 of 2008, decided on 25th November, 2008.

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

----Ss. 302 & 304---Qanun-e-Shahadat (10 of 1984), Art.17---Appreciation of evidence-Benefit of doubt---No ocular evidence was available on the record and the only lady, who would be presumed to be available at the scene, had been made accused---Accused had been proceeded under S.302, P.P.C. for Qatl-i-Amd and for that purpose required proof had been provided under S.304, P.P.C.---Section 304(4), P.P.C. had been applied, which required the quantum of evidence as provided under Art.17 of Qanun-e-Shahadat, 1984 and since it was not a financial matter, Art.17(b) of Qanun-e-Shahadat, 1984 would be applicable which required that testimony of one man or two woman was required---Circumstantial evidence, in the ' shape of carpet, was missing from the proceedings, while the allegation of causing. death by way of throwing acid was doubted by the doctor itself as recorded in medico-legal certificate---Evidence of the witnesses as well as complainant did not tally with each other as very prominent difference in respect to the kind of vehicle, was apparent there---Immediately after the incident, accused herself called the landlord and relatives of the deceased without any fear that the deceased would disclose her name--Conduct of accused showed that her efforts were to save the life of the deceased after the incident, otherwise she would not have immediately called the landlord and relatives of the deceased, while at the initial stage, deceased was in a position to talk, but nowhere in the police record he had involved accused in any way and was apparently comfortable in the association of accused lady; who remained with him and took him to hospital---Trial Court had not considered all those factual and legal aspects---Accused was acquitted from the charge levelled against her under S.302, P.P.C. living her benefit of doubt.

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

---Ss. 302, 304 & 417---Appreciation of evidence---Prosecution had alleged that accused had personated by disclosing her identity, as at some occasions she had disclosed her name "Maqsooda" and somewhere as "Sughra"---Lady could be punished under S.417, P.P.C. and action could be taken under that section---Section 417, P.P.C. had . provided a sentence for one year only, while accused had already served sentence of two years--While convicting accused under S.417, P.P.C. benefit of S.382-B, Cr.P.C. was given to her with the direction that her imprisonment, was to be counted from the date of her-arrest.

Abdul Razak for Appellant.

Saleem Akhtar for Respondent.

Date of hearing: 21st, 24th and 25th November, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 2120 #

2009 Y L R 2120

[Karachi]

Before Nadeem Azhar Siddiqi, J

Messrs NOMAN ABID CO. LTD. (REGD.)---Plaintiff

Versus

NAVEED HAIDER---Defendant

Civil Suit No.5 and C.M.As. Nos.4437, 4456 of 2007, decided on 30th October, 2008.

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

----O. XXXVII, Rr.2 & 3---Limitation Act (IX of 1908), S.5---Suit for recovery of amount---Application for leave to defend suit---Delay in filing application---Condonation of delay---Defendant had prayed for condonation of delay in filing of application for leave to defend suit---Plaintiff had already given his no-objections for condonation of delay subject to furnishing security by the defendant---Validity---For condonation of delay each and every day was to be accounted for, however, in view that heavy amount was involved, defendant alleged that he was kept on false hopes by the plaintiff that the defendant had paid the amount by pay-order, and that counsel for the plaintiff had given his no objection, delay could be condoned---Delay in filing the application for leave to defend suit, was condoned.

Habib Bank Ltd. v. Messrs Pazhong Traders 1986 CLC 1086 ref.

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

----O.XXXVII, Rr.2 & 3---Suit for recovery of amount---Application for leave to defend suit---Leave to defend suit, could be granted to the defendant on showing a plausible defence and that triable issues were involved---Discretion to grant leave unconditionally or conditionally, would rest with the court to be exercised keeping in view the facts of each case and the judicial principles---In the present case the application for leave to defend was filed after long delay and counsel for the plaintiff had consented for condonation of delay and grant of leave with condition of furnishing surety---No doubt defendant had produced the photocopy of pay order to show that the amount covered by the dishonoured cheque was paid through pay order, which was disputed by the plaintiff, but it was a matter of evidence and disputed facts could not be decided at that stage---Defendant, who had a plausible defence, was entitled to leave to defend the suit---Leave to defend suit was granted to the defendant subject to furnishing surety of the amount.

Muhammad Anwar Tariq for Plaintiff.

Behzad Haider for Defendant.

YLR 2009 KARACHI HIGH COURT SINDH 2126 #

2009 Y L R 2126

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

RUSTAM ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.74 of 2009, decided on 9th March, 2009.

Criminal Procedure Code (V of 1898)---

---S. 497-Penal Code (XLV of 1860), Ss.302/324---Bail, refusal of---Accused who was involved in a murder case, his name had been transpired in the F.I.R. with specific role in the commission of crime---No doubt case had not proceeded since last 6 years, but in murder case, no lenient view could be taken until and unless the evidence of eye-witness came on record---Trial Court was lying vacant since last one year---Sessions Judge was directed by High Court to transfer case to another Additional Sessions Judge to proceed with the case and to conclude the trial within specified period---Bail was refused in circumstances.

Habibullah G. Ghori for Applicant.

Miss Robina Dhamrah for the State.

YLR 2009 KARACHI HIGH COURT SINDH 2136 #

2009 Y L R 2136

[Karachi]

Before Anwar Zaheer Jamali, C J

ILYAS-UD-DIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.327 of 2007 and M.As. Nos.4014 and 4015 of 2008, decided on 26th January, 2009.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, grant of---Scope---Submission of counsel for the complainant was that total sum due against accused was Rs. 3,00,000, but he had only deposited a sum of Rs. 2.30,000 with the Nazir of the court---Submission of counsel for accused was that after deposit of Rs. 2,30,000 with the Nazir of the court, he had paid balance amount of Rs. 70,000 by pay order/receipt and that total decretal amount based on the dishonoured cheque had been paid by accused---While dealing with pre-arrest bail application, it would not be appropriate for the court to examine whether the decree had been satisfied as a whole or still some payment towards dishonoured cheque was outstanding against accused---Interim pre-arrest bail earlier granted to accused was confirmed, in circumstances.

Sathi M. Ishaque for Applicant.

Javed Musarrat for the Complainant.

Saleem Akhtar, Addl. P.-G., Sindh for the State.

YLR 2009 KARACHI HIGH COURT SINDH 2138 #

2009 Y L R 2138

[Karachi]

Before Syed Mehmood Alam Rizvi, J

NADEEM MASIH---Applicant

Versus

THE STATE---Respondent

Criminal Bail No.666 of 2008, decided on 5th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392/34---Bail, grant of---Bail in the present case, could not be granted on merits of the case as it was a routine crime in mega city and almost 90% of citizens were being looted by criminals by snatching their purses and the mobiles etc.--However, at the same time, the court could not lose sight of the fact that the disposal of the case was a vested right of every accused and accused could not be allowed to be put behind the bars without any progress in the proceedings---Despite lapse of about 17 months no progress had been made in the case---State Counsel had not been able to justify the inordinate delay caused in the disposal of the case, nor had attributed said delay to accused---Accused was admitted to bail, in circumstances.

Sheikh Jawaid Mir for Applicant.

Ms. Afsheen Aman for the State.

YLR 2009 KARACHI HIGH COURT SINDH 2144 #

2009 Y L R 2144

[Karachi]

Before Arshad Noor Khan, J

FAKIR MUHAMMAD and 5 others---Applicants

Versus

MUHAMMAD YOUSIF MEMON and another---Respondents

Criminal Miscellaneous No.87 of 2006 and C.M.A. No.3898 of 2008, decided on 2nd April, 2009.

Criminal Procedure Code (V of 1898)---

----S.561-A---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.2 & 3---Suit for declaration and injunction---Grant of status quo---Contempt application against violation of status quo---Application for setting aside orders---Trial Court, in suit by the plaintiff, ordered status quo to be maintained by the parties---After about one and half years from the date of passing the status quo order, plaintiff filed contempt application under O.XXXIX, Rr.2 & 3, C.P.C., which could not be finally decided when the suit was decreed by the Trial Court in favour of the plaintiff---Appellate Court however set aside judgment and decree passed by Trial Court in appeal and suit was finally disposed of by the Appellate Court---Revision filed by the plaintiff against judgment and decree passed by the Appellate Court was dismissed by the High Court imposing heavy costs on the plaintiff---Suit filed by the plaintiff was finally disposed of by the court---Validity---All the interim orders passed during the pendency of the suit would merge in the final order---Status quo, if any, granted by the Trial Court also merged in the final judgment and decree---Contempt proceedings were criminal in nature because conviction and sentence was provided under O.XXXIX, Rr.2 & 3, C.P.C.---Wherever physical conviction was provided in a provision of law or statute that proceedings would be deemed as criminal or semi-criminal in nature and the provisions of Criminal Procedure Code could also be applied to those criminal or semi criminal proceedings---Application filed under S.561-A, Cr.P.C. before High Court, could not be treated incompetent---Even otherwise, High Court had ample powers to convert the application under S. 561-A, Cr.P.C. into a constitutional petition, if the propriety would so demand---Trial Court was not competent to take the cognizance of the matter after final adjudication of the case between the parties and alleged status quo merged in the final judgment and decree---At the time of taking cognizance by the Trial Court, status quo order was non-existent in the eyes of law---Application filed under. S.561-A, Cr.P.C. was allowed and impugned orders were set aside.

Noor Hassan Malik for Applicants.

Ali Haider, State Counsel.

Muhammad Yousif, Respondent No.1 (in person).

YLR 2009 KARACHI HIGH COURT SINDH 2153 #

2009 Y L R 2153

[Karachi]

Before Dr. Qammaruddin Bohra, J

REHMATULLAH alias REHMAT---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1388 of 2008, decided on 5th December, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Pre-arrest bail, grant of---Further Inquiry---Only allegation against accused was instigation---Superintendent of Police (Investigation) in the letter addressed to the Investigation Officer directed that accused was innocent with other three accused persons and their names be shown in column No.2 of the challan---Police had accordingly submitted the challan wherein the name of accused was shown in column No.2, which had brought the case of accused for further inquiry--Accused was admitted to pre arrest bail in circumstances.

A. Khursheed Khan for Applicant.

Khizar Asghar Zaidi, A.A.-G. for the State.

YLR 2009 KARACHI HIGH COURT SINDH 2158 #

2009 Y L R 2158

[Karachi]

Before Munib Ahmad Khan, J

Mst. HASEENA BEGUM---Applicant

Versus

SALAM JAWED and 2 others---Respondents

Criminal Revision Application No.28 of 2008, decided on 13th May, 2009.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4, 7 & 8---Illegal possession of a person would remain in continuity, notwithstanding the fact that he had acquired such possession even prior to the promulgation of the Illegal Dispossession Act, 2005; and cause of action had accrued after promulgation of said Act and continued till the person in illegal possession was not dispossessed---Court trying such type of issue, had to go to the merits of each case to ascertain as to whether the issue before it pertained to simple case of illegal dispossession or both the parties had some force respecting their title through their documents to possess the property---Courts taking action under Illegal Dispossession Act, 2005, after inquiry through Police, could take up the issue in evidence as well as could scrutinize the documents and claims through the evidence on record and give their finding.

PLD 2007 SC 423; PLD 2008 Kar. 369; PLD 2008 Kar. 400; PLD 2008 Kar. 518; and PLD 2008 Kar. 480 ref.

Ms. Erum Khan for Applicant.

Ms. Tabbasum Hashmat for Respondents.

Date of hearing: 13th May, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 2162 #

2009 Y L R 2162

[Karachi]

Before Syed Mehmood Alam Rizvi, J

SHAHZAD HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.505 of 2008, decided on 6th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 21-Bail, refusal of---In the F.I.R. though words "memo. of recovery/arrest" had not been mentioned, but all the details had been mentioned---Arrest of accused though was in violation of S.21 of Control of Narcotic Substances Act, 1997, but provisions of S.21 were directory and not mandatory in nature and departure from the same in case of heinous offences could be treated as an irregularity and not an illegality or fatal to the prosecution---Such was not a serious defect, which would vitiate the trial---Sample was taken from one packet weighing "one kilogram "---Case of at least one kilogram Charas, at that stage was prima facie proof against accused as the sample' represented-the entire packet and the same was not found to be illegal---Prosecution witnesses when examined at the trial were not even suggested by accused that remaining property produced in the Court was not the same or that the same had been tampered with---Bail could not be granted to accused, in circumstances.

Imtiaz Ali v. State 2006 MLD 1961; Nadeem v. State 2007 MLD 1092; Pervaiz Ahmed v. State PLD 2008 Kar. 14 Muhammad Chattal v. State 2001 YLR 654; Mumtaz Ali v. State 2001 YLR 1847; Imdad Ali Junejo v. State 2002 PCr.LJ 1086; Muhammad Hashim v. State PLD 2004 SC 856; The State v. Bashir and others PLD 1997 SC 408; Imdad Ali Junejo v. State 2002 PCr.LJ 108; Shabbir Ahmed v. The State 2006 YLR 1042 and Ali Muhammad v. The State 2003 SCMR 54 ref.

Ghulam Rasool Mangi for Applicant.

Ms. Afsheen Aman, State Counsel for the State.

YLR 2009 KARACHI HIGH COURT SINDH 2166 #

2009 Y L R 2166

[Karachi]

Before Mrs. Qaisar Iqbal, J

SHAHZAD---Petitioner

Versus

Mst. KULSOOM and 3 others---Respondents

C. P. No.S-603 and C.M.A. No.4268 of 2008, decided on 5th June, 2009.

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

----Ss.10(3), 15(2) (ii), (vii) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent and bona fide personal need---Rent Controller dismissed ejectment application, which was assailed before Appellate Court, which had concluded that demised shop was required by the landlady for personal bona fide use of her son---On refusal of landlady to receive rent in question, tenant sent the rent through money order, which also having refused, the tenant resorted to miscellaneous rent case---Tenant, in circumstances had successfully discharged his burden in accordance with the mode prescribed in S.10(3) of Sindh Rented Premises Ordinance, 1979---Tenant; in circumstances had not committed default in payment of rent of premises---Landlady had. got vacated two shops from the same building and same were rented out to other tenants---In order to demonstrate good faith and bona fide on the part of the landlady, broad facts must be disclosed in the ejectment application, with a view to provide an opportunity to the opposite party to controvert the same---Concealment of the facts by the landlady in respect of one or more shops during pendency of ejectment proceedings would reflect adversely on her bona fide personal need and good faith which would be detrimental to her case---Landlady had the prerogative to choose a particular shop for , her personal occupation, however, the landlady who had more than one premises for exercise of her prerogative it was her duty to give plausible or satisfactory explanation for her insistence to ,occupy particular shop when other shops were available for occupation and use---Landlady could not do that---Appellate Court did not appreciate the evidence led by the parties and proceeded to decide the issue about the personal bona fide use in favour of landlady when no plausible or satisfactory evidence was available in letting out the other shops in the same building---Impugned judgment of Appellate Court was set aside and that of the Rent Controller was restored. ?

Muhammad Hafeez v. District Judge Karachi East and another 2008 SCMR 398; Fakhar Mehmood Gillani v. Abdul Ghafoor 1995 SCMR 96; Hirjibhai Behrana Dar-e-Meher through Attorney v. Messrs Bombay Steel Works, Partnership Firm, Through Partner 2001 SCMR 1888; Allies Book Corporation Through L. RS. v. Sultan Ahmed and others 2006 SCMR 152, Latif. Ahmed v. Mst. Farrukh Sultana 91996 SCMR 1233; Abdul Hanif Khan v. VTH Additional District & Sessions Judge 2008 CLC 1271 and Muhammad Jaffer v. Syed Ziaul Islam 1996 MLD Kar. 976 ref.

Muhammad Ali Mazhar for Petitioner.

Mrs. Haw Amir Rehmani for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 2175 #

2009 Y L R 2175

[Karachi]

Before Syed Pir Ali Shah, J

KHADIM HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-203 of 2008, decided on 27th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392---Bail, grant of---Delay of seven days in lodging F.I.R.---Accused was in jail for the last 16 months, but during said period of 16 months not a single witness had been examined by the Trial Court---Accused was entitled for bail and same could not be withheld as punishment---Accused was granted bail in circumstances.

Ameer Ali Mahessar for Applicant.

Mukhtiar Ahmed Khanzada for the State.

YLR 2009 KARACHI HIGH COURT SINDH 2178 #

2009 Y L R 2178

[Karachi]

Before Mushir Alam, J

NASEEM FAROOQ NIAZI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.105 of 2009, decided on 25th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, confirmation of--Counsel for accused had contended that a suit for recovery had also, been filed by the complainant against accused under summary chapter, wherein some deviations appeared to have been made as to the facts leading to the issuance of the cheque---Contention was that a commercial dispute could not be made subject matter of criminal prosecution---Counsel for the complainant had stated that cheque in dispute was issued by accused pursuant to some commercial transaction between the parties---In view of the variation in the facts narrated in the F.I.R. and the facts mentioned in the plaint of the suit in respect of the same transaction, pre-arrest bail already granted to accused was confirmed on the same terms and conditions.

Muhammad Afzal Awan for Applicant.

Muhammad Iqbal Kalhoro, A.P - G. for the State.

2009 Y L R 2234

[Karachi]

Before Anwar Zaheer Jamali, C J

MUHAMMAD LATIF---Petitioner

Versus

DISTRICT JUDGE KARACHI (SOUTH) and others---Respondents

C.P. No.S-565 of 2008, decided on 16th March, 2009.

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

----Ss.15 & 21---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope---Jurisdiction of High Court under Art.199 of Constitution was not meant to serve the purpose of, second appeal against the order of the Rent Controller and Appellate Court---High Court would not be justified to embark upon re-examination of the evidence for the purpose of evaluating the merits of the impugned judgment of the Rent Controller and Appellate Court---Constitutional petition was dismissed.

2001 SCMR 1434; 2008 SCMR 152; 1981 CLC 327; PLD 2003 Kar. 444; 2007 SCMR 1357; 2007 SCMR 1835; 2001 SCMR 1434; 2001 SCMR 338; Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 MLD 1033 and Mst. Sughran and 11 others v. Muhammad Ishaque and another PLD 2004 Kar. 48 rel.

Abdul Waheed Kanjoo for Petitioner.

Liaquat Ali for Respondent No.2.

Date of hearing: 16th ' March, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 2258 #

2009 Y L R 2258

[Karachi]

Before Ali Sain Dino Metlo, J

MUHAMMAD ALLAHUDDIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.438 of 2008, decided on 8th May, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.435 & 436-Bail, grant of---Further inquiry---Accused who was arrested on 9-3-2007, was continuously in custody without any progress in the trial---Despite issuance of repeated notices by the Trial Court, the prosecution had failed to produce any witness---Offence against accused under S.435, P. P. C. was punishable with imprisonment, which would nor be less than two years nor more than seven years, which did not come within the prohibitory clause of S.497, Cr.P.C.---No allegation was levelled that accused intended to set the building of the factory or the office on fire---No damage was shown to have been caused to the building---Applicability of S.436, P.P.C., which related -to destruction of any building, in circumstances, required further inquiry as contemplated by subsection (2) of 5.497, Cr. P. C. ---No special reasons were available for refusing bail to accused-particularly when he had remained in custody for more than a year, without any progress in the trial---Accused was released on bail, in circumstances.

S. Nadeem-ul-Haq for Applicant.

Kausar Naz Naqvi for the State Counsel.

YLR 2009 KARACHI HIGH COURT SINDH 2269 #

2009 Y L R 2269

[Karachi]

Before Anwar Zaheer Jamali, C J

Mst. JAMILA BANO and others---Applicants

Versus

JAWAID IQBAL---Respondent

C.T.A. No.45 of 2008, decided on 15th December, 2008.

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

----S. 25-A---Transfer of case---Application for---Applicants had sought transfer of Guardianship Application pending before the court at place and family case pending before the court of Family Judge D' to place K'---Respondent despite notices, had not turned up to oppose the grant of request for transfer of cases which otherwise seemed to be reasonable; and to avoid inconvenience to applicants and her two minor daughters who were reported to be living atK'---Both the transfer applications were granted---Family suit pending before the Family Court was transferred to the Family Court `K', so that it could be proceeded along with Family suit instituted by the applicant---Guardianship Application was also transferred to same Family Court for its disposal according to law.

Javed Ahmed Rajput for Applicant.

YLR 2009 KARACHI HIGH COURT SINDH 2286 #

2009 Y L R 2286

[Karachi]

Before Ghulam Dastagir A. Shahani, J

REHMATULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeals Nos.248, 249, 158 and 159 of 2007, decided on 31st October, 2008.

Penal Code (XLV of 1860)---

----Ss.324, 353, 395 & 34---Appreciation of evidence---Benefit of doubt---Minor contradictions existed between the statement of complainant and eye-witnesses, but that could not be brushed aside or discarded as person could be convicted even on the basis of evidence of one of the witnesses who established the case---Each and every case was to be decided on its own merits and benefit of doubt was to be extended in favour of accused---Accused persons, in view of material and basic evidence, were rightly nominated, fully involved and guilty of the offences; and convicted rightly by the Trial Court on the basis of evidence---Minor contradictions could be overlooked due to lapse of time---No illegality or infirmity in both the judgments was found or pointed out and findings of the Trial Court were on the whole reasonable; and not the result of disregarding any provision of law or any accepted principles concerning appreciation of evidence---Benefit of doubt always goes in favour of accused---Same, in circumstances was extended to accused persons and ordered that both the convictions and sentences recorded by the Trial Court run together and the conviction and sentence awarded to accused persons by taking lenient view was modified and reduced to the period already undergone, by them.

Abdul Ghafoor v. The State 2007 YLR 700; Fayyaz Hussain and others v. The State 2006 PCr.LJ 1996 and Raja Jamil alias Jamshed v. The State 2005 YLR 1292 ref.

Allah Dad Khan for Appellant.

Zafar Ahmed, Addl. P.-G. for Respondent.

Muhammad Ayaz Khan for the State.

Date of hearing: 31st October, 2008.

YLR 2009 KARACHI HIGH COURT SINDH 2331 #

2009 Y L R 2331

[Karachi]

Before Sajjad Ali Shah, J

MURTAZA DIWAN---Petitioner

Versus

Mst. HIRA AMIN KATH and another---Respondents

Constitutional Petition No.199 of 2008, decided on 24th October, 2008.

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

----S.7---Constitution of Pakistan (1973), Art. 199--- Constitutional petition---Petitioner, through constitutional petition, had sought quashing of the divorce confirmation certificate and declaration to the effect that respondent was still his legally wedded wife---Petitioner, who pronounced divorce upon respondent through S.M.S.; had claimed that after pronouncement of divorce, within no time same was withdrawn by way of recourse---Counsel for the petitioner had contended that since no proceedings under S. 7 of Muslim Family Laws Ordinance, 1961 were initiated by the petitioner, impugned divorce confirmation certificate could not be issued and that since petitioner claimed to have made recourse and defendant had denied, impugned certificate could not have been ,issued, without recording evidence---Validity---Nothing was in S. 7 of Muslim Family Laws Ordinance, 1961 or in any other provision of said Ordinance which prevented divorcee from issuance of notice under S. 7 of said Ordinance seeking confirmation of divorce---In cases, where a husband pronounced a divorce upon his wife and did not dispute the pronouncement before the Chairman Arbitration Council, then the fact of issuance of notice under S.7 of Muslim Family Laws Ordinance, 1961 by divorcee wife would become irrelevant---Extract of S.M.S. had revealed that petitioner had used very filthy language against respondent wife, which had led to the conclusion that the parties had very strained relations---Nothing was no record to prove that after pronouncement of divorce, the parties had rejoined---Such being questions of fact, constitutional petition---Petition was dismissed.

Allah Dad v. Mukhtar and another 1992 SCMR 1273 and Allah Rakha and others v. Federation of Pakistan PLD 2000 FSC1 ref.

Aman Khattak for Petitioner.

Muhammad Masood Khan for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 2344 #

2009 Y L R 2344

[Karachi]

Before Bin Yameen, J

SHER BANO and another---Petitioners

Versus

ILYAS SHARIF and others---Respondents

Constitutional Petition No. S-198 of 2005, decided on 26th May, 2008.

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

----S. 22---Constitution of Pakistan (1973), Art.199---Constitutional petition---Execution of ejectment order---Petitioner against whom ejectment order was passed, in her application had requested that she be given three months' more time to vacate the premises in question as she had no alternative place to reside there---Validity--Litigation in between the parties continued above seven years---All the Courts before whom case remained pending, had given decision against the petitioner; she also availed grace period of six months granted by the High Court---No justification existed to extend further time to the petitioner.

Khaleeq Ahmed for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 2352 #

2009 Y L R 2352

[Karachi]

Before Anwar Zaheer Jamali, J

OFSPACE PRIVATE LIMITED---Applicant

Versus

SAGHIR AHMED QURESHI and others---Respondents

Civil Transfer Applications Nos. 40 and 41 of 2008, decided on 25th February, 2009.

Civil Procedure Code (V of 1908)---

----S. 24---Transfer of suit---Application for---Two suits pending in civil court concerned, were sought to be transferred to High Court where litigation between the parties covering the same controversy was pending---It would be proper that two suits also be transferred to the High Court for proceeding so that conflict of judgments in various proceedings relating to the issues arising could be avoided---Transfer applications were allowed with direction that suits pending in civil Court be transferred to the High Court for further proceedings in accordance with law.

Agha Faisal for Applicant (in both cases).

Muhammad Sajjad Abbasi and Shaharyar Qazi for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 2359 #

2009 Y L R 2359

[Karachi]

Before Faisal Arab, J

NOOR MUHAMMAD---Appellant

Versus

FAZAL MAHMOOD and others---Respondents

IInd Civil Appeal No.32 of 2008, decided on 27th November, 2008.

Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872), S.46---Suit for specific performance of contract---Time for completion of contract--Case of vendor/defendant was that under clause of the agreement of sale, 20 days period provided for making the payment had expired and vendee/plaintiff having failed to make payment, agreement arrived at between the parties was cancelled---Case of vendee was that the clause of the agreement whereby time would be extended had entitled him to have the time for the payment extended---Where time was provided for the performance of a contract in relation to immovable property, it was .not to be regarded as essence of the contract, unless the parties with mutual consent would make' time as essence of the contract---Where the parties would make time as essence of the contract, but from the conduct of the parties or other stipulations of the agreement it became evident that time was not meant to be made essence of the contract, it was not to be regarding as the essence of the contract---In the present case though by one of the clauses of the contract it was clearly specified that the time was of the essence of the contract, vendor by incorporating another clause in the agreement which provided that time could be extended, time could not be regarded to have been made essence of .the contract---Vendor was required to serve notice calling upon him to complete the transaction---If, after service of such notice, vendee would fail to come forward and complete the transaction within 30 days' period, only then the contract would come to an end and the vendee would become disentitled to seek specific performance---No such notice having been issued by the vendor, vendee was fully entitled to seek specific performance of the contract---Appellate Court below, in circumstances, had rightly concluded that agreement could not have been put to an end upon the expiry of the stipulated period of 20 days and that delay was of no legal consequence---Findings of the Appellate Court not suffering from any legal infirmity, could not be interfered with by the High Court in second appeal.

PLD 1962 SC 1 ref.

Muhammad Nishat Warsi for Appellant.

Muhammad Aqil for Respondents.

YLR 2009 KARACHI HIGH COURT SINDH 2374 #

2009 Y L R 2374

[Karachi]

Before Mushir Alam and Safdar Ali Bhutto, JJ

BANTVA MEMON KHIDMAT COMMITTEE-Petitioner

Versus

CHAIRMAN AL-HILAL CHS LTD. and others---Respondents

C.P. No.D-1436 of 2008, decided on 17th April, 2009.

Cooperative Societies Act (VII of 1925)---

----S.54-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Cancellation of plot---Petitioner had impugned action of society alleging cancellation of its plot by Chairman of the Society---Petitioner had also impleaded Chief Controller of Buildings and other functionaries for removal of alleged encroachment---Alternate and efficacious remedy under S. 54-A of the Co-operative Societies Act, 1925 was available to the petitioner---Petitioner had directly approached the Minister Co-operative Department who had rightly referred the controversy to the Registrar Co-operative Society who was already seized of the matter and notice had been issued to the Society and matter was pending consideration---Grievance against the society in circumstances was sub judice before the competent forum under the co-operative societies Act, 1925---Registrar co-operative society was directed to decide the controversy preferably within stipulated period after hearing the petitioner and the Society in accordance with law---Regarding removal of alleged encroachment, since it was a private property and the public functionaries could only come into action, if encroachment was alleged on any public property, which was not so in the case.

Razia Danish for Petitioner.

Manzoor Ahmed for CDGK for Respondent.

Nadeem Farooqi for Respondent No.5.

G. Haider Shaikh for KBCA.

Syed A. Rawoof for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 2399 #

2009 Y L R 2399

[Karachi]

Before Ali Sain Dino Metlo, J

SHAHZADO SHAH---Petitioner

Versus

Mst. ANEELA---Respondent

Constitutional petition No.S-584 and C.M.As Nos. 63, 64 of 2009, decided on 22nd June, 2009.

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

----S.5, Sched. S. 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage on ground of khula by the plaintiff against the defendant was decreed by the Family Court and marriage was dissolved subject to return of gold , ornaments and relinquishment of dower amounting to Rs.100, 000---Appellate Court, however set aside the decree passed by the Family Court as a whole holding that the plaintiff having developed hatred for the defendant, plaintiff was entitled to get her marriage dissolved on the ground of Khula---Validity---Decree passed by the Appellate Court on the face of it was bad in law and needed to be rectified in order to safeguard the interest of the parties---Questions regarding receipt of benefits by wife seeking dissolution of marriage by way of khula and her liability to return the same, were also required to be decided by the Family Court---Family Court or, the Appellate Court could not refuse to decide such questions on the pretext that decree for the dissolution of marriage on the ground of khula was not dependent upon the return of benefits---If it was found that wife was liable to return some benefits received by her, same would be decreed to be returned and in case of their non-payment the decree passed by a Family Court or the Appellate Court, would be executed in the same manner as any other decree passed by them for other civil liabilities such as dower,. dowry, maintenance, etc.---Finding of the Family Court regarding return of marriage benefits by a wife in consideration of khula was challengeable before the Appellate Court, though decree for khula was not appealable---Appellate Court, instead of deciding the questions regarding receipt of benefits by the plaintiff and her liability to return the same, unskillfully . set aside the very decree, in such circumstances, where entitlement of the plaintiff for the dissolution of marriage on the ground of khula was not challenged by the defendant and the finding of the Family Court in that regard having attained finality, case could not be reopened---As appeal filed by the plaintiff was only for setting aside the condition of returning the ornaments, Appellate Court should not have avoided to decide the question on the pretext that decree for the dissolution of marriage was not dependent upon the return of benefits--Such conduct on the part of the Appellate Court amounted to its failure to exercise jurisdiction vested in it by law---Appeal filed by the defendant in such circumstances was converted into petition and judgment and decree of the Appellate Court were set aside and judgment and decree of the Family Court to the extent of dissolution of marriage on the ground of khula was maintained and the matter was remanded to Appellate Court only to decide the issue regarding receipt of ornaments by the plaintiff and her liability to return the same.

Rahmat Ally Rajput for Petitioner.

Miss Faiz-un-Nisa Channa for Respondent.

YLR 2009 KARACHI HIGH COURT SINDH 2401 #

2009 Y L R 2401

[Karachi]

Before Muhammad Iqbal Mahar, J

NASEEM AHMED---Appellant

Versus

Mst. ZUBAIDA KHATOON through Attorney---Respondent

First Rent, Appeal No.6 of 2008, decided on 24th July, 2009.

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

----S.17(2) (iv) & (4) (b)---Ejectment petition--Ground of demolition and reconstruction of premises for personal use and occupation---Proof---Landlady produced reconstruction plan sanctioned by competent authority---Engineer of Cantonment Board on directions of Court reported that landlady had partly demolished premises after getting its possession from other tenants through Court proceedings, and that condition of disputed shop was not good---Rent Laws never intended to arrest improvement of properties by owners---Landlady had right to improve her property to augment its value and utility to her---Landlady had withdrawn previous rent case in view of fresh ground of reconstruction of premises due to its poor condition---Landlady could be punished under S.17(vii) of Cantonments Rent Restriction Act, 1963 on her failure to demolish premises within four months after obtaining its possession---Ejectment petition was accepted in circumstances.

PLD 1994 Kar. 209; 1999 MLD 2592 and 2000 SCMR 1080 ref.

PLD 1988 Pesh. 153 rel.

Iftikhar Javaid Qazi for Appellant.

Muhammad Sadiq Hidayatullah for Respondent.

Date of hearing: 25th May, 2009.

YLR 2009 KARACHI HIGH COURT SINDH 2407 #

2009 Y L R 2407

[Karachi]

Before Amer Raza Naqvi, J

SHER KHAN---Petitioner

Versus

THE STATE through A.A.-G. and 2 others---Respondent

Constitutional Petitions Nos.313 to 316 of 2009, decided on 23rd April. 2009.

Criminal Procedure Code (V of 1898)---

---S.22-A & 22-B---Constitution of Pakistan (1973), Arts.24 & 199---Constitutional petition---Petitioners had alleged that the Police had harassed them and had forcibly robbed certain properties belonging to there---Petitioner had contended that it was a very serious matter and if illegal activities of the Police were not checked, then violations of fundamental rights of the citizens would continue---Since the allegations were very serious in nature, it was the duty of High Court to enforce and protect rights of the people---Petitions were held to be maintainable and District and Sessions Judge was directed to hold a judicial inquiry into the allegations made by the petitioners in their petitions---District and Sessions Judge would issue notices to all concerned and record required evidence in order to reach to the conclusion; that whether any highhandedness had been committed by the Police Officials against the petitioners; and whether the petitioners had been deprived of their valuables in violation of Art.24 of the Constitution---If District and Sessions Judge would reach the conclusion that any such violation had taken place and there had been high-handedness on the part of the Police, he would exercise his powers as Ex-officio Justice of Peace and would pass appropriate directions under Ss.22-A & 22-B, Cr.P.C.-Such directions could not be restricted to, but could include the registration of F.I.R. against any person who had violated the law of the land---High Court observed that it was expected that such inquiry would be completed within six weeks from receipt of that order.

Shafi Muhammad Bango for Petitioner.

Dareshani Ali Hyder for the State alongwith Inspector Hafeezullah, Mangnejo, S.P.O. Subhodero, Inspector Ghulam Qadir Khuhro, S.P.O. Agra, S.I.P. Muhammad Bux Channa, S.H.P., P.S. Thebani Bhlam, Inspector Zamir Hussain Shah, S.H.O., P.S. Subhodero and A.S-I. Saifullah Ansari of P.S. Mangi Marri.

Farman Ali Kanasero for Intervenor Ghouse Bux Channa.

YLR 2009 KARACHI HIGH COURT SINDH 2414 #

2009 Y L R 2414

[Karachi]

Before Amer Raza Naqvi and Salman Talibuddin, JJ

Dr. MUHAMMAD FAROOQUE MEMON and 6 others---Petitioners

Versus

DISTRICT COORDINATION OFFICER/PRESIDENT DISTRICT RED

CRESCENT BRANCH, HYDERABAD and 67 others---Respondents

Constitutional Petition No.D-350 of 2009, decided on 26th June, 2009.

Red Crescent Society Act (XV of 1920)---

----S.7---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Arts.17 & 199---Constitutional petition---Removal of petitioner front Chairmanship of Red Crescent Society---Petitioner, who claimed to have been appointed as Chairman of District Red Crescent Society, his term was to expire in the year 2011, but he was removed by District Coordination Officer (President) before expiry of his term, who being District Co-ordination Officer also changed and reappointed the nominated members of Executive Committee---Petitioner had alleged that said acts of the President were mala fide and elections were postponed so that after making fresh members it could be rigged and for that purpose membership form was also changed---Contention of the petitioner was that once the elections were announced and the list of membership was finalized by the relevant Committee and the President also endorsed such list, nobody could be added to such list till the elections were held---Contention of the President of the Society which was not person discharging functions in connection with the affairs of Federation or Local Authority, was repelled as society came into being in pursuance of Red Crescent Society Act, 1920 and very purpose of the society mentioned in the said Act, particularly S.7 of the Act and the First Schedule, was to discharge its functions in the affairs of Federation---Moreover, the actions challenged in the petition were not of the Society and Society was not required to be made a party---Actions challenged in the petition, were of the President who was undoubtedly a public functionary---Under Art.17 of the Constitution, right of association was recognized as fundamental right and special jurisdiction was conferred upon High Court by clause (c) of Art.199(1) of the Constitution, as thereby the High Court shared powers for enforcement of the Fundamental rights with the original jurisdiction of Supreme Court under Art.184(3) of the Constitution---Right of association would include right to be governed under the constitution of such association and no one who was government official and having an office in the organization by virtue of his official position could be allowed to act contrary to norms of natural justice and in violation of the constitution of such organization; and if such actions were taken, appropriate directions could be issued under Art.199(1) (c) of the Constitution.

1997 MLD 2261; 1992 SCMR 1093; PLD 1974 SC 146; PLD 1971 Kar. 625; 1986 CLC 2987; 1999 SCMR 16; 2006 SCMR 913; 1989 SCMR 506; 2007 PLC (CS.) 1046; PLD 1988 SC 416 and 1990 CLC 1766 ref.

Jhamat Jethanand for Petitioners.

Kamaluddin for Respondent No.1

Hassan Mehmood Baig for Respondents Nos.2 to 68.

Allah Bachayo Soomro, Addl. A.-G. for Respondent No.1.

2009 Y L R 2459

[Karachi]

Before Sajjad Ali Shah, J

MUHAMMAD MUSTAFA BURKI---Plaintiff

Versus

AKHTAR MAHMOOD and 8 others---Respondents

Suit No.523 and C.M.As. Nos. 3166, 3167, 8637 of 2006, 1309 of 2007, 3880, 8486 of 2008, 4143 of 2009, decided on 19th May, 2009.

Civil Procedure Cod (V of 1908)---

----O. XXXVIII, R.5---Partnership Act (IX of 1932), Ss. 40 & 48---Specific Relief Act (I of 1877), Ss.54 & 55---suit for dissolution of partnership, rendition of account, damages, mandatory and permanent injunction---Application for attachment before judgment---Plaintiff through his application had sought attachment before judgment of running and final bills of the defendant with respect to construction of road project---Pre-requisite for filing an application under O.XXXVIII, R.5, C. P. C. for attachment before judgment, appeared to be the satisfaction of the court by affidavits or otherwise, on the point that the defendant with the intent to obstruct or delay the execution of a decree, that could be passed against him, was about to dispose of the whole or any part of his property or to remove the whole or any part of such property from the local limits of the jurisdiction of the court---Non-filing of counter-affidavit by the defendant was totally immaterial and the court would not issue an attachment order on account of non-filing of counter-affidavit by the defendant, unless, it was satisfied that the plaintiff had made out a case for attachment before judgment in terms of R.5 of O. XXXVIII, C.P.C.-Though the plaintiff in the affidavit filed along with the application had deposed that the defendant being a Chinese concern, had started winding up their construction work and were about to leave the country after collecting running bills, but had not prayed for a money decree against defendant---In the prayer clause the plaintiff had not even asked for any money decree against defendant and rightly so, for the simple reason that there was neither any privity of contract between the plaintiff and defendant, nor the plaintiff was in knowledge of any amount which might be payable by defendant---Plaintiff had even not claimed any amount as money decree against defendant on account of construction of road; and had claimed only rendition of account or damages; it was quite possible that after rendition of account no amount was found due in favour of plaintiff or against defendant---Even if the plaintiff was found entitled to rendition of account from the defendant, still their properties could not be attached for the reason that there was no claim of plaintiff against defendant---Even otherwise pre-requisite for direction to render account, were totally different than the pre-requisition for attachment before judgment---Application filed by the plaintiff was not only misconceived, but was abuse of the process of the court, was dismissed with costs.

Allahabad Bank Limited v. Simla Banking Industrial Company AIR 1929 Lah. 182 ref.

K.B. Bhutto for Plaintiff.

Qadir Khan Mandookhail for Defendant No.1.

Shafiq Ahmed for Defendant No.2.

Ishrat Alvi for Defendant No.6.

YLR 2009 KARACHI HIGH COURT SINDH 2464 #

2009 Y L R 2464

[Karachi]

Before Arshad Noor Khan, J

HAZARO and 9 others---Applicants

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.248 and M.A. No. 3911 of 2008, decided on 17th April, 2009.

Criminal Procedure Code (V of 1898)---

---Ss. 22-A, 22-B, 173 & 561-A---Penal Code (XLV of 1860), S.395---Registration of criminal case---Submission of report under S.173, Cr.P.C.-Application for setting aside order of Magistrate---On application filed by the applicants under Ss. 22-A & 22-B, Cr.P.C., Justice of Peace directed S.H.O. concerned to record the statement of the complainant and in case the cognizable offence was made out, F.I.R. should be registered---F.I.R. was registered and after investigation, Investigating Officer submitted report under S.173, Cr.P.C. for disposal of the case in 'C-class'---Magistrate, however, did not concur with the opinion of the Investigating Officer and directed him to submit the challan---Said order of Magistrate had been assailed in application under S.561-A, Cr.P.C.-Validity---Report under S.173, Cr.P.C. must be submitted before the concerned Magistrate, who had all the powers to examine said report---If from the appraisal of the evidence the Magistrate would come to the view contrary to the view expressed in the report under S.173, Cr.P.C., Magistrate was not obliged to accept the report submitted by Investigating Officer on the material brought before him, the Magistrate could pass appropriate order under the circumstances of the case---In the present case while examining the report under S.173, Cr.P.C., the Magistrate came to the conclusion that the case did not warrant its disposal in `C-class'---Investigating Officer had simply non-suited the complainant on the ground that the witnesses of the complainant were interested witnesses, but Investigating Officer was not competent. to express such opinion in support of disposal of case in 'C-class'; it was the prerogative of the court to determine as to whether the witnesses were interested witness or not---Magistrate was bound to take appropriate legal action against the Investigating Officer for his default in non-compliance of the direction.

Ghulam Sarwar Korai for Applicants.

Ali Haider Dareshani for the State.

YLR 2009 KARACHI HIGH COURT SINDH 2468 #

2009 Y L R 2468

[Karachi]

Before Khalid Ali Z. Qazi, J

Mrs. RASHIDA BEGUM and 4 others---Plaintiffs

Versus

MILITARY ESTATES OFFICER, KARACHI and 2 others---Defendants

Suit No.1426 of 2008 and C.M.A. No.3269 of 2009, decided on 8th July, 2009.

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

----Arts. 31 & 113--- Civil Procedure Code (V of 1908), O.XII, R.6---Karachi Cantonment Bye-laws, R.135--Parking space---Plea of Cantonment Board that lessee was entitled to lease of reduced land---Willingness and readiness of lessee to accept reduced land---Effect---Such plea of Board would constitute an unequivocal admission on its part requiring no proof.

(b) Interpretation of statutes---

----S.R.O.---Provisions of an S.R.O. cannot be overridden or eclipsed by policy of instructions.

Collector Sales Tax and Central Excise (West), Karachi v. Customs, Central Excise and Sales Tax Appellate Tribunal 2005 PTD 53 rel.

----Notification---Beneficial or remedial Notification in any event retrospective in nature.

Army Welfare Sugar Mills v. FOP 1992 SCMR 1657; Commissioner of Income tax v. Shahnawaz Ltd. 1993 SCMR 73 and Elahi Cotton v. FOP PLD 1997 SC 582 rel.

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

----O.XIV, R.2---Question of law, if going to the root of the case, could be decided first without recording of evidence.

Sinbbad Travels (Pvt.) Ltd. Lahore v. PIAC Lahore 1990 MLD 2049; Raza Hussain v. Haji Qaiser Iqbal 1996 MLD 55; ICIC v. Mina Rafique Saigol PLD 1996 Lah.528; Ms. Benazir Bhutto v. News Publication (Pvt.) Ltd.2000 CLC 904; Khairat Masih v. Aziz Sadiq 2004 MLD 943; Sinbbad Travels (Pvt.) Ltd. v. PIAC 1990 MLD 1794 and Muhammad Saleem v. Hafiz Ahmed Din PLD 1975 Lah. 425 ref.

(e) Karachi Cantonment Bye-laws---

----Building Control Regulations are binding on all authorities and parties and Court has every power to enforce the same.

Multilane Estates v. Ardeshir Cowasjee PLD 1995 SC 423; Excell Builders v. Aredeshir Cowasjee 1999 SCMR 2089; Ardeshir Cowasjee v. KBCA PLD 1999 SCMR 2883 and Mst. Zarina v. Province of Sindh 2004 CLC 767 rel.

Farogh Naseem for Plaintiffs.

Syed Tariq Ali, Federal Counsel for Defendants.

YLR 2009 KARACHI HIGH COURT SINDH 2504 #

2009 Y L R 2504

[Karachi]

Before Muhammad Iqbal Mahar, J

[Lahore]

Before Muhammad Khalid Alvi, J

Mst. GHULAM BIBI---Petitioner

Versus

NAZAR MUHAMMAD---Respondent

Civil Revision No. 2044 of 2007, decided on 16th November, 2007.

Civil Procedure Code (V of 1908)---

----O. XLI, R.27---Specific Relief Act (I of 1877), S.42---Suit for declaration---Production of additional evidence---Suit having been decreed by the Trial Court, defendant filed appeal against judgment and decree of the Trial Court---Pending appeal, defendant filed application under O.XLI, R. 27, C.P.C. for production of additional evidence---Said application had been dismissed by the Appellate Court---Validity---Agreement regarding which permission was sought to produce witness, was produced by the defendant herself in evidence before the Trial Court; it was her duty to prove said document by producing said witness in the Trial Court---No body had objected to or challenged the production of said witness in the Trial Court---If by option an omission was made by a litigant, it could not be permitted to be rectified through additional evidence under O. XLI, R.27, C.P.C.---Such was a case which could squarely be treated to be one of filling of lacunas left in the trial.

Zahid Hussain Khan for the Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 38 #

2009 Y L R 38(1)

[Lahore]

Before Umar Ata Bandial, J

MUHAMMAD IQBAL---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SATGHARA, OKARA and

another---Respondents

Criminal Miscellaneous No. 985/H of 2008, decided on 15th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---S.H.O. had disclosed that three attempts had been made by the functionaries to recover the alleged detenues from three different locations but in vain---Held, it was beyond the ambit of habeas corpus petition for the police to go on a wild goose chase--S.H.O. was directed by High Court to record the statement of the petitioner as to the disappearance of the alleged detenues and take action thereon in accordance with law---Order accordingly.

Muhammad Nouman Shams Qazi for the Petitioner.

Nayyar Abbas Rizvi, A.A.-G. for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 40 #

2009 Y L R 40

[Lahore]

Before Iqbal Hameedur Rahman, J

SHAFA ULLAH KHAN---Petitioner

Versus

SHOIB AKHTAR and others---Respondents

Writ Petition No. 2878 of 2007, decided on 30th May, 2007.

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

----S. 5, Sched & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Trial Court in a suit for maintenance determined the quantum of maintenance as Rs.3000 after proper appreciation of material available on record and Appellate Court upheld the order of the Trial Court---No illegality or irregularity having been found in the impugned judgment in order to interfere in exercise of extraordinary constitutional jurisdiction of High Court, constitutional petition against said concurrent judgment, was dismissed.

Ch. Muhammad Ayoub for the Petitioner.

Zahid Husain Khan for the Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 47 #

2009 Y L R 47

[Lahore]

Before Zubda-tul-Hussain, J

ASHFAQ HUSSAIN SHAH---Petitioner

Versus

STATION HOUSE OFFICER, NEW TOWN, RAWALPINDI and 2 others---

Respondents

Writ Petition No. 409 of 2008, decided on 6th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application before Justice of Peace to register criminal case by respondent---Respondent who was wife of brother of petitioner filed application under S.22-A Cr.P.C. before Justice of Peace for registration of a criminal case against petitioner---Grievance of the respondent was that she apprehended that her missing son had been murdered, but the police was not investigating the case properly or making positive efforts for the recovery of her missing son---Application was disposed of by Justice of Peace, whereby applicant was directed to approach S.H.O. concerned who would hear applicant and then proceed in accordance with law---Police despite having declared petitioner as innocent, remained calling petitioner and subjected him to harassment without any lawful justification--- Petitioner in his constitutional petition had alleged that Police Officers were misusing their official powers and causing harassment to the petitioner---No case had been registered by the police against the petitioner regarding the alleged abduction or murder of the son of the respondent---In absence of any F.I.R. or other legal proceedings under the Cr.P.C. the police had no authority to hold the petitioner or to call or apprehend him as an accused---High Court directed that Police functionaries would act only and strictly in accordance with law and would not cause illegal harassment to the, petitioner---Constitutional petition was disposed of accordingly.

M. Tanveer Chaudhary for the Petitioner.

Muhammad Abid Raja, A.A.-G. along with Saleh Sub-Inspector.

YLR 2009 LAHORE HIGH COURT LAHORE 57 #

2009 Y L R 57

[Lahore]

Before Sayed Zahid Hussain, J

SAIMA HASSAN and others---Applicants

Versus

SAJJAD AHMAD---Respondent

Transfer Application No. 368-C of 2007, decided on 19th December, 2007.

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

----S.5, Sched & S.25-A---Transfer of case--Application for---Husband filed suit against his wife in the Family Court at place 'L', whereas wife had filed suit for maintenance against her husband in the court at place `S'---Suit filed by the husband was sought by the wife to be transferred from the Family Court at place 'L' to Family Court at place 'S' where her suit for maintenance was pending---Since the marriage between the parties took place at place 'S' and suit filed by the wife for maintenance was also being tried in court at place 'S' the suit pending in Family Court at place 'L' was ordered to be transferred to Family Court at place '5' where both suits would be tried together.

Zahid Hussain Khan for Appellants.

YLR 2009 LAHORE HIGH COURT LAHORE 60 #

2009 Y L R 60

[Lahore]

Before Zubda-tul-Hussain, J

SHAFQAT ALI and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 2976/B and 3774-B of 2008, decided on 21st May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 371-A & 371-B---Bail, grant of---Further inquiry---Section 371-A or 371-B, P.P.C. was applicable when the person was found in buying and selling a person for the purpose of prostitution etc.---None of accused persons was found indulging in such buying and selling; it was a case of further inquiry against accused persons within the meaning of S.497(2) of Cr.P.C.--Accused were admitted to bail, in circumstances.

Shaharyar Sheikh for the Petitioner.

Adeel Aqil Mirza, D.P.G. with Jamil, A.S.-I. for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 67 #

2009 Y L R 67

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD SALEHON---Petitioner

Versus

MEHDI KHAN and another---Respondents

Civil Revision No. 34 of 2000, heard on 15th May, 2007.

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

----Ss. 6 & 13---Suit for pre-emption---Plaintiff, claimed his superior right of pre-emption on the basis of Shafi Sharik, Shafi Khalit and Shafi Jar and also claimed due performance of Talbs---Trial Court and Appellate Court concurrently dismissed suit mainly on the ground that the plaintiff could not prove performance of Talbs---Validity---Plaintiff had neither pleaded nor specified the date, the time and the place of Meeting where he acquired the knowledge of the sale and purportedly exercised right of Talab-e-Muwathibat---Pleadings of the plaintiff, in circumstances, were blank, vague and unsubstantiated---Fundamental facts to show the timely performance of Talbs under S.13 of Punjab Pre-emption Act, 1991 were absent in the plaint---Unpleaded facts could not be made basis of the judgments and evidence, if led, upon them, was to be excluded from consideration---In absence of any legal infirmity in the impugned concurrent judgments and decrees of the courts below, same could not be interfered with in revision.

Fazal Din through L.Rs v. Muhammad Anayat through L.Rs 2007 SCMR 1; Haji Muhammad Saleem v. Khuda Bukhsh PLD 2003 SC 315; Fazal Subhan v. Sahib Jamala PLD 2005 SC 977; Akber Ali Khan v. Mukamil Shah; others 2005 SCMR 431; Haji Noor Muhammad v. Abdul Ghani and two others 2000 SCMR 329 and Hayat Muhammad & others v. Mazhar Hussain 2006 SCMR 1410 rel.

Zahid Hussain Khan for Petitioner.

Shahid Anwar Shahzad for the Respondent.

Date of hearing: 15th May, 2007.

YLR 2009 LAHORE HIGH COURT LAHORE 77 #

2009 Y L R 77

[Lahore]

Before Hafiz Tariq Nasim, J

PROVINCE OF PUNJAB through Collector Narowal and another---Petitioners

Versus

SULTAN AHMAD and 5 others---Respondents

Civil Revision No. 2034 of 2005, decided onl6th June, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. VII, R. 11 & O. XXXIX, Rr. 1, 2---Suit for declaration and permanent injunction---Rejection of plaint---Interim injunction, application for---Trial Court dismissed application for interim injunction and simultaneously rejected the plaint under O. VII, R. 11, Cr.P.C.---Appellate Court after examining all aspects of the matter, dismissed appeal against judgment of the Trial Court through a well reasoned and speaking judgment---Plaintiff, instead of avoiding further litigation, had started a new round of litigation in a novel manner, which could not be approved at any cost---Revision petition, which otherwise was against the concurrent findings of both the courts below, was dismissed.

2005 SCMR 564 and 2007 MLD 1374 ref.

Naeem Masood Assistant Advocate General, Punjab for Petitioner.

Sultan Ahmad, Respondent No.1 in person.

YLR 2009 LAHORE HIGH COURT LAHORE 85 #

2009 Y L R 85

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AKRAM---Petitioner

Versus

MUHAMMAD ASLAM---Respondent

Civil Revision No.1794 of 2007, decided on 16th June, 2008.

Specific Relief Act (I of 1877)---

----Ss. 9, 42 & S4---Suit for declaration and possession---Claim of plaintiff was that he was the owner in possession of suit land and as house owned by his father was not sufficient for the residence of his family, he had asked the defendant who was his real brother to take up residence in his house and on his agreeing he shifted to other house---Plaintiff alleged that defendant had fraudulently forged a gift deed in respect of the suit house, whereas he never made a gift in favour of defendant and never delivered the possession of house to defendant as donee---Plaintiff had stated that defendant never served him any notice and that plaintiff had his own children and was running his own business---Plaintiff sought declaration that alleged registered deed be declared illegal and void and possession of house be delivered to him---Trial Court decreed suit, but Appellate Court below dismissed suit of the plaintiff---Validity---Defendant, who pleaded valid gift in his favour, had failed to produce any evidence in support of his claim that suit house was validly gifted to him by the plaintiff---Even the person, who was stated to be attesting witness, had clearly stated in the court that no gift was ever made by the plaintiff in favour of his brother/defendant---Appellate Court below, in circumstances, had acted with material irregularity in exercise of its jurisdiction while proceeding to record findings without there being any evidence on record as to alleged gift---Impugned judgment and decree passed by the Appellate Court below were set aside, while one passed by the Trial Court decreeing the suit of the plaintiff was restored.

Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 and Ali Muhammad and others v. Qaisar Mehmood Shah and others 1991 SCMR 1114 ref.

Ijaz Feroz for Petitioner.

Syed Farooq Hassan Naqvi for Respondent.

Date of hearing: 16th June, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 90 #

2009 Y L R 90

[Lahore]

Before Hafiz Tariq Nasim, J

MUHAMMAD YOUSAF and 2 others---Petitioners

Versus

MUHAMMAD ZAFAR---Respondent

Civil Revision No. 1113 of 2000, heard on 6th May, 2008.

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

----S. 115---Revisional jurisdiction---Scope---No doubt the revisional jurisdiction was limited, however, concurrent findings of the courts below, were not sacrosanct and if some material irregularity, or non-reading/misreading of evidence was found in such findings of the courts below High Court could interfere in the matter and the revision was competent.

Abdul Sattar v. Mst. Anwar Bibi and others PLD 2007 SC 609 and Mubarik Ali through L.Rs. v. Amroo Khan through L.Rs. 2007 SCMR 1714 rel.

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

----Ss. 6 & 13---Suit for pre-emption--Making of Talabs---Service of Talb-e-Ishhad was a prerequisite and if the performance of the same was not proved beyond any shadow of doubt as well as in the prescribed form, then the whole structure would fall down---In the present case one witness was produced to prove that notice of Talb-e-Ishhad was served, whereas according to Qanun-e-Shahadat, 1984 two witnesses were to be produced, rendering the said notice defective and making it a case of non-performance of said Talab in the true spirit of S.13(3) of Punjab Pre-emption Act, 1991---Record also revealed that notice of Talb-e-Ishhad was not given by the pre-emptor himself, but was given by an Advocate, who had not been delegated powers by the pre-emptor authorizing him to issue such notice---One of the witnesses produced by the pre-emptor did not depose in clear terms that pre-emptor made Talb-e-Muwathibat immediately in the same meeting---Findings recorded by the courts below were contrary to the evidence available on record, which was a sufficient ground for interference by the High Court, in exercise of its revisional jurisdiction---Impugned concurrent judgments and decrees of the courts below, were set aside and suit was dismissed.

Taki Ahmed Khan for Petitioners.

Pir Syed Kaleem Ahmed Khurshid for Respondent.

Date of hearing: 6th May, 2005.

YLR 2009 LAHORE HIGH COURT LAHORE 94 #

2009 Y L R 94

[Lahore]

Before Maulvi Anwarul Haq, J

Malik MUHAMMAD ALI---Appellant

Versus

ABDUL JABBAR and 2 others---Respondents

S.A.O. No. 2 of 2008, heard on 20th June, 2008.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13, 15 & 17----Execution of ejectment order---Ejectment application was allowed by the Rent Controller which was confirmed by the Appellate Authority and execution proceedings were commenced----Tenant filed objection petition stating that he had purchased the shop of one of the co-sharers of the property and that he had filed a suit for partition---Objections raised by the tenant were dismissed by the Executing Court and first appeal filed by the tenant had also been dismissed---Validity---No provision for second appeal against an order passed in execution and affirmed by the Appellate Court existed---Tenant could not claim to be co-owner of the property in question on the basis of alleged sale deed executed in favour of his sons---Tenant was adjudged to be tenant and was ordered to be ejected accordingly by the Rent Controller, the Appellate Authority below and also by the High Court---Even if it was assumed that sale-deed was in favour of the tenant, still he would not become co-owner in the property in question wherefrom he had been ordered to be ejected on the application of the landlord---Second appeal having been treated as civil revision was dismissed.

Ghulam Farid Sanotra for Appellant.

Malik Abdul Wahid for Respondents.

Date of hearing: 20th June, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 97 #

2009 Y L R 97

[Lahore]

Before Zafar Iqbal Chaudhry, J

SOHAIL MEHMOOD MALIK and another---Petitioners

Versus

ADDL. DISTRICT AND SESSIONS JUDGE and 7 others---Respondents

Writ Petition No.8935 of 2008, decided on 15th September, 2008.

Punjab Local Government Elections Rules, 2005---

----R. 58---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election record---Counsel for petitioner had submitted that he filed an application before the Election Tribunal regarding condition of the bags, seals and envelop, but he had not mentioned the defects pointed out in his application---Petitioner had further submitted that he would be satisfied, if Election Tribunal was directed to mention the exact condition mentioned in his application during counting proceedings---Counsel for respondent had submitted that bags for the first time were produced before the Election Tribunal, but at that time no objection was raised and the petitioner took said objections subsequently just to create false defence against the respondent---Election Tribunal, however, was directed by High Court to see the exact condition of the bags, seals and the envelopes according to the application filed by the petitioner and would mention the real condition in the proceedings---Order accordingly.

Talat Farooq Shaikh for Petitioner.

Muhammad Ashraf Khan-II for Respondent No.2.

YLR 2009 LAHORE HIGH COURT LAHORE 99 #

2009 Y L R 99

[Lahore]

Before Malik Saeed Ejaz and S. Ali Hassan Rizvi, JJ

TALLAT MEHMOOD---Appellant

Versus

B.Z.U. BAHAUDDIN ZAKARIYA UNIVERSITY through Vice-Chancellor and 2 others---Respondents

Intra-Court Appeal No. 43 in Writ Petition No. 1841 of 2008, decided on 21st May, 2008.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra-court appeal---Scope---Appellant had contended that impugned order was violative of norms of justice and that Single Judge had failed to apply his judicial mind to the real facts which had not been discussed---Appellant was charge-sheeted for charge of misconduct and to misplace two measurement books in order to prepare new abstracts of bills to release the funds which were withheld by the Project Director---No illegality could be pointed out in the impugned order passed by the Single Judge calling for interference through the intra Court appeal---Respondent had not proceeded whimsically or arbitrarily---Appeal was dismissed.

Khurshid Ahmad Khan for Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 101 #

2009 Y L R 101

[Lahore]

Before Maulvi Anwarul Haq, J

MAQBOOL FATIMA through General Attorney---Petitioner

Versus

MANZOOR FATIMA ---Respondent

Civil Revision No.1844 of 2005, heard on 21s May, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiff sought declaration to the effect that she was exclusive owner of the suit land and that defendant, who was her sister had transferred her share to the plaintiff by oral sale and exchange---Defendant hotly contested the suit---Special attorney and son of plaintiff appeared in court and proposed that in case son of defendant appearing in the court would take oath on Holy Quran that he did not receive amount from the defendant in relation to transfer of the suit land to her as part payment, suit of the plaintiff be dismissed and in case son of defendant refused to take oath, the suit be decreed---Son/general attorney of defendant accepted said offer and on taking his oath, suit filed by the plaintiff was dismissed---First appeal filed by the plaintiff was allowed by the Appellate Court and setting aside dismissal order, remanded the case for deciding the suit after recording evidence of the parties on merits---Validity---Son/attorney of plaintiff had competently made offer as he was duly authorized in special power of attorney executed in his favour---Appellate Court below, however, had correctly stated that statement made by son of defendant was not in accord with offer made by the attorney of the plaintiff---Haste with which the Trial Court proceeded, was evident from the fact that it failed to note that the statement of son/attorney of the defendant was not in accord with the offer made by the attorney and son of the plaintiff.

Khushi Muhammad through L.Rs v. Mst. Nazira Bibi and 4 others 2007 CLC 1874; Ahmad Khan and others v. Jewan PLD 2002 SC 655; Muhammad Ali v. Major Muhammad Aslam and others PLD 1990 SC 841 and Ahmed and others PLD 2002 SC 655 ref.

M. Farooq Qureshi Chishti for Petitioner.

Sh. Naveed Shaharyar for Respondent.

Date of hearing: 21st May, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 105 #

2009 Y L R 105

[Lahore]

Before Syed Asghar Haider, J

ABDUL LATIF---Petitioner

Versus

MEHBOOB ALAM---Respondent

Civil Revision No.1988 of 2002, decided on 26th May, 2008.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement---Trial Court decreed suit, but Appellate Court below allowing appeal, dismissed the suit---Validity---Oral evidence Produced by the plaintiff fully corroborated contents of the plaintiff's version---Enough material was on record to hold that a valid and binding contract was reached between the parties especially when it was executed in the proceedings in a court of law---Contrarily evidence produced by the defendant merely reflected that it was collusive---Ingredients of a valid contract being offer, consideration and acceptance, on the touchstone of said requirements, compromise was fully established as a valid and binding contract---Impugned judgment of the Appellate Court, in circumstances was patently illegal and could not sustain--Impugned judgment and decree passed by the Appellate Court below, were set aside and the judgment and decree of the Trial Court, were restored.

Shahzad Shaukat and Mirza Hafeez-ur-Rehman for Petitioners.

Rukhsana Ikram Rana for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 108 #

2009 Y L R 108

[Lahore]

Before Syed Asghar Haider, J

NAWAZISH ALI and another---Petitioners

Versus

MUHAMMAD KHUDA YAR ASKARI through legal heirs---Respondent

Civil Revision No.594 of 1992, heard on 12th May, 2008.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession---Trial Court decreed suit, but Appellate Court below allowing appeal filed by defendant, set aside judgment and decree of the Trial Court and dismissed the suit---Plot in dispute was duly transferred to the plaintiff and evidence on record had fully established that plaintiff was the owner of the plot in question---Civil matters are adjudicated and decided on preponderance of documentary as well as oral evidence produced by the parties; on that principle, the evidence produced by the plaintiff clearly outweighed the evidence produced by the defendant---Rule that under Transfer of Property Act, 1882 every document over the value of Rs.100 was required to be registered, was not absolute while establishing ownership---In the present case convincing evidence on record could not be brushed aside on that ground alone---Nonadherence to registration was to be visited with a penalty, but it could not be used as a weapon to snatch lawful ownership of other party---Plaintiff having fully been proved to be owner of the plot in question, was entitled to hold the possession of the same---Impugned judgment and decree passed by the Appellate Court were set aside and judgment and decree of the Trial Court were restored.

Talib Hussain v. Babu Muhammad Shafi and 12 others PLD 1987 Lah. 4 ref.

Petitioner in person.

Awan Muhammad Hanif for Respondent.

Date of hearing: 12th May, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 111 #

2009 Y L R 111

[Lahore]

Before Syed Asghar Haider, J

BAGH DIN---Petitioner

Versus

MUHAMMAD ASGHAR and others---Respondents

C.R. No. 1428 of 2005, decided on 7th March, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Right of plaintiffs to lead evidence, was struck off during proceedings before the Trial Court---Appeal by the plaintiffs against order of the Trial Court had been dismissed by the Appellate Court---Counsel for the plaintiffs had contended that they be granted one opportunity to lead entire evidence subject to payment of reasonable costs and counsel for defendant agreed to the proposition, subject to the condition that the suit be expeditiously decided---With concurrence of the counsel for the parties, the judgments and decrees passed by the Trial Court and Appellate Court were set aside subject to payment of costs to the defendant---Parties were granted one opportunity to conclude entire evidence and suit would be decided on merits, in accordance with law expeditiously.

Muhammad Arif Raja for Petitioner.

Zahid Hussani Khan for Respondent No.3.

YLR 2009 LAHORE HIGH COURT LAHORE 116 #

2009 Y L R 116

[Lahore]

Before Hafiz Tariq Nasim, J

Ms. SUBLEEM ALI---Petitioner

Versus

GOVERNMENT OF PUNJAB---Respondent

Writ Petition No. 10417 of 2008, decided on 11th September, 2008.

Educational institution---

----Admission in M.Phil---Petitioner after doing B.Sc. in Applied Psychology, applied for admission in M. Phil in response to the advertisement, but she, despite having eligibility criteria more than the required one, was not given admission, simply on the ground that petitioner being qualified from a College from place "L" could not acquire required credit hours as the course studied in that college was somewhat different from that of the one where admission was sought---University itself advertised with certain specific conditions of eligibility and petitioner fulfilled the same, but she was not selected on extraneous consideration quite contrary to the contents of the advertisement in press---Validity---Travelling beyond the scope of advertisement would amount to approbate and reprobate which could not be allowed, especially when out of 15 seats only 4 were filled and 11 were still to be filled and eligibility of the petitioner could not be disputed---Non-granting of admission to the petitioner in M.Phil being outcome of colourable exercise of power by the University, same was declared illegal and authorities were directed to admit petitioner as student of M. Phil Applied Psychology Department in Session of 2008.

Malik Muhammad Tauqir Afzal for Petitioner.

Muhammad Farooq Qureshi Chishti, Advocate for University of Punjab.

YLR 2009 LAHORE HIGH COURT LAHORE 125 #

2009 Y L R 125

[Lahore]

Before Khalil Ahmad, J

GHULAM HUSSAIN and 2 others---Petitioners

Versus

MUHAMMAD RAFIQ HUSSAIN and another---Respondents

Criminal Revision No. 541 of 2005, heard on 8th September, 2008.

Civil Procedure Code (V of 1908)---

----O. XLI, R.27---Production of additional evidence---Application under O.XLI, R.27, C.P.C. for production of additional evidence had been dismissed---Validity---Documents sought to be produced in additional evidence were registered documents and certified copies of 'the Revenue Record and as such were part of public record---Suit was decided after almost nine years and appeal filed was Pending---Since the documents sought to be produced as additional evidence, were part of public record, those were allowed to be produced as additional evidence as there was no possibility of their being tampered with---Appellate Court was directed by High Court to allow the production of documents mentioned in application and decide appeal within specified period.

2004 MLD 742; PLD 2002 SC 615 and 1993 MLD 1324 ref.

Malik Noor Muhammad Awan for Petitioners.

Zahid Hussain Khan for Respondent No.1.

Respondent No.2 Ex parte.

Date of hearing: 8th September, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 133 #

2009 Y L R 133

[Lahore]

Before Syed Hamid Ali Shah, J

WATER AND POWER DEVELOPMENT AUTHORITY through General Manager and another ---Petitioners

Versus

ASSISTANT DIRECTOR, MINES AND MINERAL, ATTOCK and 4 others---Respondents

Writ Petition No. 909 of 2007, decided on 27th June, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, Rr.2 & 10---Punjab Minor Minerals Concession Rules, 1990, R.48---Constitution of Pakistan (1973), Art.199---Constitutional petition---Money suit---Return of plaint---Plaintiffs in their suit challenged the claim of defendants for payment of amount regarding unauthorized excavation of slate stone---Trial Court dismissed suit, while Appellate Court accepting appeal of the plaintiffs ex parte returned the suit to the plaintiffs for its presentation before the competent forum---Question of jurisdiction of the civil court was determined by the Trial Court and it was found that civil court had no jurisdiction to call in question the demand raised by the defendants qua the claim of unauthorized excavation---Appellate court below while returning the plaint to the plaintiffs under O. VII, R.10, C.P. C. had observed that the judgment and decree of the Trial Court to the extent of decision on the question of jurisdiction was not open to exception---When both the courts had concurrently arrived at the conclusion that civil court had no jurisdiction, revision petition filed by the plaintiffs under R.48 of Punjab Minor Minerals Concession Rules, 1990 before the Secretary to Government of Punjab, was not liable to be dismissed on plea of filing of the suit or assailing the judgment and decree of the Trial Court in appeal---Impugned order erroneously passed by Provincial Secretary was set aside having been passed without any lawful authority---Revision petition filed by the plaintiffs would be deemed to be pending before Director Licensing, who would decide the same within the parameters of law on its own merits.

S.M. Ayub Bukhari for Petitioners.

Syed Husnain Haider Kazmi, A.A.-G. along with Muhammad Ibrar, Assistant Director, Mines and Minerals Department.

YLR 2009 LAHORE HIGH COURT LAHORE 140 #

2009 Y L R 140

[Lahore]

Before Khalil Ahmad, J

ALI MUHAMMAD---Petitioner

Versus

ALLAH DITTA---Respondent

Civil Revision No.430 of 2003, decided on 4th July, 2008.

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

----S. 6---Pre-emption suit---Superior right---Pre-emptor filed suit for possession through pre-emption---Trial Court, after framing of issues and recording evidence, decreed the suit---Lower Appellate Court, while accepting the appeal, set aside the judgment and decree of the Trial Court---Plea raised was that pre-emptor was "Shariek Khata" being co owner, had common passage and sources of water and land of pre emptor was also contiguous to the suit property, thus had superior right of pre emption---Validity---Aks Shajra available on record clearly mentioned that the land of the pre emptor was adjacent to the suit property---High Court accepted the petition of pre-emptor in circumstances.

PLD 2001 SC 67; PLD 1969 SC 617; PLD 1985 SC 328; 1982 CLC 208 and 1979 CLC 838 ref.

Sh. Naveed Shehryar for Petitioner.

Muhammad Fazil for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 146 #

2009 Y L R 146

[Lahore]

Before Syed Asghar Haider, J

GHULAM MURTAZA---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, NAROWAL and others---Respondents

Civil Revision No. 510 of 2007, decided on 18th September, 2008.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for specific performance of agreement of sale---Interim relief, application for---Injunctive relief was discretionary in nature and dependant upon the prima facie case, balance of convenience and irreparable loss---Trial Court primarily dismissed the application for injunctive relief on the ground that the matter needed deep appraisal of evidence to determine the veracity of agreement in question or otherwise---Validity---Agreement to sell itself would not create any title for a prospective vendee---Suit-land had already been alienated in favour of defendants--Ingredients of grant of interim injunction were not in favour of the plaintiff---Findings were affirmed by the Appellate Court---Disputed agreement required to be proved by cogent and reliable evidence---Possession of suit-land was with defendants---Concurrent findings of facts were against the plaintiff---No material illegality, irregularity and/or procedural deviation had been pointed out, petition was dismissed.

Miss Shabana Yaqoob for Petitioner.

Syed Ali Raza Gillani for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 153 #

2009 Y L R 153

[Lahore]

Before Khalil Ahmad, J

MUHAMMAD ASHRAF---Petitioner

Versus

FAIZ ALI and 3 others---Respondents

Civil Revision No. 1594 of 2000, heard on 14th July, 2008.

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

----S. 13---Pre-emption suit---Suit for possession through pre-emption was filed by pre-emptor---Trial Court, after framing of issues and recording of evidence, dismissed the suit---Lower Appellate Court accepted the appeal and set aside the judgment of Trial Court---Plea raised was that plaint was silent regarding, date, place and time of performance of Talb-i-Muwathibat---Validity---Trial Court had rightly dismissed the suit in which date, place and time of Talb-i-Muwathibat and also date of issuance of notice of Talb-i-Ishhad were not mentioned.

PLD 2007 SC 302 rel.

Altaf Hussain v. Abdul Hameed alias Abdul Majeed 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362; 2007 SCMR 719; 2004 YLR 865 and 2007 SCMR 1295 ref.

Baleegh uz Zaman for Petitioner.

Sh. Naveed Shehryar for Respondent.

Date of hearing: 14th July, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 166 #

2009 Y L R 166

[Lahore]

Before Khalil Ahmad, J

Syed MAZHAR HUSSAIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SARGODHA and others---Respondents

Writ Petition No. 4620 of 2006, decided on 18th September, 2008.

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

----S. 5, Sched & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suits for recovery of dowry articles and for maintenance---Suit had concurrently been decreed by the Family Court and Appellate Court---Validity---Defendant was unable to point out any illegality or material irregularity in impugned judgments and decrees of both the courts below to warrant interference in constitutional petition---Constitutional petition was dismissed in circumstances.

Muhammad Ashraf Azad for Petitioner.

Akhtar Masood Khan for Respondent No.3.

2009 Y L R 211

[Lahore]

Before Syed Shabbar Raza Rizvi, J

SANWAL KHAN---Petitioner

Versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous No. 1737-M of 2008, decided on 17th October, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 145 & 561-A---Dispute concerning land likely to cause breach of peace--Inherent powers of High Court---Petition to exercise powers under S. 561-A, Cr.P.C. had been filed against impugned order passed by the Judicial Magistrate under S.145, Cr.P.C.---Revision filed against order of Magistrate, was dismissed on the ground that parties were already at daggers drawn over the disputed plot and F.I.R. was also registered in the case---Counsel for the petitioner had stated that disputed plot was in possession of the petitioner and Judicial Magistrate had failed to proceed in the matter as required by procedure laid down in S.145, Cr.P.C.---Order of the Magistrate clearly indicated that parties were bent upon to breach the peace as already an occurrence had taken place for which F.I.R. was registered---To prevent further violence or breach of the peace, the Magistrate had passed impugned order---Insistence of the counsel for the petitioner that disputed plot was in possession of the petitioner and procedure under S.145, Cr.P.C. was not followed, was not convincing, in circumstances---Petition under S. 561-A, Cr.P.C. was dismissed, Magistrate, however was directed by High Court to expedite the inquiry contemplated under S.145, Cr.P.C. to decide the issue as required under the law and rules.

Muhammad Khalid Sajjad Khan for Petitioner.

Naseem Ullah Khan Niazi for Respondent.

Muhammad Nawaz Bajwa, A.A.-G. for the State.

Asif Mehmood Cheema, Deputy Prosecutor General Khalid Mehmood Gill Tehsildar Khushab and Safdar Sipra S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 222 #

2009 Y L R 222

[Lahore]

Before Ali Akbar Qureshi, J

RAZIA BIBI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SARGODHA and 2 others---Respondents

Writ Petition No. 9380 of 2008, decided on 22nd October, 2008.

Guardians and Wards Act (VIII of 1890)---

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minor---Schedule of meeting of the minor---Petitioner had challenged only the schedule of meeting with the minor given by the appellate Court---Schedule given in the impugned judgment was being complied with by both the parties---Submission of the petitioner, however, was that because of the schedule given in the impugned judgment, education of the minor was being disturbed so a new schedule to meet the child with his father be given---Petitioner had suggested that it was appropriate to allow the father to meet the minor after six weeks---Suggestion was repelled on the ground that it was also part of the education that the minor should meet his father; and even otherwise no ground was urged in the petition or in the argument of the counsel for the petitioner that father should be deprived to meet his son---Appellate Court had given schedule in its judgment keeping in view the welfare of the minor---No reason was at all available to disturb the same or to give new schedule---Constitutional petition was dismissed in circumstances.

Mehr Muhammad Iqbal for Petitioners.

Dost Muhammad Kahot for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 224 #

2009 Y L R 224

[Lahore]

Before Zafar Iqbal Chaudhry, J

AHMAD KHAN and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No.440 Criminal Appeal No.886 of Criminal Miscellaneous No.1635 of 2007, heard on 28th March, 2008.

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

----Ss. 337-A(ii) & 337-F(i), (ii), (iii), (iv)---Appreciation of evidence---Sentence, reduction in---Counsel for petitioners/accused persons had opted not to challenge conviction of petitioners on merits and only prayed for reduction in the quantum of sentence of imprisonment awarded to them---All the prosecution witnesses were consistent on material points and nothing was on record to disbelieve them---Minor contradictions in the statements of the witnesses could be overruled due to the reasons that a long period had elapsed between the occurrence and their statements---Even otherwise conviction of petitioners had not been challenged on merits, which was

maintained---Occurrence in the case had taken place in the year 1995 and the petitioners had faced the agony of trial for more than six years and thereafter appeal filed by them was dismissed and since then present revision petition was pending before the High Court---In view of said peculiar facts and circumstances of the case, sentence of imprisonment was reduced accordingly---Sentences awarded to the petitioners would run concurrently and benefit of S. 382-B, Cr.P.C. would also be extended to them.

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

----S. 417---Penal Code (XLV of 1860), Ss. 337-A(ii) & 337-F, (i) (ii), (iii), (iv)---Appeal against acquittal---No improbability or infirmity was found in the impugned judgment of acquittal which being based on sound and cogent reasons would not warrant any interference by the High Court---Appeal against acquittal being devoid of any merit, was dismissed.

Mian Makshoof Amjad for Petitioners (in Criminal Revision No.440 of 2007).

Muhammad Amir Khan Niazi for the Complainant (in Criminal Appeal No.886 of 2007).

Mian Ismat Ullah, Deputy Prosecutor for the State (in Criminal Miscellaneous No. 1635 of 2007).

Date of hearing: 28th March, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 234 #

2009 Y L R 234

[Lahore]

Before Tariq Shamim and Muhammad Ashraf Bhatti, JJ

MUHAMMAD JAMEEL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1325, Criminal Revision No.974 of 2002 and Murder Reference No.565 of 2002, heard on 28th July, 2008.

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

----S. 302 (b)/34---Appreciation of evidence--Ocular account furnished by the eye-witness was of an unimpeachable character coming from a man who had no grudge against the accused, nor he had any special relations with the complainant and he had stood firm to his stance as to the occurrence, perhaps finding it a duty on his part to furnish the first hand evidence regarding gruesome murders of two innocent brothers in their prime youth---Solitary statement of the said witness being natural, direct . and confidence-inspiring was accepted as a solid piece of evidence, which even had lent full support to the statement pf the complainant as also the medical evidence on record---Cause of death disclosed by the deceased before his brother (complainant) after having received bullet injury could safely be termed as a dying declaration, because neither the said deceased nor the complainant had any reason to wrongly involve the accused in the case---Dying declaration coupled with the last seen evidence provided by the complainant was fully supported by the aforesaid eyewitness---No delay had occurred, nor there was a chance to tutor the said deceased who too was not sure of his survival, therefore, value of the said dying declaration could not be minimized through made before his real brother---Defence version appeared to be a cock and bull story finding no support on record by any independent piece of evidence---Proof of motive or otherwise was of no consequence or relevance where ocular account was fully established through candid, honest and straight narration of facts by the prosecution---Investigating Officers had made every effort at all levels to destroy prosecution case and to leave lacunas obviously with bad and dishonest intention and no value could be attached to their statements giving illegal concessions to the accused---Conviction and sentence of accused were upheld in circumstances.

Riaz Hussain v. The State 2001 SCMR 177; Abdul Aziz and others v. The State 2002 PCr.LJ 1797 and Muhammad Ashraf v. The State 2001 PCr.LJ 412 ref.

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

----S.302(b)/34---Appreciation of evidence--Site-plan---Evidentiary value---Site-plan has never been considered as a substantive piece of evidence and is always required as a corroborative piece of evidence.

----S.302(b)/34---Appreciation of evidence--Motive---Nature and scope---Motive is a double-edged weapon and its proof or otherwise is of no consequence or relevance in the presence of fully established ocular account through candid, honest and straight narration of facts by the prosecution witnesses finding full support and corroboration from other independent evidence on record.

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

----S.302(b)/34---Witness, indivisibility of his integrity---Proposition that "integrity of a witness is indivisible" cannot be accepted, because if a witness is proved to have not come out with the truth on a particular point, even then his entire statement cannot be said to be false---Court in such a situation should not discard the statement of the witness which is corroborated by other independent evidence.

Muhammad Ashraf v. The State 2001 PCr.LJ 412 ref.

Sardar Muhammad Latif Khan Khosa for Appellants.

Qazi Zafar Iqbal, Additional Prosecutor-General for Respondent.

Sardar Muhammad Ayub Khan Lodhi for the Complainant.

Date of hearing: 28th July, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 251 #

2009 Y L R 251

[Lahore]

Before Khalil Ahmad, J

GHULAM MUHAMMAD---Petitioner

Versus

MUHAMMAD KHAN---Respondent

C.R. No. 1459 of 2001 and C.M. No.1-C of 2008, decided on 18th September, 2008.

Civil Procedure Code (V of 1908)---

----O. V, R.20, O. VI, R.17, O.IX, R.13, Ss.115 & 151---Revision---Proper Service-Affixing/Chaspangi of copy of summons---Effect---Setting aside of ex-parte order---Petitioner had urged that his counsel had died and no notice was served upon him; and that only report of Chaspangi was made which could not be termed as a `proper service' on the petitioner because he had no notice of said affixation/Chaspangi--- Pre-admission notice in the revision was issued on three dates and thereafter also adjournment was sought by the petitioner and petitioner having failed to appear even on adjourned date of hearing, revision was dismissed for non-prosecution---Counsel for petitioner filed application for recalling dismissal order, which was fixed for hearing when, on account of death of counsel for the petitioner, notice was ordered to be issued to the petitioner and thereafter Chaspangi was effected by the Process Server---No ground for recalling impugned order having been made out, petition was dismissed.

Sh. Naveed Shaharyar for Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 257 #

2009 Y L R 257

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD SHAFIQ KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 8308-B of 2008, decided on 30th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Accused during the course of investigation refused to concede that he had dishonestly issued the disputed cheque---Expert opinion was required, in such circumstances but that aspect of investigation was totally ignored by the Investigating Officer as he did not bother to get verification of signature of accused upon the cheque in question---Offence under S. 489-F, P.P.C. having provided maximum punishment of three years, same was not, covered by the prohibitory clause of S. 497, Cr.P.C.---Offence against accused did not fall within the prohibitory clause of S. 497, Cr.P.C, irrespective of amount mentioned in F.I.R.---Granting of bail in such like cases was a rule and refusal was an exception---Whether the cheque in question was of a smaller amount or a huge amount would snot make any difference---Fact that accused had allegedly committed an offence which provided maximum punishment of three years which was not covered by the prohibitory clause of S.497, Cr.P.C., he was admitted to bail.

Salman Safdar for Petitioner.

Zafar Iqbal Chaudhry for the Complainant.

Irshad Hussain Bhatti, D.P.-G. with Ahmad Ali, A.S.-I. for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 273 #

2009 Y L R 273

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. GULZAR BIBI---Petitioner

Versus

MUHAMMAD RIAZ and another---Respondents

Criminal Revision No. 931 of 2008, heard on 14th October, 2008.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), S.10 & O.XXXIX, Rr.1, 2---Suit for specific performance of agreement to sell---Temporary injunction, grant of---Plaintiff had filed, suit against defendants for specific performance of agreement to sell stated to have been executed by defendant and an application seeking a temporary injunction, restraining defendant to get her suit decreed against the plaintiff---Said application was dismissed by the Trial Court, but Appellate Court had granted injunction---Validity---Counsel for the plaintiff, made a clean breast by stating that the injunction to the said extent could be vacated as his client had filed an application to become a party in the other suit---Apart from said concession of the plaintiff, it was settled that lawful proceedings in the nature of a suit pending in the court of competent jurisdiction could not be stayed unless and until the matter would fall within the four corners of S.10, C.P.C.---Impugned order passed by the Appellate Court was set aside inasmuch as it purported to stay the proceedings in the civil suit.

Ch. Muhammad Nawaz for Petitioner.

Nemo for Respondent No.1.

Karamat Ali Butt for Respondent No.2.

Date of hearing: 14th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 279 #

2009 Y L R 279

[Lahore]

Before M. Bilal Khan and Khurshid Anwar Bhindar, JJ

SARFRAZ and 2 others--- Appellants/Petitioners

Versus

THE STATE---Respondent

Criminal Appeal No. 234 and Criminal Miscellaneous No.1 of 2008, decided on 10th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302---Petition for suspension of sentence pending appeal---Petitioners were sentenced to five years imprisonment each, whereas their co-accused to whom fatal injury to the deceased had been attributed, had been sentenced to death---All accused persons had challenged their convictions through the appeal, the hearing whereof was not in sight in the near future, as the printing of paper book of murder reference was to take some time---Petitioners were behind the bars from the date of their conviction i.e. 27.3-2008 and had remained on bail during the course of trial---Till such time murder reference was fixed, the petitioners would have undergone whole of the sentences awarded to them, rendering their appeal to be meaningless---Sentences awarded to accused persons were suspended and they were directed to be released from custody.

Muhammad Ameer Khan Niazi for Petitioners/Appellants.

Pervaiz Alamgir, Deputy Prosecutor-General Punjab for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 294 #

2009 Y L R 294

[Lahore]

Before Syed Hamid Ali Shah and Khawaja Farooq Saeed, JJ

Malik MUHAMMAD JAMEEL AKHTAR---Appellant

Versus

ADDITIONAL SESSIONS JUDGE and 7 others---Respondents

I.C.A. No.27 of 2005, heard on 2nd July, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Intra Court appeal---Constitutional petition, maintainability of---Appellant/petitioner had claimed that respondents had furnished forged and false documents in respect of L.L.B. degree and that the matter had been accepted by the Anti-Corruption Committee of the provincial Bar Council---Appellant did not deny that in the subsequent decision of the Anti-Corruption Committee of Provincial Bar Council, said documents were duly considered---Review of the Committee was based upon the subsequent verification of the University, which having not been challenged before any court of law, had attained finality---Finding of Anti-Corruption Committee being clear, unequivocal and based upon the evidence, with regard to genuineness of result card of the respondents, there was no reason for the High Court to agree with the appellant, who even otherwise had no locus standi to file constitutional petition against respondent being not an aggrieved person---Order of Anti-Corruption Committee of Provincial Bar Council, being self-speaking, High Court declined to intervene in constitutional petition, which had rightly been rejected---Even otherwise, constitutional petition was not to be entertained against the respondents having been filed by a person who was not an `aggrieved party'.

Muhammad Jamil Akhtar and another v. Appellate Authority, District Judge, Rawalpindi and 4 others 2003 SCMR 400 ref.

Rab Nawaz Noon for Appellant.

Sardar Abdul Razzaq Khan for Respondent.

M.D. Shahzad, Advocate, for P.U.

Syed Husnain Raza Kazmi, A.A.-G.

Date of hearing: 2nd July, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 303 #

2009 Y L R 303

[Lahore]

Before Hafiz Tariq Nasim, J

GHAZANFAR ALI and 2 others---Petitioners

Versus

SARFRAZ KHAN and 5 others---Respondents

Civil Revision No. 1176 of 2006, decided on 7th May, 2006.

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

----Ss. 6 & 13---Suit for pre-emption---Sale of suit-land was pre-empted on basis of 'Shafi Shank'---Trial Court dismissed suit, but Appellate Court setting aside judgment and decree the of the Trial Court, decreed the suit---Findings of the Trial Court that Talb-e-Ishhad could not be proved through cogent, independent and confidence inspiring evidence, appeared to be convincing---Pre-emptors having failed to prove the performance of `Talbs' in accordance with law could not be entitled to the decree of their suit---Said findings of the Trial Court could not be termed erroneous, when the matter in dispute revolved around that moot point---Findings recorded by the Appellate Court below, whereby suit was decreed, were virtually an outcome of misreading of evidence--Impugned judgment and decree passed by the Appellate Court below, were set aside, whereas judgment passed by the Trial Court whereby suit was dismissed, was upheld.

Mian Sarfraz-ul-Hassan for Petitioners.

Gulzar Ahmad Khan for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 311 #

2009 Y L R 311

[Lahore]

Before Zubda-tul-Hussain, J

NOOR JEHAN---Petitioner

Versus

AMNA BEGUM---Respondents

Writ Petition No.555 of 2008, heard on 14th October, 2008.

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

----Ss. 12(2), 144 & O. XXI, R.100---Dispute as to possession of property---Dismissal of application under S.12(2), C.P.C. and acceptance of application under O.XXI, R.100 read with S.144, C.P.C. cannot be termed as destructive of each other and the impugned order cannot be set at naught merely on this ground.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Landlord and tenant---Agreement to sell simpliciter cannot be equated to proprietary rights but where a formal and valid sale-deed has been executed and the ownership has been perfectly transferred to the purchaser, the rights of such purchaser are transformed from tenancy to ownership.

----S. 13---Civil Procedure Code (V of 1908), S.144 & O.XXI, Rr.100, 101---Constitution of Pakistan (1973), Art.199---Constitutional petition---Execution of decree---Procedure---Ejectment of tenant---Consequent upon the ejectment order, at one stage, petitioner, in the present case, had succeeded to get the possession of the property in question but in view of the acquisition of proprietary rights by the judgment debtors the petitioner was not entitled to get the possession from them and the same could be lawfully restored to the judgment debtors by the Rent Controller---Rent Controller, in exercise of powers in that behalf and especially with the aid of S.144, C.P.C. could evolve the procedure and could make use of the relevant provisions of O.XXI, Rr.100 & 101,C.P.C. and in a given situation make an enquiry and could restore the possession to the judgment debtors in case they were found to have been wrongly dispossessed---Procedural provisions contained in O.XXI, Rr.100 & 101 were part of procedural law relating to execution of a decree and could be invoked in exercise of order passed by the Rent Controller.

Haseen Ahmad Khan v. Irshad Khan through his legal heirs and another PLD 1987 Karachi 16 and Haji Abdul Wali Khan and another v. Muhammad Hanif and another 1991 SCMR 2457 ref.

Mian Muhammad Abbas for Petitioner.

Chaudhry Tariq Mehmood for Respondent.

Date of hearing: 14th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 330 #

2009 Y L R 330

[Lahore]

Before Kazim Ali Malik, J

MUHAMMAD MUJAHID IQBAL---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, RAJANPUR and 10 others---Respondents

Writ Petitions Nos.5016 and 5042 of 2008, heard on 8th October, 2008.

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

----Ss. 22-A & 22-B---Ex-officio Justice of Peace---Jurisdiction---Application with request for registration of case was laid before Additional Sessions Judge in his official capacity as Ex-officio Justice of Peace but he chose to decide the same as court of law---Validity---Additional Sessions Judge violated the law.

Khizar Hayat and another v. Inspector-General of the Police, Punjab Lahore and others PLD 2005 Lahore 470 rel.

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

----Ss.22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ex-officio Justice of Peace---Jurisdiction---Respondent made allegation that police officials raided his house and looted him at gun point thus Ex-officio Justice of Peace directed to register case against the police officials---Validity--Allegation of respondent had not come forward from any independent or unbiased source---Respondent was found :n possession of huge quantity of firearms like Kalashnikovs, rifles and pistols for which he was booked in two cases---Contention of police officer that respondent attempted to get registered a case against police as counter blast to the cases already stood registered against him, should not have been lightly ignored by Ex-officio Justice of Peace High Court observed that in case accused involved in heinous and serious offences were allowed to prosecute investigators mechanically without application of legal mind, then such trend would erode the system---Orders for registration of case against police officer was illegal, without jurisdiction and with no legal effect and the same was set aside---Petition was allowed in circumstances.

Sh. Abdul Samad for Petitioner.

Saif Ullah Khan and Muhammad Nawaz Khan for Respondents.

Date of hearing: 8th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 342 #

2009 Y L R 342

[Lahore]

Before Zubda-tul-Hussain, J

Mian SHAHBAZ KHALID and another---Appellants

Versus

KHALID IFTIKHAR---Respondent

S.A.O. No.24 of 2006, heard on 7th October, 2008.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Civil Procedure Code (V of 1908), O. VIII, R.10---Ejectment petition---Striking off the right of defence/written statement for non-submission of written statement---Validity---Held, a party responsible to file a reply essentially was entitled to receive the copy of such petition which it had to meet with by means of a written statement and a party cannot be asked to file the written statement unless a copy of plaint or petition had been supplied to it---Striking off the right of defence/written statement in a petition is certainly somewhat analogous to the penal provisions of O. VIII, R.10, C.P.C---Supply of the copy of plaint, and in the case of application for ejectment of tenant, copy of the ejectment petition, was one of the basic responsibility of the plaintiff/petitioner---Right or the liability for filing written statement to the plaint or petition would, therefore, start from the time when such copy was provided to the defendant---Defendant could not be directed to file the written statement, unless supplied with a copy of plaint and where he was not supplied such copy the judgment of Trial Court against the defendant for failure to file written statement, constituted material irregularity---Defendants, in the present case, had been given two opportunities after the supply of copy of ejectment petition, which they could not avail of but such aspect had two fold application, firstly it had to be seen whether the opportunity was and could be termed as the 'fair opportunity' for filing the written statement or it had put the time constraints on the shoulders of the defendants---High Court set aside the order of appellate Court and remanded the ejectment petition to the Rent Controller for proceeding in accordance with law after providing an opportunity for filing the written reply to the defendant.

Abdul Qudoos v. Abdul Rehman PLD 1970 AJ&K 21 fol.

Ch. Muhammad Yasin for Petitioner.

Muhammad Akram Khan Umer for Respondent.

Date of hearing: 7th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 347 #

2009 Y L R 347

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD YOUNAS---Petitioner

Versus

BAHAUDDIN ZAKARIA UNIVERSITY through Vice-Chancellor and 3 others---Respondents

Writ Petition No.4038 of 2008, decided on 24th September, 2008.

Educational Institution---

----Using unfair means in examination---Petitioners who were students of B.Sc. Computer Engineering in the University, appeared in 1st Annual Examination 2007---External examiner, during the course of marking, had found similarity in the hand-writing of one petitioner with the other petitioner; at the first instance a case was registered against both the petitioners and a show-cause notice was issued to them---After receipt of reply Disciplinary Committee provided them an opportunity for personal hearing---During the appearance both the petitioners denied the allegation--- Disciplinary Committee proceeded against the petitioners, found them guilty and imposed the penalty of disqualifying them froth appearing in . the examination for a period of three years (six chances)---Review filed against that punishment was also rejected---Such was a maximum punishment which could be imposed, while lesser penalty could be awarded---Petitioner's admission in review application was part of record and it could not be denied---No illegality was found in the impugned punishment awarded, but in exercise of parental jurisdiction by High Court, it was observed, that if lesser punishment was awarded that would suffice to meet the ends of Justice---Punishment awarded to disqualify for three years for passing any examination was reduced to 1-1/2 years---Constitution of Pakistan (1973), Art.199.

Sh. Jamshaid Hayat for Petitioner.

Tariq Rajwana for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 356 #

2009 Y L R 356

[Lahore]

Before Khurshid Anwar Bhinder, J

ZAHID IQBAL---Petitioner

Versus

THE STATE---Respondent

Crl. Miscellaneous No.10718/B of 2008, decided on 28th November, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16---Bail, grant of---Further inquiry--Accused, no doubt, was nominated in the F.I.R. with specific role, but High Court had to see from the facts and circumstances of the case as to whether case against accused was made out or not---No direct or indirect evidence was on record which could connect accused with the commission of said offence---Unexplained delay of four days in lodging the F.I.R. had prima facie falsified the allegation levelled against accused and possibility of false implication of accused in the case could not be ruled out---Had it been genuine abduction, then there was no reason on the part of the complainant not to lodge F.I.R. instantly---Medical evidence was of no significance for the reason that abductee being a married woman, it could not be ascertained as to whether semen stained swabs collected by the prosecution was exactly the same which belonged to the accused---No grouping having been done, it could not be determined as to whether it was accused who was the one who had committed Zina-bil-Jabr---Case of accused being of further inquiry into his guilt, he was admitted to bail.

Muhammad Arif Gondal for Petitioner.

Pervaiz Alamgir Sheikh, D.P.G. with Asif, S.-I. for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 365 #

2009 Y L R 365

[Lahore]

Before Hasnat Ahmad Khan, J

INAM ULLAH BAIG---Petitioner

Versus

MUHAMMAD SHARIF and 3 others---Respondents

Crl. Misc No.9854/BC of 2008, decided on 20th October, 2008.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 420/468/471---Cancellation of pre-arrest bail, refusal of---Complainant had assailed the grant of pre-arrest bail to accused after a period of more than 1-1/4 years---Right of moving for cancellation of bail could not be availed by the complainant according to his whim and convenience and bail could not be cancelled merely to satisfy the vendetta of the complainant---Civil litigation regarding the cancellation of the questioned documents was pending adjudication between the parties---F.I.R. had been lodged against the accused after six years of the alleged occurrence---Challan had already been submitted in the Court after completion of investigation in the case---Documents allegedly forged by the accused were in possession of prosecution and physical custody of accused was not required for investigation purposes---Certain conditions, no doubt, had to be fulfilled for grant of pre-arrest bail, but at the same time while deciding bail before arrest application Court could not be oblivious of the merits of the case---Application for cancellation of pre-arrest bail granted to accused by Sessions Court was dismissed in circumstances.

Murad Khan v. Fazal-e-Subhan and another, PLD 1983 SC 82 and Zia-ul-Hassan v. The State PLD 1984 SC 192 ref.

Meeran Bux v. The State and another PLD 1989 SC 347 rel.

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

----S. 497(5)---Cancellation of bail---Scope---Strong and exceptional grounds are required to recall the bail granted to accused by a Court of competent jurisdiction---Certain conditions, no doubt, have to be fulfilled for grant of pre-arrest bail, but at the same time Court while deciding bail before arrest application, cannot be oblivious of the merits of the case.

Meeran Bux v. The State and another PLD 1989 SC 347 rel.

Javed Bashir for Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 370 #

2009 Y L R 370

[Lahore]

Before S. Ali Hassan Rizvi, J

ASAD AZIZ---Petitioner

Versus

BAHAUDDIN ZAKARIA UNIVERSITY through Vice-Chancellor and 2 others---Respondents

Writ Petition No.4833 of 2008, decided on 27th October, 2008.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Policy, changing of---Vested right---Petitioner was a candidate for admission in Engineering University and was aggrieved by withdrawal of policy regarding admission on Self-finance Scheme---Contention of petitioner was that Provincial Government should be restrained from depriving petitioner from admission against Self-finance Scheme---Validity---Authorized authority could change the policy and since no vested right had accrued, therefore, it could not be said that the same had been taken away---High Court did not have any power to direct for formulation of policy or to change the same---Syndicate of the University had also approved instructions issued by Provincial Government--Petitioner failed to point out any violation of his vested right calling for interference in exercise of Constitutional jurisdiction of High Court---Petition was dismissed in circumstances.

Sardar Riaz Karim for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 374 #

2009 Y L R 374

[Lahore]

Before Zubda-tul-Hussain and Shaheen Masud Riazi, JJ

SHAH MEER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.48-ATA and M.R. No. 10-ATA of 2006, heard on 28th October, 2008.

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

----Ss.302(b), 397 & 412---Anti-Terrorism Act (XXVII of 1997), S.7-A---Appreciation of evidence---Bank dacoity had taken place in day light and the accused had been apprehended shortly after the commission of the offence---No question of any doubt about the identity of accused could, therefore, arise---All the prosecution witnesses were independent witnesses in every legal and factual sense---Recovery of the very amount of dacoity as well as the fire-arm which was also property of the Bank and the pistol initially utilized by the accused, had provided absolute corroboration to the ocular testimony, which was further corroborated by medical evidence in relation to the death of the Guard of the Bank---Injuries sustained by the Guard and the bullets recovered from his dead body had a direct nexus with the ocular account, which had successfully dilated upon the descriptions of the occurrence and the role of the accused without any ambiguity as to his identification or participation---Corroborative value of the evidence had added the absolute impact to the prosecution evidence---Factum of the prosecution witnesses being the Bank employees, instead of injuring the value of their evidence was rather supportive to the accusation against the accused, because the occurrence took place in the Bank, the employees were assaulted and the money was robbed right before their eyes, hence their independence could not be impaired merely because they were Bank employees---Discrepancies pointed out by defence had not shaken the intrinsic value of the incriminating evidence of witnesses---Rule of substitution was rare in murder cases especially in the present case, where the witnesses or the concerned parties had no personal interest, enmity or previous acquaintance with the accused---Case as such stood proved against the accused---Convictions and sentences of accused were upheld in circumstances, except those under section 412, P.P. C. which was not attracted in the case as it did not involve the essential ingredients of dacoity by five or more persons---Appeal was dismissed accordingly.

Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 and Mandoos Khan v. The State 2003 SCMR 884 ref.

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

----Ss.302 (b), 397 & 412---Appreciation of evidence---Site-plan---Nature and scope--Site-plan is not a substantial piece of evidence and absence of certain points which by the circumstances of the case is mere omission on the part of Investigating Officer or the Draftsman, does not provide justification to belie the prosecution story.

Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211 ref.

----Ss.302 (b) & 397---Anti-Terrorism Act (XXVII of 1997), S. 7-A---Appreciation of evidence---Discrepancies in prosecution evidence---Effect---Where the ocular account is trustworthy, coherent, consistent and confidence inspiring, minor discrepancies cropped up in the prosecution evidence, without shaking its intrinsic value, are of no avail to the defence.

Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 and Mandoos Khan v. The State 2003 SCMR 884 ref.

Jamshed Iqbal Khakwani for Appellants.

M. Ashraf Mahandna, D.P.G. for the State.

Date of hearing: 28th October, 2908.

YLR 2009 LAHORE HIGH COURT LAHORE 385 #

2009 Y L R 385

[Lahore]

Before Malik Saeed Ejaz, J

ADEEL AHMAD---Petitioner

Versus

VICE-CHANCELLOR, BAHAUDDIN ZAKARIA UNIVERSITY, MULTAN and 2 others---Respondents

Writ Petition No.5812 of 2008, decided on 24th October, 2008.

Educational institution---

----Cheating in examination---Using unauthorized answer sheet---Petitioner while appearing in an earlier paper, got issued alleged additional answer book but after making entries on the relevant columns of the first page of such sheet, he smuggled it out without returning the same to Superintendent of Examination and used the smuggled sheet in next paper---Authorities recovered smuggled sheet from petitioner in examination hall and disqualified him for taking examination for three years---Validity---Alleged answer book was very much related to petitioner who used it for copying' some material from it---Petitioner was caught red handed while copying some material from additional sheet---Authorities had rightly punished the petitioner as he did not deserve any leniency---High Court did not find any illegality in the order passed by authorities---Petition was dismissed in circumstances.

Shakeel Ahmad Javed Chaudhry for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 396 #

2009 Y L R 396

[Lahore]

Before Muhammad Ahsan Bhoon, J

TASHARUF HUSSAIN SHAH alias KHANA SHAH and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 128,285 and Criminal Revision No. 48 of 2002, heard on 21st October, 2008.

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

----S.302(b)/34---Appreciation of evidence---Occurrence being an unseen, no direct evidence of murder was available and the prosecution case hinged on circumstantial evidence--- Making of extra judicial confession by the accused before the witnesses residing in another District and having no relation or even acquaintance with them was highly improbable---Even otherwise, evidence of extra judicial confession, being the weakest type of evidence, could not be made a basis for conviction in a case of capital punishment unless corroborated by other strong piece of evidence---Last seen-evidence was a mere concoction and an afterthought story, devised after recovery of dead body of the deceased---Motive for the occurrence alleged by prosecution did not appeal to reason and could not be proved on record---Incriminating recoveries effected in the case were fake and planted on the accused---Recovery of hatchet from the accused was also of no help to prosecution as he was not stated by any witness to be holding the same in his hand---Even otherwise, recovery of hatchet was in violation of section 103 Cr.P.C. and was made from an open place accessible to public at large---Medical evidence too could not further the prosecution case, because no eye-witness being available the injuries sustained by the deceased could not point out the assailants---Prosecution evidence being replete with discrepancies and improbabilities, case against accused was of no evidence--Accused were acquitted in circumstances.

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

----S.302(b)/34---Evidence---Extra judicial confession---Nature and scope---Evidence of extra judicial confession is the weakest type of evidence and it cannot be relied upon for basing conviction and sentence in a case of capital punishment, unless corroborated by other strong piece of evidence.

----S. 302 (b)/34---Appreciation of evidence-Circumstantial evidence--- Extent and scope---Processes of inference and deduction in a case of circumstantial evidence are essentially and frequently are of a delicate and perplexing character---Mere suspicion will not be sufficient to justify conviction---Inculpatory circumstances against the accused must be incompatible with his innocence and incapable of explanation upon any other reasonable hypothesis except that of his guilt---Circumstances sought to be relied upon must have been established beyond all doubts and prosecution evidence must be in. the shape of a continuous chain going in geometrical progression and if a single link of the chain is missing, then whole case would fall on the ground.

Sh. Masood Ahmad for the Appellant in Criminal Appeal No. 128 of 2002.

Ms. B.H. Shah, Defence Counsel for Appellant in Criminal Appeal No.285 of 2002.

Ch. Muhammad Tariq, Additional Prosecutor General for the State assisted by Muhammad Ilyas Siddiqui for the Complainant.

Date of hearing: 21st October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 406 #

2009 Y L R 406

[Lahore]

Before Saghir Ahmed, J

ALLAH WASAYA and another---Petitioners

Versus

SECRETARY IRRIGATION AND POWER, GOVERNMENT OF PUNJAB, LAHORE and 3 others---Respondents

Writ Petition No. 1379 of 2008, decided on 6th June, 2008.

Canal and Drainage Act (VIII of 1873)---

----S. 68---Constitution of Pakistan (1973), Art.199---Constitutional petition---Request for sanction of Lift Pump---Petitioners had assailed order passed by Authority turning down the request of the petitioners for sanction of Lift Pump at the canal---Contention of petitioners was that the Chief Minister having approved the case of the petitioners in relaxation of ban, it was not open for the Authority to have refused the sanction of Lift Pump and that some other similarly placed persons having been sanctioned Lift Pumps, petitioners could not be discriminated against---Contention of counsel for the petitioners that High Court had itself ordered the Authority to decide the matter strictly in accordance with law in the light of order of the Chief Minister, that was only a tentative order and discretion ultimately lay with the Authority to act within the ambit of law; and Authority having finally decided the matter, the mandate of High Court's earlier order was sufficiently fulfilled---High Court could not attach any disobedience of the said order by the Authority---Validity---Held, it was correct that petitioners were seeking reference from the letters issued way back in the year 1995-96, whereas the ban was imposed by the government vide letter dated 30-8-1997---Point of discrimination, did not lean in favour of the petitioners, on the contrary, if the petitioners were allowed to install Lift Pumps to carry canal water to their lands, the other farmers irrigating their lands at the tail of said canal, must certainly be discriminated against---High Court, in exercise of its constitutional jurisdictions, was to strike balance, especially when the petitioners had not been able to show infringement of any of their fundamentally recognized and enforceable rights---Chief Minister had no authority under the law to pass/approve or sanction the installation of Lift Pump, it was only the Authorities concerned who were competent to pass such an approval/permission for installation of a Lift Pump---Even the Lift Pumps installed already were declared to be illegal and without lawful authority---While turning down the request of the petitioners for sanction of the Lift Pump, no irregularity had been committed by Authority---Petitioners could not be given preferential treatment qua the others falling at the tail end.

Abid Mahmood and others v. Additional District Judge, Bahawalpur and others 2007 SCMR 54 and Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467 ref.

Muhammad Hussain Khan for the Petitioners.

YLR 2009 LAHORE HIGH COURT LAHORE 418 #

2009 Y L R 418

[Lahore]

Before Khurshid Anwar Bhinder, J

Mst. MUSARRAT BIBI---Petitioner

Versus

S.H.O. and others---Respondents

Writ Petition No. 2744 of 2008, decided on 14th November, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Marriage---Registration of criminal case---Marriage within prohibitory degree---Second wife of petitioner was niece of his first wife, therefore, in presence of first wife in Nikah, marriage of petitioner with second wife was against the injunctions of Islam---Validity---Second wife and petitioner fell within prohibited degree and according to Hadith they could not marry each other in presence of earlier marriage of petitioner with aunt of second wife---Marriage with a woman so related to wife that if one of them had been a male, they could not have lawfully intermarried, thus petitioner and second wife had committed offences which were cognizable by police and penally punishable---Justice of Peace had rightly directed police to register a criminal case against both the petitioners---Petition was dismissed in circumstances.

253 of Mahomedan Law edited by Sir Danish Fardunji Mulla rel.

M. Shakeel Abid for the Petitioners.

Ch. Irshad Ullah Chattha for the Respondent No.2.

Dr. Riaz ul Hassan Gillani for Amicus Curiae.

Fawad Malik, A.A.-G.

YLR 2009 LAHORE HIGH COURT LAHORE 439 #

2009 Y L R 439

[Lahore]

Before Zafar Iqbal Chaudhry, J

NAZIR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9252/B of 2008, decided on 27th October, 2008.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.302/109/148/149---Pre-arrest bail, grant of---Accused who was residing in UK had allegedly made conspiracy on telephone for the murder of the deceased---Although two witnesses were mentioned in the F.I.R. who had given information about the alleged conspiracy, yet the source of their knowledge about the same was not disclosed---Record did not show as to what measures had been adopted by the complainant party to save the life of the deceased after having received information about the conspiracy---Both the aforesaid witnesses had been produced before the Investigating Officer after about one and a half years of the occurrence and one of them had not levelled any allegation against the accused and the other witness was inimical towards the accused---Two other witnesses not mentioned in the F.I.R. were also subsequently produced before the Investigating Officer in support of allegation of abetment against the accused after 13 and 18 months of the occurrence---Silence of all the said witnesses for such a long time was questionable and veracity of their evidence was yet to be determined by trial Court after recording evidence---Abscondence of accused was not proved, as admittedly he had been residing abroad even before the occurrence---Case against accused, in view of the said facts and circumstances needed further inquiry---Accused had joined the investigation and his person was not required for any recovery---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

Aish Bahadur Rana for the Petitioner.

Nadeem Ahmad Mian for the Complainant.

Mian Ismat Ullah, D.P.G. for the State alongwith Asghar Ali, S.-I. with record.

YLR 2009 LAHORE HIGH COURT LAHORE 450 #

2009 Y L R 450

[Lahore]

Before Asif Saeed Khan Khosa, J

IMRAN MAQBOOL---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Revision No. 690 and Criminal Miscellaneous Nos. 1, 2 of 2008, heard on 21st November, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 498 & 440---Penal Code (XLV of 1860), Ss. 408/420/468---Pre-arrest bail, confirmation of---Observations of Trial Court in bail granting order to the effect that police could arrest accused, if found him guilty during investigation already transferred on complainant's application---Validity---After granting bail to accused by Court, matter of its cancellation would lie within jurisdiction of Court and could not be left in hands of police---Giving up jurisdiction of Court in favour of police was neither required by law nor could be approved---Such observations were not only illegal, but were outcome of improper exercise of jurisdiction by Trial Court---High Court, without issuing notice to and hearing complainant, accepted revision petition and expunged such observations from impugned order of bail.

Chaudhry Ishtiaq Ahmad for the Petitioner.

Mrs. Farzana Shahzad Khan, Deputy Prosecutor-General for Respondents Nos. 1 and 2.

Date of hearing: 21st November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 458 #

2009 Y L R 458

[Lahore]

Before Khurshid Anwar Bhinder, J

AZMATULLAH---Petitioner

Versus

THE STATE---Respondent

Writ Petitions Nos. 4108, 4109 and 4111 of 2008, decided on 12th November, 2008.

Penal Code (XLV of 1860)---

---Ss. 420/468/471---Drugs Act (XXXI of 1976), Ss. 23 (1) (i), 27(2) (b), 30(1) (b) & 30(2)(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Allegations as contained in the F.I.Rs constituted an offence under S.23(1)(i) of The Drugs Act, 1976, which was punishable under S.27(2) (b) of the said Act---Allegations contained in the impugned F.I.Rs. constituted the offences which exclusively fell within the domain and competence of Federal Inspector or a Provincial Inspector under S.30(1) (b) and under S. 30(2) (b), of Drugs Act, 1976, and no court other than a Drugs Court would try offence punishable under said provisions of law---Prosecution could not be instituted in respect of an offence under the Drugs Act, 1976 except by the Federal Inspector or a Provincial Inspector and case was exclusively triable by the Drugs Court---Magistrate of Ist or 2nd class under Cr. P. C. was not competent to try the case---No order by such Magistrate, in circumstances could be passed authorizing the police authorities to investigate the case---Case as made out in the F.I.Rs. was the case of failure of petitioner to provide any genuine warranty for Serozone Injection from the manufacturer or warrantor or authorized dealer which fell under the Drugs Act, 1976 and the offence was non-cognizable; and the prosecution could be instituted only by Drugs Inspector who had lodged F.I.R. against the petitioner, in which he was facing the trial before the Drugs Court---Registration of impugned F.I.Rs. as also the investigation in pursuance thereof being conducted by the 'police officers, were without jurisdiction and legal authority--Impugned F.I.Rs. registered against the petitioner were quashed and investigation and further proceedings in pursuance thereto, were declared to have been taken without jurisdiction, lawful authority having no legal effect.

Khalid Mian for the Petitioner.

Sarfraz Ali Khan, A.A.-G. with Muhammad Farooq, Drug Inspector Kharian.

Kashif Siddique Butt for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 464 #

2009 Y L R 464

[Lahore]

Before Mazhar Hussain Minhas, J

MUHAMMAD IQBAL and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1131/B of 2008, decided on 22nd September, 2008.

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

----Ss. 201, 380, 395, 412 & 458---Criminal Procedure Code (V of 1898), S.497(2)---Bail, grant of---Case of further inquiry---Un-explained delay in F.I.R.---Accused not named in F.I.R.---No identification parade---Initially complainant lodged report against unknown persons but subsequently he implicated both the accused in his supplementary statement recorded more than two months after occurrence---Complainant failed to explain as to how he had come to know about involvement of both the accused in commission of offence--Accused were arrested on the day when they were released on bail in some other case---After arrest of both the accused, identification parade was not conducted to establish their identity---During interrogation a buffalo was shown to have been recovered from joint possession of both the accused---Validity---Such recovery of buffalo was of no legal value and case of both the accused fell within the ambit of S. 497(2), Cr. P. C. requiring further inquiry--Bail was granted in circumstances.

Muhammad Bashir alias Pervaiz and another v. The State 2005 PCr.LJ 1135 rel.

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

----S.497---Bail, grant of---Principle---Concession of bail cannot be withheld on account of involvement of accused in different cases, if otherwise, case for bail is made out.

Muhammad Rafique v. The State 1997 SCMR 412 rel.

Mehr Khalil-ur-Rehman for Petitioners.

Mian Bashir Ahmad Bhatti, D.P.G.

Sh. Imtiaz Ahmad for the State.

Mushtaq Ahmad, S.-I. with record.

YLR 2009 LAHORE HIGH COURT LAHORE 472 #

2009 Y L R 472

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD BILAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 7879-B of 2008, decided on 21st October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 324/34---Bail, grant of---Further inquiry---Accused no doubt was nominated in the F.I.R., but no specific role had been attributed to him---General allegations were levelled against accused persons and it was not clear as to which fire shot hit the injured---Unexplained delay of two days in lodging of F.I.R.---Possibility of deliberation could not be ruled out in circumstances---Accused had been attributed in the F.I.R. the role of having carbine in his hand, but in police findings gun shot was attributed to co-accused and recovery of gun had also been effected from co-accused and not from accused---Accused, as per findings of the Investigating Officer, was found to be empty handed at the place of occurrence---No recovery had been effected from accused---Case of accused being that of further inquiry into his guilt, he was admitted to bail, in circumstances.

Ch. Muhammad Shahid Buttar for the Petitioner.

Shafqat Ullah Butt, D.P.G. with Bashir Ahmed, A.S.-I. For the State.

YLR 2009 LAHORE HIGH COURT LAHORE 478 #

2009 Y L R 478

[Lahore]

Before Zafar Iqbal Chaudhry, J

SARDAR KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.365 of 2006, heard on 14th October. 2008.

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

----S. 308---Appreciation of evidence--Benefit of doubt---Admittedly occurrence was a blind murder---Prosecution witnesses on hearing the sound of fire shot rushed towards the room of occurrence and apprehended the accused while coming out of the said room and locked him in the room---Accused had allegedly admitted to have killed his wife by firing---Said version of the prosecution witnesses was not supported by any other evidence--According to Investigating Officer he had arrested the accused seven days after the occurrence and recovered the pistol on his pointation---No question regarding the apprehension of accused at the spot was even put to accused in his statement under S. 342, Cr.P.C.---Entire evidence regarding the apprehension of accused by the eye-witnesses and his participation in the occurrence, had become doubtful---Prosecution witnesses were inimical towards the accused due to his attitude and their evidence required strong corroboration by some independent piece of evidence, which was lacking in the case---Recovery of pistol had been planted on the accused and positive report of Forensic Science Laboratory as such could not be used as a corroborative piece of evidence---Accused was extended benefit of doubt and acquitted in circumstances.

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

----S. 308---Appreciation of evidence---Benefit of doubt---Principle---Even the benefit of the slightest doubt has to go to the accused.

Syeda B.H. Shah for the State.

Ch. Muhammad Tariq, Additional Prosecutor-General for the State.

Date of hearing: 14th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 486 #

2009 Y L R 486

[Lahore]

Before Muhammad Ahsan Bhoon, J

ABDUL KHALIQ---Petitioner

Versus

ANSAR MEHMOOD and 2 others---Respondents

Writ Petition No.1046 of 2005, heard on 21st October, 2008.

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

----S. 540---Penal Code (XLV of 1860), Ss. 337-F(i)/337-F(v)/337-F(vi)/148/149-Constitution of Pakistan (1973), Art. 199---Constitutional petition---Summoning of witness---Application under S.540, Cr.P.C. had been filed by the injured prosecution witness and not by the complainant at a belated stage after one year of the close of prosecution evidence and even after the completion of arguments by the defence---Any lacuna pointed out by the defence in the prosecution case could not be allowed to be filled in at such a late stage through additional evidence---Provisions of section 540, Cr.P.C. could not be utilized just to fill in the lacunas by either party---Even otherwise, the Doctors summoned as prosecution witnesses through the impugned order had neither joined the investigation, nor they were placed in the calendar of witnesses---Even the document which the complainant now wanted to bring on record had been prepared after submission of challan in the Court, authenticity of which was still to be determined---Placing on record the said document at the present stage of trial just for the benefit of prosecution would not be fair---Court while exercising powers under section 540, Cr.P.C. could not assume the role of a prosecutor, nor could use said powers to fill in the lacunas of the prosecution case, as Court was supposed to act as arbiter and a Judge---Neither a party nor an investigator was expected to fill in the lacunas left by the party---Powers exercised by the Courts below in allowing the application for producing additional evidence were not justified and the impugned orders were set aside accordingly---Constitutional petition was allowed in circumstances.

1991 MLD 17; 1997 PCr.LJ 1553; 1986 PCr.LJ 379; NLR 1987 Cr.35 and 2006 PCr.LJ 110 ref.

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

----S. 540---Examining, recalling and resummoning of witness---Scope---Provisions of section 540, Cr. P. C. cannot be utilized just to fill in the lacunas of either party in the case.

----S.540---Power to summon material witness---Scope---Power under section 540, Cr.P.C. be exercised in an appropriate case wherein it is shown that a witness could not be summoned by either party in normal procedure due to the circumstances beyond its control or due to non-availability of the witness.

Hassan Raza Pasha for the Petitioner.

Muhammad Abid Raja, A.A.-G. for the State.

Muhammad Ameer Butt for the Respondent.

Date of hearing: 21st October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 498 #

2009 Y L R 498

[Lahore]

Before Tariq Shamim and Muhammad Ahsan Bhoon, JJ

MUHAMMAD ASIF alias ASSA---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.1418, 1419, Criminal Revision No.1022 of 2002 and Murder Reference No. 658 of 2003, heard on 10th September, 2008.

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

----S.302(b)---Appreciation of evidence---Benefit of doubt---F.I.R was lodged with reasonable promptitude---Accused being known to complainant side were correctly identified by them in the daylight occurrence and question of false implication of accused in the case or substitution did not arise---Eye-witnesses were natural witnesses of the occurrence as they were living in the same house with the deceased being his real father and brother---Another eye witness lives in the same Mohallah and his having witnessed the occurrence was also natural---No previous enmity existed between the parties---Minor discrepancies and slight improvements in the statements of witnesses due to passage of time would neither vitiate the trial nor cause any significant dent in the ocular testimony---Evidence of eye-witnesses could not be discarded merely because of their relationship with the deceased---Crime empties having been sent to Forensic Science Laboratory after recovery of weapons from the accused, possibility of the same having been manipulated by the police, could not be ruled out---Medical evidence had fully corroborated the ocular account of occurrence---Conviction and sentence of accused were maintained in circumstances---Case of other accused would also come at par with the acquitted co-accused, if evidence of recovery of weapon of offence from him was excluded from consideration, which had already been disbelieved by High Court---Said accused, therefore, also deserved acquittal in view of the rule of consistency and thus he was acquitted on benefit of doubt accordingly.

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

----S. 302(b)---Evidence---Motive---Motive is the state of mind of an accused which can be formed even at the spur of the moment---Mere lack of proof, non proof or even absence of motive in a, case is of no consequence, as it is only a supporting evidence.

Ch. Ghulam Mustafa Bandesha for the Appellant.

Syed Faisal Raza Bokhari, Deputy Prosecutor-General and Sheikh Fazal Elahi Shahid for the Complainant.

Date of hearing: 10th September, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 507 #

2009 Y L R 507

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Kazim Ali Malik, JJ

MUHAMMAD ATTIQUE BUTT and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.382 of 2007, heard on 18th September, 2008.

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

----Ss. 221, 222, 223 & 224---Framing of charge----Purpose---Purpose of the charge is to tell the accused as precisely and concisely as possible the nature of the offence for which he is charged and the charge-sheet must convey to him with sufficient clarity and certainty as to what material prosecution intends to produce against him at the trial.

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

----S.221---Penal Code (XLV of 1860), Ss.148, 149 & 146--- Framing of charge---Charge to state offence---While framing the charge under the provisions of S.148, P. P. C, there is no need to add S.149, P.P.C. as S.146, P. P. C, itself makes liable each and every member of unlawful assembly for the offence of rioting.

----Ss.302 & 324---Anti-Terrorism Act (XXVII of 1997), Ss. 7, 7(c) & 7(h)---Appreciation of evidence---Date, time and place of occurrence were not in dispute---Death suffered by the deceased and the injuries sustained by the injured witnesses in the occurrence were also admitted by both the sides and only the manner of incident was disputed---Prosecution had failed to prove the asserted motive---Counter version was not supported by evidence and attending circumstances of the case---Both sides had concealed and suppressed the actual mode of incident with a motive to minimize their respective role in the occurrence---Honest and straight forward versions were not brought by the parties on record and before the Trial Court---Presence of eye-witnesses on the spot at the relevant time had not been disputed---Delay of one hour and 25 minutes in lodging the F.I.R. did not adversely affect the prosecution case, as the complainant was not supposed and expected to reach the police station in order to report the occurrence leaving the injured and the deceased at the spot---Incident had occurred in daylight---Both the sides being previously known to each other, question of mistaken identity of accused could not arise---No background of ill-will or malice existed between the parties and nothing was available to provide a basis for discarding the statements of the injured prosecution witnesses---Incident was a sudden flare-up without premeditation and background or previous enmity and the accused, therefore, were not vicariously liable for each and every offence for which they were charged and they were only liable for their individual role---Accused were convicted and sentenced accordingly by High Court.

Muhammad Afzal Siddiqui for the Appellants.

Ch. Jamshed Hussain D.P.G. for the State.

Syed Zahid Hussain Bokhari and Khalida Parveen for the Complainant.

Dates of hearing: 16th, 17th and 18th September, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 520 #

2009 Y L R 520

[Lahore]

Before Hasnat Ahmad Khan and M.A. Zaffar, JJ

MUHAMMAD AKBAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.110-J of 2003, heard on 22nd September, 2008.

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

----S.302(b)---Appreciation of evidence---Benefit of doubt---Prosecution had failed to prove the motive for the crime---Medical evidence was in direct conflict with the ocular evidence with regard to distance of firing, nature of injury and time of death of the deceased---Complainant was not resident of the village of occurrence and both the eye-witnesses who being the residents of the concerned village were most natural witnesses of the occurrence, had been withheld by the prosecution, which had given an adverse presumption---Three and a half hours' delay in lodging the F.I.R. had suggested that complainant had not seen the occurrence and he was called from his village to register the F.I.R.---None of the eye-witnesses apart from the complainant were produced by the prosecution---Nobody from the vicinity had come forward to support the prosecution version---Sole, shaky and unreliable testimony of complainant having not been corroborated by any other independent source, could not be made a basis for conviction---Recovery of crime weapon was useless for prosecution in the absence of the report of Forensic Science Laboratory---One tainted piece of evidence could not corroborate another tainted piece of evidence---Benefit of doubt, howsoever slight, had to go to the accused---Accused were acquitted in circumstances.

Tahir Khan alias Niazi v. State 2005 YLR 2220; ref.

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

----S. 302(b)---Appreciation of evidence---Corroboration---Principle---One tainted piece of evidence cannot corroborate another tainted piece of evidence.

----S.302(b)---Appreciation of evidence---Benefit of doubt---Principle---Benefit of doubt, howsoever light it may be, has to go to the defence and not to the prosecution--It is better to err in acquittal than to err in conviction.

Tahir Khan alias Niazi v. State 2005 YLR 2220 rel.

Ms. Alia Neelum for the Appellant.

Malik Abdus Salam, D.P.G. for the State.

Date of hearing: 22nd September, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 529 #

2009 Y L R 529

[Lahore]

Before Tariq Shamim and Muhammad Ahsan Bhoon, JJ

MUSHTAQ AHMAD alias LILA SAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 257-J of 2002 and Murder Reference No. 779 of 2002, heard on 16th September, 2008.

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

----Ss. 302 (b) & 337-F (i)---Appreciation of evidence---Eye-witnesses were consistent as regards the manner of occurrence and no material contradictions or improvements were pointed out in their statements---Occurrence had taken place in the house of the complainant and the witnesses being residents of the house were natural witnesses, whose presence at the scene of occurrence could not be doubted---Accused being closely related to both sides, his false implication in the case was not possible---Priority of the relatives to provide medical aid to victim had itself explained the minor delay in lodging the F.I.R.---Defence had not seriously questioned the motive for the occurrence---Medical evidence was in line with the ocular testimony confirming the time of receipt of injuries by the deceased, the locale of injuries and the weapon used by the assailant---Nine incised wounds found on the body of the deceased had shown the brutal manner in which accused had committed the murder---`Chhuri' had been recovered from the possession of the accused on the very next day of the occurrence at the time of his arrest---Evidence of recovery of weapon of offence being only a supporting piece of evidence, it alone had no bearing on the fate of the case in the presence of credible and confidence inspiring ocular evidence---Evidence on record having not even remotely suggested strong enmity between the parties, defence pleas regarding false involvement of accused by the witnesses was preposterous---Conviction and sentence of accused were upheld in circumstances.

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

----S. 302(b)---Motive---Nature and scope---Motive is a state of mind of an accused which can be formed at the spur of the moment---Lack of motive or non proof thereof is immaterial.

----Ss. 302 (b) & 337-F(i)---Appreciation of evidence---Recovery of weapon of offence---Effect---Evidence of recovery of weapon is only a supporting piece of evidence and fate of the case does not turn on it alone, particularly when the eye-witness account is found to be credible and confidence inspiring.

Nazir Ahmad Chaudhry for the Appellant.

Sahibzada M.A. Amin Mian, Additional Prosecutor-General, Punjab for the Respondent.

Date of hearing: 16th September, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 534 #

2009 Y L R 534

[Lahore]

Before Hasnat Ahmad Khan and M.A. Zafar, JJ

RAZIA BIBI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1993 and M.R. No.879 of 2002 and Criminal Revision No.165 of 2003, heard on 17th September, 2008.

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

----Ss.302(b) & 308(2)/34---Appreciation of evidence---Witnesses of conspiracy though closely related to both the deceased and having come to know about the serious plan of the accused to murder the deceased, did not opt to bring this fact either to the notice of the concerned people or the police---Even the said conspiracy had not been disclosed to the complainant, who had got registered the F.I.R. against unknown killers---Evidence of conspiracy was a pack of lies and was, therefore, disbelieved---Complainant had failed to nominate the accused as murderers or even to involve them as suspects in the F.I.R.---No motive for the commission of the offence of double murder was attributed to accused and prosecution had not proved the same---Statement regarding the extra judicial confession of the accused having been made on the very next day of the occurrence, was neither believable nor confidence inspiring---Complainant was not an eye-witness of the occurrence and he had lodged the F.I.R. on the basis of hearsay evidence on the spot after receiving a telephonic information through the lady accused and after having a meeting with her, to the effect that four dacoits had shot both the deceased dead---Complaint recorded by police at the place of occurrence was normally presumed to have been recorded after initial investigation---Ocular testimony appeared to have been tailored after the arrest of the accused on account of suspicion, which was not corroborated by any other source---Recovery of pistol from the accused and positive report of Forensic Science Laboratory were of no use to prosecution due to dispatch of crime empties to the said Laboratory after recovery of pistol--Investigation had been conducted in an unfair and dishonest manner---Medical evidence was unable to support the prosecution case which was not proved by trustworthy ocular testimony, as it could not pinpoint the murderers---Accused were acquitted in circumstances.?

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

----S.154---First information report---F. I. R. recorded on the spot---Effect---Complaint recorded by police at the place of occurrence is normally presumed to have been recorded after initial investigation.?

----Ss. 302(b) & 308(2)/34---Appreciation of evidence---Corroboration---Principle---One tainted piece of evidence cannot be corroborated by another tainted piece of evidence.?

Muhammad Irfan Malik and Irum Sajjad Gul for the Appellants.

Imtiaz Hussain Baloch for the State.

Date of hearing: 17th September, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 545 #

2009 Y L R 545

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD ASHRAF and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9005/B of 2008, decided on 23rd October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 148 & 149---Bail, grant of---Further inquiry---Facts and circumstances of the case and available evidence showed that cross firing had taken place between the parties resulting into injuries on both the sides---Cross-version of accused was also recorded by the police and was investigated---Injuries attributed to accused persons were on the non-vital part of the body, whereas injury suffered by injured from the side of accused persons was on the vital part of the body---Possibility of self-infliction was very remote, in circumstances---When cross-firing took place and both the parties suffered injuries, case of accused persons had become that of further inquiry into their guilt and it was upto the Trial Court to determine as to which one was the aggressor party---No crime empties were recovered from the place of occurrence which was also serious lapse on the part of the prosecution as indiscriminate firing from both the sides had taken place---Accused persons were admitted to bail, in circumstances.

Saeed and another v. The State2008 PCr.LJ 1139; Munir Ahmed and 10 others v. The State 2004 PCr.LJ 1766; Muhammad Mumtaz v. The State 2004 PCr.LJ 1875 and Shabbir and another v. The State 1997 PCr.LJ 112 ref.

Shoaib Mehmood Butt v. Iftikhar ul Haq and 3 others 1996 SCMR 1845 and Sardar Munir Ahmed Dogar v. The State PLD 2004 SC 822 rel.

Syed Makhdoom Hussain Gillani for the Petitioners.

Rai Abdul Ghafoor Kharal for the Complainant.

Shafqat Ullah Butt, D.P.G. with Sabir, A.S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 547 #

2009 Y L R 547

[Lahore]

Before Muhammad Sayeed Akhtar, J

Mst. NUSRAT ASIF and 6 others---Petitioners

Versus

SAEED MIRZA and another---Respondents

Criminal Revision No. 1432 of 2004, decided on 5th April, 2007.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 39---Transfer of Property Act (IV of 1882), S.52---Suit for declaration, possession and cancellation of sale-deeds---Suit was concurrently decreed by the Trial Court and Appellate Court---Alleged sales of suit properties in favour of defendant vide alleged sale-deed, were not proved on the record---Marginal witnesses of alleged sale in favour of defendant, did not appear in the court to prove the same---Defendant was the beneficiary of the sale, burden of proof shifted to him which he failed to discharge---Alleged sale in favour of defendant was made during the pendency of suit and the prevalence of the temporary injunction which was in violation of S.52 of Transfer of Property Act, 1882 and was hit by the principle of lis pendens---Both courts below had concurrently decided against the defendant and no fallacy was found in the same---Revision petition was dismissed.

Irfan Qureshi for the Petitioners.

Kamil Hussain Naqvi for the Respondents.

Date of hearing: 5th April, 2007.

YLR 2009 LAHORE HIGH COURT LAHORE 552 #

2009 Y L R 552(2)

[Lahore]

Before Muhammad Ahsan Bhoon, J

MUHAMMAD FIYAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 124 of 2006, heard on 29th October, 2008.

Penal Code (XLV of 1860)---

----Ss.302(b) & 302(c)---Appreciation of evidence---Principles---Sentence, reduction in---Occurrence was the result of reasons as stated by the accused in order to save his honour and life---Act of accused was to be adjudged at the touchstone of evidence available on record in accordance with the principles of administration of justice in criminal cases---Eye-witnesses were not found to have seen the occurrence---Accused and the complainant only were present at the time of incident---Plea taken by accused was more convincing than the version of the complainant (deceased) in view of appreciation of evidence as a whole---Statement of accused had to be believed in toto for the purpose of his conviction and sentence, as exculpatory part of his statement could not be excluded from consideration---Occurrence had taken place when the deceased made an effect to commit sodomy with` the accused, who as per version of the F.I.R. itself was a boy of 16/17 years---Deceased himself had taken the accused to the venue of occurrence---Conviction of accused under section. 302(b), P.P.C. was altered to section 302(c), P.P.C. and his sentence of imprisonment for life was reduced to seven years' R.I. in circumstances with benefit of section 382-B, Cr. P. C. ---Sentence of compensation under section 544-A, Cr.P. C. was set aside.

Mukhtar Ahmad Gondal for the Appellant.

Ch. Muhammad Tariq, Additional Prosecutor General.

Date of hearing: 29th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 558 #

2009 Y L R 558

[Lahore]

Before Syed Asghar Haider, J

ARSHAD ALI---Petitioner

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), PAKPATTAN SHA.RIF and

another---Respondents

Writ Petition No. 11595 of 2007, decided on 14th February, 2008.

Constitution of Pakistan (1973)---

---Art. 199---Constitutional petition---Dispute as to property---Condemning petitioner unheard---Counsel for petitioner had submitted that petitioner was condemned unheard, as he was not associated with the proceedings, though he had vested right in the property subject matter of the petition---Petitioner had made a simple prayer that an opportunity of hearing be granted to the petitioner and thereafter the matter be decided, in accordance with law---Validity---Petitioner was condemned unheard, which was against the settled principles of law---Impugned order was set aside and the petitioner was directed to appear before the authority who would hear the petitioner and other stakeholders and thereafter would proceed to decide the matter, in accordance with law within specified period.

Dr. Ehsan-ul-Haq Khan and Abdul Latif Chishti for the Petitioner.

Malik Zafar Iqbal Awan, A.A.-G.

YLR 2009 LAHORE HIGH COURT LAHORE 560 #

2009 Y L R 560

[Lahore]

Before Muhammad Khalid Alvi, J

HAYAT KHAN and 3 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 461-B of 2008, decided on 3rd June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.419, 468 & 471---Bail before arrest, grant of---Proceedings of compromise between the parties, which had been placed on record, prima facie, indicated that the dispute between the parties was one of civil nature which was pending in the court of competent jurisdiction---Pre-arrest bail, already granted to accused persons, was confirmed, in circumstances.

Ch. Pervez Akhtar Gujjar for the Petitioners.

Rao Atif Nawaz for the State.

Muhammad Ashfaq Gill for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 561 #

2009 Y L R 561

[Lahore]

Before Syed Sajjad Hussain Shah and Muhammad Ahsan Bhoon, JJ

MUHAMMAD ASIF and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 210 and 400 of 2002, heard on 29th October, 2008.

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

----S. 302(b)/34---Appreciation of evidence---Accused was not nominated in the F.I.R. despite being admittedly known to the complainant and other eye-witness even prior to the occurrence, and he was subsequently nominated by them as an accused in the case---Fire-arm injury on the person of the deceased woman attributed to accused was not proved as her post-mortem examination was not conducted and record was silent about the cause of the death---Crime empties collected from the spot had been retained in "Malkhana" till the recovery of weapon of offence after the arrest of accused and the same were sent together to the Forensic Science Laboratory---Recovery of weapon of offence from the accused, therefore, had rightly been disbelieved by trial Court---Case against accused was not free from doubt in circumstances and he was acquitted accordingly.

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

----S. 302(b)/34--- Appreciation of evidence---Accused was nominated in the promptly lodged F.I.R. with the effective role of causing fire-arm injury on the head of the daughter-in-law of the complainant---Eye witnesses including the complainant had duly proved the said fact through their evidence on record, which was corroborated by medical evidence---Disbelief or mere non-recovery of weapon of offence from the accused could not take away the probative force of the ocular account supported by medical evidence, particularly when occurrence had taken place in daylight in the house of the deceased situated in the thickly populated area---Conviction of accused was upheld in circumstances---However, it was obscure as to what had happened between the deceased and the accused prior to the occurrence, accused had nothing to do with the alleged motive and complainant had even compromised at the time of incident---Death sentence of accused was converted into imprisonment for life accordingly.

Aftab Ahmad Gujjar, Malik Abdul Qayyum and Sardar Tariq Masood Khan for the Appellants.

Ch. Muhammad Tariq, Addl. P.G. for the State.

Altaf Hussain Sheikh for the Complainant.

Date of hearing: 29th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 566 #

2009 Y L R 566

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD HANIF---Petitioner

Versus

MEMBER, BOARD OF REVENUE and others---Respondents

Writ Petition No. 108 of 2007, decided on 11th January, 2007.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 13---West Pakistan Land Revenue Act (XVII of 1967), S.164---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Scope---Consolidation of holdings---Consolidation scheme of village concerned was confirmed by the

Consolidation Officer---Collector (Consolidation) allocated land to the petitioner by withdrawing same from Vanda of respondent and in lieu thereof Collector withdrew from Vanda of petitioner land in question and allocated same to another one---Appeal filed by the petitioner against order of Collector was dismissed by the Additional Commissioner (Consolidation)---Petitioner assailed said decision through the revision petition which was also dismissed by Member Board of Revenue, vide impugned order---Validity---Member, Board of Revenue had legally, adequately and rightly dealt with the contentions raised before him and did not commit any legal error, while rejecting petitioner's revision petition---Member Board of Revenue had decided the matter after embarking upon every aspect of the case and had rightly maintained the order impugned before him---Impugned order was neither arbitrary nor without jurisdiction nor passed in excess of jurisdiction by the Member, Board of Revenue---Even Counsel for the petitioner could not point out any jurisdictional defect/error in the impugned order---High Court, in exercise of its constitutional jurisdiction, had only to see whether a Tribunal or Court had acted without jurisdiction or had violated statute or law laid down by the superior courts---High Court, in such like cases, was not called upon to reappraise the evidence and constitutional petitions were not to be decided in the manner, as the appeals were heard and decided---Even otherwise petition having been filed after lapse of one year after impugned order, was hit by the principle of laches---Discretionary and equitable constitutional jurisdiction, could not be exercised in favour of petitioner, in circumstances.

Muhammad Sharif and another v. Muhammad Afzal Sohail and another PLD 1981 SC 246 ; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Government of the Punjab Forest Department Punjab Lahore through Division Forest Officer v. Ghulam Bibi and 3 others PLD 2001 SC 415 and Ahmad and 25 others v. Ghama and 5 others 2005 SCMR 119 ref.

Tariq Muhammad Iqbal for the Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 569 #

2009 Y L R 569

[Lahore]

Before M.A. Zafar and Muhammad Ahsan Bhoon, JJ

PERVAIZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 217 of 2001, heard on 4th November, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Delay in lodging the F.I.R. having been plausibly explained by the complainant, the same was treated to be promptly lodged, particularly being against a single accused---Occurrence having taken place in the house of the deceased, presence of eye-witness on the spot was quite natural, who had no motive to implicate the accused falsely in the case---Accused being a neighbour was well known to the complainant---Ocular testimony was corroborated by medical evidence---Defence plea did not inspire confidence---During investigation the accused was found guilty---Brick, weapon of offence, had been recovered from the place of occurrence---Conviction of accused was thus maintained---No deep rooted enmity existed between the parties and the incident was the result of sudden exchange of hot words between them---Accused had not repeated the blow---Sentence of death of accused was reduced to imprisonment for life in circumstances.

Syeda B.H. Shah for the Appellant.

Ch. Muhammad Tariq, Additional Prosecutor General for the State.

Date of hearing: 4th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 574 #

2009 Y L R 574

[Lahore]

Before Maulvi Anwar-ul-Haq, J

MUHAMMAD ANWAR---Petitioner

Versus

HASSAN DIN---Respondent

Civil Revision No.361 of 2002 and C.R. No.2669 of 2001, decided on 18th September, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiff had claimed that his predecessor-in-interest was the owner of suit land and after his death suit land was mutated in his favour vide inheritance' mutation---Plaintiff had further alleged that defendant, who was a clever person managed to get mutation of suit land attested purporting same to be sale in his favour---Trial Court dismissed the suit, but Appellate Court partly allowed appeal as it set aside the transaction vis-a-vis the plaintiff--- Validity--- Plaintiff admittedly was a minor at the time of alleged sale---High Court declined to interfere with the judgment of the Appellate Court holding the transaction to be void to the extent of plaintiff---Other plaintiffs had denied having sold the land to defendant---Defendant, however, pleaded a valid sale in his favour by the plaintiff---No evidence was on record of any valid sale having been made by the plaintiff in favour of defendant and counsel for defendant could only point out to the statement of defendant, but nothing turned on the same as the same stood rebutted by the plaintiff in the plaint as well as in evidence---Mutation would neither confer any title nor was an evidence of title and in case of dispute the beneficiary had to prove the transaction as a fact---Plea of adverse possession and plea of title raised by the defendant in the same breath, were mutually destructive---Suit land was joint and its actual possession was not of any relevance---Chance, however, was granted to defendant to prove a valid sale as possibility could not be ruled out in view of the peculiar circumstances of the case that they were mis-led by the form of the issue---Impugned judgment of the Appellate Court holding the transaction to be void vis-a-vis plaintiff was affirmed by High Court, however, the remaining matter, was remanded for a decision on the issue, whether defendant had validly purchased the suit land.

Rahmatullah and others v. Saleh Khan and others 2007 SCMR 729; Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236 and Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 45 ref.

Syed M. Kaleem Ahmad Khurshid for the Petitioner.

Agha Intizar Ali Imran for the 'Respondent.

Date of hearing: 18th September, 2007.

YLR 2009 LAHORE HIGH COURT LAHORE 579 #

2009 Y L R 579

[Lahore]

Before Khurshid Anwar Bhinder, J

Haji SAEED AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6741-B of 2008, decided on 4th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302/324/114/34---Pre-arrest bail, confirmation of---Accused though was nominated in the F.I.R. with the role of abetment, but no active role had been ascribed to him---One of co-accused who had been ascribed the identical role, had already been granted bail by the High Court---Rule of consistency demanded that accused be also granted bail as his role was exactly at par with said co-accused-Maki fide on the part of the complainant was also proved on record as Investigating Officer, present in the court had submitted that enmity existed between both the parties due to which accused had been implicated in the case---Record had established that murders of three persons were committed by other persons and accused had falsely been implicated in the case---Ad interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

Ali Raza Gillani for the Petitioner.

Naeem Tariq Sanghera, D.P.-G. for the State.

Date of hearing: 4th August, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 583 #

2009 Y L R 583

[Lahore]

Before Muhammad Ahsan Bhoon, J

RASHID HASSAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.308 of 2003, heard on 24th October, 2008.

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

----S. 302(b)---Appreciation of evidence---Occurrence was unseen---No ocular account was available---No person was nominated in the F.I.R. as an accused---Prosecution case rested on circumstantial evidence---Prosecution witness who had furnished the evidence of extra judicial confession was related to the deceased and although he had visited the police station on the same day when the accused confessed his guilt before him, yet he neither made an effort to apprehend the accused nor did he inform the police or anybody else-about this fact till the lapse of five days---Statements of witnesses were neither recorded under section 164, Cr. P. C. in the presence of accused, nor any of the said witnesses was produced before the Trial Court---Even these statements were not worth consideration for non-compliance of the requirements of section 364, Cr. P. C.---Evidence of last seen furnished by the chance and related witnesses was mutually destructive being contra to one another and was nothing but a concoction---"Sota" allegedly recovered after a month of the occurrence from an open place and chemically examined after thirty six days, could not possibly be found stained with blood and positive report of chemical examiner was of no help for the prosecution---Dead body of deceased was not recovered at the instance of accused and he was charged merely on the basis of suspicion---Whole circumstantial evidence was replete with inherent discrepancies and any doubt arising therefrom must go in favour of accused---Accused was acquitted in circumstances.

1979 PCr.LJ 460; 1997 SCMR 1416; 1996 PCr.LJ 109; 2003 PCr.LJ 753; 2000 SCMR 528; 1996 SCMR 188; 1985 PCr.LJ 1684; 1975 PCr. LJ 750 and 1968 SCMR 161 ref.

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

----S.302(b)---Circumstantial evidence---Essentials for basing conviction---All facts should be consistent with the hypothesis of the guilt of accused---Circumstances should be of conclusive nature and should lead to moral certainty and actually exclude every hypothesis but one proposed to be proved---Failure of prosecution to prove one link of the chain of circumstantial evidence destroys all the links of such evidence---All the links of the said chain should be touching from one side to the neck of the accused and from the other side to the dead body of the deceased---No conjectures, surmises and probabilities deducible from evidence can take the place of proof and finding of guilt must rest surely and firmly on the solid and cogent evidence.

1979 PCr.LJ 460; 1997 SCMR 1416; 1996 PCr.LJ 109; 2003 PCr.LJ 753; 2000 SCMR 528; 1996 SCMR 188; 1985 PCr.LJ 1684; 1975 PCr.LJ 750 and 1968 SCMR 161 ref.

Syed Hassan Qadir Shah for the Appellant.

Ch. Muhammad Tariq, Addl. P.G. Malik Rab Nawaz Noon for the State.

Raja Ikram Ameen Minhas for the Complainant.

Date of hearing: 24th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 588 #

2009 Y L R 588

[Lahore]

Before Malik Saeed Ejaz, J

UMAR HASSAN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1117-B of 2008, decided on 6th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-F(vi)/148/149---Bail, grant of---Both accused persons though were nominated in the F.I.R., but injury attributed to accused had been declared as "Ghayr Jaifah Hashimah" which did not attract the provisions of prohibitory clause of S. 497, Cr. P. C. ---Co-accused had caused injuries by inflicting fist blows as per medico-legal report and no fracture or any serious injury resulting in fracture had been caused by him to the complainant---Offence under S.376, P.P.C. had been deleted during investigation by the Investigating Officer---False, involvement of accused in the case could not be ruled out--Accused were admitted to bail, in circumstances.

Mian Qamar ud Din Safeer for the Petitioners.

Ch. Shahid Nadeem for the Complainant.

Malik Mumtaz Hassan Awan for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 592 #

2009 Y L R 592

[Lahore]

Before Maulvi Anwarul Haq, J

FESCO LTD. and others---Petitioners

Versus

ZAHID HAMEED---Respondent

C.R. No.597 of 2007, decided on 6th April, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Suit for declaration---Temporary injunction, grant of---Plaintiff, who was paying electricity bill regularly, was served with a bill wherein amount was shown as bill adjustment---Plaintiff in his suit for declaration challenged said adjustment as illegal and void---Along with said suit plaintiff filed application for temporary injunction, restraining the defendant from disconnecting the premises and making recovery of amount of bill which application had been allowed by the Trial Court and order maintained by the Appellate Court---Validity---Premises of plaintiff was connected by the company and tariff was approved which was changed without notice---No allegation was on record that plaintiff had not been paying bill regularly--Alleged bill adjustment was not based on any inquiry conducted after notice; it had been imposed as a result of audit objection, but burden to prove validity and correctness thereof would be upon the company---Courts below, in circumstances had acted within their domain while finding that plaintiff had a prima facie case---Petition was dismissed.

Siddique Ahmad Chaudhry for Petitioners.

2009 Y L R 631

[Lahore]

Before M.A. Zafar and Muhammad Ahsan Bhoon, JJ

MUHAMMAD DAUD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.211, Criminal Revision No.115 and Murder Reference No.322 of 2002, heard on 24th November, 2008.

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

----Ss.302(b)/34, 324/34 & 337-F(ii)/34---Appreciation of evidence---Sentence, reduction in---F.I.R. was promptly lodged--Ocular testimony furnished by injured witnesses was corroborated by medical, evidence---Time, date and occurrence had not been denied by the accused and only the place and manner of occurrence were disputed---Motive alleged by the prosecution did not appeal to reason, rather the story about the motive narrated by the accused was more plausible, which was even supported by the version of the complainant and the contents of the F.I.R.--Non-mentioning of the house of accused in the site plan was not due to mistake or negligence, but it was an effort to conceal the actual facts qua the location of the place of occurrence---Presumption was that the complainant party was the aggressor---Court could draw inference from incomplete tale of occurrence on the basis of evidence on record and circumstances of the case---Occurrence had taken place in front of the house of accused---Presence of four family members of the complainant including the deceased and the prosecution witnesses in front of the house of accused without any explanation, was a mitigating circumstance in favour of accused getting capital punishment---Conviction and sentences awarded to accused were upheld, except the sentence of death of the main accused which was reduced to imprisonment for life in circumstances.

Syed Ali Bepari's case PLD 1962 SC 502 and Zahid Pervaiz's case PLD 1991 SC 558 ref.

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

----Ss. 302 (b)/34, 324/34 & 337-F(ii)/34---Appreciation of evidence---Imperfect prosecution story---Courts must not be deterred by the incomplete tale of drawing inference from the evidence on record and circumstances of the case.

Syed Ali Bepari's case PLD 1962 SC 502 and Zahid Pervaiz's case PLD 1991 SC 558 ref.

Malik Muhammad Kabir for Appellants.

Ch. Muhammad Tariq, Addl. P.-G. assisted by Sh. Zamir Hussain, Advocate for the Complainant.

Date of hearing: 24th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 636 #

2009 Y L R 636

[Lahore]

Before Syed Asghar Haider, J

Syed TARIQ MAHMOOD---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Joint Secretary, Ministry of Minorities (Minorities Affairs Division), Islamabad and 3 others---Respondents

Writ Petition No.7131 of 2007, decided on 30th October, 2008.

(a) Scheme for the Lease of Evacuee Trust Agricultural Land, 1975---

----Ss.18 & 18-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Lease rights of evacuee trust land, auction of---Setting aside of such auction by Revisional Authority by granting extension of lease rights to successor of deceased lessee---Validity- -Lease in favour of deceased lessee had already expired before such auction, thus, his successor could not claim or be awarded benefit of S.18-A of Scheme for the Lease of Evacuee Trust Agricultural Land, 1975---Successor of deceased lessee by participating in auction proceedings had accepted non-availability of such benefit to him---Revisional Authority, while passing impugned order had not exercised jurisdiction in accordance with law---High Court accepted constitutional petition and set aside impugned order.

Settlement Authority through the Chief Settlement Commissioner, Lahore and another v. Mst. Akhtar Sultana PLD 1976 SC 410; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Evacuee Trust Property Board v. Mst. Zakia Begum and others 1992 SCMR 1313 and Safdar Javed and another v. Lahore Development Authority through Director General and 3 others 2005 CLC 1584 distinguished.

(b) Interpretation of statutes---

----Subordinate delegated legislation is not retrospective unless a power to such effect is incorporated therein.

Modi Food Products Ltd. v. Commissioner of Sales Tax U.P. AIR 1956 Allahabad 35 ref.

Ch. Muhammad Jehangir Wahla for Petitioner.

Rao Muhammad Nasim Sabir for Respondent No.2.

Rana Muhammad Jamil for Respondents Nos.3 and 4.

Aslam Zar, Standing Counsel for the State.

Date of hearing: 30th October, 2007.

YLR 2009 LAHORE HIGH COURT LAHORE 646 #

2009 Y L R 646

[Lahore]

Before Muhammad Akram Qureshi and Kazim Ali Malik, JJ

ERAN GUL and others---Appellants

Versus

THE STATE---Respondent

Crl. As. Nos.252 and 243 of 2004, heard on 12th March, 2008.

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

----S. 9(c)---Appreciation of evidence---Accused was driving vehicle which was apprehended by the police and 17 Kg. Charas was recovered therefrom---Not impossible that accused was not aware of the fact that such a huge quantity of Charas was concealed in the said vehicle which was under his control---All recovery witnesses had stated that the Charas weighing 17 Kg. was recovered from his car---Accused could not absolve himself from the responsibility of keeping such a huge quantity of Charas in his vehicle---Offence under S.9(c) of the Control of Narcotic Substances Act, 1997, stood proved against accused, in circumstances---Sentence awarded to accused by the Trial Court being adequate, same called for no interference by the High Court---Conviction and sentence of accused was maintained, in circumstances.

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

----S. 9(c)---Appreciation of evidence---Co-accused was travelling in the vehicle driven by accused and it was not clear from the prosecution evidence as to whether he was a passenger in the .vehicle or not---Prosecution evidence was silent regarding vicarious liability of co-accused or his intention about the concealment of narcotic substances in the vehicle in question---Said co-accused was not having the control of vehicle from where such narcotic substance was recovered---Nothing was on record showing that co-accused was having common intention with his co-accused qua the custody of the narcotics or offered any assistance in that regard---Prosecution had not been able to prove its case against co-accused beyond any reasonable doubt---Case against co-accused being doubtful, he was given benefit of doubt and was set at liberty, in circumstances.

Muhammad Zaki Ullah Qureshi and Mrs. Sarkar Abbas for Appellants.

Abdur Rashid, D.P.-G. for the State.

Date of hearing: 12th March, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 648 #

2009 Y L R 648(2)

[Lahore]

Before M.A. Zafar and Muhammad Ahsan Bhoon, JJ

ANWAR BAIG---Appellant

Versus

THE STATE---Respondents

Murder Reference No.447 in Criminal Appeal No.294 and Criminal Revision No.139 of 2002, heard 14th November, 2008.

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

----Ss. 302(b) & 449---Appreciation of evidence---Accused was not nominated in the F.I.R. which was lodged against unknown person---Story narrated by complainant in the F.I.R., evidence of extra judicial confession allegedly made by accused and ocular evidence ran counter to each other---No link whatsoever being present between the said pieces of evidence, prosecution case seemed to be a mere concoction and afterthought---Pistol recovered from the accused, no doubt, had matched with crime empties secured from the spot, but this single piece of evidence was not enough in circumstances for conviction on a capital charge, particularly in a case of unseen occurrence---For conviction in a case of capital punishment evidence must come through an unimpeachable source supported by .strong corroboration, which was lacking in the case---Case against accused was of no evidence and he was acquitted accordingly.

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

----S.302 (b)---Appreciation of evidence---Principles---For the purpose of conviction and sentence in a case of capital punishment evidence must come through unimpeachable source and Court has to see intrinsic value of such evidence with strong corroboration.

Malik Abdul Qayyum for Appellant.

Ch. Muhammad Tariq, Addl. P.-G., Sh. Waqar Azim Siddiqui for the Complainant.

Date of hearing: 14th November, 2008.

2009 Y L R 671

[Lahore]

Before M. A. Zafar and Muhammad Ahsan Bhoon, JJ

AZHAR HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.710, Murder Reference No.896 and Civil Revision No.270 of 2002, heard on 4th November, 2008.

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

----S. 302(b)---Appreciation of evidence---Occurrence taking place in the dark hours of night in the house of deceased was not seen by anybody---Evidence of complainant was' mere information of murder for the purpose of lodging of F. I. R, which did not connect the accused in any way with the crime---None of prosecution witnesses of last seen had either seen the accused lastly in the company of the deceased or while entering into the house of the deceased or coming out of his house---Said evidence getting no corroboration and based on mere conjectures, surmises and probabilities could not be relied upon for conviction in a case of capital punishment---Conduct of the witness of extra-judicial confession did not at all appeal to reason and his evidence without any corroboration was not worth reliance, particularly when the extra-judicial confession allegedly made by accused ran counter to the natural probabilities showing that the same in fact had not been made before the said witness--Crime empty recovered from the spot having been sent to 'Forensic Science Laboratory after arrest of accused and recovery of gun from him, positive report of said Laboratory was of no consequence---Accused was acquitted in circumstances.

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

----S.164---Confession---Extra-judicial confession---Nature and value---Extra-judicial confession is the weakest type of evidence and the same cannot be relied upon unless corroborated by strongest piece of evidence.

----S. 302(b)---Circumstantial evidence---Last seen evidence for basing conviction must be incompatible with the innocence of accused and should be ,accepted with great caution and be scrutinized minutely for reaching such a conclusion that no other plausible conclusion can be drawn therefrom except guilt of accused---Circumstantial evidence must be in a geometrical progression in the shape of a chain which must be touching the dead body of the deceased from one side and to the neck of the accused from the other side.

Waqas A. Rahman for Appellant.

Ch. Muhammad Tariq, Addl. P.-G. for the State.

Sh. Zameer Hussain for the Complainant.

Date of hearing: 4th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 683 #

2009 Y L R 683

[Lahore]

Before Muhammad Akram Qureshi and Khalil Ahmad, JJ

MUHAMMAD SHAKEEL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1455 of 2002 and Murder Reference No.634 of 2002, heard on 20th October, 2003.

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

----S. 302 (b)/34---Appreciation of evidence--Sentence, "reduction in---Defence counsel had prayed only for reduction in sentence of accused---Trial Court had conducted trial of accused in accordance with the procedure provided by Chapter XXII-A, Cr.P.C. which did not suffer from any illegality---Fatal injury caused on the person of deceased was not attributed to accused and therefore it was not in the interest of justice to award major penalty of death to him---Conviction of accused was maintained and his sentence of death was reduced to imprisonment for life in circumstances.

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

----Ss.306 & 308---Juvenile Justice System Ordinance (XXII of 2000), S.6---Trial and conviction of accused illegal---Accused at the time of occurrence was below 18 years of age and Trial Court had declared him as "Child" after going through the record---Case was not even one of Qisas punishable under section 308, P.P.C, Trial Court therefore should not have resorted to sections 306/307/308, P.P.C.---Trial and conviction of accused under section 308, P.P.C. were declared to be illegal and void, in consequence whereof conviction of accused was set aside and case was remanded to Trial Court for fresh trial under the Juvenile Justice System Ordinance, 2000---Appeal was accepted accordingly.

Ch. Ehsan ul Haq Bhalli and Shawar Khilji for Appellant.

Shoaib Zafar for the Complainant. M.M. Alam, A.P.-G. for the State.

Date of hearing: 20th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 687 #

2009 Y L R 687

[Lahore]

Before M.A. Zafar, J

RIZWAN ASLAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4636-B of 2008, decided on 16th June, 2008.

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

----S. 497---Emigration Ordinance (XVIII of 1979), Ss.17 & 22---Prevention and Control of Human Trafficking Ordinance (LIX of 2002), S.4---Bail, grant of---No statement of immigrant had been recorded by FIA in support of version of the complainant---Verification of the defence version by the foreign authorities was likely to take 5/6 months more as submitted by the standing counsel FIA---Accused was in jail for the last seven months and he could not be kept in jail for an indefinite period---Accused was admitted to bail, in circumstances.

Muhammad Iqbal Mohal for Petitioner.

Rizwan Amjad Chaudhry, Standing Counsel for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 695 #

2009 Y L R 695

[Lahore]

Before Maulvi Anwarul Haq, J

MANZOOR HUSSAIN---Petitioner

Versus

MUHAMMAD NAWAZ and 2 others---Respondents

Writ Petition No.3713 of 2005, decided on 18th October, 2005.

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

----Ss. 6 & 13---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Suit for pre-emption---Setting aside of decree---Application under S.12(2), C.P.C.-Trial Court having decreed suit for pre-emption filed by the plaintiff, defendants filed application under S.12(2), C.P.C. stating therein that in the light of decision of the Shariat Appellate Bench of Supreme Court (PLD 1986 SC 360) decree could not have been passed and same was liable to be set aside---Appellate Court upholding judgment of the Trial Court, dismissed revision petition filed by the plaintiff against judgment of the Trial Court passed on an application under S.12(2), C. P. C. ---Pre-emption amount deposited by the plaintiff was withdrawn by the defendants---Decree passed by the Trial Court in favour of the plaintiff was put to executants and possession of suit land was obtained by the plaintiff---Courts below had acted without lawful authority in passing impugned orders on application filed by the defendants under S.12(2), C. P. C. filed after nine years of the inter parties decree which application was beyond the period of time prescribed by law---Both impugned orders were set aside and application filed under S.12(2), C.P.C. was dismissed.

N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Aurangzeb v. Massan and 13 others 1993 CLC 1020 and Muhammad Khan v. Massan and 13 others 199 SCJ 178 ref.

Qari Abdul Karim Shahab for Petitioner.

Mehr Haq Nawaz Humayyun for Respondents.

Date of hearing: 18th October, 2005.

YLR 2009 LAHORE HIGH COURT LAHORE 702 #

2009 Y L R 702

[Lahore]

Before Hasnat Ahmad Khan and M.A. Zafar, JJ

ABDUL SATTAR---Appellant

Versus

THE STATE---Respondents

Crl. A. No.270-J and M.R. No.910 of 2002, heard on 23rd April, 2008.

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

----S. 302/34---Appreciation of evidence---Son of deceased who was involved in the incident, which became the bone of contention between the parties, was not produced by the prosecution---Another very important witness who had allegedly reported to the complainant about the departure of her husband (deceased) along with accused and his co-accused, who had taken deceased along with them on the pretext of visiting the police station to settle the earlier dispute, was withheld by the prosecution---In absence of the recovery of crime empties of the bullets from the place of occurrence and positive report of Forensic Science Laboratory, recovery of licensed pistol from the possession of accused, the case of the prosecution could not advance---Even otherwise the recovery of said pistol from accused had not been proved by the prosecution beyond the shadow of doubt---Pistol allegedly was recovered by the Investigating Officer from the possession of accused from a Chowk which was a public place, but no independent witness from the public was called upon to witness the said recovery---Trial Court, in circumstances was justified, in not placing reliance on the recovery of weapon of offence---No implicit reliance could be placed on the evidence of both the eye-witnesses because both were chance witnesses; they had failed to establish that they indeed were present at the time of occurrence---Place of occurrence was located near a shrine and occurrence took place at the time of Fajar prayer, but no person from said locality came forward to support the ocular version---Material contradictions and inconsistencies were found in the evidence of both the witnesses--Inconsistency was also found in ocular evidence and medical evidence---Eyewitness though had no enmity to falsely implicate accused, but accused could not be sent to gallows on the said ground---As for relying upon the ocular evidence mere disinterestedness of the witness was not sole criteria, but the court had to see the intrinsic value of the statements of the eyewitnesses---Scrutiny of the evidence of said prosecution witnesses had clearly indicated that the eye-witnesses were neither reliable nor truthful witnesses---Accused was acquitted of the charge and was set at liberty in circumstances.

(b) Criminal trial---

----Appreciation of evidence---One tainted piece of evidence could not corroborate another such piece of evidence.

Ch. Azhar Siddique Cheema for Appellant.

Amanat Ali Bokhari, D.P.-G. for the State.

Date of hearing: 23rd April, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 711 #

2009 Y L R 711

[Lahore]

Before M.A. Zafar and Muhammad Ahsan Bhoon, JJ

ZULFIQAR AHMED alias BHUTTO---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeals Nos.143-T, 196-T and 287-T of 2007, heard on 19th November, 2008.

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

----S. 7(c)---Penal Code (XLV of 1860), S.324/34---Appreciation of evidence---Occurrence was the result of personal enmity between the parties---No passerby has suffered any injury at the hands of accused---No crime empty having been recovered from the spot, indiscriminate firing was not indicated---Section 7 of the Anti-Terrorism Act, 1997, therefore, was not attracted and the conviction and sentence of accused under section 7(c) of the said Act were consequently set aside---Accused was not attributed any injury in the F.I.R, but the same had been assigned to him by the injured witnesses during trial and the said omission in the F.I.R. could not be justified by them---Injured witnesses had made the improved deposition just to widen the net against the maximum members of the rival family---Prosecution had, thus, failed to prove its case against accused beyond any shadow of doubt---Accused was acquitted in circumstances.

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

----Ss. 324/34,337-F(i) & 337-F(iii)---Appreciation of evidence---Injuries attributed to accused had been proved by the evidence of injured witnesses which was corroborated by medical evidence, incriminating recoveries and the motive qua the quarrel between the parties one day prior to the occurrence---Said injuries, however, fell within the ambit of sections 337-F(i) and 337-F(iii), P.P.C. punishable with maximum sentence of one year's R.I. and five years' R.I. respectively---Accused had already served out the major portion of his substantive sentence amounting to three years by remaining behind the bars---Sentence of accused was reduced to the imprisonment already undergone by him in circumstances.

Malik Anwar-ul-Haq for Appellant (Zulfiqar).

Ansar Nawaz Mirza for Appellant (Rizwan Abbas).

Ch. Muhammad Tariq, Addl. P.-G. for the State.

Date of hearing: 19th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 714 #

2009 Y L R 714

[Lahore]

Before Jawwad S. Khawaja, J

FAZAL HUSSAIN alias FAZAL DIN through Legal Heirs and 2 others---Petitioners

Versus

Mirza MUHAMMAD ASHRAF and 7 others---Respondents

Civil Revision No.1706 of 2001, decided on 7th March, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Registration Act (XVI of 1908), Ss. 74 & 75(1)---Suit for declaration---Suit property was owned by the plaintiff and defendant had claimed that the plaintiff had sold suit property to him through a sale-deed---Defendant sought the registration of said sale-deed by applying to the concerned Sub-Registrar on which plaintiff was summoned where he disputed the sale-deed---Sub-Registrar, however, proceeded under Ss. 74 & 75(1) of Registration Act, 1908 for the purpose of compulsorily registering the sale-deed and passed an order to that effect, and the plaintiff had filed declaratory suit---Plaintiff had specifically pleaded that he and the defendant had been fighting each other through protracted civil and criminal litigation, that in circumstances there was no occasion for him to execute alleged sale-deed---Plaintiff alleged that his thumb impression on the sale-deed had been procured by means of fraud---No explanation was available as to why the plaintiff would sell his property to defendant, despite the pendency of such contentious litigation between the parties---Said circumstances were duly noted by the Trial Court and proceeded to decree the suit filed by the plaintiffs---Appellate Court below did not take note of the same or met the reasoning of the Trial Court---Validity--Trial Court, in circumstances, was justified in drawing an adverse inference against the defendant that he was untruthful and that no receipt was made by the plaintiff--Impugned appellate judgment and decree was set aside and that of the Trial Court was affirmed.

Ch. Mushtaq Masud for Petitioners.

Ch. Muhammad Arshad and Syed Farooq Hussain Shah for Respondents.

Date of hearing: 7th March, 2007.

YLR 2009 LAHORE HIGH COURT LAHORE 721 #

2009 Y L R 721

[Lahore]

Before Kazim Ali Malik and Rana Zahid Mahmood, JJ

MUHAMMAD RAMZAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 511 of 2002, 633 of 2000 and Criminal Revisions Nos. 274, 275 of 2002, Murder Reference No.579 of 2000, heard on 5th November, 2008.

Penal Code (XLV of 1860)---

-----S.302(b)/34---Appreciation of evidence---Benefit of doubt---Killing of deceased was not witnessed by anybody---Dead body of the deceased, according to post-mortem report, had reached last stage of putrefaction and face of deceased was not identifiable---Dead body subjected to autopsy had suffered death between 14 to 20 days and not within 4 to 8 days as claimed by prosecution witnesses---Prosecution had failed to establish with evidence conclusively that the dead body subjected to post-mortem was that of the deceased in the case---Underwear in which the dead body was clad and which was handed over to the escorting constable by the Doctor, was neither produced before the Investigating Officer nor was taken into possession---Shalwar, shirt and vest introduced by the prosecution witnesses under some legal advice as last worn clothes of the deceased, had been rejected by the post-mortem examiner---Extrajudicial confession allegedly made by accused persons as reshaped by the prosecution witnesses at the trial, was joint having been made on the same day, time and place and before the same set of witnesses and the same was no confession under the law, which even otherwise was the weakest type of evidence and stood belied by medical evidence---Evidence of last seen was also not worthy of credence---Had the deceased gone missing in the alleged manner and had the accused gone underground, complainant would have lodged the F.I.R. promptly without wasting any time and the delay in lodging the F.I.R. had 'adversely affected the prosecution case---Prosecution witnesses having already spotted and found the dead body lying in the field, subsequent pointing out of the accused was meaningless---Accused while going underground in blind murder case could not be expected to preserve the blood stained "Kassis" for 22 days and recovery of the same was of no consequence---Motive was not proved by any legal, cogent and convincing evidence and, even otherwise, the same in isolation did not provide a basis to record conviction---Benefit of the slightest doubt being the right of accused, they were acquitted on benefit of doubt in circumstances.

Medical Jurisprudence and Toxicology by N.J. Modi (Pakistan Edition) by Ray Zahid Hussain ref.

Ch. Zafar Iqbal Chaddar and Muhammad Waseem Khan for Appellant.

Tariq Zulfiqar Ahmad Ch. and Zulfiqar Ahmad Sidhu, Addl. P.-G. for the Complainant.

Date of hearing: 5th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 729 #

2009 Y L R 729

[Lahore]

Before Fazal-e-Miran Chauhan and Zafar Iqbal Chaudhry, JJ

TUFAIL---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.663, 664, 693, Murder Reference No.852 and Criminal Revision No. 354 of 2003, heard on 22nd September, 2008.

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

----Ss. 302(b) & 324/34---Appreciation of evidence---Considerable delay in registration of F.I.R. despite the fact that police station' was just at a distance of 1-1/2 k. m. from the place of occurrence--Inference could be that in circumstances, F.I.R. was got recorded with delay and the intervening time was consumed in concocting the prosecution story with deliberation and preliminary investigation after calling close relatives of deceased to become witnesses--- F.I.R., in circumstances, could not be used as a corroborative piece of evidence to the ocular account and prosecution evidence had to be seen with utmost care and caution---Both complainant and other prosecution witnesses were related inter se and with deceased closely---Relationship, no doubt was not sufficient to term them as interested witnesses, but prosecution witnesses were bound to explain their presence at the spot with sufficient reasons, but they could not do that---Except for the, oral statements of the witnesses, no connecting material was available to support their explanation for being present at the spot---Both the eye-witnesses were also found to have made improvements on material point, which had shown that they were capable of making false evidence---Except for the oral statements of the eye-witnesses, no connecting material was on record to support their explanation for being present at the spot---Even otherwise previous enmity existed between the parties, it could be held in circumstances, that both eye-witnesses had not been able to prove that they had witnessed the incident and their statements thus could not be relied upon for maintaining the conviction in a case entailing capital punishment---Motive could not be proved through sufficient evidence---Recovery of dagger from the possession of accused was legally inconsequential as recovery was allegedly effected after about 13 days of the occurrence and same was effected in violation of S.103, Cr.P.C. as public witnesses were not joined in the recovery proceedings---Said weapon was not recovered from the place exclusively owned and possessed by accused as he was living in a joint family system---Such recovery of dagger was of no use for the prosecution---Prosecution, in circumstances, had not been able to make out a case of Qatl-i-Amd against the accused---Defence plea established that only accused had caused the death' of deceased without any premeditation to save the honour of his father as well as in the exercise of his right of self-defence; however, it was found that he had exceeded the same as deceased was not armed with any weapon and accused had not received any injury---Case being of an exceeded self-defence, he was convicted under S.302(c), P.P.C., instead of S.302(b), P.P.C. and sentenced to 25 years' R.I. and he was acquitted of the charge under S.324, P.P.C.-Possibility of false implication of co-accused being closely related to main accused, could not be ruled out---Accused were acquitted of the charge extending them benefit of doubt.

Sultan Khan v. Sher Khan and others PLD 1991 SC 520 and PLD 1996 SC 274 ref.

(b) Criminal trial---

----Appreciation of evidence---If the ocular account was disbelieved and the conviction was to be recorded on the basis of the defence plea taken by the accused, the same had to be believed or rejected in toto and not in piecemeal to suit the prosecution version.

Qazi Muhammad Saleem for Appellants.

Sardar Khurram Latif Khan Khosa and Sardar Mehboob for the Complainant.

Ijaz Ahmad Bajwa, D.P.-G. for the State.

Dates of hearing: 16th, 17th, 18th and 22nd September, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 739 #

2009 Y L R 739

[Lahore]

Before Saghir Ahmad, J

MUHAMMAD ASLAM---Petitioner

Versus

WAPDA through Chairman, Lahore and 6 others---Respondents

Writ Petition No.4168 of 2004/BWP, decided on 23rd April, 2008.

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

----Ss. 105 & 106---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Lease of property---Acquired land was proposed to be leased out to the petitioner, who, after fulfilment of requirements, stood the successful bidder---Petitioner had deposited the amount of lease, whereafter an agreement/undertaking was also reduced into writing---Petitioner spent a huge amount to make the land cultivatable---Lease of the petitioner, thereafter was cancelled and he was black listed---Certain questions had been agitated with regard to the lease of disputed land in favour of petitioner which could not be resolved without taking evidence, which exercise could not be undertaken by the High Court in exercise of its constitutional jurisdiction---Petitioner, however, was black listed, before issuing such a direction, and no notice was issued to him, in that respect---Act of authority so far as it black listed the petitioner was violative of principles of natural justice---Public functionaries were obliged to issue notice to the party before making adverse order against it and order should also reflect reasons for its making---Petition was allowed to the extent of black listing and the matter was referred back to the concerned Authority---If the authority still deemed appropriate to black list the petitioner, it would issue a notice to the petitioner and after affording him proper opportunity of hearing, would pass a fresh order.

Shah Wali and others v. Ferozuddin and others 2000 SCMR 718; Punjab Small Industries Corporation v. Ahmad Akhtar Cheema 2002 SCMR 549 PLD 1987 SC 304 and M/s. Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 ref.

Qazi Muhammad Bilal for Petitioner.

Hafiz Muhammad Abdul Qayyum for Respondents.

Date of hearing: 23rd April, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 750 #

2009 Y L R 750

[Lahore]

Before Kazim Ali Malik, J

Chaudhary ABDUL REHMAN---Petitioner

Versus

THE STATE and 16 others---Respondents

Writ Petition No.4478 of 2006, heard on 15th September, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan' (1973), Art.199---Constitutional petition---Powers of Justice of Peace---Ex Officio Justice of Peace may issue appropriate direction to the police with regard to neglect, failure or excess committed by the police officer in relation to his functions and duties---With no stretch of imagination Ss. 22-A & 22-B, Cr.P.C. authorize Justice of Peace to quash or cancel F.I.R. in a case pending trial---High Court allowed the constitutional petition and impugned order of quashment of F.I.R. was set aside.

Muhammad Waseem for Petitioner.

Asif Javed Qureshi for Respondents Nos.4 to 17.

Najamul Hassan Gill, A.A.-G. for the State.

Date of hearing: 15th September, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 753 #

2009 Y L R 753

[Lahore]

Before Mian Saqib Nisar, J

ABDUR REHMAN and 68 others---Petitioners

Versus

PROVINCE OF PUNJAB through Collector, Bahawalpur and 23 others---Respondents

C.R. Nos.297-D of 1991/BWP and 12-D of 1992/BWP, heard on 31st October, 2007.

Specific Relief Act (I of 1877)---

---S. 42---Suit for declaration---Plaintiffs had claimed that suit land which was "Shakargah" owned by State of Bahawalpur was gifted away to the donee and that possession of suit land was delivered to the donee by the order of His Highness Nawab of Bahawalpur---Plaintiff had asserted that after death of donee the land was finally devolved on one who, in various agreements of sale, sold said land to them--Suit had concurrently been dismissed by the Trial Court and Appellate Court---Validity--Documents produced on record showed that suit land was not given to donee in nature of a gift as permissible under the Islamic Law, but it was conditional gift being such it was not an absolute gift, but was in the nature of exclusively a usufruct to donee, for the purpose of his services rendered to the late Nawab---Donee, in circumstances in no manner, on basis of alleged gift deed, had ever become the exclusive owner of the property which could devolve on any of his legal heirs---Condition in gift-deed, which otherwise not registered had never been waived by the Nawab at any point of time---Gift of property was only for the life time of donee and the moment he died, the property could not devolve on any of his legal heirs--Property in question having been resumed under the land reforms, it was proved that no gift existed at that time and no other legal heir of the deceased donee had challenged said resumption---Decree for specific performance by itself would not mean the transfer of any right in the property on account of which the plaintiffs could seek the declaration of the ownership of the property, until and unless the decree was executed---Counsel for the plaintiffs had himself conceded that decree had never been got executed by the plaintiffs---No illegality or error was found in the judgments and decrees of the two courts below calling for interference in revisional jurisdiction of High Court.

Muhammad Ishaq v. Muhammad Siddique PLD 1975 Lah. 909 rel.

Ch. Ijaz Ahmed and Ch. Manzoor Ahmed for Petitioners.

Syed Shaheen Masud Riziv, A.A.-G.

Ch. Naseer Ahmed, Hafiz Muhammad Abdul Qayyum, Masud Ashraf Sheikh, Muhammad Shafi Meyo and Ch. Khalid Pervaiz for Respondents.

Date of hearing: 31st January, 2007.

YLR 2009 LAHORE HIGH COURT LAHORE 756 #

2009 Y L R 756

[Lahore]

Before Hasnat Ahmad Khan and M.A. Zafar, JJ

ABDUL RAZZAQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 766 and Murder Reference No. 687 of 2002, heard on 18th September, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Complainant, who was real maternal nephew of the deceased, was also witness of last seen; his statement being self contradictory, his testimony could not be believed---Evidence of other witness of last seen was also not reliable as he did not know accused prior to his last seen in the company of the deceased, how he could have recognized that it was accused who was accompanying the deceased at the relevant time---Evidence of third witness of last seen was also not believable---Alleged extra judicial confession was joint one and prosecution witness being not known to accused prior to the occurrence, how an accused of murder would go to a person not known to him and admit his guilt, specially when he was not a person in authority to get him pardoned from the heirs of the victim---Report of Forensic Science Laboratory though was positive but apart from that fact the recoveries were not put to accused in his statement under S.342, Cr.P.C.---Recovery of weapon by itself without any other corroboration was not a substantial piece of evidence---When there was no evidence worth consideration to maintain conviction against accused, his abscondence also would lose its significance and was no ground to prove the guilt---Abscondence of accused would never remedy the defects in the prosecution case as neither it was necessarily indicative of guilt nor was even sufficient by itself to prove the guilt---Prosecution having failed to prove its case against accused his conviction and sentence recorded by the Trial Court, was set aside and he was acquitted of the charge.

State v. Kamal Khan alias Maloo 1993 SCMR 1378; Muhammad Khan v. State 1999 SCMR 1220; Ch. Muhammad Yaqoob v. State 1992 SCMR 1983 and Ameen Ullah v. State PLD 1976 SC 629 ref.

Muhammad Irfan Malik for the Appellant.

Malik Abdus Salam, D.P.G. for the State

Raza Basheer and Ch. Fasih-uz-Zaman for the Complainant.

Date of hearing: 18th September, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 764 #

2009 Y L R 764

[Lahore]

Before Tariq Shamim and Muhammad Ahsan Bhoon, JJ

MUHAMMAD YOUNIS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1951 and Murder Reference No.809 of 2002, heard on 11th September, 2008.

Penal Code (XLV of 1860)---

----Ss.302(b)/34, 324/34, 337-D/34 & 452/34---Appreciation of evidence---Promptly lodged F.I.R. had excluded the possibility of consultation or substitution of accused, which even otherwise was a rare phenomenon---No such enmity existed between the parties so as to have prompted the complainant and other witnesses for false implication of accused in the crime---Asserted motive for the occurrence was proved---Eye witnesses being the residents of the house of occurrence, their presence at the scene of occurrence could not be disputed---Ocular testimony was consistent in all material aspects---Minor contradictions in prosecution evidence being trivial in nature did not affect adversely the case of prosecution---Relationship of eye witnesses with deceased alone was not sufficient to discard their testimony---Ocular evidence was credible and was fully corroborated by medical evidence and other independent pieces of evidence---Accused had been ascribed fatal injury to the deceased and his role was distinguishable from that of the acquitted co-accused---Convictions and sentences of accused were upheld in circumstances.

S.D. Qureshi and Zafar Mahmood Chaudhry for the Appellant.

Syed Faisal Raza Bokhari, D.P.-G.

Date of hearing: 11th September, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 780 #

2009 Y L R 780

[Lahore]

Before Abdul Shakoor Paracha, J

Ch. MAHMOOD UL HASSAN-Petitioner

Versus

DISTRICT JUDGE, CHAKWAL and another---Respondents

Writ Petition No.35 of 2009, decided on 14th January, 2009.

(a) Words and phrases---

----Suspend---Meaning.

Abdul Rahim v. Muhammad Salim alias Chottan 1985 CLC 2834-Karachi ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 15---Civil Procedure Code (V of 1908), Preamble---Applicability---Provisions of C.P.C. are not applicable in rent proceedings but its principles are applicable in the cases.

Iqbal Ahmad Malik v. Surraya Anwar Sheikh PLD 1977 Lahore 409 rel.

----S.15---Civil Procedure Code (V of 1908), S.144---Constitution of Pakistan (1973), Art.199---Constitutional petition---Restitution of possession---Provisions of S. 144, C. P. C. ---Applicability ---Appellate Court, in appeal filed by tenant, suspended operation of eviction order passed by Rent Controller but landlord forcibly took over the possession of shop in question---Appellate Court passed order under S.144, C.P.C. for restoration of possession to tenant---Validity---Where decree was varied or reversed by court of first instance, on the application of a party entitled to any benefit by way of restitution or otherwise, provisions of S.144, C.P.C. were applicable---De;:tee passed by Rent Controller had not been reveresed and order was not passed by court of first instance---Provision of S.144, C.P.C. was not exhaustive and its principles could be extended to cases which did not strictly come within the wordings of S.144 C.P.C.--Landlord was asking for ejectment of tenant through Court of law and he was expected to wait for dismissal of appeal---Court had ample power to restore possession of property and it could direct restoration of status quo ante and refuse to recognize the act violative of law---Landlord having taken law into his own hands by taking possession forcibily of the shop from tenant, Lower Appellate Court had rightly exercised jurisdiction directing landlord to restore possession of shop to tenant and no illegality had been committed by the court---High Court declined to interfere with order of restoration of possession, passed by Lower Appellate Court---Petition was dismissed in circumstances.

Padma Gowda v. Yuvaraja Hedge AIR 1960 Mys. 337; Attaul Haque and others v. Additional District Judge and another 1992 MLD 1409 Lahore; Mst. Zubaida Begum v. Mehraj Din 1979 CLC, 109; Abdul Haq v. Dr. Abdul Quddus Khan and others PLD 1960 Dacca 452; Hamejaddi Howaldar and another v. Maminaddi Shaikh and another PLD 1959 Dacca 304; Mst. Sakina Bibi and others v. Inayatullah and others 1974 Law Notes 367; AIR 1922 P.C. 269; AIR 1954 Cal. 544; AIR 1958 Ker, 84; AIR 1956 Madhia Bharat 226; AIR 1954 Andhra Pradesh 5; AIR 1931 Cal 779; AIR 1952 Assam 42; Abdul Rahim v. Muhammad Salim alias Chotton 1985 CLC 2834 Karachi; Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others PLD 2002 SC 303 and Mst. Sharifan Bibi and another v. Allah Bakhsh 1996 SCMR 1823 rel.

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

----Ss.115, 144 & 151---Restitution of possession---Remedy---Where S.151 C.P.C. is invoked and S.144 C.P.C. is not applicable, order of restitution passed by civil court under S.151 C.P.C. is revisable under S.115 C.P.C.---If court purports to act under S.144 C.P.C., then order of court is appealable, however wrong that order may be, because it is an order or at least purports to be an order under S.144 C.P. C. which is appealable as a decree within the definition of decree given in C.P.C.

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

----O. XXXIX, R. 2(3)(4)-Interim injunction, violation of---Contempt proceedings---Principle---Ordinarily if temporary injunction issued by court is violated, action as contemplated in O.XXXIX, R.2(3)(4) C.P.C. can be resorted to---Before punishing a person for disobedience of temporary injunction or breach of any term thereof, the court has to find that in fact such disobedience or breach has taken place and for that purpose inquiry is needed.

Muhammad Boota v. Allah Ditta and others 1980 Law Notes Lahore 1187 (sic) and Bakhiwani and others v. Amin and others 1980 SCMR 89 rel.

Mujeeb-ur-Rehman Kiani for Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 794 #

2009 Y L R 794

[Lahore]

Before Ali Akbar Qureshi, J

Dr. MUHAMMAD RIAZ---Appellant

Versus

Qazi AFTAB IQBAL and 5 others---Respondents

F.A.O. No.111 of 2008, decided on 31st 3 October, 2008.

West Pakistan Civil Courts Ordinance (II of 1962)---

----S. 7---Jurisdiction of District Judge---Plaintiff in the case having fixed value of the suit for the purpose of jurisdiction of the Court, at Rs.25 lac, jurisdiction to entertain and decide the matter would vest with the District Judge.

Ch. Muhammad Rafique Warraich for Appellant.

Qazi Abdul Hameed and Muhammad Nauman Shamas Qazi for Respondent No.1.

YLR 2009 LAHORE HIGH COURT LAHORE 800 #

2009 Y L R 800

[Lahore]

Before Muhammad Ahsan Bhoon and M.A. Zafar, JJ

MUHAMMAD SAFDAR and another---Appellants

Versus

THE STATE---Respondent

Murder Reference No.870 in Criminal Appeals Nos.467 of 2001, 14 of 2002 and Criminal Revision No.56 of 2002, heard on 24th November, 2008.

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

----Ss.302(b), 452 & 324/149--Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Ocular account furnished by the complainant was corroborated by other eye-witnesses including the injured witness---Accused and the complainant were not only the residents of the same locality, but they were neighbours and admittedly there was cross firing between the parties due to strained relations---Both the parties had not given complete and true accounts of occurrence and had not come to the Court with clean hands, but Court was competent to draw its own conclusion decipherable from the evidence available on record---Presence of one accused on the spot was natural being elder of the family who was 75 years old and had been convicted under Ss.452 and 324/149, P. P. C. ---Convictions of said accused were maintained, but his sentence was reduced to imprisonment already undergone by him to meet the ends of justice---Accused, who had caused fatal fire-arm, injury to the deceased was sentenced to death under S.302(b), P.P.C.---Occurrence was the result of a sudden flare up due to exchange of hot words between the two closely related families cross-firing on each other and firing made by complainant was initially suppressed by prosecution---All these facts were mitigating circumstances in favour of said accused and his sentence of death under S.302(b), P. P. C. was accordingly reduced to imprisonment for life---Remaining two accused could not join hands with the principal co-accused with whom they had pitched litigation and even otherwise they were not attributed any injury to the deceased or any prosecution witness and they being father and son possibility of their false implication to widen the net could not be ruled out and they were acquitted accordingly.

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

----Ss. 302 (b), 452 & 324/149---Appreciation of evidence---Facts suppressed by parties---Principles---Incompleteness of tale given by the parties would not deter the Court from drawing conclusion, which was otherwise decipherable from the evidence available on record.

Ch. Afrasiab Khan, Syed Zil-e-Hussain Kazmi for Appellants.

Ch. Muhammad Tariq, Addl. P.G. assisted by Ch. Mahmood Akhtar Khan for the Complainant.

Date of hearing: 24th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 807 #

2009 Y L R 807

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Ch. MUHAMMAD ASGHAR and another---Petitioners

Versus

ELECTION TRIBUNAL OF U.C. NO.45, ARIF WALA DISTRICT PAKPATTAN

SHARIF and 8 others---Respondents

Writ Petition No.2475 of 2007, decided on 8th October, 2008.

Punjab Local Government Elections Rules, 2005---

----Rr. 14 & 65---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election of Nazim and Naib Nazim---Disqualification of returned candidates---Respondents were elected as Nazim and Naib Nazim and petitioners had challenged said election under R.65 of Local Government Elections Rules, 2005 by filing Election petition on the ground that at the time of submission of nomination papers one respondent was not qualified to contest election as he had submitted forged Matriculation certificate---Petitioners had earlier raised objection before the Returning Officer, but their objection was rejected and respondents were allowed to contest election---Election Tribunal in its judgment also found that respondent who did not hold genuine Matriculation certificate, was not entitled to contest the election of Nazim---Election petition was partly allowed whereby the respondent was disqualified, whereas other respondent was allowed to continue in office-On filing constitutional petition notices were issued to the respondents but despite said notices they failed to appear or make arrangement for their representation---No one having appeared on behalf of the respondents, constitutional petition was allowed and petitioners were declared returned in their place.

Ch. Abdul Ghaffar for Petitioners.

YLR 2009 LAHORE HIGH COURT LAHORE 810 #

2009 Y L R 810

[Lahore]

Before Ali Akbar Qureshi, J

PROVINCE OF PUNJAB through Collector/District Coordination Officer, Mianwali and 3 others---Petitioners

Versus

Mst. MAQSOOD BIBI through General Attorney---Respondent

Civil Revision No.284 of 2004, heard on 17th October, 2008.

Civil Procedure Code (V of 1908)---

----S.115---Specific Relief Act (I of 1877), S.42---Revision---Misreading and non-reading of evidence---Concurrent findings of fact by two courts below---Plaintiff claimed that she 'deposited price of suit plot with authorities, signed purchase agreement which was registered in her favour and mutation was also attested but authorities denied to incorporate her name as owner in their record---Both the courts below concurrently decreed the suit in her favour---Plea raised by authorities was that both the courts below did not peruse voluminous documentary evidence produced by both the parties---Validity---Both the Courts below committed jurisdictional error by not examining evidence, ocular as well as documentary, while rendering concurrent conclusion and had overlooked a major part of evidence produced by the parties---Misreading and non-reading of evidence was committed by both the courts below and such concurrent findings could be interfered with by High Court---As concurrent findings suffered from misreading and non-reading of evidence, and rather were based on no evidence, therefore, while exercising jurisdiction under S.115 C.P.C., High Court remanded the case to Trial Court for decision afresh---Revision was allowed accordingly.

Mst. Sahib Noor v. Manzoor Haider Shah PLD 1989 SC 568 and Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50 rel.

Abdul Aziz v. Sheikh Fateh Muhammad 2007 SCMR 336; Ghulam Nabi and others v. Seth Muhammad Yaqoob and others PLD 1983 SC 344 and Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431 distinguished.

Mian Tariq Ahmad, Addl. A.-G. along with Malik Manzoor Ahmad, Deputy Director on behalf of Director, Housing and Physical Planning, Bhakkar for Petitioners.

Ghulam Haider Al-Ghazali for Respondents.

Date of hearing: 17th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 818 #

2009 Y L R 818

[Lahore]

Before Syed Shaheen Masud Rizvi, J

ZAHOOR AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1096-B of 2008, decided on 2nd June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 324/34---Pre-arrest bail, confirmation of---Record had revealed that only Lalkara had been attributed to accused---Accused was shown empty handed at the time of occurrence---Nothing was recovered from accused during course of investigation--Investigation had been completed and further detention of accused would not serve any useful purpose---Ad interim pre-arrest bail already granted to accused, was confirmed in circumstances.

Maher Khalil-ur-Rehman for Petitioner.

Ch. Muhammad Arshad Gujar for the Complainant.

Sh. Imtiaz Ahmad for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 822 #

2009 Y L R 822

[Lahore]

Before Ijaz Ahmad Chaudhry and Sardar Muhammad Aslam, JJ

TABASSUM ALI---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.4305-B of 2007, decided on 26th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/148/149/109---Anti-Terrorism Act (XXVII of 1997), S.7---Bail, grant of---Further inquiry---Complainant had involved ten accused persons who, according to complaint while armed with Kalashnikov had assaulted the complainant party---No specific role was attributed to accused---During investigation, the police came to the definite conclusion that accused had not participated in the occurrence and accepted his plea of alibi---Police opinion, though was not binding on the court, but it could be considered for grant of bail, if same was based on sound reasoning---Accused, not only was declared innocent, but discharge report was also prepared and submitted before Illaqa Magistrate who disagreed with the same---Validity---Nothing was recovered from accused during the investigation and no specific role was ascribed to him---Prima facie sufficient material was brought on record which had made the case of accused that of further inquiry falling under S.497(2), Cr. P. C. --Eighty seven empties allegedly recovered from the spot were sent to Forensic Science Laboratory and according to report of the Laboratory said empties had matched with the weapons allegedly recovered from other accused persons---Commencement of the trial was no ground for refusal of bail to an accused who had succeeded in making out a case of further inquiry and bail could not be withheld as punishment---Accused having succeeded in making out a case of further inquiry, he was released on bail.

Liaqat Ali v. The State 2002 YLR 942; Awal Gul v. Zawar Khan and others PLD 1985 SC 402 and Sultan Mahmood v. Atta Muhammad and another 1990 ALD 639 rel.

Azam Nazir Tarar for Petitioner.

Sher Afgan Asadi for the Complainant.

Ch. Jamshed Hussain, Dy. P.-G. for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 829 #

2009 Y L R 829

[Lahore]

Before Syed Shabbar Raza Rizvi and Hasnat Ahmad Khan, JJ

MUHAMMAD SHAHBAZ and another---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. No. 8440/B of 2008, decided on 22nd October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 324/452/427/148/149---Anti-Terrorism Act (XXVII of 1997), S. 7---Bail, refusal of---Role of accused was expressly narrated in the F.I.R, which was supported by the witnesses in their statements recorded under S.161, Cr.P.C.-Three persons had been caused fire-arm injuries---Cross version of accused having been disbelieved during investigation, they could not take advantage of the same---Accused had neither moved for change of investigation, nor filed any private complaint in support of their cross version---Offence allegedly committed by accused was hit by the prohibitory clause of S.497(1), Cr.P.C---Bail was declined to accused in circumstances.

Malik Sultan Haider Ali for Petitioner.

Syed Nadeem Hussain Shah for the Complainant.

Ch. Abdur Razzaq Kamboh, Deputy Prosecutor General with Waris, S.-I. for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 832 #

2009 Y L R 832

[Lahore]

Before Ch. Ijaz Ahmad and Muhammad Khalid Alvi, J

MUHAMMAD IDREES---Application

Versus

ZAHOORUL HAQ NASIR---Respondent

C.M. No.6 in R.F.A. No.22 of 2005, decided on 28th June, 2005.

Constitution of Pakistan (1973)---

----Art.201---Civil Procedure Code (V of 1908), S.151---Precedent---Judgment passed by equal bench of High Court---Scope and status---Grievance of applicant was that earlier Division Bench of High Court passed a judgment on same point by omission to take notice of principle laid down by Supreme Court in its judgment---Validity---Earlier judgment of equal bench in High Court on same point was binding upon the second bench---If a contrary view had to be taken, then request for constitution of larger bench should have been made---Division Bench of High Court did not find any infirmity or illegality in the order passed by earlier Division Bench---Application was dismissed in circumstances.

Multi Line Associate's case 1995 SCMR 362 rel.

Malik Gul Hassan & Company's case 1996 SCMR 237; Usman Hussain's case PLD 1988 Karachi 628; Faqir Muhammad Khan's case PLD 1973 SC 110; Amanullah Khan's case PLD 1963 Lahore 566; Messrs Eastern Syndicate's case PLD 1959 SC 364 and Kashmir Chemical Industries Limited v. National Bank of Pakistan 1999 PCTLR 565 ref.

A.K. Dogar and Arif Ch. for Applicant.

YLR 2009 LAHORE HIGH COURT LAHORE 834 #

2009 Y L R 834

[Lahore]

Before Malik Saeed Ejaz and Saif-ur-Rehman, JJ

MUHAMMAD ALI alias MUHAMMADI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.390 of 2005 and Murder Reference No.367 of 2005, heard on 3rd June, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S.345---Compromise---Compromise between accused and legal heirs of deceased---Accused who was convicted, was sentenced to death plus payment of compensation to legal heirs of deceased---During pendency of appeal a compromise was arrived at between accused and legal heirs of the deceased whereby legal heirs of the deceased pardoned accused in the name of Allah and had waived their right of Qisas and had no objection to the acquittal of accused---All legal heirs of deceased were adults and no one was minor---Sessions Judge to whom said compromise was sent for verification, legal heirs of the deceased and genuineness of acclaimed compromise, had opined that statements of the legal heirs of the deceased with regard to compromise appeared to be free from duress and coercion---Compromise arrived at between accused and legal heirs being genuine and without any duress and coercion, was accepted with the result that impugned judgment of the Trial Court was set aside and accused was acquitted of the charges and was released.

Z.M. Shahzad Qureshi for Appellant.

Mian Bashir Ahmad Bhatti, Dy. P.-G. Punjab for the State.

Ch. Muhammad Parvez Akhtar for the Complainant.

Date of hearing: 3rd June, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 838 #

2009 Y L R 838

[Lahore]

Before Saif-ur-Rehman, J

MUHAMMAD SHAFIQUE---Petitioner

Versus

THE STATE and 10 others---Respondents

Writ Petition No.854 of 2008, heard on 1st July, 2008.

Penal Code (XLV of 1860)---

----S.337-A(ii)/34---Constitution of Pakistan (1973), Art.199---Constitutional petition---Medical re-examination---Medical Officer in a case under S.337-A(ii)/34, P.PC. recorded his opinion---Application for securing second opinion regarding the said injury filed before Area Magistrate was forwarded to the Medical Officer for necessary action---On receipt of said order the Medical Officer recorded his opinion---Petitioner through constitutional petition had challenged the second report of Medical Officer-Procedure for revamping of Medico-legal work as mentioned in notification No. S. O. (H&D) 5-5-2002, dated 5-2-2003 issued by the Government had provided "Tier Structure for the conduction of Medico-legal work"---After recording of first report by the Medical Officer, the case was covered by second tier according to which the medical re-examination was to be conducted by District Standing Medical Board consisting of Medical Superintendent, D.H.Q. Hospital, District Officer (Health) and Surgeon if the first medical examination report was challenged---Nothing was on record to show that the first report was ever challenged by anyone---Second report which had been assailed in the petition, was found to be coram non judice qua the Medical Officer, which was declared as illegal and was quashed--Order accordingly.

Sh. Abdul Samad for Petitioner.

Sardar Tariq Sher Khan and Ramzan Khalid Malik, Addl. A.-G. for the State.

Date of hearing: 1st July, 2008.

2009 Y L R 872

[Lahore]

Before Tariq Shamim, J

RIASAT ALI and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1759 of 2006, decided don 27th April, 2008.

Penal Code (XLV of 1860)---

----Ss. 324, 336, 452 & 148---Appreciation of evidence---Sentence, reduction in---Accused persons during the course of investigation were found innocent by Investigating Officer---Weapons of offence with which accused persons were alleged to be armed at the time of occurrence were also not recovered from their possession during the course of investigation---Sole injured prosecution witness, had made a statement before the Judicial Magistrate to the effect that he had entered into a compromise with accused persons and had pardoned them in the name of Allah and that he had no objection, if accused persons were acquitted of the charge---Trial Court in view of the gravity of the offence committed by accused persons, proceeded to invoke the provisions of S.337-N, P.P.C. and convicted and sentenced accused persons to various terms of imprisonment which were ordered to run consecutively---High Court, however, reduced the terms of imprisonment awarded to accused persons as prayed for by their counsel---While maintaining the conviction of accused persons, sentence awarded to them under Ss. 336 & 324, P.P.C. was reduced from 3 years to 2 years' R.I., whereas sentences awarded to them under Ss.452 & 148, P.P.C. were maintained---In view of the peculiar facts and circumstances of the case and particularly on account of a compromise having taken place between the parties, order of the Trial Court to the extent the sentences were ordered to run consecutively, was a bit on the harsh side---High Court directed that the sentences awarded to accused on different counts, would run concurrently.

Mian Muhammad Jehangir for Appellant. .

Ch. Amjad Hussain, D.P.-G. for the State.

Date of hearing: 27th April, 2007.

YLR 2009 LAHORE HIGH COURT LAHORE 876 #

2009 Y L R 876

[Lahore]

Before Kazim Ali Malik, J

MUHAMMAD HASAN and others---Petitioners

Versus

BASHIR AHMED and others---Respondents

Civil Revision No.444-D of 2008, heard on 5th November, 2008.

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

----S.52---Entries in record of rights---Scope---Entries in record of rights under S.52 of West Pakistan Land Revenue Act, 1967, have got presumption of truth.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Art.115---Specific performance of agreement to sell---Title of tenant---Estoppel--- Applicability--- Concurrent findings of fact by two courts below---Tenants claimed that owner had orally entered into agreement to sell the suit land in their favour and had received full consideration price but did not execute sale deed---Both the courts below concurrently dismissed the suit and appeal filed by tenants---Validity---Tenants could not set up hostile title against their Landlord without first surrendering and then regaining possession of subject matter in their own rights hostile to landlord---According to revenue papers relied upon by tenants, they gained possession of suit property as tenants at will under original owner, therefore, they were estopped once for all to set up hostile title against him without first surrendering possession of subject matter and then gaining possession thereof under agreement to sell, if any---Claim of tenants was violative of Art.115 of Qanun-e-Shahadat, 1984---Both the courts below had rightly non-suited tenants and concurrent findings were based on legal evidence completely in line with law governing the subject---High Court, in exercise of revisional jurisdiction, declined to interfere in judgments and decrees passed by both the Courts below---Revision was dismissed in circumstances.

----Ss. 42 & 52---Record of rights---Presumption---Entries of Khasra Girdawari---Scope---No presumption of truth is attached to entries of such Khasra Girdawari, which are not in line with that of Register Haqdaran Zamin, to which presumption of truth is attached.

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

----Ss.35-A & 115---Special costs---Vexatious litigation---Scope---Record had established that plaintiffs were not possessed with any cause of action or locus standi respecting suit land and they started frivolous and vexatious litigation with ulterior motive---Effect---High Court, in exercise of revisional jurisdiction, imposed on plaintiffs compensatory / penal costs in circumstances.

Hafiz Muhammad Naveed Akhtar for Petitioners.

Date of hearing: 5th November 2008.

2009 Y L R 904

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD ARSHAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.10585-B of 2008, decided on 21st November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, refusal of---Section 489-F, P.P.C. required that cheque must be issued "dishonestly" as the word "issue" was pre-fixed with 'dishonesty' in S.489-F, P.P.C.--Dishonesty or mens rea was always in the mind of an accused and it could only be inferred from the conduct or actus reus of an accused before or after committing the offence---Criminal record of accused was important to judge the conduct of accused--Ordinarily bail was granted as a rule in cases which were not covered by the prohibitory clause of S.497, Cr.P.C., but bail could be refused in exceptional cases---Registration of 17 cases against accused, prima facie, reflected criminal propensity in the character of accused and same also made the case of accused an exception to the general rule---Bail was refused in circumstances.

PLD 1995 SC 34 and PLD 2006 Lah. 607 ref.

Malik Saeed Hassan for Petitioner.

Mian Maqsood Ahmad for the Complainant.

Asif Mehmood Cheema, Dy. Prosecutor General with Naseer, A.S.I.

YLR 2009 LAHORE HIGH COURT LAHORE 910 #

2009 Y L R 910

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7001/B of 2008, decided on 8th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/393/109---West Pakistan Arms Ordinance (XX of 1965), S.13---Bail, grant of---Further inquiry---Accused though was present at the time of occurrence while armed with .30 bore pistol, but he had only resorted to aerial firing and had not caused any injury to the deceased---No crime empties were recovered from the place of occurrence which could connect accused with commission of the offence---No direct evidence was available against accused regarding his active role---Case of accused, 1 in circumstances, was that of further inquiry into his guilt---Accused was admitted to bail, in circumstances.

Ch. Nawab Ali Meo for Petitioner:

Shafqat Ullah Butt, D.P.-G. for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 911 #

2009 Y L R 911

[Lahore]

Before Zafar Iqbal Chaudhry, J

MUHAMMAD HUSSAIN---Appellant

Versus

CHIEF ADMINISTRATOR AUQAF, PUNJAB, LAHORE and 2 others---Respondents

F.A.O. No.260 of 2006, heard on 21st November, 2008.

Punjab Waqf Properties Ordinance (IV of 1979)---

----S.2(e)---Specific Relief Act (I of 1877), S.42---Waqf property---Determination---Necessary ingredients---Appellant assailed notification issued by authorities, whereby property in question was declared as Waqf---Validity-Ingredients which could determine status of property as Waqf, were permanent dedication and that too for a religious, pious or charitable purpose---If such ingredients were missing or not provided, property could not be declared as Waqf property---Deed of dedication was the most important document to determine status of property as Waqf, by which permanent dedication had been made for religious or pious purpose but there was no such document on record---On the touchstone of definition of S.2 (e) of Punjab Waqf Properties Ordinance, 1979, property in question could not be termed as Waqf because it was not permanently dedicated for religious or pious purpose---Notification of Waqf issued by authorities declaring land in question as Waqf was declared as illegal, void .against law and ineffective upon the rights of appellant---High Court, in exercise of appellate jurisdiction, set aside the notification passed by authorities and judgment passed by Trial Court---Appeal was allowed in circumstances.

Chief Administrator Auqaf, Punjab, Lahore v. Koura alias Karam Ilahi and another PLD 1991 SC 596; Moueen-ud-Din and 8 others v. Administrator General of Auqaf, Pakistan, Islamabad and another PLD 2007 Lah. 583 and Muhammad Ishaq v. Chief Administrator Auqaf, Punjab PLD 1977 SC 639 ref.

Muhammad Arif Raja for Appellant.

Rana Abdul Ghaffar with Mushtaq Ahmad, District Manager, Gujranwala for the State.

2009 Y L R 927

[Lahore]

Before Rana Zahid Mahmood, J

GULSHAIR alias GUL MUHAMMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2482/B of 2008, decided on 4th November, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324/337-H(ii)/148/149---Bail, grant of---Accused, according to investigation, was neither armed at the time of occurrence nor had he fired at the complainant---Co-accused was found to have fired a shot with his gun on the complainant hitting with pellets on various parts of his body, whereas through a loose net accused had been falsely involved---Accused was simply present at the scene of occurrence and his case needed further inquiry---Bail was allowed to accused in circumstances.

2008 YLR 1964 ref.

Mehr Tanvir Ahmad for Petitioner.

Ch. Zulfiqar Ali Sidhu, Addl. P.-G. with Fida Hussain Bukhari, S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 935 #

2009 Y L R 935

[Lahore]

Before Maulvi Anwarul Haq and Abdul Shakoor Paracha, JJ

Messrs SEAGUL ENTERPRISES through Legal Heirs of Sole Proprietor and others---Appellants

Versus

ATTOCK REFINERY LIMITED MORGAH, RAWALPINDI through Chief Executive Officer---Respondent

R.F.A. No.91 of 2000, hard on 15th December, 2008.

Civil Procedure Code (V of 1908)---

----O. IIXXVII, Rr.1, 2 & S.96---Arbitration Act (X of 1940), S.34---Suit for recovery of amount---Defendant, who was appointed as a Clearing Agent of the plaintiff vide agreement, was authorized to clear the refund of the octroi deposit on behalf of the plaintiff---Defendant received the suit amount from Municipal Corporation, which was to be handed over to the plaintiff, but he failed to do so---Defendant admitted his liability to pay the suit amount and issued cross-cheques in the suit amount but same were dishonoured when presented---Liability to pay suit amount stood admitted and so was the case with the promise to pay the same and issuance of cheques---Defendant, however sought stay of suit on the ground that there being an arbitration clause in the admitted agreement and since a prayer had been made by the defendant in the application for leave to appear and defend the suit for stay of proceedings in the suit, Trial Court ought to have stayed the proceedings and should not have proceeded with the suit---Trial Court dismissed said application and decreed the suit---Validity---Major stress was on the stay of suit under S.34 of Arbitration Act, 1940---Liability to pay the suit amount stood admitted and so was the case with the promise to pay the same and issuance of cheques---Where a suit had been filed under O.XXXVII, C.P.C. and if an application was filed by the defendant under S. 34 of Arbitration Act, 1940 then it had to be decided only with reference to contents of the plaint and not with reference to the contents of the application under S.34 of Arbitration Act, 1940---No case for stay of proceedings having been made out in terms of S.34 of Arbitration Act, 1940, appeal was dismissed with costs throughout.

Messrs Pioneer Cables Limited v. Messrs Saadi Cement Limited 1999 CLC 1841; Cotton Export Corporation of Pakistan (Pvt.) Ltd. v. Messrs Asif Cotton Ginners and 5 others 1995 CLC 1024 and Nasir Ahmad v. Pakland Cement Limited 2001 CLC 1156 ref.

Abdul Rehman Khan for Appellants.

Shamshad Ullah Cheema for Respondent.

Date of hearing: 15th December, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 941 #

2009 Y L R 941

[Lahore]

Before Rana Zahid Mahmood, J

MUHAMMAD AKRAM and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2371-B of 2008, decided on 22nd October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of---Accused were though named in the F.I.R. while armed with a rifle and a gun, yet they were not specifically attributed any fire arm or blunt weapon injuries on the deceased or on the prosecution witnesses---In successive investigations accused had been found innocent and placed in column No.2 of the challan---F.I.R. suffered from a delay of ten hours---Participation of accused in the occurrence sharing common object with the co-accused, thus, required further inquiry bringing their case within the ambit of S. 497(2), Cr.P.C.-Nothing had been recovered from the accused during investigation and remand---Accused were admitted to bail in circumstances.

Mian Qamarud Din Safer for Petitioners.

Ch. Zulfiqar Ali Sidhu, Addl. P.-G. along with Zafar Iqbal, S.-I. for Respondents.

Muhammad Akram Rao for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 942 #

2009 Y L R 942

[Lahore]

Before Muhammad Muzammal Khan, J

SAIF ULLAH and another---Petitioners

Versus

ELECTION TRIBUNAL and 2 others---Respondents

Writ Petition No.1145 of 2007, decided on 6th April, 2007.

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

----S. 152(h)---Punjab Local Government Elections Rules, 2005, Rr.14 & 65---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election to the office of Nazim and Naib Nazim---Disqualification of candidate---Petitioners who contested election to the offices of Nazim and Naib Nazim, were declared as returned candidates---Respondents after loss of their election filed election petition agitating disqualification of one petitioner being under the age of 25 years on the day of filing nomination papers, which election petition ultimately accepted by the Election Tribunal and both the respondents were declared unopposed returned candidates---Petitioners filed review application against order of the Election Tribunal, which was dismissed---Validity---Counsel for the parties after arguing their cases, settled that constitutional petition could be accepted and impugned orders could be declared as prayed; and respondents who had already been notified as Nazim and Naib Nazim of Union Council concerned, could be permitted to continue with their office till the time the election petition was decided afresh after granting one single opportunity of producing evidence to the petitioners---In view of settlement/concurrence between the parties, constitutional petition was accepted by High Court and impugned judgments/orders were declared to be void and non-existent in the eye of law---Election petition filed by the respondents would be deemed to be pending before the Election Tribunal, where petitioners would be granted one opportunity of producing their entire evidence on date to be fixed by the Election Tribunal and election petition would be decided afresh in accordance with law---In case of failure of the petitioners to produce their evidence, present order would stand rescinded automatically---Election Tribunal was directed to decide election petition within specified period and in the meanwhile respondents would continue to hold Office of Nazim and Naib Nazim.

Bashir Ahmed Bhanbhhan and another v. Shaukat Ali, Rajpur and others PLD 2004 SC 570 and Sh. Amjad Aziz v. Haroon Akhtar Khan and 10 others 2004 SCMR 1484 ref.

Azam Nazir Tarar for Petitioners.

Muhammad Ahsan Bhoon for Respondents.

Date of hearing: 6th April, 2007.

YLR 2009 LAHORE HIGH COURT LAHORE 950 #

2009 Y L R 950

[Lahore]

Before Syed Hamid Ali Shah, J

SAEEDA BEGUM and 7 others---Petitioners

Versus

DISTRICT OFFICER (REVENUE) JHELUM and 11 others---Respondents

Civil Revision No.184 of 2008, decided on 30th June, 2008.

Civil Procedure Code (V of 1908)---

----S. 24---Transfer of case---Transfer of the case was sought on the ground that court in which case was pending, had disclosed its mind while deciding application for secondary evidence; that petitioner had seen the respondent in the company of his counsel, visiting Judge in his chamber and that conduct of the court was prejudicial to the petitioner---Court, while passing impugned order had observed that order of dismissal of application for permission to adduce additional evidence could be assailed in higher forum which was hardly a ground for transfer of the case---Judge, who had expressed his opinion, was not a good ground for the transfer of the case from his court---Passing of adverse order against the party by a Judge would give no valid cause for the transfer of the case---Court had rightly found that without specific mention of date and time of the alleged visit of counsel and the party to the chamber of the. Judge, it was hardly a ground for transfer of case, especially when said allegations were rebutted in a counter-affidavit.

Eastern Federal Union Insurance Company Limited v. Central Board of Revenue, Government of Pakistan, Islamabad through Member Taxation and another 1982 CLC 2316; Aminuddin and 4 others v. Salima Bano 1996 CLC 1361 and Azad Government and others v. Genuine Rights Commission and others 1999 MLD 160 rel.

Malik Abdul Ghafoor for Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 951 #

2009 Y L R 951

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD UMAR ISLAM---Petitioner

Versus

Mst. IRAM SHAHZADI and 3 others---Respondents

Writ Petition No.11239 of 2008, decided on. 31st October, 2008.

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

----Ss. 5, Sched. & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage, recovery of maintenance allowance, maternity expenses of minor and dowry articles---Family 'Court decreed suit filed by plaintiff/wife and Appellate Court affirmed the same---Courts below, after appreciating evidence available on record, had rightly concluded that minor was entitled to get Rs.2000 as maintenance allowance per month---Validity---Appellate Court had rightly granted 10% annual :.crease in the allowance granted to the minor---Plaintiff/wife was also entitled to recover maintenance on the ground that no rebuttal of her claim was on the record that she was turned out from the house of defendant without any cause and reason; and specially when she was also looking after and bringing up the minor---Plaintiff, in circumstances, was rightly held entitled for maintenance' as decreed by the courts below---Plaintiff appeared in the court and gave details of the articles given to her by her parents at the time of marriage---Plaintiff, while giving the detail of the dowry articles had fully proved her claim of dowry articles and her claim with regard to dowry articles, was rightly accepted by the courts below---Fact that minor was born in the house of the plaintiff was also proved---Plaintiff, in circumstances, was entitled to recovery of maternity expenses of the minor from the defendant---Counsel for the defendant/husband had failed to point out any jurisdictional defect, legal infirmity, material irregularity, misreading and non-reading of evidence with the concurrent findings recorded by courts Below---No reason being available to interfere with the concurrent conclusion of the courts below, constitutional petition was dismissed.

Mst. Allah Rakhi v. Tanvir Iqbal and others 2004 SCMR 1739; Muhammad Tayyab v. Mst. Bashiran and others 1992 ALD 74(1); Abdul Fahim v. Mst. Shahnaz Begum (2) Additional District Judge-II, Kohat 2003 CLC 1450; Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others 2006 SCMR 12; Pervez Alam v. Pakistan Dairy Products (Pvt.) Limited, Karachi and 2 others 2005 SCMR 1840 and Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and 3 others PLD 2005 Lah. 370 ref.

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

---Art. 199--Constitutional jurisdiction---Scope---High Court, while exercising the constitutional jurisdiction, should remain slow in interfering in the factual controversy, unless the findings recorded by the courts below were result of misreading and non-reading of evidence.?

Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others 2006 SCMR 12 ref.

Muhammad Afzal Ansari for Petitioner.

Muhammad Rashid Bhatti for Respondent.

Date of hearing: 31st October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 973 #

2009 Y L R 973

[Lahore]

Before Khurshid Anwar Bhinder, J

AURANGZEB and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.796/B of 2009, decided on 24th February, 2009.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.364/148/149---Pre-arrest bail, grant of--Accused had allegedly abducted the sister of complainant---F.I.R. was lodged after a delay of nine. months of the occurrence---Occurrence was un-witnessed event---No direct or indirect evidence was available on record to connect the accused with the commission of offence---Two police investigations conducted in the case were at variance and none of them could be relied upon, as nothing could be determined about the guilt or innocence of accused--Family dispute and civil litigation between the parties were admitted---Mala fides on the part of the complainant against the accused were quite evident---Case of accused fell within the ambit of further inquiry into their guilt---Ad interim pre-arrest bail granted to accused was confirmed in circumstances.

Malik Rab Nawaz for Petitioners.

Fayyaz Ahmad, D.P.-G. for the State with Zia, A.S.I.

Complainant in person.

YLR 2009 LAHORE HIGH COURT LAHORE 978 #

2009 Y L R 978

[Lahore]

Before Mian Saqib Nisar, J

IQBAL MUHAMMAD alias MUHAMMAD IQBAL---Appellant

Versus

YAMEEN through L.Rs. and others---Respondents

R.S.A. No.115 of 2004, heard on 28th October, 2008.

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

----Ss. 6, 13 & 15---Suit for pre-emption--Waiver of right of pre-emption---Facts not pleaded in the pleadings---Effect---Defendant contested the matter taking up the plea that at the time of sale, it was offered to the plaintiff to purchase the suit-land but he refused and in circumstances, he had waived the right of pre-emption--Issues were framed; parties were put to trial and by giving positive findings on the main issue, such as superior right of pre-emption, limitation and waiver against the defendant, Trial Court decreed the suit but Appellate Court reversed the findings of the Trial Court regarding the issue of the waiver and dismissed the suit---Validity---In imputing waiver to the plaintiff; basic flaw was in the defence of the defendant as it was not pleaded in the written statement, that any amount was received by the plaintiff and on account of said consideration the plaintiff had waived his right of pre-emption---Issue of waiver was to be construed, proved and decided on the basis of the defendant's clear stance in his written statement and not beyond that---Fact not pleaded in the pleadings could not be proved through evidence---In order to prove the waiver, strong evidence was needed, but for said lapses, plaintiff could not be imputed any waiver---Findings of the court of appeal on the issue of waiver were reversed and impugned judgment and decree were set aside and that of the Trial Court was upheld.

Jam Pari v. Muhammad Abdullah 1992 SCMR 786 rel.

Syed Kabeer Mahmood for Appellant.

Ch. Muhammad Iqbal-IV for Respondents.

Date of hearing: 28th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 982 #

2009 Y L R 982

[Lahore]

Before Mian Saqib Nisar, J

ALLY BROTHERS AND COMPANY (PAK) LTD.---Petitioner

Versus

FEDERATION OF PAKISTAN through Cabinet Secretary and 3 others---Respondents

Civil Revision No.364 of 2006, decided on 15th January, 2009.

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

----Arts. 133 & 134--Civil Procedure Code (V of 1908), O. VII, R.2-Suit for recovery of amount---Closing of cross-examination---After closing the evidence of the plaintiff, when evidence of the defendants was in progress and statement of a witness was being recorded, an objection was raised by the plaintiff in cross-examination about the nature of his appointment---Further cross-examination of the witness was stopped and he was directed to produce his appointment order---On adjourned date of hearing when the witness was present with the document, objection was raised by counsel for the plaintiff that said document first be tendered in evidence and then he would be in a position to cross-examine the witness---Trial Court, however, closed plaintiff's right of cross examination vide impugned order---Validity---Impugned order had been passed in undue haste, which had violated and curtailed plaintiff's most valuable right of cross-examination---Such order could not sustain---Impugned order was set aside, the document which was required to be produced by the said witness would be first taken in evidence and then the plaintiff would be permitted to cross-examine said witness.

Kashif Ali Khan and another v. Sher Jan Muhammad and another 2006 MLD 1447 and Lyallpur Cotton mills v. Authority under Payment of Wages Act, Faisalabad 1985 PLC 563 rel.

Ch. Khursihd Ahmad for Petitioner.

Muhammad Nasim Kashmiri, Dy. A.-G. for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 985 #

2009 Y L R 985

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD ASLAM and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2891-B of 2008, decided on 20th May, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.337-F(vi)/337-L(ii), 148 & 149---Bail, grant of---Prima facie it had been established on record that the injury attributed to co-accused was not found on the left wrist of injured as per medico-legal report which made the prosecution case against co-accused highly doubtful---Accused had allegedly caused blunt weapon injury on the back side of injured which had been declared simple by the doctor---Four co-accused having been granted bail by the High Court, rule of consistency required that accused person should also be released on bail---Accused were admitted to bail, in circumstances.

Ch. Nawab Ali Mayo for Petitioners.

Shafqatullah Butt, D.P.-G. for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 989 #

2009 Y L R 989

[Lahore]

Before Zubda-tul-Hussain, J

ABDUL MAJEED---Appellant

Versus

MUHAMMAD YAQOOB---Respondent

S.A.O. No.11 of 2007/BWP, heard on 13th November, 2008.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.13(3)(ii) & 15---Ejectment of tenant on ground of personal need of landlord---Shop in question, in fact, was owned by wife and daughter of the landlord who had rented out the same to the tenant---Where the landlord was not himself the owner of the premises in question, the eviction of the tenant without reference to the needs of the real owners, could not be sought for his personal requirement---Both owners of the shop in question were womenfolk and were also dependant upon the landlord---If a non-owner landlord had to justify the personal requirement of the owners for vacation of the premises, then if he could show that the eviction was needed for the benefit of the owners through the use of the premises by him, the ejectment petition could not be thrown away simply on the grounds agitated by the counsel for the tenant---Use of the premises by the landlord for the benefit of his wife and daughter, could justify the bona fide character of the demand---Contention of the tenant that the need of the owners was not mentioned in the ejectment petitions, could not be of any avail to him because in the given situation and circumstances a need of the landlord was the need of his family i.e. his wife and daughter, and nexus of the needs of the owners with the use of the shop for their benefit, could not be extinguished simply because that details were missing from the contents of the ejectment petition---Landlord had not only established his bona fide requirement for the shop in question, but also was entitled to get the same vacated for the commonality of his personal need and the need of his family members who were real owners of the shop. ?

Mir Khalid Bashir v. Nazar Hussain and 2 others 2001 YLR 3106; Nasrullah v. Mrs. Fatima Begum 1991 CLC 2018; Electro Service Industries v. Hamdoon Subhani 1995 SCMR 1811 and Nasim Ahmed Khan v. Additional District, Judge, Lahore and 4 other PLD 2006 Lahore 774 rel.

Muhammad Suleman for Appellant.

Ch. Muhammad Amjad Khan for Respondent.

Date of hearing: 13th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 991 #

2009 Y L R 991

[Lahore]

Before Ali Akbar Qureshi, J

NAZAN BIBI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, JHANG and 2 others---Respondents

Writ Petition No.15249 of 2008, heard on 28th November, 2008.

(a) Guardians and Wards Act (VIII of 1890)---

----S.25---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Custody of minor of daughter---Minor girl was living with her mother (petitioner) and studying in 8th class---Age of the minor girl being 13 years, her mother only could understand the requirements of the age of puberty and the minor girl in this age could only tell or discuss the changes in the body due to natural process, with her mother---Another important factor regarding welfare of the minor girl was education and she could only continue her studies while living with her mother---Whereas the minor son who was living with the respondent father was not studying anywhere, but doing a job. in this tender age on a tea stall of a village---Removal of the custody of minor girl from her mother would amount to deprive the girl to get education, which was not advisable---Minor girl had herself made a statement before the Trial Court that she wanted to live with her mother---Courts below in total disregard to the said factors going in favour of the mother, had decided the fate of the minor girl relying upon an agreement executed between the parties---Girl was living in a better atmosphere and being carefully looked after by her mother--Respondent father, because of his conduct and behaviour with his minor son, was not entitled to ask for custody of the minor girl---Impugned order was consequently set aside and the application filed by respondent for custody of the girl was dismissed---Constitutional petition was allowed accordingly.

Muhammad Yunas Qamar v. Rubina and others 1994 MLD 1950; Zulfiqar and others v. Mst. Kausar and others 1997 MLD 543; Mst. Nasreen Akhtar v. Javed Akhtar 2004 CLC 228; Mst. Farrukh Naheed Hashmi v. Syed Shah Ibrar Qadri 1994 PCr.LJ 1361; Mst. Fazelat Begum v. Public in General and another PLD 1994 Azad J&K 1; Mst. Aslam Khatoon v. Muhammad Munir and others 2000 MLD 1216; Mst. Fauzia Begum v. Amin Saddruddin Jamal Gonji 2007 CLC 1403; Mst. Munira Bibi v. Additional District Judge, Sheikhupura and 2 others 2007 CLC 1612 and Shah Bano v. Station House Officer S.H.O.' Police Station Tandlianwala and another 2007 PCr.LJ 1928 ref.

(b) Guardian and Wards Act (VIII of 1890)---

----S.25---Custody of minor---Principle---Father although is a natural guardian, yet his right of "Hazanat "is subordinate to the fundamental principle i.e. welfare of the minor, the sole criterion, which, in any case, should prevail.

Ali Husnain Mohsin for Petitioner.

Malik Muhammad Azeem for Respondent No.3.

Date of hearing: 28th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 996 #

2009 Y L R 996

[Lahore]

Before Maulvi Anwarul Haq, J

FIDA HUSSAIN---Appellant

Versus

MUHAMMAD SHAH---Respondent

R.S.A. No.17 of 1986, heard on 30th April, 2008.

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

----Ss. 15, 19, 20 & 21---Suit for preemption---Waiver, estoppel from filing suit--Plaintiff, who claimed superior right of pre-emption being son of the vendor of suit property had filed suit for pre-emption against the defendant vendee---Trial Court decreed suit, but Appellate Court reversed the findings of the Trial Court and dismissed suit---Validity---Section 19 of Punjab Pre-emption Act, 1913, had provided that any person proposing to sell his property could give notice to all such persons who had right of pre-emption at the price at which he was willing to sell such property---Such a notice would be given through a court having jurisdiction in the area where said property was located---Section 20 of the Punjab Pre-emption Act, 1913 had provided that the right of pre-emption of a person upon whom a notice under S.19 of the Act, was duly served, would be extinguished, unless such person within, the period of three months from the date of said service, would file a notice in court for service on the vendor of his intention to enforce his right of pre-emption---No evidence was available to support the findings that the pre-emptor had, in any manner, waived his right of pre-emption or that he was estopped from filing the suit--- Impugned judgment of the Appellate Court being based on no evidence, was bad in law and liable to be interfered with in second appeal---Impugned judgment and decree passed by the Appellate Court were set aside and the one passed by the Trial Court decreeing the suit of the plaintiff was restored.

Fateh Muhammad v. Muhammad Adil and others PLD 2007 SC 46 rel.

Mujeeb-ur-Rehman Kiani for Appellant.

Zaheer Bashir Ansari for Respondent.

Date of hearing: 30th April, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1001 #

2009 Y L R 1001

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SHABIR---Petitioner

Versus

Raja MUHAMMAD SHARIF--- Respondents

S.A.O. No.83 and C.M. No.459 of 2008, decided on 17th December, 2008.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 5-A, 13(2) (i) & 15---Increase of rent---Default in payment of rent--Ejectment application---Landlord filed application for ejectment of tenant on ground of default in payment of rent alleging that despite agreement and then statutory increase in the rent, rent due was not paid by the tenant---Ejectment application was concurrently allowed by the Rent Controller and Appellate Authority---Validity---Tenant had contended that default was not wilful as no plea or evidence was of an express demand vis-a-vis the statutory increase---Tenancy agreement had specifically mentioned that after the expiry of three years period the rent would be enhanced in accordance with law---Section 5-A of West Pakistan Urban Rent Restriction Ordinance, 1959 had laid down in an unequivocal terms that the rent would stand automatically enhanced by 25% upon expiry of three years of the tenancy agreement---Service of a notice under S.5-A of West Pakistan Urban Rent Restriction Ordinance, 1959 by a landlord to tenant for statutory increase of rent, was not a condition precedent to invoke the jurisdiction of the Rent Controller and under the said provision the 25% increase in rent would become due on the expiry of three years---Plea of tenant that a notice had to be served by the landlord demanding the statutory increase, was not available to the tenant---Both the parties were fully aware that the rent had to be increased in accordance with said law after expiry of three years---Tenant, however failed to do so, not only that, but prior to filing of the ejectment application a notice was served upon the tenant stating that he had committed default by not paying the rent with the said statutory increase---Default in payment of rent by the tenant, in circumstances, by all means was wilful and he was rightly ordered to be ejected on ground of default in payment of rent---No case having been made out for interference with the impugned orders, appeal was dismissed.

Syed Illyas Ali Abbasi v. Mst. Allah Rakhi through Attorney 2001 SCMR 31 and Muhammad Irfan v. Muhammad Zahid Hussain Anjum 2000 SCMR 207 rel.

Ajmal Kamal Mirza for Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 1007 #

2009 Y L R 1007

[Lahore]

Before Saghir Ahmed and Muhammad Ashraf Bhatti, JJ

MUHAMMAD SIDDIQUE---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.160-J of 2004 and Murder Reference No.32 of 2004, heard on 6th November, 2008.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.265-C---Appreciation of evidence---Trial Court did not provide copies of the document to accused as required under S.265-C, Cr.P.C. before framing the charge against him---Such omission was manifest from the availability of copies of statements of two constables recorded under S.161, Cr.P.C. on the judicial record, which were required to be handed over to accused at the trial--Introduction of said two constables/ witnesses after framing of the charge and during the course of trial had itself prejudiced the right of accused---Mandatory requirement, in circumstances, was not got fulfilled by the Trial Court before framing the charge against accused---Conviction and sentence recorded by the Trial Court vide impugned judgment being not sustainable legally, same were set aside and case was remanded to the Trial Court for trial afresh.

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

----S. 265-C---Supply of statements and documents to accused---Object---Rationale behind the provision of the copies of documents in terms of S. 265-C, Cr.P.C. was to inform accused of the allegations/charges levelled against him, so that he could be in a position to give answers to the questions that could be put to him- during the course of framing of charge without which the very framing of 'charge would become irrelevant---Supply of the requisite material would enable accused to properly defend himself against the accusation made---Non-compliance of that provision of law could surely jeoperdize his right to have a fair and impartial trial---Accused had a statutory right to have copies of all the documents mentioned in S.265-C, Cr.P.C. prior to the commencement of the trial and framing of the charge---Such position would not change even if it was a complaint case---Omission to supply such documents as per provision of S.265-C, Cr.P.C. would vitiate the whole trial.

Nadeem Ahmed Khan and others v. The State 2007 PCr.LJ 233; `Muhammad Akram and another v. State 1999 PCr.LJ 496 and Mst. Nusrat Mai and another v. State 1997 MLD 2869.ref.

----S. 161---Providing copies of statements of the witnesses to accused---All the witnesses were not necessarily required to be cited in the schedule of witnesses nor the prosecution was bound to produce all the witnesses, it cited therein; but copies of statement of such witnesses recorded under S.161, Cr.P.C. had to be provided to accused within seven days before the initiation of trial, which of course, would commence once the charge in the first instance was framed and prosecution evidence requisitioned.

Nadeem Ahmed Khan and others v. The State 2007 PCr.LJ 233 rel.

M.A. Farazi for Appellant.

Mirza Mukhtar Baig, D.P.-G. for the, State.

Date of hearing: 6th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1012 #

2009 Y L R 1012

[Lahore]

Before Mian Saqib Nisar, J

PROVINCE OF PUNJAB through District Collector and 2 others---Petitioners

Versus

MUHAMMAD BASHIR AHMAD--- Respondents

Civil Revision No.957 of 2003, decided on 13th January, 2009.

Civil Procedure Code (V of 1908)---

----O. VII, R.2 & S.96---Suit for recovery of amount---Filing appeal without payment of the court-fee-Suit filed by the plaintiff against defendants for recovery of amount was decreed by the Trial Court---Defendants filed appeal against judgment and decree passed by the Trial Court without payment of the court-fee-Appellate Court without directing or enabling the defendants to make up the deficiency in the payment of the court fee had dismissed appeal through impugned order---Validity---Opportunity should be provided to the appellants to make up the deficiency---Allowing revision petition against order of the Appellate Court, impugned order was set aside and by High Court with the result that appeal would be deemed to be pending before the Appellate Court and two months time was granted to the appellants to pay the requisite court fee.

Siddique Khan and 2 others v. Abdul Shakur Khan and 2 others PLD 1984 SC 289 rel.

Rizwan Mushtaq, Asstt. A.-G. for Petitioners.

Nemo. for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 1015 #

2009 Y L R 1015

[Lahore]

Before Kazim Ali Malik and Saif-ur-Rehman, JJ

EJAZ and 6 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2199-B of 2008, decided on 22nd September, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.281, 285, 291, 293 & 427---Anti-Terrorism Act (XXVII of 1997), S.7---West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.16---Bail, grant of---Further inquiry---Sections 281, 285, 291, 293 & 427 P.P.C. under which accused persons stood charged, were bailable---So far as application of S.7 of Anti-Terrorism Act, 1997 and S.16 of West Pakistan Maintenance of Public Order Ordinance, 1960 were concerned, prima facie that was missing in the case---Prosecution case was that the intention of the procession was not to spread panic or to disrupt communication system or to overawe the Police Force---Frequent incidents of theft in the area tempted accused persons and their co-accused to lodge protest in order to convey their annoyance to the superior officers of the local Police---Allegation of terrorism against accused persons, in circumstances, was open to further inquiry and serious doubt---Accused persons who were behind the bars, were no more required for investigation---Accused were admitted to bail, in circumstances.

Sh. Abdul Samad for Petitioners.

Mian Bashir Ahmad Bhatti, D.P.-G. for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 1018 #

2009 Y L R 1018

[Lahore]

Before Kazim Ali Malik, J

MUHAMMAD AZAM and 4 others-Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.310 of 2004, heard on 16th January, 2009.

Criminal Procedure Code (V of 1898)---

----S.423---Penal Code (XLV of 1860), Ss.302 (b)/34 & 324/34---Remand---State case had been decided by Trial Court culminating into an appeal pending in High Court against the convictions and sentences of accused---Trial against the complainant party of the present case in the private complaint filed by the accused, was in progress in the Court of Magistrate---Both sides had been presenting their respective case and cause in two different Courts---Any observation or finding by High Court in appeal at this stage would certainly adversely affect the case and cause of either side pending adjudication before the Magistrate---State case and the private complaint case by the appellants containing their defence version, should have been tried side by side and decided by one Court on one date to avoid conflicting judgments--Convictions and sentences of accused were set aside in circumstances and the case was remanded to Sessions Court for rewriting of judgment---Private complaint case between the parties was withdrawn from the Court of Magistrate and made over to the said Sessions Court for its disposal in accordance with law along with the State case, which stood remanded in the above terms---Appeal was accepted accordingly.

Sardar Muhammad Ishaq Khan for Appellants.

Sh. Muhammad Muneer, Dy. P.-G. for the State.

Raja Israr Ahmad Abbasi for the Complainant.

Date of hearing: 16th January, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1021 #

2009 Y L R 1021

[Lahore]

Before Khawaja Farooq Saeed, J

Wing Commander TIPU SULTAN KHAN---Petitioner

Versus

RUBINA SAIRA ZAFFER and another---Respondents

Writ Petition No.13406 of 2008, decided on 28th January, 2009.

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

----S. 5, Sched, Ss. 6 & 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage on ground of Khula'---Territorial jurisdiction of Family Court---Plaintiff filed suit for dissolution of marriage on ground of Khula in the Family Court at placeL'---Later on, when plaintiff went back to place 'I', defendant filed application in which jurisdiction of the Family Court at place 'L' was challenged, which application having been dismissed by the Family Court, defendant filed constitutional petition---Validity---Whether defendant was residing at place 'L' or 'I' was a factual controversy--- Khula' was announced by the Family Court at place Z', and at that time jurisdiction of the Family Court at placeL' was not challenged---Such fact alone was enough to reject application of defendant--In order to avoid conflict of judgments, the suit for dissolution of marriage having been decided by one court at place 'L', all other ancillary issues also should have been decided by the same Court---Convenience of the lady/plaintiff litigant in family dispute should be given priority while deciding the place of adjudication of cases---Even otherwise, having .not challenged same earlier, subsequent objection, could not be appreciated.

Mst. Bhagggay Bibi and others v. Mst. Razia Bibi and others 2005 SCMR 1595 ref.

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

----Art. 199---Constitutional petition against interlocutory order---Maintainability---Constitutional petition would not lie against an interlocutory order, unless the controversy between the parties affecting the right was decided finally and it came within the ambit of the case decided"-In the present case the issue of jurisdiction of the court was challenged through an application by the petitioner and order to that extent was final---Objection, in circumstances was overruled by High Court.

Muhammad Juman v. The State 2004 MLD 278 ref.

Ms. Jamila Aslam for Petitioner.

Jawad Hassan and Saber Hussain for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 1029 #

2009 Y L R 1029

[Lahore]

Before Hasnat Ahmad Khan and Zubda-tul-Hussain, JJ

MALITA SYED SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.11612-B of 2008, decided on 29th January, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497 [As amended by Protection of Women (Criminal Laws Amendment) Act (VI of 2006)]---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c)/15/51--Bail, refusal of---Accused who was a woman, had been involved in a case for being in possession of the huge quantity of heroin, a contraband of the worst nature and she made an abortive attempt for its transportation abroad---Was not possible at bail stage to infer that case was totally based upon false evidence or that it was a case of no evidence---Amendment of S.497, Cr. P. C. through the Protection of Women (Criminal Laws Amendment) Act, 2006, was not applicable to the cases under the Control of Narcotic Substances Act, 1997---Accused a woman involved in such case could not be released on bail, unless the Court, after examining the entire material brought on record, came to a tentative conclusion that material to connect accused with the commission of the offence was quite lacking---Inference drawn by the counsel for accused for grant of bail under S.51 of Control of Narcotic Substances Act, 1997 by conjunctive application of the Provisions of S.5-A(8) of Suppression of Terrorist Activities (Special Courts) Act, 1975 and the other laws referred by him could not be accepted---Material available on the record prima facie, had connected accused with the alleged offence---Case was not fit for the grant of bail to accused, in circumstances.

The State v. Syed Qaim Ali Shah 1992 SCMR 2192 ref.

Raja Rizwan Abbasi for Petitioner.

A.D. Naseem Prosecutor for ANF.

YLR 2009 LAHORE HIGH COURT LAHORE 1035 #

2009 Y L R 1035

[Lahore]

Before Syed Hamid Ali Shah, J

ANWAR BIBI and 5 others---Petitioners

Versus

BOARD OF REVENUE PUNJAB through Member Colonies and 2 others---Respondents

Writ Petition No.1566 of 1999 and C.M. No.1603 of 2008, decided on 10th October, 2008.

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

----S.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Principle of natural justice---Applicability---Grievance of petitioner was that lease agreement was cancelled by authorities on the allegation of violation of terms of lease agreement, without giving him any opportunity of hearing---Validity---Order passed by authorities transpired that though notices were directed to be issued to petitioner but there was nothing on file to reflect that notices were actually sent---Petitioner was unaware of fixation of date of hearing, therefore, he was condemned unheard---Orders passed by authorities were violative of principle of natural justice and were declared without lawful authority having no legal effect---High Court, in exercise of Constitutional jurisdiction, set aside the order of cancellation of lease agreement and remanded the matter to authorities for decision afresh, after hearing both the parties---Petition was allowed in circumstances.

Sh. Zameer Hussain for Petitioners.

Syed Husnain Kazmi for A.A.-G.

2009 Y L R 1066

[Lahore]

Before Maulvi Anwarul Haq, J

BATA PAKISTAN LIMITED through Managing Director---Appellant

Versus

AHMED SAEED AWAN---Respondent

S.A.O. No.22 of 2007, heard on 2nd December, 2008.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13(2)(i), (6) & 15---Ejectment of tenant on ground of default in payment of rent---Tentative rent order---Striking off defence---Rent Controller passed tentative rent order for payment of arrears of rent and deposit of future monthly rent before 15th day of every succeeding month---On adjourned date of hearing, Rent Controller noted that receipt for deposit of arrears of rent had not been presented by the tenant---Rent Controller then directed tenant to deposit said amount of arrears up to 16-2-2006---On adjourned date of hearing, it was reported that said due amount had been deposited with Civil Nazir as Bank time was over---Civil Nazir was directed to deposit said amount in Treasury in the concerned account, which was deposited by the Nazir of the Court on 17-2-2006, one day after stipulated date---Landlord thereafter filed an application for striking off the defence on the ground that amount of arrears was deposited by the tenant in the Bank one day after stipulated date---Said application was dismissed by the Rent Controller, but on filing appeal by the landlord, Appellate Authority allowed same and proceeded to strike off the defence of the tenant and to pass ejectment order against the tenant---Validity---Tentative rent order passed by the Rent Controller did not disclose determination of the amount of arrears and Rent Controller also failed to fix the date for purpose of arrears---No question of any non-compliance of said order thus would arise in circumstances, which was wholly violative of S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959---After realizing the mistake, direction was issued to the tenant to deposit rent upto 16-2-2006---Explanation to S.13(2)(i) of West Pakistan Urban Rent Restriction Ordinance, 1959 provided that rent remitted in the office of Rent Controller having jurisdiction, would be deemed to have been duly tendered---Law having contemplated deposit of rent in the office of the Rent Controller, being valid deposit made by the Nazir under the order of Rent Controller before the close of court hours on stipulated date, would constitute sufficient compliance of tentative rent order passed by the Rent Controller---Nothing was on record to enable to hold that even if there was some default, same was wilful---Impugned order passed by the Appellate Authority was set aside---Ejectment application would be deemed to be pending which would be decided on merits.

Muhammad Jan v. Khadim Hussain 1973 SCMR 243 rel.

Shahid Karim for Appellant.

M. Shahzad Shaukat for Respondent.

Date of hearing: 2nd December, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1071 #

2009 Y L R 1071

[Lahore]

Before Zafar Iqbal Chaudhry, J

IMRAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2731-B of 2008, 15th December, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Bail, grant of---Further inquiry---Accused had been ascribed specific role of causing injury to deceased with Chhurra, but according to the post-mortem report no such injury was found by the Doctor on the person of deceased---Accused was in judicial lock up for the last about one year---Case of accused fell within the purview of further inquiry and benefit of doubt at any stage had to go to accused---Mere heinousness of the offence was not a ground to keep accused in jail for an indefinite period, but the courts had to act in the light of the evidence only---Accused was admitted to bail, in circumstances.

Syed Muhammad Azhar Tirmazi for Petitioner.

Nadir Manzoor Duggal, D.P.G. for the State along with Irshad Ahmad, A.S.-I. with record.

2009 Y L R 1092

[Lahore]

Before Zafar Iqbal Chaudhry and S. Ali Hassan Rizvi, JJ

MUHAMMAD AKHTAR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.133 of 2003 and Murder Reference No.155, heard on 15th December, 2008.

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

----Ss.302(b)/34 & 460---Appreciation of evidence---Taking of the deceased prior to his death to the hospital by the complainant had proved his presence at the time of occurrence---Even otherwise, presence of complainant being father of the deceased during odd hours of night in the house, was quite natural and could not be doubted---F.I.R. had been registered without any inordinate delay containing the names of witnesses and the accused with their roles--Close relationship of eye-witnesses with the deceased was not sufficient to discard their statements and to declare them as interested witnesses in the absence of any enmity or grudge to falsely implicate the accused having been brought on the record---Eyewitnesses including the complainant hat given consistent, straightforward and confidence-inspiring account of occurrence on each and every detail i.e., identity of accused, role played by him, date, time and place of occurrence---Eye-witnesses being unanimous on the point of identification of accused and the role played by him in the light of electric bulb, non-showing of the bulb in the site plans prepared by the Patwari and the Investigating Officer being only an omission, could not adversely affect the prosecution case---Ocular testimony being trustworthy, alone was sufficient to connect the accused with the commission of offence, which was even fully supported by recovery and medical evidence---Defence plea taken by accused was not substantiated by any cogent evidence---Record did not show anything about false implication of accused in the case---Conviction of accused was upheld in circumstances---Prosecution had itself introduced the motive that the accused had a suspicion of illicit liaison of the deceased with his wife and the possibility of committing the offence by the accused due to "Ghairat" could not be ruled out---Death sentence of accused was converted into imprisonment for life accordingly.

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

----Ss.302(b)/34 & 460-Site-plan-Nature and scope-Site-plan is not substantive piece of evidence, rather it is corroboratory in nature.

----Ss.302(b)/34 & 460---Appreciation of evidence---Admittedly accused was minor at the time of occurrence and it was not possible for him to scale over the wall and after the occurrence to run away in the manner as narrated by eye-witnesses---Even the principal co-accused could not be believed to have sought the help of a minor just to pull the "khais" from the body of the deceased---Accused though armed with a "Sota" had not caused any injury to the deceased---"Sota" had not been recovered from the accused---Possibility of false implication of accused being brother of the principal accused could not be ruled out---Accused was given benefit of doubt and acquitted in circumstances.

Altaf Ibrahim Qureshi and Muhammad Ramzan Khalid Joyia for Appellants.

Malik Muhammad Rafique Khokhar, Dy. P.-G. for the State.

Date of hearing: 15th December, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1105 #

2009 Y L R 1105

[Lahore]

Before Muhammad Akram Qureshi, J

MUHAMMAD FAROOQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.11688-B of 2008, decided on 4th December, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/336/34---Bail, grant of---Further inquiry---Accused persons were found innocent after thorough probe---Guilt or innocence of accused persons, was yet to be determined during the trial---Case of accused persons, in circumstances, fell within the purview of S.497(2), Cr.P.C.--Accused were behind the bars since 20-8-2008 and their person was no more required for investigation---Accused having made out case for grant of bail, they were admitted to bail, in circumstances.

Muhammad Sohaib Khokhar for Petitioners.

Ch. Fayyaz Ahmad, D.P.-G. for the State along with Shehbaz Ahmad, S.-I.

2009 Y L R 1113

[Lahore]

Before Mian Saqib Nisar, J

Sofi SAGHEER AHMED---Appellant

Versus

Mst. BUSHRA PARVEEN---Respondent

R.S.A. No.77 of 2007, heard on 10th October, 2008.

Specific Relief Act (I of 1877)---

----S.12---Qanun-e-Shahadat (10 of 1984), Arts.79, 102, 103 & 129(g)---Agreement to sell---Proof---Withholding of best evidence---Effect---Documentary evidence to exclude oral, principle of---Plaintiff sought specific performance of agreement to sell duly executed by defendant in his favour---Trial Court decreed the suit in favour of plaintiff but Lower Appellate Court allowed the appeal and dismissed the suit---Plea raised by plaintiff was that defendant failed to prove her version as she had withheld the best evidence available with her---Validity---Husband of defendant was a marginal witness of the agreement who was not examined to support the version of defendant and same was the position about other marginal witness from her side---Rule of withholding the best evidence as enshrined by Art.129 (g) of Qanun-e-Shahadat, 1984, was attracted to the case---Provisions of Arts.102 and 103 of Qanun-e-Shahadat, 1984, provided that the oral evidence of defendant (her solitary statement) was liable to be excluded---Defendant had also failed to discharge her burden on the issue and failed to prove through independent evidence that amount of earnest money which she admittedly received as envisaged by agreement was returned to plaintiff---Judgment and decree passed by Lower Appellate Court was based upon misreading of record, against settled principles of law and on account of illegal inference---High Court, in exercise of appellate jurisdiction set aside the judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Appeal was allowed in circumstances.

Mst. Baswar Sultan v. Mst Adeeba Alvi 2002 SCMR 326; Hazratullah v. District Council Haripur PLD 1997 SC 1570 and Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519 ref.

Syed Najam-ul-Hassan Kazmi and Rasaal Hasan Syed for Appellant.

Rao Tajammal Abbas for Respondent.

Date of hearing: 10th October, 2007.

YLR 2009 LAHORE HIGH COURT LAHORE 1131 #

2009 Y L R 1131

[Lahore]

Before Kazim Ali Malik and Mazhar Hussain Minhas, JJ

MUHAMMAD SARFRAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.232 and Murder Reference No.353 of 2002, heard on 19th January, 2009.

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

----Ss. 302(b), 324, 337-F(i), 337-F(ii) & 71---Appreciation of evidence --Sentence, reduction in---Defence Counsel did not challenge the conviction on the charge of "Qatl-e-Amd" and simply prayed for commutation of death sentence into imprisonment for life---Deceased was sister's son of the accused---Relations between the parties prior to the occurrence were cordial and congenial and no background of previous enmity, ill-will or malice existed between them---Deceased has suffered death at the hands of his real maternal uncle as a consequence of sudden flare up---Record was silent as to what transpired immediately before inception of the incident which had forced, compelled or persuaded the accused to fire at his sister's sons, against whom he had no ill-will or malice---Was not certain as to whether the deceased and the injured witness had offered provocation and invited the trouble or the accused had chosen to fire without provocation---Death sentence awarded to accused under section 302(b), P.P.C. was converted into imprisonment for life in view of the above mentioned mitigating circumstances---Trial Court had convicted and sentenced the accused under section 337-F(i) and 337-F (ii), P.P.C. separately for having caused injuries to the prosecution witness and thus violated the legal principle of merger of minor injuries into major one (s) as laid down in section 71 P.P.C---According to section 71, P.P.C. read with its illustration (a), separate sentences for several injuries caused to a person in the same transaction could not be recorded and imposed, as the accused in such a situation was liable for major injury only---Accused, therefore, was liable to only one punishment under S.337-F(ii), P.P.C. for the whole beating---Resultantly, conviction and sentence of accused under section 337-F (i), P.P.C. were set aside being violative of section 71, P.P.C.-Appeal was disposed of accordingly.

Jalal Khan v. Government PLD 1952 AJK 8 and Ghulam Hassan and Another v. The State 1969 PCr.LJ 151 (2) ref.

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

----S.71---Limit of punishment of offence made up of several offences---Merger of punishments and injuries---Principles---Combined examination of section 71, P.P.C. and its illustration (a) leads to conclusion that an assailant causing different kinds of hurts to a person falling within the ambit of different and separate penal provisions of law during the course of same transaction, cannot be convicted and sentenced for each and every hurt separately and simultaneously and will be liable for the major injury only.

Jalal Khan v. Government PLD 1952 AJK 8 and Ghulam Hassan and another v. The State 1969 PCr.LJ 151(2), ref.

Raja Ikram Amin Minhas for Appellant.

Ch. Muhammad Tariq, Addl. P.-G. and Mukhtar Ahmad Gondal for the Complainant.

Date of hearing: 19th January, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1141 #

2009 Y L R 1141

[Lahore]

Before Khalil Ahmad, J

Mian IRFAN LATIF through Special Attorney---Petitioner

Versus

NAZIM/CHAIRMAN UNION COUNCIL NO.100 and another---Respondents

Writ Petition No.18529 of 2005, heard on 20th June, 2008.

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

----S. 7---Notification S.R.O. 1086(K)/61, dated 8-11-1961---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Petitioner husband assailed jurisdiction of appointed officer of Pakistan Mission at UK to perform functions of Chairman Arbitration Council--Validity---Both the parties being permanent residents of U.K, as per Notification No. S.R.O. 1086(K)/61, dated 8-11-1961, function of Chairman Arbitration Council under Muslim Family Laws Ordinance, 1961, were to be performed by an appointed officer of Pakistan Mission abroad---Order passed by authorities with regard to transfer of proceedings to Pakistan Mission abroad was according to law and the same was upheld by High Court---Petitioner failed to point out any illegality or substantial error in the order passed by authorities warranting interference by High Court in exercise of constitutional jurisdiction---Petition was dismissed in circumstances.

Talib Haider Rizvi for Petitioner.

Rasaal Hassan Syed for Respondent.

Date of hearing: 20th June, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1150 #

2009 Y L R 1150

[Lahore]

Before Abdul Sattar Goraya, J

MUHAMMAD ASLAM and others---Petitioners

Versus

THE STATE---Respondent

Crl. Miscellaneous No.1698/B of 2008, decided on 11th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/148/149/109/337-H(ii)---Bail, grant of---Investigating Officer, in the first investigation, has declared accused to be innocent of the charge while in second investigation he came to the conclusion that he had not been able to dig out the truth, and that if the witnesses were joined in the investigation, some thing could be done for further progress in the case---Accused, in circumstances, were admitted to bail.

Mian Muhammad Tayyib Wattoo for Petitioner.

Mirza Mukhtar Baig, D.P.-G. for the State with Muhammad Javaid S.-I. with record.

Mirza Muhammad Azam for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 1152 #

2009 Y L R 1152

[Lahore]

Before Hafiz Tariq Nasim, J

Mst. KALSOOM FATIMA---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No.7721 of 2008, decided on 23rd October, 2008.

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

----S. 5 & Sched. ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of maintenance and dowry articles---Family Court dismissed plaintiff's suit for recovery of maintenance, but decreed the suit regarding recovery of dower articles or in alternate an amount of Rs.70,000 as price thereof---Appellate Court on appeal by the defendant, reduced the decretal amount from Rs.70,000 to Rs.30,000--- Validity---Counsel for defendant had asserted that no dowry articles were given to the plaintiff at the time of Nikah by her parents---Such assertion of the defendant was ruled out---When assertion of non-giving any article was ruled out, then the meagre amount of Rs.70,000 against the dowry articles could not be substituted with a too meagre amount of Rs.30,000---In the present era of price hike, an amount of Rs.70,000 was nothing---Reduction of decretal amount was declared illegal and impugned judgment and decree passed by the Appellate Court was set aside and judgment and decree passed by the Family Court, was restored.

Rana Muhammad Akram Khan for Petitioner.

Nemo for Respondent No.3.

YLR 2009 LAHORE HIGH COURT LAHORE 1159 #

2009 Y L R 1159

[Lahore]

Before Khurshid Anwar Bhinder, J

CHAKAR KHAN---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No.9302 of 2008,' decided on 9th February, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 190, 200 & 202---Penal Code (XLV of 1860), Ss. 302/337-A (i) (ii)/337-F(i) (ii)/337-H(ii)/337-L(ii)/354/148/149---West Pakistan Arms Ordinance (XX of 1965), S.11-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Private complaint case---Cognizance of offences by Magistrate---Subsection (2) of S.190, Cr. P. C. had provided that a Magistrate taking cognizance under Subsection (1) of S.190, Cr. P. C. of an offence triable exclusively by a Court of Session, would without recording any evidence, send the case to the Court of Session for trial---In the present case since the private complaint disclosed the commission of offence under S.302, P.P.C. along with other offences, a Magistrate was legally bound to send the case to the Court of Session for trial---Even a Magistrate was not competent to hold inquiry without specific order of the Court of Session under S.202, Cr. P. C ---If a private complaint was filed under offence exclusively triable by the Court of Session, Area Magistrate had to send complaint to the Court of Session for trial as the authority was vested with the Court of Session in order to determine the matter whether the offence triable by the Court of Session was made out or not and whether the complaint was triable and accused could be summoned or not---Magistrate had no authority to take cognizance of offence exclusively triable by Sessions Court of original jurisdiction--Magistrate was not competent to hold inquiry without specific order of the Court of Session under S.202, Cr. P. C.---Order of Magistrate that complaint prima facie, was triable by Area Magistrate, was rightly set aside by the Additional Sessions Judge---Constitutional petition, which otherwise was filed against revisional order, being not competent, was dismissed.

Abdul Waheed v. The State PLD 1986 Lahore 81 and Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge, Jhang and 6 other PLD 1993 Supreme Court 339 ref.

Rana Muhammad Arshad Khan for Petitioner.

Sarfraz Ali Khan, A. A.-G.

Syed Zahid Hussain Bokhari for Respondent No.3.

YLR 2009 LAHORE HIGH COURT LAHORE 1169 #

2009 Y L R 1169

[Lahore]

Before Saif-ur-Rehman, J

MUHAMMAD ASGHAR---Petitioner

Versus

D.C.O. and others---Respondents

Writ Petition No.5821 of 2008, decided on 16th February, 2009.

Constitution of Pakistan (1973)---

----Arts. 23, 24 & 199---Constitutional petition---Order of District Coordination Officer stopping registration of transfer deed and mutations in respect of plots in private Housing Colonies established with prior formal approval---Validity---No one could be deprived of property save in accordance with law---Such right could not be curtailed by putting any restriction on citizen---Impugned order was general in nature and had not defined illegal Colonies---Action should have been taken against Colonies established without observance of legal requirements and prohibitory orders should have been passed against them---Registration and mutation of lawful transactions could not be declined in garb of impugned order---High Court set aside impugned order for being violative of law and the Constitution.

Abdul Rasheed Sheikh for Petitioner.

Zafarullah Khan Khakwani, A.A.-G. and Ch. Muhammad Rafique for Respondents.

Date of hearing: 16th February, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1173 #

2009 Y L R 1173

[Lahore]

Before Zafar Iqbal Chaudhry, J

Mian ABDUR RAHIM and 2 others---Petitioners

Versus

MEMBER BOARD OF REVENUE/CHIEF SETTLEMENT COMMISSIONER, PUNJAB, LAHORE and 4 others---Respondents

Writ Petition No.2097 of 1997 and C.M. No.806 of 2003, decided on 13th January, 2009.

Constitution of Pakistan (1973)---

----Art.199---Disposal and Management of Urban Available Property Scheme (IX of 1977), preamble---Constitutional petition---Cancellation of allotment---Land in question was allotted to petitioners but authorities did not implement transfer deeds in revenue record---Validity---Allotment of land made in favour of petitioners was neither challenged by department nor anyone else in any court of law and all orders referred by authorities were also silent about the same---Nothing was available on record or pointed out by authorities that petitioners had committed any fraud with department---Petitioners had applied for allotment under relevant scheme and after fulfilling all formalities and payment of amount as assessed by department, Transfer Orders were issued in their favour---Petitioners installed ginning factory on land in question after its allotment in year, 1993 with the approval of concerned Municipal Committee---Petitioners had thus accrued a right in such behalf, which could not be withdrawn at present stage on flimsy grounds on the basis of orders/letters which were found to have been issued without reasoning---Orders passed by authorities were set aside as the same were passed without lawful authority having no legal effect---Petition was allowed accordingly.

Abdur Rahim and others v. Hassan Muhammad and others 1992 SCMR 827; and Anjum Ara and 11 others v. Province of Punjab through Secretary to Government of the Punjab, Revenue Department and 3 others 2004 MLD 787 ref.

Malik Muhammad Afzal for Applicant (in C.M. No.806 of 2003).

Syed Hamid Ali Shahmeer for Petitioners:

Syed Mohtesham-ul-Haq Pirzada for Respondent No.1.

YLR 2009 LAHORE HIGH COURT LAHORE 1180 #

2009 Y L R 1180

[Lahore]

Before Khurshid Anwar Bhinder, J

Mst. SHAZIA PARVEEN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.472/CB of 2009, decided on 3rd February, 2009.

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

----S. 497(5)---Penal Code (XLV of 1860), S.376---Cancellation of bail, petition for---Accused no doubt, was nominated in the F.I.R. with specific role, but there was no eye-witness account of alleged occurrence--Merely nomination of accused with the commission of offence, would not necessarily make out the case against accused for the reason that complainant had not reported the matter immediately to police as heinous offence was committed with her---Complainant did not make hue and cry at the time of commission of offence, especially when accused was empty handed---Lady could have retaliated and reported the matter to the police immediately, but she did not do so---No medical examination was conducted to establish the fact as to whether it was the accused who had committed the offence---Lady should not have allowed a stranger to come to her house when he had disclosed that he was the friend of her husband, but she without enquiring into the matter had let accused to come to her house---No reliance could be placed on the statement of the lady who had reported the matter to police after lapse of two months and she did not get herself medically examined to determine as to whether semen stained swabs belonged to the petitioner or not---Possibility of false implication of accused could not be ruled out---Story narrated in the F.I.R. seemed to be implausible and illogical---Case of accused being that of further inquiry into his guilt, he was rightly granted bail and there was no reason to interfere in the bail granting order.

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

----S. 497(5)---Penal Code (XLV of 1860), S.376---Cancellation of bail, petition for---Accused had merely abetted the offence and he did not actively participate in the occurrence---Since case of main accused was doubtful and the role of co-accused was lesser heinous in nature and no evidence being available against him, his case was also that of further inquiry into his guilt---Trial Court in granting bail to said accused had rightly exercised its discretion which could not be interfered.

Mushtaq Ahmed for Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 1186 #

2009 Y L R 1186

[Lahore]

Before Malik Saeed Ejaz, J

MUSHTAQ AHMAD---Petitioner

Versus

STATION HOUSE OFFICER and another---Respondents

Writ Petition No.3716 of 2008, decided on 14th January, 2009.

Police Order (22 of 2002)---

----Art. 18(6)---Constitution of Pakistan (1973), Art. 199---Penal Code (XLV of 1860), Ss. 302/109/34---Constitutional petition---Change of investigation---Quashing of orders--Complainant petitioner had challenged the investigation entrusted to two Inspectors one after the other of Regional Investigation Branch, on the ground that S.S.P, Regional Investigation Branch, had no power to change the investigation after entrustment of the same to the foremost Inspector pursuant to the order of the Additional I.-G., Investigation Branch---S.S.P. Regional Investigation Branch, once having exercised his power to entrust the Investigation to an Inspector pursuant to the order of the Additional I.-G, had become functius officio and on the basis of the same single order of the Additional I.-G. he could not withdraw the investigation from the said Inspector and entrust the same to another Inspector and thereafter even to withdraw the investigation from him and handover the same to still another Inspector, though all relating to same Branch---As such, subsequent orders of the S.S.P., R.I.B., entrusting the investigation of the case to second Inspector and then to the third Inspector, were totally illegal and unwarranted, and, therefore, the investigation conducted by the second and third Inspectors could not be sustained---Both the investigations conducted by the said last two Inspectors were consequently declared illegal, without lawful authority and of no legal effect---Constitutional petition was allowed accordingly.

Abdur Razzaq v. The State and others 2006 PCr.LJ 1998 and "Alam Sher v. Additional Inspector-General of Police Investigation, Punjab, Lahore and 5 others" 2007 PCr. LJ 1170 ref.

Sardar Mehboob for Petitioner.

Mehmood Khan Ghouri for Respondent No.2.

Zafar-Ullah Khan Khakwani, A.A.-G. with Zafar Iqbal Sub-Inspector.

YLR 2009 LAHORE HIGH COURT LAHORE 1191 #

2009 Y L R 1191

[Lahore]

Before Kazim Ali Malik and Malik Saeed Ejaz, JJ

MUHAMMAD ANWAR alias AMBA and others---Appellants

Versus

THE STATE---Respondent

Criminal appeals Nos.136, 144 and 268 of 2003, Murder Reference No.311 of 2003, heard on 24th November, 2008.

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

----Ss. 302(b)/149, 201 & 148---Appreciation of evidence---Benefit of doubt---Murder was 'blind and prosecution case rested on different circumstantial pieces of evidence--No crime empty having been seized from the spot, recovery of revolver and gun from the accused was of no legal significance, particularly when prosecution had completely failed .to prove the cause of death of the deceased---Deceased had been killed six months before the registration of the case and the accused alleged to have killed him with the recovered dagger, could not have preserved the same for 1-1/2 years and he would have either destroyed the dagger .or at least washed away the blood from its blade---Recovery of dagger, therefore, was not worthy of credence---Alleged pointing out of the spot of burial of the dead body of the deceased by the accused was not a legal evidence, as the said spot had already been visited and inspected by the Investigating Officer many a time with the prosecution witnesses including the complainant, from where the dead body had been unearthed about one month prior to the pointing out of the said spot by the accused---Female accused being not in exclusive possession of the house, were not under obligation to explain as to how the dead body had been buried there and the recovery of dead body from the house of deceased, did not connect them with the charge-Extra-judicial confession made by accused after registration of the case' out of fear of God against whom Investigating Agency could not collect an iota of truth inspiring evidence, was not believable---Investigating Officer appeared to have fabricated the said evidence after having failed to connect the accused with the crime---Child witness had narrated a tutored story like a parrot, he could not be believed to have helped his sisters in developing illicit intimacy with the male accused and to kept quiet for six months despite having witnessed the killing of his father---Statement of the child eye-witnesses being parrot fashion did not inspire truth---Trial Court had convicted and sentenced the accused on shallow, shaky and sketchy evidence withholding the benefit of doubt, to which they were entitled---Accused were acquitted on benefit of doubt in circumstances.

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

----Ss. 302(b)/149, 201 & 148---Circumstantial evidence---Extra judicial confession---Nature and scope-Extra-judicial confession is weakest type of evidence and does not provide a basis to record conviction on capital charge in isolation, particularly when prosecution is not possessed with other legal, cogent and convincing evidence.

Ch. Pervez Aftab, Rana Muhammad Naseer and Miss Taqdees Zahida for Appellants.

Ch. Zulfiar Ahmad Sidhu, A.A.-G. and Nadeem Ahmad Tarar for the Complainant.

2009 Y L R 1237

[Lahore]

Before Khalil Ahmad, J

ZIA-UL-HASSAN SHAD---Petitioner

Versus

BAHUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor

and 3 others---Respondents:

Writ Petition No.7302 of 2008, decided on 13th January, 2009.

Baha-ud-Din Zakaria University Act (III of 1975)---

----S.32---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Admission in B.A. class in Baha-ud-Din Zakaria (BZ) University ---Students having two years post matric diploma of Field Assistant from Pak German Poly Technic Institute of Cooperative Agriculture, Multan affiliated with University of Agriculture, Faisalabad ---Disallowing admission to such students by BZ University ---Validity---According to Rules of Inter Board Coordination Committee (IBCC), such diploma Field Assistant awarded by University of Agricultural, Faisalabad or any of its affiliated Institute would be equivalent to Higher Secondary School Certificate (Agricultural Group) subject to passing English, Urdu and Pakistan Studies at Higher Secondary School Certificate level from any Board of Intermediate and Secondary Education in Pakistan or Allama Iqbal Open University---Impugned decision of BZ University was in accordance with policy of IBCC---High Court dismissed constitutional petition in circumstances.

Khurshid Ahmad Khan for Petitioner.

Malik Muhammad Tariq Rajwana for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 1243 #

2009 Y L R 1243

[Lahore]

Before Malik Saeed Ejaz, J

Syed NAWAB SHAH---Appellant

Versus

Mst. FARHEEMA ALTAF---Respondent

S.A.O. No.6 of 2007, decided on 11th November, 2008.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.13 & 13-A---Ejectment petition---Denial of relationship of landlord and tenant between parties---Creation of new oral tenancy alleged by applicant after execution of sale agreement dated 29-1-2004 in his favour by previous owner---Ground of default in payment of rent for six months by tenant after such sale agreement---Reliance of tenant upon lease agreement dated 19-7-2004 executed by previous owner---Proof ---Applicant had not tendered/produced such sale agreement in evidence to prove such plea ---Had premises been purchased by applicant through sale agreement, then previous owner would not have executed lease agreement dated 19-7-2004 in favour of tenant---Applicant had not relied upon lease agreement dated 19-7-2004 executed by previous owner in favour of tenant---Tenancy carrying certain advantages must be proved by evidence of a very high order and could not be proved by mere oral evidence---Mere assertion of applicant, in absence of proof .of title could not prove new oral tenancy---Party could succeed only according to what was alleged and proved ---Applicant could not claim to be owner and demand rent from tenant w.e.f. 29-1-2004---Applicant after having registered sale-deed dated 29-11-2004 in his favaur, had not given notice of change of ownership to tenant---Tenant had rightly denied relationship of landlord and tenant on basis of oral tenancy during disputed period---Ejectment petition was dismissed in circumstances.

2005 SCJ 474(sic) and 1980 CLC 2056 rel.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment proceedings---Existence of tenancy between parties---Proof---Question of tenancy carrying certain advantages must be proved by evidence of a very high order and could not be proved by mere oral assertion---Mere oral assertion of applicant, in absence of title to premises, would not prove tenancy.

----Party can only succeed according to what was alleged and proved.

2005 SCJ 474(sic) and 1980 CLC 2056 rel.

----S.13 ---Ejetment petition ---Default in payment of rent---Relationship of landlord and tenant between parties, denial of ---Ejectment of tenant---Scope---Mere denial of such relationship would be no ground for passing an ejectment order in absence of proof of default in payment of rent by tenant ---Passing of ejectment order merely on basis of denial of such relationship would be illegal and not warranted by law.

Muhammad Amir Bhatti for Appellant.

Mian Amjad Ali for Respondent.

Date of hearing: 6th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1255 #

2009 Y L R 1255

[Lahore]

Before Maulvi Anwarul Haq, J

SAGHEER MUHAMMAD KHAN and 5 others---Petitioners

Versus

MEMBER (JUDICIAL-V), BOARD OF REVENUE, PUNJAB and 4 others---Respondents

Writ Petition No.19/R of 2008, heard on 4th February, 2009.

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

----S. 2---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 9 & 10---Settlement Scheme No. VIII---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Allotment of urban property---Officer exercising powers of Administrator (R. P.) under the relevant scheme, vide order dated 20-2-2007, directed disposal of form of deceased wife petitioner after holding the property to be available---Validity---There was no appeal or revision or any other remedy provided against such order in the Scheme framed in year, 1977---Such order could have been challenged either before High Court in constitutional jurisdiction or in a properly constituted civil suit but nothing of the sort was done---Documents were examined by Provincial Verification Committee, which Committee observed that they were not in a position to give decision about genuineness or otherwise of Permanent Transfer Deed issued regarding property in question---Members of Verification Committee declined to verify the documents on the ground that they could not totally ignore decision of various courts starting from Civil Judge to Supreme Court and Chief Settlement Commissioner and Notified Officer of Settlement Department Reference was made by members of the Committee to the fact that record was examined at all forums and documents were not present anywhere and case was submitted to Chief Settlement Commissioner---Order passed by Verification Committee was non-speaking order, it failed to answer questions arising from the circumstances established on the face of record in view of history of the case spread over more than three decades prior to consideration of Verification Committee---After repeal of Evacuee laws, Chief Settlement Commissioner was no longer an entity much less a legal entity---Even before repeal of Evacuee laws once transfer documents had been issued questions arising as to their genuineness were to be decided by civil court---Petition was allowed in circumstances.?

Muhammad Nawaz Kasuri for Petitioners.

Khurram Gulzar for Respondents Nos.1 to 3.

Iftikhar Ahmad Mian Respondent No.4.

Muhammad Shahaad Shaukat for Respondent No.5.

Dale of hearing: 4th February, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1265 #

2009 Y L R 1265

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD ISMAIL---Petitioner

Versus

REHMAT ALI and 3 others---Respondents

Writ Petition No.6051 of 2008, decided on 29th January, 2009.

Civil Procedure Code (V of 1908)---

----Ss.12 (2), 115 & 151---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Fraud, plea of---Powers of Court---Moulding of relief---Scope---Judgment and decree in question was assailed by respondent under S.12(2), C P. C. and the same was set aside by Lower Appellate Court in exercise of revisional jurisdiction---Validity---Court had jurisdiction to take cognizance of open fraud---No rule was required to correct/rectify a wrong---Court had always inherent powers to prevent abuse of process of law by moulding relief in appropriate cases---Provisions of S.151, C. P. C. were rightly invoked by Lower Appellate Court in aid of justice, as it was thought necessary in the circumstances of the case to prevent abuse of process of the court and to avoid a situation resulting in stalemate---Putting parties to trial on application under S.12(2), C.P.C. was nothing but wastage of time of court---Court was high office and its working must reflect rather more serenity---High Court while sitting in constitutional jurisdiction declined to interfere with an order which was just and proper---Petition was dismissed in circumstances.

2008 SCMR 236; 2007 CLC 1877; 1999 MLD 3038; PLD 2005 SC 775; 2007 CLD 1637; 1983 CLC 3140; 2006 CLC 1018; 1993 MLD 486; 1994 CLC 2443; PLD 1994 Lah. 583; 1982 CLC 55; 1993 CLC 918; 1992 CLC 2282; PLD 1973 SC 236; PLD 1982 SC 413; 1986 SCMR 1561 and.2003 YLR 51 ref.

PLD 1975 SC 331 rel.

Miss Shazia Hassan for Petitioner.

Jahangir A. Jhoja and Ghulam Hussain Awan for contesting Respondent No.1.

Nemo for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 1272 #

2009 Y L R 1272

[Lahore]

Before S. Ali Hassan Rizvi, J

SABIR HUSSAIN---Petitioner

Versus

NUSTRAT BIBI---Respondent

Writ Petition No. 859 of 2009, decided on 20th January, 2009.

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

----S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recovery of land as dower---Forged entry in Nikah Nama---Proof---Husband denied having given any land to wife as dower and also disputed such entry in Nikah Nama---Validity---Wife at time of Nikah was proved to have been given 100 Kanals of land out of which 50 Kanals had already been transferred in her name---Husband did not initiate any legal action against his wife as to entry in Nikah Nama---Evidence showed that husband was involved in abduction of a woman and remained in jail---Wife had rightly claimed maintenance allowance and there was no justification to deny dower settled---Judgment and decree passed by Lower Appellate Court was in accordance with law and was based on correct appreciation of evidence---Lower Appellate Court was final court of facts and no misreading or non-reading of evidence had been found---High Court in exercise of constitutional jurisdiction, declined to interfere with judgment and decree passed by Lower Appellate Court---Petition was dismissed in circumstances.

Malik Muhammad Azam Awan for Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 1277 #

2009 Y L R 1277

[Lahore]

Before Maulvi Anwarul Haq and Imtiaz Rasheed Siddiqui, JJ

SALIM AKRAM and others---Appellants

Versus

Shebzada BADR MUNIR---Respondent

I.C.A. No.30 of 2008, heard on 6th April, 2009.

Punjab Local Government Elections Rules, 2005---

----Rr.36, 67 & 72---Law Reforms Ordinance (XII of 1972), S.3---Intra Court appeal---Examination of excluded votes---Appellants/unreturned candidates prayed in their election petition that the excluded votes be examined; and that valid votes cast in favour of returned candidates be excluded as invalid---Election Tribunal as well as. Single Bench of the High Court had attended to only the second part of the Prayer of the appellant; and prayer with regard to examination of excluded votes was not attended to---Rule 36(3) of the Punjab Local Government Elections Rules, 2005 had provided in mandatory terms that before consolidating the results of the count, the Returning Officer would examine the ballot papers excluded from the count by the Presiding Officer; and if he would find that any such ballot paper should not have been so excluded, he was to count it as a ballot paper cast in favour of the contesting candidates for whom the vote had otherwise been cast---Having examined the contents of the election petition in the light of said provisions of law, there was no manner of doubt that the election petition contained sufficient particulars and specific allegations regarding exclusion of disputed ballot papers; and that those had not been examined by the Returning Officer---Intra court Appeal was partly allowed inasmuch as the order passed by the Election Tribunal rejecting the prayer of the appellants for examination of excluded ballot papers was declared to be without lawful authority and was set aside being void---Result would be that election petition would be deemed to be pending and parties would appear before the Election Tribunal--Election records would be requisitioned and only excluded ballot papers would be examined strictly in accordance with R.36(3) of Punjab Local Government Elections Rules, 2005 and election petition would be decided accordingly.

Muhammad Bashir Kiani for Appellants.

Javed Akhtar Bhatti for Respondent.

Date of hearing: 6th April, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1287 #

2009 Y L R 1287

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASHRAF---Petitioner

Versus

GHULAM SAFDAR---Respondent

Civil Revision No.116 of 2009, decided on 26th January, 2009.

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

----Ss.6, 13 & 24---Suit for pre-emption--Deposit of zar-e-soem---Plaintiff, in compliance of direction of the Trial Court, deposited zar-e-soem within specified period---Subsequently plaintiff himself filed application that as the Trial Court had passed incorrect order in respect of amount of Zar-e-Soem, whereby less amount was ordered to be deposited, he sought permission to deposit balance amount---Defendant having not objected, balance amount was deposited by the plaintiff---Trial Court proceeded to dismiss the suit on the ground that the plaintiff had failed to deposit entire Zar-e-Soem within specified period---Appellate Court however, decreed the suit---Validity---Zar-e-Soem as directed by the Trial Court was deposited by the plaintiff within prescribed time---Amount though was short of Zar-e-Soem of ostensible price, but neither the court nor the defendant ever objected to the same---Plaintiff himself had pointed out the mistake to the court and sought permission to deposit the requisite amount---Such permission was granted with the consent of all concerned, including the, court and the defendant and the amount was in fact, deposited---Section 24 of the Punjab Pre-emption Act, 1991 primarily laid down a duty upon the court to require the plaintiff to deposit 1/3rd of the sale price in cash within such period as it fixed---Law, however laid down an embargo upon extension of prescribed period of 30 days of filing of the suit---Court did pass such an order and the plaintiff did comply with the same within said period of time---Appellate Court very correctly invoking the rule of "actus curie neminem gravabit" (an act of the Court shall prejudice no man) and decreed the suit.

2009 Y L R 1328

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

ASAD ALI---Petitioner

Versus

S.H.O. and others---Respondents

Writ Petition No. 5332 of 2009, decided on 25th March, 2009.

Constitution of Pakistan (1973)---

----Art.199---Penal Code (XLV of 1860), Ss.365-B & 380---Constitutional petition---Quashing of F.I.R.-Petitioner/accused had specifically been nominated in the F.I.R. and stood saddled with definite allegations---If the contents of the F.I.R., were taken at its face value, same, prima facie, disclosed commission of cognizable offences---Allegation levelled against accused in the F.I.R. was regarding the abduction of his wife, which required holding of factual inquiry, which exercise could not be undertaken by High Court in summary proceedings under Art.199 of the Constitution; it would be pre-mature for High Court to comment upon the veracity or otherwise of the allegations contained in the F.I.R.---Purpose of quashing the F.I.R. through exercise of constitutional jurisdiction, was provided to save a person from the rigors of an unjustified investigation---If investigation of a criminal case had already been finalized, High Court generally would be slow in interfering---After submission of challan before the Trial Court, alternate remedies would become available to accused---No occasion having been found by the High Court for interference in the matter, constitutional petition for quashing F.I.R., was dismissed, in circumstances.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 and Mst. Azra Israr v. Inspector General of Police Punjab and others PLD 2003 Lah. 1 ref.

2009 Y L R 1352

[Lahore]

Before Kazim Ali Malik, J

ARZU MAND and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 29/B of 2009, decided on 28th January, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Recovery witnesses and the witnesses of last seen had exonerated accused persons from the charge before the Trial Court---Prosecution witnesses before whom accused persons had allegedly confessed their guilt, present in the Court, had disowned their statements under S.161, Cr.P.C. through their affidavits by stating that accused persons did not confess their guilt before them---Father of the deceased also appeared before the Trial Court and made a statement that he was not interested in prosecution of accused persons as they were not the killers of his son---Even if admitted that parties effected a compromise at bail stage, due weight should have been given to the factum of said compromise as the offence against accused persons was compoundable--Accused were admitted to bail, in circumstances.

Muhammad Asad Chaudhry for Petitioners.

Ch. Muhammad Tariq, Addl. Prosecutor General with Zafar Iqbal, Sub-Inspector with record.

YLR 2009 LAHORE HIGH COURT LAHORE 1356 #

2009 Y L R 1356

[Lahore]

Before Zubda-tul Hussain, J

ALTAF HUSSAIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BHALWAL and 3 others---Respondents

Writ Petition No.8475 of 2008, decided on 11th July, 2008.

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

----Art. 199---Constitutional jurisdiction---Scope---Constitutional jurisdiction could neither be invoked as a substitute for the right of appeal nor to make the law redundant.

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

----S.5, Sched. & S.14---Suit for, maintenance allowance---Bar against appeal where maintenance allowance was not more than Rs.1000 per month---Claim of the plaintiff for maintenance in favour of two minor sons of the plaintiff was allowed at the rate of Rs.800 per month for each of them--- Defendant father of the minor/ judgment-debtor filed appeal against judgment and decree of the Family Court, which was dismissed being not maintainable---Bar against appeal where the maintenance allowance was not more than Rs.1000, per month was not without logic---Said bar intended to put an end to the matters of meagre maintenance allowance and also to save the claimants from rigours of litigation who were already hard pressed for meeting the basic needs---Constitutional jurisdiction could only be exercised to serve the ends of justice to avert the illegalities or material irregularities causing great injustice---Appeal filed by the defendant/judgmentdebtor before the Appellate Court, was barred under S.14(2) of the West Pakistan Family Courts Act, 1964 for the simple reason that rate of maintenance allowances was less than Rs.1000 per month---Said bar was, however, not operative against a decree holder dissatisfied with the quantum of maintenance allowance---Appeal of the plaintiff/decree holder was rightly allowed, and that of defendant/judgment-debtor, was rightly dismissed.

Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others 2002 MLD 784 and Saeeda Atta v. Syed Ghulam Murshalin Naqvi and another 2004 MLD 306 rel.

----S.5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance allowance---Family Court allowed claim of plaintiff for maintenance allowance in favour of two minors of the plaintiff at the rate of Rs.800 per month for each of them---Appellate Court upheld claim of the plaintiff and dismissed appeal of defendant/ judgment--debtor---Maintenance allowance granted by the Family Court and upheld by Appellate Court being less than Rs.1000, appeal filed by the defendant/judgment-debtor, was rightly dismissed by the Appellate Court being not maintainable---Constitutional petition filed by judgment-debtor was not maintainable, because no illegality or material irregularity was found in impugned judgment; nor it suffered from any jurisdictional defect as same was passed upon the evidence and proper appreciation of the facts and circumstances.

Irfan Mehmood Rangha for the Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 1360 #

2009 Y L R 1360

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

Mian BABAR FAROOQ---Petitioner

Versus

HAFEEZ ULLAH and others--- Respondents

Criminal Miscellaneous No.2446/CB of 2009, decided on 24th March, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss.409, 420, 468 & 471/34---Cancellation of bail, petition for---Impugned order granting bail to accused had revealed that Special Judge, after hearing the counsel for the parties and going through the record, had given elaborate reasons for allowing bail to the accused persons---For a bail granting order to be eligible to be interfered with under S. 497(5), Cr.P.C., same had to be arbitrary, absurd or fanciful---Discretion to be exercised by the court under S.497(5), Cr.P.C. was pari materia with principles, which would apply to the setting aside of the order of acquittal---Counsel for the petitioner/ complainant had not been able to point out any such illegality or absurdity in the impugned order so as to warrant interference by High Court---Contention of the counsel for the petitioner was that no mala fide either on the part of the complainant or the Police, which was one of the pre-requisites for grant of pre-arrest bail, was pointed out---Impugned order that Special Judge, in his judgment, had observed that case for the murder of son and nephew of the complainant was pending against brother of accused persons and probability of false involvement of accused persons could not be ruled out, keeping in view facts and circumstances of the case---Petition for cancellation of bail was dismissed, in circumstances.

Mian Dad v. The State and another 1992 SCMR 1286 and Muhammad Tayyab v. The State 1997 PCr.LJ 597 ref.

Ch. Masood Ahmad Zafar for Petitioner.

Respondent No.1 in person.

Syed Muhammad Shah for Respondent No.2.

Bilal Kashmiri, Assistant Prosecutor-General for the State with Feroze Khan, S.I.

YLR 2009 LAHORE HIGH COURT LAHORE 1372 #

2009 Y L R 1372

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AKRAM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 3 others---Respondents

Writ Petition No.855 of 2009, heard on 25th March, 2009.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.2(c)(i), 13 & 15---Constitution of Pakistan (1973), Art.199--- Constitutional petition--- Ejectment application---Relationship of landlord and tenant---Petitioner/landlord filed ejectment application against respondent/tenant on grounds of default in payment of rent, personal requirement and impairing value and utility of the building in question---Tenant, who was proceeded ex parte, his defence was struck off---Subsequently wife of tenant had claimed that building in question having been sold to her vide sale-deed, petitioner/landlord had nothing to do with the building in question and denied relationship of landlord and tenant between the parties---Rent Controller proceeded to dismiss ejectment application without deciding the matter of relationship of landlord and tenant and also question of title---Appeal filed against judgment of the Rent Controller was also dismissed by the Appellate Authority--- Validity--- Rent Controller having not decided the matter of relationship of landlord and tenant between the parties, but also had not decided question of title---Order dismissing ejectment application passed by the Rent Controller and upheld by the Appellate Authority were without lawful authority---Allowing constitutional petition, judgments of the Rent Controller and Appellate Authority, were set aside declaring those to be without lawful authority, with the result that ejectment application filed by the petitioner would be deemed to be pending, which would be decided in accordance with law.

Raja Muhammad Munir for Petitioner.

Respondents: Ex part vide order dated 25-2-2009.

Date of hearing: 25th March, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1375 #

2009 Y L R 1375

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

MUSTAFA and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2413/B of 2009, decided on 13th March, 2009.

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

----S.91---Object, and application of S.91, Cr. P. C.---Power to take bond for appearance---Provisions of S. 91, Cr. P. C., were general in nature which were meant to ensure presence of any person who might be accused or witness for whose appearance or arrest, a court could issue summons or warrant---Purpose of S.91, Cr. P. C. was to ensure or demand presence of such person who was directed by the court to execute the bond---Said provisions were applicable to a person who was present in court and was free---If any person was under arrest and was in custody, then said provisions would not be applicable---After placing the names of accused persons in Column No.3 there was no need for asking further bail---Order of the Trial Court was consistent with the provisions of S. 91, Cr. P. C. which did not mention that it was only applicable in cases initiated on the private complaint and not applicable in the cases instituted on the basis of F.I.R.

Muhammad Ijaz v. Nadeem PLD 2006 Lahore 270; Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359 and Noor Nabi and others v. The State 2005 PCr.LJ 505 ref.

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

----S.156---Police Order [22 of 2002], Art.18(6)---Change of investigation---Scope---Conducting of Investigation, though was domain of the Investigation Agency/Police, but successive or further investigations could not be appreciated, especially when the challan was in the court which, after framing the charge, had taken cognizance of the matter---Such exercise of filing supplementary challan, without permission of the Trial Court, was unsustainable in law---Investigation could only be changed as per procedure under Art.18(6) of Police Order, 2002---Provisions of said Art.18(6) of Police Order, 2002 control the investigation of the case and provide procedure for change of first and second investigation---Under Article 18(6) of Police Order, 2002 only limited number of investigations (i.e. only two) could take place---If new investigation was not specifically directed by the Board, such investigation could not be sustained---Order of transfer of investigation without assigning any reason and without recommendation of the Board was clear violation of provisions of Art.18, clauses (4) and (6) of Police Order, 2002---Transfer of investigation from one officer to another could not have effect of vitiating trial, but it might disrupt and jeopardize entrenched principles of law, which reflected adversely on the officer concerned.

Muhammad Naseer Cheema v. Mazhar Javed PLD 2007 SC 31; Mirza Jahangeer Baig v. D.I.G. of Police Gujranwala Range and 7 others 2007 MLD 579 and Muhammad Ali v The State 2008 PCr.LJ 87 ref.

----S.498---Penal Code (XLV of 1860), Ss.324, 452, 148 & 149---Pre-arrest bail, confirmation of---Scope---No injury was attributed to the accused---Mala fide of the prosecution was evident from the fact that it submitted supplementary challan qua accused persons after lapse of about 22 months from framing of the charge---After framing the charge, case was lingering on for recording prosecution evidence for the last about two years---Proof of mala fide or ulterior motive was essential for the grant of bail before arrest---Exercise of power of granting pre-arrest bail, was confined to cases in which not only a good prima facie, ground was made out for grant of bail in respect of an offence alleged, but also it should be shown that if accused were to be arrested and refused bail; such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motives; and with the object of injuring accused; or that accused would, in such an eventuality, suffer an irreparable harm---Ad interim pre-arrest bail already granted to accused persons; was confirmed-Trial of the case was lingering on for the last two years from framing of charge, as no witness had been examined---High Court, while confirming the pre-arrest bail, directed the Trial Court to conclude the Trial expeditiously within the specified period.

Sadiq Ali v. the State PLD 1966 SC 589; Meeran Bux v. The State PLD 1989 SC 347; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82; Jamal-ud-Din v. The State 1985 SCMR 1949, Ajmal Khan v. Liaqat Hayat PLD (sic) SC 97 and Syed Muhammad Firdaus and another v. The State 2005 SCMR 784 ref.

Malik Muhammad Ahmad Khan with Petitioners.

Bilal Kashmiri, A.P.-G. for the State.

Ahmad Din, A.S.I. with record.

YLR 2009 LAHORE HIGH COURT LAHORE 1384 #

2009 Y L R 1384

[Lahore]

Before Ali Akbar Qureshi, J

SHAKEEL AHMAD---Petitioner

Versus

ABDUL GHAFFAR and others---Respondents

Civil Revision No.586 of 2008, decided on 4th February, 2009.

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

----Ss. 6, 13 & 24---Suit for pre-emption--Deposit of Zar-e-Soem---Trial Court directed the plaintiff under S.24 of Punjab Pre-emption Act 1991 to deposit the amount of Zar-e-Soem within the stipulated period, but same could not be deposited by the plaintiff and his suit was dismissed---Appellate Court however set aside judgment of the Trial Court and directed the Trial Court to decide the matter on merits---Validity---Plaintiff filed suit on 8-12-2006 and he was directed to deposit the Zar-e-Soem within 30 days as stipulated in S.24 of the Punjab Pre-emption Act, 1991---Plaintiff deposited Zar-e-Soem on 8-1-2007 because of the reason that on 7-1-2007 was the public holiday---As' defendant was directed to deposit Zar-e-Soem on 8-12-2006, the time of 30 days was to commence from 9-12-2006 as under law the day on which the order to deposit the Zar-e-Soem was made was to be excluded---Plaintiff, in circumstances, did not commit any illegality or mistake to deposit the Zare-Soem on 8-1-2007---No illegality or irregularity or jurisdictional defect was committed by Appellate Court while allowing the appeal---No illegality having been pointed out by the counsel for the defendant in the impugned order, same could not-be interfered with in exercise of revisional jurisdiction of the High Court.

Abdul Haleem v. Muhammad Tahir Khan, 2007 YLR 2176; Manzoor Hussain v. Muhammad Siddique and 2 others 2005 YLR 2544; Mian Muhammad Talha Ali v. Mian Muhammad Lutfi 2005 SCMR 720; Mumta Ahmad Khan v. Ghulam Nabi and others 2005 SCMR 726; Ghulam Hassan v. Jamshaid Ali and others 2001 SCMR 1001; Zila Council, Jhang, District Jhang v. Messrs Daewoo Corporation, Kot Ranjeet, Sheikhupura. 2001 SCMR 1012 and Fazal Elahi v. Noor Ahmed and 2 others PLD 2006 Lahore 318 rel.

Syed Kalim Ahmad Khurshid for Petitioner.

Khalid Mian for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 1391 #

2009 Y L R 1391

[Lahore]

Before Kazim Ali Malik and Malik Saeed Ejaz, JJ

MUHAMMAD AKBAR alias ABBI---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.432, 445, 558, 546 and M.R. No. 570 of 2002, heard on 26th November, 2008.

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

----Ss.458/148/149--- Appreciation of evidence---Statements of prosecution witnesses at trial qua the motive part of incident were not in line with that of the first version of the complainant set up in the F.I.R.---Prosecution witnesses taking a U-turn at the trial had introduced a reshaped .version altogether different from the first stance and got challaned four accused persons against the role initially attributed to only one unknown bulky accused, without any explanation for doing the same---Evidence of said witnesses qua the role of the accused was not truth inspiring, who during investigation were not even certain and- definite about participation of accused in the crime---Result of investigation adverse to the prosecution case qua the role of accused being based on solid material , had adversely affected and diminished the evidentiary value of the changed and reshaped stance of the eye-witnesses---Accused, according to prosecution itself had not even touched the deceased or any of the prosecution witnesses---Excepting mere presence of accused at the spot, there was no other allegation against them and the recovery of pistols from them was of no significance--Accused were acquitted in circumstances.

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

----Ss. 302/458/148/149---Appreciation of evidence---Accused was neither named in the F.I.R., nor involved in the case during first phase of investigation---Prosecution witness, on whose solitary statement under section 161, Cr. P. C. accused was arrested and challaned to Court, had not entered the witness-box at the commencement of trial---Accused was not previously known to the prosecution witnesses, who had implicated him at the trial and admittedly he was not put to the test of identification parade---Trial Court had wrongly and unlawfully convicted and sentenced the accused, because prosecution witnesses had identified him as the culprit during his detention in police lock-up---Accused was acquitted in circumstances.

----Ss.302(b)/324/458/148/149---Appreciation of evidence---Accused were neither known, to eye-witnesses previously, nor they were named in the F.I.R. and were arrested in some other cases and had been challaned in the present case, without putting them to the test of identification parade---Investigating Officer had shown the accused to prosecution witnesses during their detention in police .lock-up---Charge against accused, in absence of their identification parade, had fallen to the ground---In the F.I.R. and during the first phase of investigation, case of prosecution was against four other accused persons, but at a later stage Investigating Officer had added the present three accused without collecting any legal evidence against them--Investigating Officer had recorded the first statement of the star injured prosecution witnesses, wife of the deceased, after more than a month of the occurrence, although she had appeared before him along with the complainant at the time of lodging the F.I.R. and also at the time of spot inspection---Said delayed statement of the injured witness against unknown accused already in custody in other cases without their identification parade, did not provide a legal justification to record their conviction---Benefit of doubt, however slight, was right of accused---Trial Court violating and disregarding the said established principle of law, had recorded the impugned conviction and sentence on the basis of surmises and conjectures, by giving the benefit of doubt to the prosecution---Accused were acquitted in circumstance.

(d) Criminal trial ---

---Benefit of doubt---Principles---Benefit of doubt, however slight, is right of the accused.

Shakeel Javed for Appellant.

Sh. Imtiaz and Mahmood-ul-Hassan Lodhi, Defence Counsel.

Asjad Javed Ghrral, D.P.-G. for the State.

Date of hearing: 26th November, 2008.

2009 Y L R 1421

[Lahore]

Before Khurshid Anwar Bhinder, J

LIAQUAT and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.904/B of 2009, decided on 17th February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 337-L(ii), 148 & 149---Bail, grant of---Further inquiry---Accused persons, no doubt were nominated in the F.I.R. with specific role, but co-accused was empty handed at the place of occurrence and no role had been assigned to him and no recovery had been effected from him as well---Accused was simply armed with Danda and simple injury had been attributed to him which attracted S.337-L(ii), P.P.C., which was bailable in nature---Accused persons were not liable to be tried under Ss. 302 & 324, P.P.C., because had there been any intention of committing murder of the deceased, they could have also caused grievous injuries as well---Accused persons thus were not liable to be tried under Ss. 302 & 324, PP. C. as one of them was present empty handed at the place of occurrence---Free fight took place between the parties and it was not really known as to which one was the aggressor party and it was to be seen at the time of trial on the basis of evidence as to which party had launched attack first--Case against accused persons being of further inquiry into their guilt, they were admitted to bail, in circumstances.

Mushtaq Raj for Petitioners.

Ishaq Masih Naz, D.P.-G. with Abid, A.S.I. for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 1423 #

2009 Y L R 1423

[Lahore]

Before Ali Akbar Qureshi, J

FAYYAZ AHMAD and others---Petitioners

Versus

ADDITIONAL SESSIONS JUDGE, DEPALPUR and others---Respondents

Writ Petition No.6273 of 2008, decided on 17th September, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & S4---Civil Procedure Code (V of 1908), O. VIII, R.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for declaration and perpetual injunction---Striking off right of defendants to file written statement---Suit was adjourned on many dates for the service of the defendants and the Trial Court struck off the right of the defendants to file the' written statement---Defendants assailed said order in revision petition before the Appellate Court which was dismissed---Validity---Before the crucial date when right to file the written statement was struck off, case had been adjourned for the service of the defendants--Even on the last date when case was adjourned for arguments the Trial Court, without providing specific last opportunity had closed the right of the defendants to file written statement---Right of filing the written statement was the substantive legal right which could not be taken away lightly---Even otherwise the Trial Court before applying the penal provisions would provide a specific last opportunity to file the written statement---In the present case neither such exercise was initiated, nor the defendants were asked to file written statement till specific date---Both the courts below had committed serious jurisdictional error, material irregularity and legal infirmity while passing the impugned order---Impugned order was set aside and defendants were granted another opportunity to file written statement.

Sardar Sakhawatuddin and 3 other v. Muhammad Iqbal and 4 others 1987 SCMR 1365; Col. Retd. Ayub Ali Rana v. Dr. Carlites Pune and another PLD 2002 SC 630 and Ghulam Hussain and others v. Nadir Ali and others 2008 SCMR 88 rel.

Mian Arshad Ali Mahar for Petitioners.

YLR 2009 LAHORE HIGH COURT LAHORE 1425 #

2009 Y L R 1425

[Lahore]

Before Khursihd Anwar Bhinder, J

MUHAMMAD ABID HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.10852/B of 2008, decided on 28th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.496 & 380---Bail, grant of---Further inquiry---Accused was nominated in the F.I.R. and serious allegations had been levelled against him regarding abduction of the daughter of the complainant---Was however, to be seen from the record and evidence available as to whether offences under which accused was liable to be tried were attracted in the case or not---Abductee had stated before the Magistrate in her statement under S.164, Cr.P. C. that nobody had abducted her and that she had contracted marriage with accused with her free will and consent---Abductee had also stated in her statement under S.161, Cr. P. C. before the Investigating Officer that her earlier statement was procured under duress and pressure and it was accused who had abducted her and subsequently had committed Zina-bil-Jabr with her as well---When two contradictory statements were available on record, no reliance could be placed on the statement, of abductee and it was not really known as to which statement was to be believed---One of the prosecution witnesses, had also sworn an affidavit in which he had very clearly stated that he had not seen the occurrence and his name was incorporated by the complainant in the F.I.R. falsely---No recovery had been effected from accused and the offences under which accused was liable to be tried, did not fall in the prohibitory clause of S.497, Cr. P. C. ---Case of accused being that of further inquiry into his guilt, he was admitted to bail, in circumstances.

Zeeshan Ali Butt v. State 2009 MLD 171 rel.

Ch. Nawab Ali Mayo for Petitioner.

Ishaq Masih Naz, D.P.-.G. with Abdul Ghafoor, S.-I. for the State.

Muhammad Ashraf Azad for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 1430 #

2009 Y L R 1430

[Lahore]

Before Malik Saeed Ejaz and Kazim Ali Malik, JJ

MUHAMMAD RAMZAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.256 of 2002, and M.R. No. 879 of 2003, heard on 27th November, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Deceased suffered death in the bed room of his father, complainant--Complainant and other prosecution witness who was his sister's son; deposed that accused along with his deceased wife also slept in the same room being their "GHAR DAMAD "---Such claim of the witnesses in that regard was not receiving support from the record---Complainant had admitted that previously he got registered a case against accused, his father and others with an allegation that they had forcibly abducted his deceased daughter---Complainant/father admitted that said abduction case had been cancelled---With said background it was easily understandable that the. marriage between deceased and accused was not an arranged one---Fact that deceased contracted marriage of her choice with accused against wishes of the complainant was established---Claim of father, uncle and cousin of deceased as prosecution witnesses that they slept night in the same room in which deceased slept along with her husband/accused, was offensive to recognized and accepted human conduct---Available record did not tell nor could Law Officer point out during course of arguments as to why the three close relations of deceased did not physically intervene to save her, particularly when they were in a position to do so as accused was not armed with gun or pistol---Could not be believed that in presence of father, uncle and cousin of the deceased, accused succeeded to kill her in small room having one door and then made good his escape---Had the three prosecution witnesses, witnessed the killing in the alleged manner, they could have caught the killer at the spot---Deceased at the relevant time, was alone and her killing was un-witnessed in circumstances---Keeping in view the venue of murder, accused who contracted run away marriage with the deceased to the annoyance of her father/complainant, could be held responsible for the killing; in the given circumstances, contention of defence counsel that complainant deceitfully brought back his daughter and then killed her to teach her a lesson for having contracted run away marriage, could not be lightly ignored---Benefit of doubt, however slight, was right of accused---Prosecution, in circumstances, had failed to prove the charge against accused beyond the shadow of doubt---Impugned conviction and sentence awarded to accused, were set aside and he was acquitted of the charge by giving him benefit of doubt and was released.

Muhammad Nadeem Kanju for Appellant.

Asjad Javed Gural, DPG for Respondent.

Date of hearing: 27th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1435 #

2009 Y L R 1435

[Lahore]

Before Maulvi Anwarul Haq and Ali Akbar Qureshi, JJ

ABDUL SHAKOOR through General Power of Attorney---Appellant

Versus

Mst. ASGHARI BEGUM through L.Rs. and others---Respondents

Regular First Appeal No.145 of 1994, decided on 3rd December, 2008.

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

----Ss. 2(2) & 96---Appeal against final decree---Non-filing of appeal against finding on preliminary issue of jurisdiction decided by Trial Court while keeping pending adjudication of other issues arising in suit---Effect---No appeal could have been filed against finding on preliminary issue as no decree in one way or the other had been passed---Appeal would lie against decree passed after deciding all issues in suit---High Court proceeded to examine question of jurisdiction also.

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

----Ss. 8 & 42---Co-operative Societies Act (VII of 1925), Ss. 70 & 70-A---Displaced Persons (Compensation and Rehabilitation) Act (XXVII of 1958), S.10---Suit for declaration and possession---Plaintiff alleged that PTD in favour of defendant regarding suit plot located in Cooperative Housing Society was forged and fabricated; that she as member of Society vide its resolution, dated 18-4-1943 was allotted and put in possession of suit plot on payment of price; that after independence, such Society was declared to be evacuee by Custodian of Evacuee Property and such Society was re-registered in year, 1962; and that such Society demarcated suit plot on 23-5-1962, whereafter she constructed a wall with its permission---Defendant claimed to be transferee of suit plot from Settlement Department vide PTD, dated 21-10-1962 and provisional member of Society---Validity---After Independence, such Society and shares of its evacuee members continued to vest in the Custodian---Member of such Society was required to hold at least its one fully paid-up share or one building plot---Plaintiff owned a share in such Society and owned suit plot, which she contained to hold till year, 1986, when defendant was provisionally admitted as its member on basis of such PTD---Suit plot had never been treated as evacuee---Defendant's ownership as transferee from Society on payment of its entire price had not been disputed---Defendant had dispossessed plaintiff from suit plot on 22-1-1987 during pendency of suit---Defendant's plea raised in first written statement was that suit plot was treated as evacuee and plaintiff had not availed any remedy---Defendant's plea in second written statement was that suit plot was treated as evacuee as plaintiff had sold same to an evacuee lady---Such PTD did not find mention name of evacuee owner---Order of Deputy Settlement Commissioner, dated 27-3-1962 had treated share held by non-Muslim evacuee to be an evacuee property---No body had asserted that suit plot was asset of Society--All orders and proceedings allegedly recorded by Settlement authorities had been recorded on a day which happened to be Sunday---Bid Sheet recording proceedings of auction, dated 5-3-1962 was recorded on proforma printed on 28-5-1962 i.e. more than two months after such date---PTD in favour of defendant was not mentioned in register of CSCF, while register CSC-4 was not available---No orders for conferment of permanent right existed on settlement record---No auction list regarding suit plot was available on settlement record---Defendant during cross-examination in response to material questions pertaining to merits of case had opted to express ignorance---Transfer Form, dated 14-7-1947 lying on record of Society allegedly executed by plaintiff in favour of said evacuee lady did not bear their correct signatures---Such lady who became an evacuee, could not be expected to have purchased suit plot, when partition plan of India had already been announced on 3-6-1947---Defendant's title documents and connected papers including such Transfer Form were forged and fabricated---Suit was decreed in circumstances.

Muhammad Din and 8 others v. Province of the Punjab through Collector and others PLD 2003 Lah. 441; Muhammad Ismail v. Abdul Haq and others 2001 SCMR 1350; Abdul Khaliq Abdul Razzaq v. Kishanchand and others PLD 1964 SC 74 and Ghulam Rasool and others v. Sardar-ul-Hassan and another 1997 SCMR 976 rel.

Mst. Riffat Jehan and another v. Habib Bank Ltd. and 10 others 2005 CLD 941 ref.

----Ss. 70 & 70-A---Specific Relief Act (I of 1877), S.42---Declaration of plaintiff's title to suit plot located in Cooperative Housing Society---Non-service of statutory notice upon Society prior to filing of suit-Effect--No relief in plaint had been claimed against Society---Question of title involved in suit could be decided only by civil Court and not by any officer under Cooperative Societies Act, 1925---Provisions of Ss. 70 & 70-A of Cooperative Society Act, 1925 would not be attracted to such suit---Objection was overruled in circumstances.

Maqbool Elahi Malik and Umar Riaz for Appellants.

Messrs Ikhtisar Ahmad and Ms. Tehseen Irfan for Respondent No.1.

Ghazanfar Khalid Saeed for Respondents Nos. 2 and 3.

Nemo for Respondent No.4.

Dates of hearing: 18th, 25th and 26th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1442 #

2009 Y L R 1442

[Lahore]

Before Zafar Iqbal Chaudhry, J

RIAZ HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 5994-B of 2008, decided on 27th October, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 420/468/471---Pre-arrest bail, confirmation of---Further inquiry---Accused was only employee of co-accused and accused along with co-accused was alleged to have pointed out the site which was purchased by the complainant---Subsequently, accused himself, as per complainant's own version had disclosed that disputed plots which had been sold to the complainant, were transferred by co-accused to his relatives---So far as second agreement between the complainant and co-accused, was concerned, accused was only witness to that---Entire record and the evidence collected by the prosecution, nowhere mentioned that accused had ever received any amount, from the complainant and prepared any forged document in connection with the disputed plots---Accused had joined the investigation of the case and was not required for the purpose of investigation---Accused . was also not beneficiary of the transaction between co-accused and the complainant---Only co-accused had received the amount and allegedly defrauded the complainant---Prima facie, accused had succeeded in making out a case of further inquiry---Ad interim pre-arrest bail already granted to accused was confirmed, in circumstances.

Khalid Mahmood for Petitioner.

Rai Bashir Ahmad for the Complainant.

Mian Ismat Ullah, DPG for the State along with Tanvir Ahmad S.-I. with record.

YLR 2009 LAHORE HIGH COURT LAHORE 1445 #

2009 Y L R 1445

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

BASHARAT ALI and 5 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1629-B of 2009, decided on 15th April, 2009.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.302/109---Pre-arrest bail, grant of---Delay of 11 years and 2 months in lodging the F.I.R. had not plausibly been explained by the complainant---Compromise was arrived between the parties and the complainant kept mum for about more than 10 years after effecting of the compromise--Maki fide of the complainant to involve accused persons in the case to resolve some personal disputes was prima facie apparent from said circumstances---Contention of counsel for the complainant that the deceased had made statement before the Doctor prior to her death, related to questions of facts on which exercise was to be done by the Trial Court---Alleged statement of injured/deceased that brothers of her husband and their wives had burnt her, did not find mention the names of accused persons---Nothing was available on record to suggest whether said statement was made in presence of Doctor or any other competent Authority---Value of that statement would be determined at trial stage---Non-conducting of post-mortem of the deceased, absence of direct evidence regarding involvement of accused persons, inordinate delay of more than 11 years in lodging F.I.R., different stands taken by the complainant at different forums, coupled with concealment of facts, non-recovery of incriminating material, non-assigning of specific role to accused persons, all had - created doubts regarding the involvement of accused persons who were paternal uncles and aunts of the minors---Bone of contention between the parties was selling the share of minors in the property, which resulted into initiation of civil as well as instant criminal case which prima facie indicated the presence of element of ulterior motive on the part of the complainant---Bail before arrest could be granted when arrest was with ulterior motive apparent on the face of record---Alleged settlement between the parties, were the relevant factors for grant of confirmation of bail---Prima facie no convincing material was on the record to connect accused persons with the commission of crime imputed against them---Arrest of accused persons, in circumstances, would expose them to mental agony, disgrace and humiliation---No purpose would be served by sending accused persons in jail after more than 11 years of the alleged occurrence---Ad-interim pre-arrest bail already granted to accused persons, was confirmed, in circumstances. ?

Zia-ul-Hassan v. The State PLD 1984 SC 192; Noor Muhammad Khan v. The State 2005 PCr.LJ 1025; Muhammad Rafique and another v. Muhammad Younis and another 2005 YLR 1199; Manzoor Ahmad and another v. The State and 2 others PLD 2003 Lah. 739; Murad Khan v. Fazal-ur-Rehman and others PLD 1983 SC 82; Jalal-ud-Din v. The State 1985 SCMR 1949; Miran Bakhsh v. The State PLD 1989 SC 347; Ch. Basharat Karim v. Muhammad Ashfaq Chandoor and others 2007 SCMR 1456; Syed Iftikhar Hussain shah v. Syed Shabbir Hussain Shah 1988 SCMR 466 and Khalid Hussain Shah and another v. Suba and others 1999 SCMR 871 rel.

Azam Nazeer Tarar for Petitioners.

Arif Kareem Chaudhry, Deputy Prosecutor-General Punjab for the State with Muhammad Ashraf S.-I.

Ch. M.S. Shad for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 1451 #

2009 Y L R 1451

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MOHSIN ALI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD and 2 others---Respondents

Writ Petition No.5164 of 2009, decided on 24th March, 2009.

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

----S. 5 Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage, recovery of maintenance allowance, recovery of dower money and recovery of dowry articles---Family Court decreed suits filed by the plaintiff for her maintenance allowance at the rate of Rs.3000 per month for her Iddat period, maintenance allowance for minor son at the rate of Rs.4000 per month with 50% annual increase till the majority of the minor---Suit for recovery of gold ornaments given as dower was also decreed upto Rs.1,50,000 and dowry articles upto Rs.1,15, 000---Appellate Court reduced maintenance allowance of minor and appeal of the defendant to the extent of dower money and to the extent of recovery of dowry articles was partly accepted---Both courts below had arrived at the conclusion after considering the evidence produced by both the parties during the trial---Findings of the courts below were based on cogent reasons and were supported by the evidence on record, which could not be interfered with in constitutional jurisdiction of the High Court---Appellate Court had rightly fixed the price of dowry articles as per list produced by the plaintiff and no ambiguity was found in the same---No ground for interference in the findings of Appellate Court having been made out, constitutional petition was dismissed.

Sheikh Irfan Akram for Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 1457 #

2009 Y L R 1457

[Lahore]

Before Kkurshid Anwar Bhinder, J

MUHAMMAD ABID HUSSAIN--- Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 10852-B of 2008, decided on 28th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.496 & 380---Bail, grant of---Further inquiry---Accused though was nominated in the F.I.R. and serious allegations had been levelled against him regarding abduction of the daughter of the complainant, but it was to be seen from the record and evidence available, as to whether offences under which accused was liable to be tried, were attracted in the case or not---Alleged abductee had stated before the Magistrate in her statement under S.164, Cr.P.C. that nobody had abducted her, rather she had contracted marriage with accused with her free will and consent; but on the other hand she had also, stated in her statement under S.161, Cr.P.C. before the Investigating Officer that her earlier statement was procured under duress and pressure; and it was accused who had abducted her and subsequently had committed Zina-bil-Jabr with her as well---When two contradictory statements were available on record, no reliance in circumstances, could be placed on the statement of the abductee, and it was not really known as to which statement was to be believed---One of the prosecution witnesses also sworn an affidavit in which he had very clearly stated that he had not seen the occurrence and his name was incorporated by the complainant in the F.I.R. falsely---No recovery had been effected from accused and the offences under which accused was liable to be tried, did not fall in the prohibitory clause of S.497, Cr. P. C.---Case of accused requiring further inquiry, accused was admitted to bail, in circumstances.

Zeeshan Ali Butt v, State 2009 MLD 171 ref.

Ch. Nawab Ali Mayo for Petitioner.

Ishaq Masih Naz, DPG with Abdul Ghafoor S.-I.

Muhammad Ashraf Azad for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 1462 #

2009 Y L R 1462

[Lahore]

Before Jamshed Rahmat Ullah, J

Mst. KANEEZ NARGIS---Petitioner

Versus

MILLAT TRACTORS LTD., SHEIKHUPURA ROAD through Chief Executive and 3 others---Respondents

Writ Petition No. 5325 of 2008, decided on 12th March, 2009.

Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction of High Court---Writ of mandamus, issuance of---Scope---Petitioner being owner of landed property got booked 10 new tractors through respondent, a dealer of tractor company---Dealer promised to supply/ deliver said booked tractors within four to five months of the booking date, but failed to supply/deliver tractors to the petitioner despite the petitioner had deposited enhanced price of said tractors as demanded by the dealer---On failure of the dealer to supply/deliver the tractors, the petitioner filed constitutional petition praying to issue writ of mandamus to the dealer and tractor company---Maintainability of constitutional petition was objected to by the dealer and tractor company on the ground that dealer was a private company and was not a "person" within the purview of Art.199 of the Constitution---Validity---Writ of mandamus could be issued against a person performing functions in connection with the affairs of the Federation, a Province or Local Authority and it could not be issued to someone who did not fall within the purview of "Person" defined in Art.199 of the Constitution---Absolute control over the management of a body/an organization by the Federation etc., was a condition most important for declaring it to be a "person" performing its functions in connection with the affairs of the Federation etc., which should have a complete domination to do and undo whatever it decided in running the affairs of such a body and should have the exclusive, complete and final authority to take the vital policy decision---Such control, must be absolute, unfettered, unbridled and exclusive; besides, the State must also have the financial control of the organization---When both the "administrative" and the "financial" control of the Federation over dealer was lacking, same was not a "person" within the meaning of Art.199 of the Constitution which could be held to be performing the duties in connection with the affairs of the Federation or the Province---Constitutional petition being not maintainable, was dismissed.

Arif Majeed Malik and others v. Board of Governors Karachi, Grammer School 2004 CLC 1029; Salah-ud-Din and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokhi Bhai and 10 others PLD 1975 SC 244; 2005 MLD 28; and Ansoosha Shaiqan v. Lahore University of Management Science Chancellor and others PLD 2007 Lahore 568 rel.

Abdul Rehman Khan Laskani for Petitioner.

Kanwar Muhammad Younas for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 1465 #

2009 Y L R 1465

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

Raja GHULAM HASSAN KHAN---Appellant

Versus

THE STATE and 2 others---Respondents

Criminal Appeal No.26 of 2006, heard on 9th April, 2009.

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

----Ss.195 & 476---Penal Code (XLV of 1860), Ss.468, 475 & 476---Determination of a person's guilt or innocence---Proper forum---Proper place for the determination of person's guilt or innocence, was criminal and not a Civil or revenue court, however, S.195 read with S.476, Cr. P. C. empowered the courts, other than the criminal courts also to try the guilt or innocence of persons---Said provision of law would deprive the ordinary criminal courts of their ordinary jurisdiction---Section 195, Cr. P. C. was an exception to the general rule that any person could set the criminal law in motion, its consequence being to take away the right of redress of persons---Fair interpretation of clause (c) of subsection (1) of S.195, Cr.P.C., which did not deprive the ordinary criminal courts of their ordinary jurisdiction, must be adopted, in circumstances---Criminal prosecution could be launched in respect of any document, which was result of fraud and forgery and which was subject matter of the Revenue Court---If criminal act was committed prior to the initiation of civil proceedings, then criminal proceedings could be launched by a person, who had been defrauded or cheated or as a result whereof had suffered any injury or loss---Bar contained in S.195(1)(c), Cr. P. C. only related to such cases, which had close nexus between the offence and proceedings before the civil court.

Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz Narowal and 5 others PLD 1992 Lahore 178; Muhammad Akram v. The State 2004 YLR 830; Muhammad Ramzan v. Muhammad Azim and 9 others 1991 MLD 951; Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904 and Mahabat Khan and 5 others v. Senior Superintendent of Police and 5 others 1999 MLD 2243 rel.

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

----S.195---Offences in respect of the documents produced or given in evidence--Any person, irrespective of the fact whether he was aggrieved or not and his interest was at stake or otherwise, having knowledge about the commission of any offence, could set the law in motion, but under the provisions of S.195, Cr.P.C., there were exceptions to the said general principle, where only Public Authority concerned and the court concerned had a right to file complaint---Clause (c) of subsection (1) of S.195, Cr.P.C. would apply only to those offences that had close nexus between the offences and the proceedings---Said provision contemplated cases of tampering with the documents on the record of a court or cases of forged documents being wed as genuine in certain proceedings---Conditions necessary for the application of S.195(1)(c), Cr.P.C. were that offences mentioned should be committed by the party to the proceedings in court; and such offences should be in respect of the documents produced or given in evidence in such proceedings.

----Civil and criminal cases could be proceeded side by side---No bar on the initiation of criminal proceedings in presence of civil suit.

Muhammad Shafi v. D.S.P. and others PLD 1992 Lah. 178; Sheikh Ahmad v. Sh. Muhammad Younas 1971 PCr.LJ 331; Rehmat Ullah v. Abdul Aziz 1974 PCr.LJ 54 and Muhammad Naseem Awan v. Aleem Majid PLD 2008 Lah. 358 ref.

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

----Ss.417(2), 195, 249-A & 476---Penal Code (XLV of 1860), Ss.419, 420, 468 & 471---Appeal against acquittal---Alleged act of forgery or presentation of a forged document had been committed not before the Member, Board of Revenue, but it was committed outside the court---Said alleged acts prima facie were committed before filing of the review petition on behalf of the inhabitants of the village before the Member, Board of Revenue; in that view of the matter the trial Magistrate had not applied his judicial mind in its true perspective---Alleged acts were committed out of the court of Member, Board of Revenue, so the Board of Revenue had no concern with the commission of the alleged acts---Sections 195 & 476, Cr.P.C., were not attracted in the case---Trial Magistrate, after considering the material available on record in the shape of cursory statements of the appellant/complainant as well as his witnesses on the one hand, had summoned the respondents/accused to face trial and without having any fresh material brought before him, had acquitted the accused persons under S.249-A, Cr.P.C. on wrong assumptions, which was liable to be set aside---Order of acquittal of accused passed by the Trial Magistrate being perverse, was not sustainable in the eyes of law---Same, in circumstances, was set aside and matter was remanded to the Trial Magistrate for retrial of accused in accordance with law.

Muhammad Sadiq v. The State and others 1999 MLD 2549 ref.

Malik Khalid Mahmood for Appellant.

Mian Ismatullah, Deputy Prosecutor-General Punjab for the State.

Mian Zulfiqar Ali, for Respondents Nos. 2 and 3.

Date of hearing: 9th April, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1476 #

2009 Y L R 1476

[Lahore]

Before Syed Hamid Ali Shah and M.A. Zafar, JJ

AYESHA NAEEM---Petitioner

Versus

MARGALLAH INSTITUTE OF HEALTH SCIENCES---Respondent

Writ Petition No.1320 of 2008, decided on 20th October, 2008.

University of Health Sciences Lahore Ordinance (LVIII of 2002)---

---S.10---Constitution of Pakistan (1973), Art.199---Educational institutions---Admission in Medical College---Authorities fixed the criteria of at least 60% of marks in aggregate in the Intermediate Science Examination (Medical Group) (F.Sc.)---Counsel for the petitioner had contended that the matters relating to the admission had to be determined by Pakistan Medical and Dental Council (PMDC) and not by University of Health Sciences and that to establish a uniform practice and rules, the decision of P.M.D.C. was to prevail as against University of Health Sciences---Petitioner had alternate remedy available to her under S.10 of the University of Health Sciences Lahore Ordinance, 2002---Since the Entry Test had already taken place, jurisdiction of High Court could not be stretched too far to disturb the whole set up---Petitioner having not availed the alternate remedy by approaching the Authority under S.10 of University of Health Sciences Lahore Ordinance, 2002, constitutional petition was disposed of with direction to petitioner to approach the Authority under provisions of S.10 of said Ordinance, 2002, who would decide the matter within the parameters of law and consider the case of the petitioner on compassionate ground.

PLD 2003 Lah. 572, PLD 2005 Lah. 261; 1995 SCMR 491; Shafique Ahmed and others v. Government of Punjab others PLD 2004 SC 168 and Muhammad Umar Wahid and others v. University of Health Sciences, Lahore and others PLD 2006 SC 300 ref.

Malik Saqib Mehmood for Petitioner.

Sardar Zahid Rasheed Khan for Respondent No.1.

Amjad Hameed Ghouri for Respondent No.2.

Ch. Sultan Mansoor, for Respondent No.3.

YLR 2009 LAHORE HIGH COURT LAHORE 1481 #

2009 Y L R 1481

[Lahore]

Before Abdul Shakoor Paracha and Raja Muhammad Shafqat Khan Abbasi, JJ

MUKHTAR AHMAD QURESHI---Appellant

Versus

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

I.C.A. No.327 of 2008, decided on 20th April, 2009.

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

----Ss.420, 468 & 471---Criminal Procedure Code (V of 1898), S.195(1) (c)---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Appellant had called in question order passed by Single Judge of High Court in constitutional petition whereby his prayer for quashing of F.I.R. was declined---High Court after viewing each and every aspect of the matter and giving an opportunity of hearing to both the sides, had proceeded to observe" that though incomplete challan had been submitted before the Trial Court, but investigation was going on---Specific allegation had been levelled against the appellant/ accused in the F.I.R.; and submission of challan against him by itself, prima facie, had made out a case against him---Single Judge of High Court had rightly observed that as factual controversy was involved regarding the genuineness of the alleged agreement to sell, same could not be resolved in constitutional jurisdiction of High Court---Contention that registration of F.I.R. was violative 'of the provision of S.195(1)(c), Cr.P.C., was repelled---In the present case, document in dispute was agreement to sell which was duly executed and civil suit was filed in which interim injunction was obtained; and impugned F.I.R. was lodged thereafter which indicated that the document in question was executed much before the filing of the suit and same was prepared outside the Court and that would not come under the purview of S.195(1) (c), Cr.P.C.-Appellant had specifically been nominated in the F.I.R. and stood saddled with definite allegation---If the F.I.R was taken at its face value, same, prima facie, disclosed commission of cognizable offence---Challan of the case had already been submitted---Any interference by the High Court at that stage in its constitutional jurisdiction, would amount to pre-empting the functions of the Trial Court, which was neither appropriate nor desirable---Even otherwise appellant had more than one alternate remedy which he could avail at an appropriate stage---No infirmity or illegality had been found in the impugned order calling for interference in the appeal---Intra-Court appeal was dismissed.

Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz) Narowal and 5 others PLD 1992 Lah. 178; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 and Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 ref.

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

----S.195---Offences in respect of documents produced in evidence---General rule was that any person, irrespective of the fact whether he was aggrieved or not and his interest was at stake; or otherwise having knowledge about the commission of any offence, could set the law in motion---Under the provisions of S.195, Cr.P.C., there were exceptions to' said general principle, where only public Authority concerned and the court concerned had a right to file a complaint, but clause (c) of subsection (1) of S.195, Cr.P.C. would apply only to those offences which had a close nexus with the offences and the proceedings---Section 195 (1) (c) contemplated cases of tampering with the documents on the record of a court or cases of provisionally forged documents being used as genuine in certain proceedings---Conditions necessary for the application of S.195(1) (c), Cr.P.C. were that offences mentioned should be committed by the party to the proceedings in court and such offences should be in respect of documents produced or given in evidence in such proceedings.

Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904 ref.

----Criminal proceedings were not barred in presence of civil proceedings and civil and criminal proceedings could proceed simultaneously.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 rel.

Afzal A. Haider for Appellant.

YLR 2009 LAHORE HIGH COURT LAHORE 1489 #

2009 Y L R 1489

[Lahore]

Before Mian Saqib Nisar, J

KARIM BAKHSH and others---Petitioners

Versus

MUHAMMAD SHAFI---Respondent

Civil Revision No.1293 of 2002, decided on 7th March, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Original owner of suit land who was father of the plaintiff, appointed a person as his attorney vide registered power-of-attorney---Said attorney of father of the plaintiff on basis of said power-of-attorney sold suit land to defendant through registered sale-deed after about two years of execution of power-of-attorney---Original owner/father of the plaintiff died after about 12 years of execution of power-of-attorney in favour of the attorney who sold suit land in favour of defendants---Plaintiff/son of original owner brought suit for declaration after about 13-1/2 years from execution of power-of-attorney by his father in favour of his attorney,' claiming that transactions of sale in favour of defendants made by attorney of his father was result of fraud; and that his father had been a victim of fraud---Attorney of father of plaintiff was neither impleaded as a -party nor the power-of-attorney executed by his late father in favour of attorney was challenged by the plaintiff---Trial Court dismissed suit filed by the plaintiff, holding that plaintiff had failed to prove that transactions of sale in favour of the defendants were based on fraud etc.; and that suit filed by the plaintiff was time barred in which transactions of sale were challenged after 13-1/2 years from execution of power-of-attorney---Appellate Court however, reversed findings of the Trial Court---Validity---Held, it was incumbent upon the plaintiff to have mentioned in his plaint about the factum that no power-of-attorney was executed by his father in favour of attorney who on the basis of which had sold suit-land---Without seeking the annulment of the power-of-attorney, sale in favour of the defendant could not have been challenged, because said sale was founded upon said power-of attorney---Such aspect of the matter had not been considered by the court of appeal ---Findings of the Appellate Court thus could not sustain---Suit filed by the plaintiff otherwise being time-barred was liable to be dismissed on ground of limitation--Impugned judgment and decree of the Appellate Court were set aside and that of the Trial Court was upheld.

Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330 ref.

Khalid Saeed Sindhu and Sardar Mohabbat Ali Dogar for Petitioners.

Hafiz Abdul Rehman Ansari for Respondent.

Date of hearing: 7th March, 2007.

YLR 2009 LAHORE HIGH COURT LAHORE 1493 #

2009 Y L R 1493

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

Rai MUHAMMAD KHAN---Petitioner

Versus

SENIOR SUPERINTENDENT POLICE, LAHORE and 5 others---Respondents

Writ Petition No. 7586 of 2009, decided on 24th April, 2009.

Penal Code (XLV of 1860)---

----Ss.409, 420, 468, 471 & 489-F---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.Rs.---Petitioner who had specifically been nominated in the F.I.Rs., stood saddled with definite allegations---If said F.I.Rs. were taken at their face value, same prima facie disclosed commission of cognizable offences---In order to appreciate the contentions raised by the counsel for the petitioner with regard to mala fide intention of the Nazim, a factual inquiry needed to be undertaken, which could not be embarked upon by High Court in the summary proceedings under Art.199 of the Constitution---Allegations levelled in the impugned F.I.Rs. qua forgery of the signatures on various cheques, embezzlement/misappropriation in the funds of Union Council, dishonouring of cheque with dishonest intention and commission of fraud, purely related to the question of fact-High Court, while exercising discretionary jurisdiction, could not undertake the role of investigator in the matter---Quashing of F.I.R. at initial stage of investigation would tantamount to throttling investigation, which was not permissible under the law---Conduct and manner of investigation, could not be scrutinized by High Court while exercising constitutional jurisdiction---Investigation was the domain of Investigating Agency, which could not be interfered with on the flimsy grounds---Case being at preliminary stage any interference by the High Court at that stage in its constitutional jurisdiction, would amount to pre-empting the functions of the Investigating Agency or the Trial Court, which was neither appropriate nor desirable---Even otherwise, the petitioner had more than one alternate remedies, which he could avail at an appropriate stage.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 and Ajmeel Khan v. Abdur Rahim PLD 2009 SC 102 ref.

Rana M. Arshad Khan for Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 1498 #

2009 Y L R 1498

[Lahore]

Before Syed Hamid Ali Shah, J

NADEEM MASIH---Petitioner

Versus

Mst. NUSRAT BIBI---Respondent

C.R. No.2040 of 2007, decided on 12th December, 2008.

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

---S.5 & Sched. --Suit for recovery of dowry articles by Christian---Petitioner had called in question the judgments and decrees of the two Courts below whereby the suit of the respondent for recovery of dowry articles was decreed but the Trial Court and Appellate Court had affirmed the decision of the Trial Court---Parties, after arguing the case, had reached the consensus that petitioner conceded to the jurisdiction of the Courts established under the West Pakistan Family Courts Act, 1964; that petitioner would deliver the articles of dowry as per list; that petitioner's failure to deliver any article as per the list, the value thereof would be paid by him; that question of gold ornaments would be resolved on oath on Holy Testament (Bible) as parties were Christians) that respondent, if would take oath that gold ornaments, had not been delivered, the petitioner could return the gold ornaments or value thereof; and that parties would appear before Judge Family, Court or his successor for the delivery, articles of dower and determination of delivery of gold ornaments.

Ch. Ijaz Akbar for Petitioner.

Raja Muhammad Munir for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 1500 #

2009 Y L R 1500

[Lahore]

Before Khurshid Anwar Bhinder, J

KASHIF alias KASHI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9398-B of 2008, decided on 19th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.365-B---Bail, grant of---Further inquiry---Accused though was nominated in the F.I.R. with specific role of abduction, but the story of the F.I.R. did not appear to be plausible for the reason that no direct or indirect evidence was against accused regarding the commission of the offence---Story narrated in the F.I.R. seemed highly improbable---Both statements of alleged abductee were at variance and contradictory to each other---No reliance, in circumstances, could be placed on the credibility of statements of abductee--Medical evidence proved the fact that abductee was a woman of easy virtue and semen stained swabs were not sent for grouping by the prosecution for the purposes of determining the fact as to whom the swabs belonged---Thirty eight days delay occurred in lodging of the F.I.R., which could not be explained---Possibility of deliberations in the F.I.R., could not be ruled out---Case of accused being that of further inquiry, he was admitted to bail, in circumstances.

Habib-ur-Rehman Butt for Petitioner.

Irshad Hussain Bhatti, DPG for the State with Munir Ahmad S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 1504 #

2009 Y L R 1504

[Lahore]

Before Pervaiz Inayat Malik, J

SHER SAMAD KHAN-Petitioner

Versus

M.D.A. and others---Respondents

Writ Petition No. 1279 of 2009, decided on 2nd April, 2009.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Disputed questions of fact---Determination of---Petitioner had himself invoked the jurisdiction of civil court regarding the same controversy against respondents which was pending adjudication---Besides, petitioner had himself filed partnership deed before the respondent/authority---Disputed questions of facts were involved in the case which needed thorough inquiry and that exercise could not be undertaken in constitutional jurisdiction---Constitutional petition was dismissed on the sole ground of being not maintainable.

1996 MLD 1972; Hajvari Associate's case 2007 SCMR 1240 and Sargodha Textile Mill's case 2007 SCMR 1357 rel.

Asmat Ullah Khan Niazi for Petitioner.

Muhammad Ameen Malik for Respondents Nos.1 to 3.

Tahir Mehmood for Respondents Nos. 4 to 6.

Date of hearing: 2nd April, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1508 #

2009 Y L R 1508

[Lahore]

Before Muhammad Ashraf Bhatti, J

QUAID-E-AZAM MEDICAL COLLEGE, BAHAWALPUR through Principal-Petitioner

Versus

MUHAMMAD ASLAM and another---Respondents

C.R. No.53 of 2008, heard on 24-9-2008.

Civil Procedure Code (V of 1908)---

----O. XXI, Rr.10, 30---Limitation Act (IX of 1908), S.5---Execution of decree---Condonation of delay---College through its principal had called in question orders passed by two courts below, whereby petition for condonation of delay filed by the respondent was accepted---Controversy between the parties was set at rest at the level of Supreme Court, as a result of which execution petition was filed though belatedly, with a petition for condonation of delay giving reasons thereof---Reason given for extension of time were duly supported by an affidavit filed in that behalf--Impugned orders would reveal that at no stage affidavit of any functionary from college side was got placed on record to controvert the contentions/reasons advanced by respondent to seek extension---In absence of such a counter affidavit the contentions raised and supported by affidavit in that petition for condonation of delay, would be deemed to have been admitted by the opposite side/the petitioner---Nothing was on the face of record to make a case for interference by High Court with the impugned orders, when under the law, the executing court had condoned the limitation in exercise of its discretionary powers in terms of S.5 of Limitation Act, 1908 after proper appreciation of the facts of the case---Findings of both the courts below were neither perverse nor arbitrary calling for any interference by High Court in revision.

Civil Aviation Authority v. Messrs. Providence Aviation Pvt. Ltd. 2000 CLC 1722; Basham Khan and others v. Syed Shafi Shah and others 1983 SCMR 183; President of Pakistan through Chairman, P.W.R, Lahore v. Sarfraz Khan 1980 CLC 541 and Muhammad Farooq M. Memon, Advocate v. Government of Sindh through Chief Secretary, Karachi 1986 CLC 1408 rel.

Mian Faraz-us-Samad for Petitioner.

Muhammad Hashim Tatari for Respondents.

Date of hearing: 24th September, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1510 #

2009 Y L R 1510

[Lahore]

Before S. Ali Hassan Rizvi, J

GHULAM HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3188-B of 2009, decided on 15th April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/34/109--Bail, refusal of---Case of co-accused, who was granted bail, was different as he was not nominated in the F.I.R., but was introduced only in the supplementary statement and no role was attributed to him---Accused was specifically named in the F.I.R. and he was the person who was allegedly seen strangulating deceased with shalwar and had gone to the house of the complainant, complaining that his son/deceased had promiscuous relations with his daughter and that he was not retracing his steps despite having been admonished by them---When the complainant and the prosecution witnesses lounged forward at the place of crime, it was accused who had threatened them with pump action---Direct motive existed against accused who had earlier filed an application for bail, but same was withdrawn without reservation---Accused having thus withdrawn his application, could not legitimately move High Court again on the grounds which were earlier available to him---No fresh ground was available to accused---Case involved murders of two persons by strangulation---Post-mortem reports supported the version given in F.I.R.---Accused was duly challaned after investigation---Considering the material on record as collected by the prosecution, it could hardly be said that no reasonable ground was available to connect accused with the case involving double murder---Bail was refused.

Imtiaz Shahid for Petitioner.

Azra Israr DPG with Muhammad Razzaq A.S.-I.

Muhammad Shahid Buttar for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 1520 #

2009 Y L R 1520

[Lahore]

Before Khurshid Anwar Bhinder, J

Haji CHANAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 5666-B of 2008, decided on 6th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Pre-arrest bail, confirmation of---Allegation of forgery---Accused though was nominated in F.I.R.," but it had not been established anywhere from the record that he was the beneficiary of the alleged forged document---Co-accused, who had prepared alleged death certificate, had already been granted bail by the Trial Court who had been assigned major role in preparing forged document in which accused was marginal witness--Rule of consistency demanded that accused be also allowed bail---Moreover two investigations were initiated in the case of accused, in the earlier investigation, accused was held innocent, but, subsequently he was held guilty---When two investigations were at variance, no definite opinion could be formed regarding the guilt or innocence of accused---Such factum had made the case of accused as that of further inquiry into his guilt---Mala fide on the part of the complainant was absolutely clear as civil litigation between the parties was already pending adjudication before Civil Court---Ad interim pre-arrest bail already granted to accused was confirmed, in circumstances.

Azam Nazeer Tarar for Petitioner.

Mohsin Mehmood for the Complainant.

Arif Karim, DPG with Ghulam Abbas, S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 1522 #

2009 Y L R 1522

[Lahore]

Before Jamila Jahanoor Aslam, J

Mst. KARISMA BIBI---Petitioner

Versus

ADDL DISTRICT JUDGE, ATTOCK and others---Respondents

Writ Petition No. 1301 of 2008, decided on 8th April, 2009.

Guardians and Wards Act (VIII of 1890)---

----Ss.12 & 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors-Welfare of minors---Respondent/father of the minors who had divorced petitioner, filed application for the custody of the minors, one male and one female who were in the custody of the petitioner (mother) since their birth---Guardian Court/Trial Court dismissed application filed by respondent/father---Appellate Court, however, reversed the findings of the Guardian Judge to the extent of the minor boy and gave his custody to respondent father while allowing the custody of the minor girl to remain with the petitioner mother---Respondent father got second marriage and had children in that wedlock too, whereas the petitioner (mother) was still unmarried and had been tending to her minor children who were doing very well in all aspects of their lives--Appellate Court seemed to have considered only the socio-economic persuasions and no where in the entire judgment and decree any consideration to the welfare of the minor had been given---Appellate Court had overlooked that father of the minor had been negligent father---Minors were compelled to file a suit for recovery of a maintenance against the father---Even after the suit was decreed respondent father did not pay the maintenance---Father neither claimed the custody of the minor bothered to offer to maintain them and it was only after the petitioner (mother) filed a suit for maintenance of the minors that father filed his application for custody of the minors---Respondent father wanted the custody of the minors son for self-aggrandizement, whereas the petitioner mother, who had been looking after the minors since birth, wanted their custody because of her unconditional love for them---Mother was looking after their health, education, wants and needs to the best of abilities---Moreover, separating the minors, who seemed very much attached to each other, would be too harsh a decision for them to sustain---Welfare of both the minors, in circumstances, lay in their custody remaining with the petitioner mother--Impugned judgment/decree of the Appellate Court was set aside and that of the Guardian Court was restored.

2004 SCMR 819 ref.

Sadaqat Ali Khan for Petitioner.

Kamran Shahzad for Respondent No.2.

YLR 2009 LAHORE HIGH COURT LAHORE 1526 #

2009 Y L R 1526

[Lahore]

Before Malik Saeed Ejaz and Mazhar Hussain Minhas, JJ

GHULAM ABBAS and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.11 of 2007, heard on 3rd March, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S.345--Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Compromise---During pendency of appeal, application was filed on behalf of accused persons seeking their acquittal on the basis of compromise arrived at between the parties---Trial Judge to whom application was sent to verify the legal heirs of deceased and genuineness of the proclaimed compromise etc., recorded statements of the adult legal heirs, wherein they stated that they had forgiven both accused in the name of Almighty Allah and they had no objection if accused were acquitted---Said report of the Trial Judge, had satisfactorily proved that legal heirs of deceased had voluntarily and genuinely entered into compromise with accused persons after receiving land as Badle-e-Sulh and had forgiven them in the name of Almighty Allah---Land so transferred included the shares of minor sons of the deceased---Interest of the minors stood duly safeguarded, in circumstances---Compromise arrived at between accused and the legal heirs of deceased, would certainly promote harmonious living and maintain cordial relations between the parties---Conviction and sentence of accused persons recorded under S.302(b) P.P.C., were set aside and they were acquitted of the said charge on the basis of compromise--Offence under S.7 of Anti-Terrorism Act, 1997 though was non-compoundable, as the parties had entered into compromise in substantive/main offence of Qatl-e-Amd the same was also allowed and accused were also acquitted from the charge under S.7(1)(c) of Anti-Terrorism Act, 1997---Conviction and sentence of accused persons were set aside and they were acquitted of the charge on the basis of compromise---Accused were ordered to be released.

Ghulam Shabbir and 2 others v. The State 2003 SCMR 665 fol.

Rana Dil Muhammad v. The State 2004 PCr.LJ 736 ref.

Sh. Abdul Samad for Appellants.

Mrs. Saeeda Asif for the Complainant.

Mr. Ashfaq Ahmad Malik, D.P.G. for the State.

Date of hearing: 3rd March, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1528 #

2009 Y L R 1528

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD RAFIQUE alias SHAHBAZ and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2756-B of 2009, decided on 30th March, 2009.

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

---S.498---Penal Code (XLV of 1860), Ss. 420/468/471---Bail before arrest, refusal of---In the course of investigation of case registered under S.496-A, P.P.C., accused produced the relevant birth certificate, secured through recovery memo which was attested by him---Birth certificate produced by accused was found to be a fake and forged document as per report of concerned Union Council---Since the recovery memo through which said fake birth certificate was taken into possession was attested by accused, he, prima facie, was responsible, from bottom to top, for offences under Ss. 420/468/471, P.P.C.---No case for bail having been made out in the case of accused, his bail application was dismissed.

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

----S.498---Penal Code (XLV of 1860), Ss.420/468/471---Bail before arrest, grant of---Case against co-accused required further inquiry, he was entitled to bail---Bail application to the extent of said co-accused was accepted---Interim bail before arrest granted to him was confirmed in circumstances.

Ch. Abid Hussain Gahlan for Petitioners.

Bilal Kashmiri, APG.

M.D. Chaudhary for the Complainant.

2009 Y L R 1569

[Lahore]

Before Malik Saeed Ejaz, J

GHULAM MUHAMMAD---Petitioner

Versus

THE STATE and another-Respondents

Criminal Miscellaneous No.1636-B of 2008, decided on 5th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of---Further inquiry---Allegation as levelled against accused in the F.I.R. that he started aimless firing and did not cause any injury to any one, by itself, was sufficient to make the case of accused as that of further inquiry within the meaning of S.497(2), Cr. P. C.---Apart from that, accused was behind the bars for the last one year and four months and the trial had not yet commenced---Accused was admitted to bail, in circumstances.

Ch. Khalid Mahmood Arain for Petitioner.

Nadir Manzoor Duggal, DPG for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 1573 #

2009 Y L R 1573

[Lahore]

Before Zafar Iqbal Chaudhry, J

SHABEER HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3204-B of 2008, decided on 20th January, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.376---Bail, grant of---Accused, father of seven children including the alleged victim, living in the house with their mother, could not be expected to commit Zina-bil-jabr with his own daughter in presence of other children---Record did not indicate that accused was a man of ill repute---Mother of the victim girl had refuted her solitary statement, which was even contradicted by medical evidence---Grand mother and maternal aunt of the victim were allegedly instrumental in involving the accused in the case to save the skin of their son, who had developed illicit relations with the victim---Possibility of levelling such an allegation could not be ruled out, as the victim being in her teens and with little education could very easily be tutored by her relatives---Case against accused was of further inquiry, who was behind the bars for the last more than six months and his further detention was of no useful purpose to the prosecution---Accused was admitted to bail in circumstances.

Farrukh Ahmad Khan for Petitioner.

Rana Muhammad Nazir Khan Saeed for the Complainant.

Nadir Manzoor Duggal, D.P.-G. for the State along with Asghar Ali S.-I. with record.

Samar Jehan, Lady Constable along with Mst. Shabella Bibi victim.

YLR 2009 LAHORE HIGH COURT LAHORE 1588 #

2009 Y L R 1588

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD IMRAN---Petitioner

Versus

IFTIKHAR AHMAD and 2 others---Respondents

Criminal Miscellaneous No.3711/CB of 2006, decided on 27th July, 2006.

Criminal Procedure Code (V of 1898)---

---S.497(5)-Penal Code (XLV of 1860), S.302/34---Bail; cancellation of---F.I.R. in the case was lodged with reasonable promptitude and both accused persons were specifically nominated therein as the perpetrators of the alleged murder---Eyewitnesses mentioned in the F.I.R. had stood . by their statements made before the Police fully implicating accused persons in the murder in question; and prima facie the medical evidence lent support to the allegations levelled against accused persons in the F.I.R.---Accused was directly connected with the motive set up in the F.I.R. and co-accused happened to be his associate---Accused after his initial arrest in connection with the case, had escaped from Police custody and he was declared a proclaimed offender and proceedings under Ss. 87/88, Cr. P. C. had .been undertaken in that respect---At the time of submission of challan in the case both accused persons were proclaimed offenders---On account of conduct displayed by accused persons, they had disentitled themselves to an exercise of discretion in their favour in the matter of bail---Sufficient incriminatory evidence was available on the record, prima facie establishing accused person's involvement in the murder in issue and that their admission to bail by the Trial Court was a result of an exercise which lacked bona fide---Bail obtained through such scheming and machinations and through a process which was not above board, would not merit upholding and maintaining the same by High Court---Post-arrest bail allowed to accused persons by the Trial Court, was cancelled in circumstances.

Hafiz Muhammad Hanif Zafar for Petitioner.

Ch. Abdur Rehman Madni for Respondent No.1.

Rai Bashir Ahmad Kharal for Respondent No.2.

Miss Yasmeen Kanwal for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 1593 #

2009 Y L R 1593

[Lahore]

Before Abdul Sattar Goraya, J

ABDUL GHAFOOR and others---Petitioners

Versus

Mst. RASOOLAN BIBI and others---Respondents

Civil Revision No. 154-D of 2006, heard on 25th March, 2009.

(a) Custom---

----Burden of prove---Burden rests on the party who alleges existence of a custom---Most important document to discharge onus, is Riwaj-e-Aam Wajib-ul-Arz---Easy to allege application of custom but difficult to prove as in that event, strong evidence is required---Application of any custom cannot be decided by courts merely on the basis of analogy---Custom may differ from place to place, street to street, Mohallah to Mohallah and tribe to tribe---Slightest evidence available on record that parties were governed by special custom can easily be ignored---In absence of any instrument in the nature of Riwaj-e-Aam Wajib-ul-Arz and Judicial decisions on the subject, court cannot come to the conclusion that parties are governed by custom.

Mehr Das and another v. Munshi Ram and others AIR 1936 Lah.920; Abdul Shakur v. Mt. Allah Rakhi and others AIR 1935 Lah.138; Mst. Barkat Bibi v. Muhammad Amin and another AIR 1935 Lah.325; Mt. Samon and others v. Shahu and others AIR 1935 Lah.93 and Shamsud Din v. Mst. Jewan and others 1986 MLD 764 rel.

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

----S.45---Mutation---Object, scope and purpose---Mutations are never instrument of title and the same are also not part of Record of Rights and do not create any title---Mutations are sanctioned only for fiscal purpose, with a view to keep record straight---Entries embodied in mutation and endorsement made by Assistant Collector of either grade can conveniently be challenged and brought under impeachment before civil court.

----S.42---Colonization of Government Lands (Punjab) Act (V of 1912), Ss.10, 19 & 20---West Pakistan Land Revenue Act (XVII of 1967), S.45---Tenancy rights---Mutation of inheritance---Land owner died leaving behind widow and daughters but mutation of inheritance was sanctioned in favour of brothers excluding widow and daughters---Mutation of inheritance was assailed by daughters which was concurrently decreed by Trial Court and Lower Appellate Court in their favour---Validity---Tenancy rights under S.20 of Colonization of Government Lands (Punjab) Act, 1912, of deceased were to be devolved in favour of his widow who as per record and evidence available, died in year, 1970---Entries embodied in mutation of inheritance showed that inheritance had been devolved upon brother of deceased to the exclusion of widow and his daughters---Rule of succession and inheritance was completely ignored---Parties were governed by Shariah and Muslim Personal Laws and mutation was illegally sanctioned---Defendants were not able to bring out any material or contradictions in evidence in the nature of misreading and non-reading to warrant interference---Revision was dismissed in circumstances.

Sikandar and others v. Allah Yar and others 1995 CLC 1253; Baidullah Khan and another v. Mahmood Jan Khan and 12 others 1985 CLC 821; Azam Khan v. Azad Khan and 6 others PLD 1986 Lah. 175; Mst. Began v. Mst. Bai 1983 SCMR 80; Umar Din v. Mst. Sharifan PLD 1995 SC 686 and Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104 rel.

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

----Ss. 10 & 19---Proprietary rights---Scope---After full price is made and proprietary rights are acquired in respect of land allotted to tenant under provisions of Colonization of Government Lands (Punjab) Act, 1912, tenancy comes to an end and allottee is not governed by statement of conditions---Such allottee becomes absolute owner and is not governed by the provisions of Colonization of Government Lands (Punjab) Act, 1912.

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

----S.115---Revisional jurisdiction of High Court---Scope---While sitting in revisional jurisdiction, High Court has limited scope except for the reasons and the grounds mentioned in S.115, C.P.C.

Malik Muhammad Aslam Channar for Petitioner.

Ch. Tariq Muhammad Shafi, A.A.G. for Respondents.

M.A. Rasheed Chaudhry for Respondents Nos. 1 to 9.

Ghulam Yasin Patwari and Shokat Hussain, Head Clerk, DDOR Office, Khairpur Tamewali.

YLR 2009 LAHORE HIGH COURT LAHORE 1598 #

2009 Y L R 1598

[Lahore]

Before Zafar Iqbal Chaudhry, J

MUHAMMAD KALEEMULLAH and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.289 of 2008, heard on 21st January, 2009.

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

----S.173---Report of Police officer--Opinion of Investigating Officer---Relevancy---Police opinion, no doubt, is not binding on .the Courts, but it being supported by other facts and circumstances of the case can be a relevant factor to draw conclusion into the guilt or innocence of the accused.

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

----S.452---Appreciation of evidence---Prosecution witnesses having been disbelieved by Trial Court regarding the major offence under S.376, P.P.C. for committing rape with the complainant, they could not be believed for recording conviction against the accused under S.452, P.P.C. for trespassing into her house with the object of committing rape with her---Even otherwise, accused being closely related to the complainant, they could not be held liable for trespassing into the house of their close relative---Trial Court had erred in law in believing the prosecution witnesses in piecemeal, who could be believed or disbelieved in toto---Benefit of doubt was extended to' the accused and they were acquitted accordingly.

1993 SCMR 417; 1993 SCMR 1628 and PLD 1999 Lah.56 ref.

----Benefit of doubt---Rule of criminal jurisprudence to give the benefit of doubt to the accused is much more than a mere rule of law, as said rule is rule of "prudence" which no man ought to and no Judge acting in accordance with the provisions of Qanun-e-Shahadat 1984, can ignore and which was vigorously enforced by Islam.

(d) Criminal trial---

----Benefit of doubt, extension of---Principles---Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case is to be resolved in favour of accused---Even if the defence plea was not proved or no evidence was adduced in this behalf, no benefit accrues to the prosecution on that account and its duty to-prove its case beyond any doubt would not be diminished, even if the defence plea is not proved or is found to be palpably false.

1993 SCMR 417; 1993 SCMR 1628 and PLD 1999 Lah.56 ref.

Qazi Sadar ud Din Alvi for Appellants.

Nadir Manzoor Doogal, DPG for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 1609 #

2009 Y L R 1609

[Lahore]

Before Abdul Sattar Goraya, J

SHER MUHAMMAD and others---Petitioners

Versus

KHAWAJA MAZHAR and others---Respondents

Writ Petition No.3060 of 1995/BWP, decided on 30th March, 2009.

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

----S.12(2) & O.IX, R.13---Ex parse decree, dated 14-2-1985, setting aside of-First application under O.IX, R.13, C.P.C., filed on 24-11-1985 on ground that defendant gained knowledge of decree 10/12 days ago through his counsel in another pending suit---Dismissal of first application on 17-12-1987 for non prosecution and want of proof-Second application under S.12(2), C.P. C. filed on 11-5-1989 on basis of same source of knowledge---Validity---Defendant, without crossing hurdle of limitation and maintainability of application under S.12(2), C.P.C., could not 'bitch merits or demeris of his case---Defendant had given same explanation in both such applications brought separately---Defendant had knowledge of passing of ex parse decree---Both such applications were barred by time---Second application was barred as defendant had availed his remedy under O. IX, R. 13, C. P. C. ---Second application was dismissed in circumstances.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970; Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 ref.

Mst. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 and Monazah Parveen v. Bashir Ahmad and 6 others 2003 SCMR 1300 rel.

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

----S.12(2) & O.IX, R.13---Ex parse decree, setting aside of---Application under S.12(2), C.P.C. by defendant after failing to get decree set aside under O.IX, R.13, C. P. C.---Maintainability---Subsequent or second application on same subject matter before same Court under S.12(2), C.P.C. would be barred---Principles.

Mst. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 and Monazah Parveen v. Bashir Ahmad and 6 others 2003 SCMR 1300 rel.

----Without crossing hurdle of limitation and maintainability of petition, party cannot be permitted to touch merits and demerits of his case.

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

----S.115---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Order passed in revision by District Judge impugned in constitutional petition---Maintainability---Ouster of jurisdiction of High Court in such case not being a rule of universal application, High Court in appropriate case, could interfere in such matter.

Chaudhry Naseer Ahmad for Petitioners.

Mumtaz Mustafa for Respondents.

Date of hearing: 30th March, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1621 #

2009 Y L R 1621

[Lahore]

Before Syed Shaheen Masud Rizvi, J

Ch. MUHAMMAD SALEEM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE SAHIWAL and 2 others---Respondents

Writ Petition No. 1548 of 2009, decided on 25h March, 2009.

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

----Ss. 5 & 27---Civil Procedure Code (V of 1908), Ss. 96, 115 & O. XXIII, Rr. 1, 3---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Pre-emption suit---Statement of defendant and his counsel made before Court regarding handing over possession of suit-land to plaintiff under compromise entered between parties and praying for an adjournment for determination of its price---Plaintiff's application for passing of decree in terms of such compromise---Subsequent refusal of defendant to accept such compromise as valid---Dismissal of application by Trial Court---Remand of case by revisional Court for determining price of suit land after setting aside order of Trial Court in revision - filed by plaintiff---Validity---Record showed that defendant and his counsel had signed such statement---Defendant would have full opportunity to plead his case before Trial Court after remand---Defendant against final judgment of Trial Court would have an opportunity of filing an appeal before competent Court---Constitutional jurisdiction could not be invoked as an alternative of an appeal or revision---High Court dismissed constitutional petition in circumstances.

Khan Muhammad v. Khizar Hayat and others 2005 MLD 67 and Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131 ref.

Haji Atta Muhammad v. Abdul Rasheed 1991 CLC 1341 (Lah.); Muhammad Ayub and another v. Muhammad Yusuf, 1976 MLD 1395 (Pesh.) and Umar Bakhsh and 2 others v. Azam Khan and 12 others 1993, SCMR 376 distinguished.

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

----Art. 199---Civil Procedure Code (V of 1908), Ss. 96 & 115---Constitutional jurisdiction could not be invoked as an alternative of an appeal or revision.

Muhammad Jaffar Javaid. Khan for Petitioner.

Ch. Muhammad Anwar-ul-Haq for Respondent No.3.

YLR 2009 LAHORE HIGH COURT LAHORE 1626 #

2009 Y L R 1626

[Lahore]

Before Zafar Iqbal Chaudhry, J

MUHAMMAD RAFIQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 10858-B of 2008, decided on 26th November, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), S.489-F---Ad interim pre-arrest bail, confirmation of---Alleged cheque was issued in the year 2007 while the case was registered against accused in 2008, one year after its issuance---During the investigation as pointed out by the Investigating Officer, it was found that the entire payment was made by accused to the complainant---Punchayat was stated to have been convened and on the proposal of accused the complainant refused to give or take oath on Holy Quran in proof of the allegation---Case of the accused, in said circumstances, fell within the purview of further inquiry and possibility of his false implication due to business rivalry, could not be ruled out---Ad-interim pre-arrest bail already granted to accused, was confirmed in circumstances.

Ch. Nawab Ali Mayo for Petitioner.

Muhammad Anwar Bhatti for Complainant.

Mian Ismat Ullah, DPG for the State with Shakeel Ahmad, S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 1640 #

2009 Y L R 1640

[Lahore]

Before Syed Hamid Ali Shah and M.A. Zafar, JJ

MUHAMMAD AKBAR KHAN and others---Appellants

Versus

ATTA ULLAH KHAN and 11 others---Respondents

R.F.A. No. 35 of 2000, decided on 28th October, 2008.

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

---Ss. 39 & 42---Contract Act (IX of 1872), Ss. 214 & 215---Qanun-e-Shahadat (10 of 1984), Arts. 17, 79 & 140---Suit for declaration and cancellation of gift---General power of attorney for sale of suit-land executed by plaintiff in favour of defendant---Suit-land gifted by defendant in favour of his son and nephew--Defendant's plea was that plaintiff had sold suit land after receipt of entire sale price from him and had in lieu thereof executed General Power of Attorney---Proof---Plaintiff, while in cross-examination, expressing ignorance regarding agreement of sale, had not been confronted with same and his signatures thereon---Marginal witnesses produced by defendant had not confirmed signatures on agreement nor the same had been placed before them---Such agreement would not carry any evidentiary value in absence of compliance with provisions of Arts. 17, 79 & 140 of Qanun-e-Shahadat, 1984---Defendant was legally obliged to have obtained consent and approval of plaintiff before transferring suit land to his close relatives---Valid gift could only be made, if there had been an approval and consent of donor with regard to property sought to be gifted with specific mention of donee's name---All such necessary particulars were lacking in the present case---Oral evidence could neither be led nor considered to prove that parties intended something different from clear stipulation of document---No oral evidence could be admitted or considered that parties, by executing general power of attorney and gift deed, meant to effect a sale in favour of defendant---Plaintiff had executed power of attorney for sale of suit land and not for making gift in favour of close relatives of defendant---Transfer of suit land by defendant by way of gift in favour of his close relatives without prior consent of plaintiff had no legal validity---Suit was decreed declaring impugned gift and subsequent transfers on its basis as illegal and void.

Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others PLD 2008 SC 389; Rasool Bukhsh and another v. Muhammad Ramzan 2007 SCMR 85; Muhammad Nawaz v. The State 2000 YLR 1933; Nazir Ahmad v. Muhammad Rafiq 1993 CLC 257 and Muhammad Younis v. Atta Muhammad and 2 others 1999 SCMR 2574 ref.

Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others PLD 2008 SC 389; Rasool Bukhsh and another v. Muhammad Ramzan 2007 SCMR 85; Dur Muhammad and 12 others v. Abdul Sattar 1996 CLC 1596; Fida Muhammad v. Pir Muhammad Khan (Deceased) legal heirs and others PLD 1985 SC 341 and Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 rel.

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

----Art. 2(b) (e) (d)---Oral evidence in negation of clear terms of a document---Scope---Such evidence could neither be led nor considered---Principles.

Oral evidence can neither be led nor considered to prove that parties intended something different from the clear stipulation of the document. When the document is clear and speaks for itself, then there is no question to consider oral evidence to show real nature of the transaction.

Malik Muhammad Kabir for Appellants.

Syed Hamid Ali Bukhari for Respondents.

Date of hearing: 22nd October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1646 #

2009 Y L R 1646

[Lahore]

Before S. Ali Hassan Rizvi, J

NAVEED AHMED---Petitioner

Versus

STATION HOUSE OFFICER and 3 others---Respondents

Writ Petition No.1985 of 2009, decided on 17th April, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.22-A & 22-B---Penal Code (XLV of 1860), Ss. 420, 468 & 471/109---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Registration of criminal case---Application for---Application for registration of criminal case against respondents was dismissed by Justice of Peace observing that F.I.R. in a criminal case had already been registered against said respondents and allegations of fraud etc. were already in the notice of the petitioner, but same were not added---Allegation as levelled by the petitioner, was that one of the respondents with the collusion of other respondents had prepared a bogus agreement to sell by showing receipt of earnest money for which a criminal case was to be registered---Petitioner had not submitted a copy of the alleged bogus agreement to sell---S.H.O. in the written statement had specifically mentioned that respondent had filed a civil suit against the petitioner claiming specific performance of agreement---Such fact was not denied by the petitioner---Same house was shown to have been sold in favour of brother-in-law of the petitioner only for Rs.1,00,000---Comparative rights of brother-in-law of the petitioner vis-a-vis respondent would come for serious consideration before the civil court in terms of S.27(b) of Specific Relief Act, 1877, that being so, it should better N. left to the civil court seized of the suit for specific performance to determine the validity or otherwise of the said agreement---Petitioner should defend the suit and if findings were returned by the competent civil court that the agreement claimed by respondent was the result of fraud and forgery, he could bring criminal action; presently, he should not be restive and better wait--Issuance of a direction for registration of case would not be in quest of justice.

Imran Aziz Qureshi for Petitioner.

Mian Sarfraz-ul-Hassan for Respondents.

Abdul Liaqat S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 1654 #

2009 Y L R 1654

[Lahore]

Before Syed Hamid Ali Shah and M.A. Zafar, JJ

ZAKHI FAROOQ---Appellant

Versus

SAEED AKHTAR and others---Respondents

R.F.A. No.109 of 1999, heard on 22nd October, 2008.

Specific Relief Act (I of 1877)---

----S.12---Contract Act (IX of 1872), S.62--Specific performance of agreement to sell---Novation of contract---Consent of parties---Adopting of such procedure---Effect---Suit for specific performance of agreement to sell was resisted by defendant on the ground that plaintiff did not perform his part of contract within stipulated period of time---Validity---Parties subsequently changed their stance, agreed for fresh demarcation and completion of sale on the basis of demarcation through Commission--Performance of agreement was made subject to fresh demarcation by mutual consent---Right to seek imposition of penalty stood waived when Supreme Court directed for carrying demarcation through Commission and ascertainment of the area to satisfaction of parties---Parties which persuaded court to decide matter/lis in a particular manner, could not subsequently deviate from it and controversy was to be decided in that manner---Parties curtailed their dispute to demarcation through Commission and payment of sale consideration on the basis of area ascertained by Commission---Agreement had become capable of performance when uncertainty or vagueness in agreement was removed or made certain---When parties left it to decision of commission to ascertain area, contract became capable of performance after determination of land subject matter of sale---Imposition of penalty would offend mutual consent of parties and also decision of superior Courts---Plaintiff was liable to make payment of remaining sale price to defendant---Agreement having been novated due to commitment of parties before High Court, therefore, question of forfeiture of earnest money or remaining sale price in favour of either party did not arise---High Court modified judgment passed by Trial Court to the effect that decree for specific performance of contract regarding suit property was passed in favour of plaintiff subject to payment of remaining sale price---Appeal was allowed accordingly.

Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Shaukat Ali and 3 others v. Javed Qureshi and 5 others 2002 CLC 1578; Haji Abdul Hameed Khan v. Ghulam Rabbani 2003 SCMR 953; Mst. Zahida Begum and another v. Saeed Yousaf Sheikh and another 1998 CLC 55; Wali Muhammad v. Sardar Muhammad 1998 MLD 536; Noor Muhammad and another v. Muhammad Ishaq and another 2000 MLD 251 and Board of Intermediate and Secondary Education v. Saima Azad 1996 SCMR 575. ref.

Mian Abdul Rauf and Mian Tariq Mahmood Khan for Appellants.

Ch. Mushtaq Ahmed Khan, Ch. Zafar Iqbal and Rana Kashif Saleem for Respondents.

Date of hearing: 22nd October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1662 #

2009 Y L R 1662

[Lahore]

Before Zubda-Tul-Hussain, J

Malik MUHAMMAD AFZAL---Petitioner

Versus

MANAGER AUQAF (MALIK GHULAM HYDER) BAHAWALPUR and others---Respondents

Writ Petition No. 3100/BWP of 2008, decided on 28th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.448 & 506---Protective/transitory bail, grant of---Alleged detenu was on ad interim pre-arrest bail, which, because of his appearance before the High Court and his absence from the concerned court had been dismissed---Every apprehension existed that he would immediately be arrested by the Police---Counsel for the petitioner had requested for protective bail of alleged detenu enabling him to approach the concerned court so that he could surrender himself before the court of competent jurisdiction for the relief of pre-arrest bail--Request seemed to be genuine---Alleged detenu was admitted to protective/transitory bail till specified date so that he could surrender himself and submit his application for pre-arrest bail before the court of competent jurisdiction---Said order of protective bail would stand vacated automatically after specified date.

Raja Muhammad Sohail Iftikhar for Petitioner.

Ch. Shafi Muhammad Tariq, A.A.-G. Abdul Jaleel Sajid, Bailiff of Court.

Muhammad Shamsheer Chughtai for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 1670 #

2009 Y L R 1670

[Lahore]

Before Muhammad Ahsan Bhoon, J

MUHAMMAD AKBAR and another---Petitioners

Versus

THE STATE---Respondent

C.M. No.2 of 2008 in Criminal Appeal No.1433 of 2007, decided on 13th April, 2009.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S.302(b)---Suspension of sentence---Prosecution version was totally disbelieved, whereas the defence version was accepted by the Trial Court---For the purpose of conviction and sentence, the statement of accused was to be believed in toto and inculpatory part of the statement, could not be read in isolation while excluding the exculpatory part of the statement, when it was believed by the Trial Court that the deceased was done to death in dark hour of the night; when he was found in objectionable position with the daughter of accused---Conviction and sentence of accused under S.302(b)/34, P.P.C. required reconsideration---Co-accused of accused had been granted bail by the High Court and case of accused was at par with co-accused---Conviction and sentence awarded to accused, was suspended, in circumstances.

Sittar Sahil for Appellant.

Irshad Hussain Bhatti, DPG for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 1678 #

2009 Y L R 1678

[Lahore]

Before S. Ali Hassan Rizvi, J

SAMRA ZAMAN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION GHULAM MUHAMMAD ABAD, FAISALABAD and 3 others---Respondents

Criminal Miscellaneous No. 490-H of 2009, decided on 24th April, 2009.

Criminal Procedure Code (V of 1898)---

----S.491---Habeas corpus petition---Custody of minors---Marriage between the petitioner-wife and respondent-husband still subsisted though the petitioner had been expelled from the house of her husband/ respondent---Minors, who were of tender age, were residing with their father/ respondent---Validity---Mother was a symbol of sacrifice for her children and there was no substitute for love and affection of the mother---Lap of the mother was a heavenly place and she had inherent right to keep her children close to her bosom and rear them up under her umbrella---Keeping in view the age of minors which was (5 years male and 2-1/2 years female), their interim custody was directed to be handed over to the petitioner/mother as she could not be deprived of their custody, until and unless decided otherwise by the Guardian Judge concerned on proper showing as to the welfare of the minors.

2001 SCMR 1782 and 2005 YLR 1047 Lah. rel.

Nadeem Shibli for Petitioner.

Mrs. Azra Israr, DPG with Muhammad Amin S.-I.

Rafique Ahmad Qureshi for Respondents Nos. 3 and 4.

YLR 2009 LAHORE HIGH COURT LAHORE 1679 #

2009 Y L R 1679

[Lahore]

Before Abdul Shakoor Paracha and Syed Sajjad Hussain Shah, JJ

Padri SHAREEF ALAM---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No. 27-E of 2004, and Criminal Miscellaneous No. 334-M of 2008, decided on 23rd September, 2008.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv)(vi)&(xii), 10, 15, 18(g), 24, 32 &' 33-F---National Reconciliation Ordinance (LX of 2007), S.7---Appreciation of evidence---Accused, who was tried along with nine others by Judge Accountability Court, was convicted and sentenced---Pending appeal filed by accused against his conviction and sentence, an application was filed by him under S.7 of National Reconciliation Ordinance, 2007 seeking withdrawal/termination of the proceedings against him---All co-accused filed appeals against their convictions and sentences before the High Court and High Court exercising jurisdiction under S.7 of National Reconciliation Ordinance, 2007 terminated proceedings against them--Held, if an accused was charged, tried and convicted along with holders of the public office, then if the principal offender was acquitted or proceedings against them had been dropped under National Reconciliation Ordinance, 2007, the benefit thereof could also be extended to said accused because both were sailing in the same boat---Co-accused who were also holders of public office had already been acquitted by extending them benefit of S.33-F of National Accountability Ordinance as added by National Reconciliation Ordinance, 2007, accused was also entitled for the same relief under rule of consistency---High Court ordered that proceedings in the Reference initiated against accused be withdrawn/terminated and he was acquitted.

State Prosecutor General National Accountability Bureau, Islamabad v. Nasim ur Rehman and others 2004 SCMR 1943 rel

Sittar Sahil for Appellant.

Arif Ali Zafar Chohan, Senior Prosecutor for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 1682 #

2009 Y L R 1682

[Lahore]

Before Tariq Shamim, J

ZUBAIR AHMAD KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6326-B of 2008, decided on 28th July, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 109, 34, 148 & 149---Bail, refusal of---Earlier bail application of accused was dismissed and grounds urged by counsel on behalf of accused in the present bail application could not be considered at that juncture as the same were available to him when his first bail application was dismissed as being not pressed---Even otherwise, from the record available in the court, it was evident that accused was the main accused; he had been charged with an offence which attracted the prohibitory clause of S. 497, Cr. P. C. ---Weapon of offence i.e. .12 bore gun had also been recovered at the instance of accused---In four successive investigations, accused had been found to be fully involved in the crime and consequently challan in the case had been submitted and the trial was in progress---In absence of any merits in the bail application, same was dismissed.

The State v. Zubair and another PLD 1996 SC 173 ref.

Rana Muhammad Arshad Khan for Petitioner.

A.D. Nasim for the Complainant.

Ch. Amjad Hussain, Deputy Prosecutor-General.

Ghulam Raza, S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 1683 #

2009 Y L R 1683

[Lahore]

Before Syed Hamid Ali Shah and M.A. Zafar, JJ

LAND ACQUISITION COLLECTOR---Appellant

Versus

SAFDAR ALI SHAH---Respondent

R.F.A. No.141 of 2004 and R.F.A. No.33 of 2008, decided on 7th October, 2008.

Land Acquisition Act (I of 1894)---

----Ss.4, 11, 18, 23 & 54---Acquisition of land---Determination of amount of compensation by the Referee Court---Referee Court to which matter was referred by invoking provisions of S.18 of Land Acquisition Act, 1894, granted enhanced compensation along with 15% compulsory acquisition charges---Said order of the Referee Court was assailed in appeal under S.54 of said Act and maintainability of appeal had been objected to by the respondents---Appellant was Land Acquisition Collector, whereas memorandum of appeal had been signed by Military Estate Officer due to inadvertence who had also affixed his official seal---No Wakalat Nama signed by the appellant had been filed---Various applications had been filed along with appeal and the affidavits in support of said applications were sworn by Military Estate Officer---Said facts had shown that appeal was filed under the instruction and on behalf of Military Estate Officer, who being beneficiary of acquired land, could not assail the judgment of the Referee Court in appeal---Request made by counsel for the appellant for substituting appellant could not he entertained at such late stage for the reasons; firstly, the request was made when the period of filing the appeal had already lapsed; secondly no formal application had been filed in that regard; thirdly the request was again made on behalf of Military Estate Officer; and lastly Standing Counsel could not represent, the Province/Land Acquisition Collector; and a valid request on behalf of Land Acquisition Collector could be made by Advocate-General---Appeals being not competent, were dismissed.

Ismail v. Razia Begum 1981 SCMR 687; Taj Muhammad v. Muhammad Azam 1998 CLC 787; B.P. Pakistan Exploration and Production v. Sher Ali Khawaja PLD 2008 SC 400 and Pakistan Military Estate Officer Kharian Cantt. and another v. Hayee Khan and another PLD 1995 SC 418 ref.

Babar Ali for Appellant.

Tanvir Iqbal Khan for Respondents Nos. 1, 2, 4, 5, 24, 25 and 41.

Syed Hasnain Kazim, A.P.G.

Date of hearing: 7th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1685 #

2009YLR1685

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Rana Zahid Mahmood, JJ

PERVAIZ AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 243-J and Murder Reference No.394 of 2003, heard on 14th May, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Accused was not known to the complainant and prosecution witness earlier, while deceased was nephew of the complainant---Complainant and the prosecution witnesses did not know any of the unknown culprits who had made the deceased hostage by keeping a pistol on his temple, while one out of three of them was getting money out of the front pocket of the shirt of the deceased; and when the deceased saw the complainant and prosecution witnesses, the deceased raised alarm upon which accused inflicted Chhuri blows on the deceased---Was very strange that deceased, despite having suffered direct Chhuri blows on the walls of the heart, was still in a position to speak and give details of the names, parentage and addresses of accused and two co-accused to the prosecution witnesses, while some time must have been consumed by the prosecution witnesses in the chase of accused and two co-accused---Ocular account was directly in conflict with medical evidence---Substantial doubt was present in the prosecution case about the presence of the complainant and the prosecution witnesses at the scene of occurrence. when the deceased was done to death by some culprits---Even if assumed that the deceased had disclosed the names of accused and co-accused to them, it was still necessary to hold of identification parade of accused and the others for establishment of identity of accused and two others in accordance with law which was not done, it therefore, could not be said that prosecution had proved its case against accused beyond shadow of any reasonable doubt---Impugned judgment passed by the Trial Court was set aside and accused was acquitted of the charge and was released.

A.D. Nasim for Appellant.

Ijaz Ahmad Bajwa, Deputy P.-G. for Respondent.

Date of hearing: 14th May, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1700 #

2009 Y L R 1700

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD ISMAIL---Petitioner

Versus

JUDGE FAMILY COURT, RAHIM YAR KHAN and another---

Respondents

Writ Petition No. 2963 of 2006/BWP, decided on 18th January, 2007.

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

----S.5 & Sched. ---West Pakistan Family Courts Rules, 1965, R.6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage---Suit was resisted by the defendant on the grounds that the plaintiff had incorrectly displayed her residence in the plaint; that during pre-trial conciliation proceedings, his statement was not recorded; that in the suit for restitution of conjugal rights filed by him, the plaintiff (wife) was not directed to submit her written statement; and that no plea of "khula" was taken in the plaint; but the Family Court decreed the suit on the basis of khula'---Validity---Regarding ground of incorrectly displaying residence, plaintiff had clearly mentioned in the plaint that as threat to abduct her was hurled by the 4efendant, she had left the place and had taken up residence in place at R.K. along with her own brother; it was so that she had filed the suit on the basis of that residence---Under proviso to R.6 of the West Pakistan Family Courts Rules, 1965 a suit for dissolution of marriage could be filed where the wife ordinarily resided---Suit was rightly filed in court at place R.K. ', in circumstances---Recording of statement of defendant during the pre-trial conciliation proceedings was not a mandatory requirement of any law---Plea that version ofKhula' having not been entered into the plaint, suit could not be decreed, was a wrong assertion as the contents of the plaint had shown conversely to the plea raised by the petitioner---Plaintiff had categorically stated that she was a student of B.A. and defendant was illiterate, who had extended threats to her to leave the college and the education and get rukhsati' performed with him; it was clearly mentioned in the plaint that she had got severe hatred against the defendant and could not live with him in any circumstances---Family Court, in circumstances had passed the decree on the basis ofkhula' by fixing consideration amounting to Rs.500---Was not necessary that there must be used word of "khula" in the plaint---Family Court, in circumstances, had rightly ,decreed suit and said decree could not be declared illegal and unlawful.

Muhammad Ilyas v. Mst. Zarina PLD 1983 Lah. 462 and Fazal Khitab v. Mst. Naheed Akhtar and another PLD 1979 SC 864 ref.

Rasheed Afzaal Cheema for Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 1702 #

2009 Y L R 1702

[Lahore]

Before Tariq Shamim, J

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2248-B of 2009, decided on 31st March, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.365-B, 376, 457, 395, 467, 468 & 471---Bail, grant of---Delay of 36 hours in lodging the F.I.R., had not been explained---Though allegation against accused was of having kidnapped/ abducted the daughter of complainant along with others, but apart from that no other allegation was against him---Main accused in the case was son of accused who allegedly contracted marriage with the daughter of the complainant---Victim in her statement recorded on oath by the Family Court, did not level any allegation of abduction or commission of zina against accused, who was father of main accused---After the suit for jactitation of marriage was decreed in favour of the victim, she had contracted marriage with another person---Accused was behind the bars for the last about one year and three months and he was not required by the Police for any purpose---Accused was admitted to bail, in circumstances.

A.D. Nasim for Petitioner.

Ch. Asif Sattar for the Complainant.

Ch. Amjad Hussain, Deputy P.-G. for the State.

Waris, S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 1703 #

2009 Y L R 1703

[Lahore]

Before M.A. Zafar, J

FIDA HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2604-B of 2009, decided on 19th March, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.498 & 497(2)---Penal Code (XLV of 1860), 5.376---Pre-arrest bail, confirmation of---Further inquiry---F.I.R. was lodged in the case after about three months in which the alleged victim named the brother of accused and accused was not named as an accused---Complainant had sworn an affidavit exonerating brother of accused---Alleged victim had nowhere stated that in fact the zina was committed with her by accused---Accused had been established to have nothing to do with the case, right from the beginning---Brother of accused was named as an accused and even in the petition filed by the complainant's father-in-law, he had mentioned brother of accused as an accused---Intended arrest of accused appeared to be a mala fide on the part of the complainant to falsely implicate him in the case and extract money from him, otherwise there was no reason as to why instead of accused, his brother was originally implicated and later on after a year he was exonerated---Parties were residents of the same vicinity and they were known to each other---Guilt of accused required further probe and inquiry within the meaning of S. 497(2), Cr.P.C.---Ad interim bail granted to accused was confirmed, in circumstances.

A.D. Naseem, for Petitioner.

Malik Nazar Abbas, D.P.G. with Wazir S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 1706 #

2009 Y L R 1706

[Lahore]

Before Maulvi Anwarul Haq and Ali Akbar Qureshi, JJ

Messrs QAZI INDUSTRIES AND 'SCIENTIFIC SUPPLY CORPORATION

through Sole Proprietor---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Higher Education

Department, Civil Secretariat, Lahore and 2 others---Respondents

I.C.A. No. 307 of 2008 in Writ Petition No. 7473 of 2008, decided on 30th October, 2008.

Purchase Manual (Punjab)---

---Para. 17---Rejection of tender---Tender of tenderer had been rejected on the ground that it was not on letterhead of the party submitting tender---Para. 17 of the Purchase Manual (Punjab) made it mandatory that the quotations had to be submitted on the prescribed tender form; however, some exception had been made where the quotations were made on' the letter head---Special Instructions in all pro forma tenders, insisted that tenderers must quote on the prescribed invitation to the tender form---General conditions for various contracts also did not make any provision at all for submission of quotations on a letterhead---Insistence of the authorities that forms should be on the letterhead and rejection of tender/quotation on the sole ground that it was not on the letterhead of the tenderer, was violatative of Purchase Manual (Punjab) as also the general/special instructions contained in the said pro formas.

Arshad Ibal Tarrar for Appellant.

Ch. Rizwan Mushtaq Chaudhry, Asst: A.-G. along with Waheed Ahmad, Superintendent, DPI Punjab, Lahore and Muhammad Mumtaz, Head Clerk, Government College (W), Sumandari.

YLR 2009 LAHORE HIGH COURT LAHORE 1711 #

2009 Y L R 1711

[Lahore]

Before Rana Zahid Mahmood and Kazim Ali Malik, JJ

ABDUL MAJID---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.941 and Murder Reference No. 876 of 2001, heard on 14th October, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Counsel for accused on reconsideration opted to accept the conviction on the charge of murder and requested for lesser penalty with the plea that motive part of the incident escaped notice of the Trial Court while determining question of sentence---Validity---While lodging F.I.R. as well as during course of investigation the prosecution witnesses concealed and suppressed the actual motive which prompted accused to kill the deceased, but at the time they left with no other option, but to admit that deceased had been carrying on with the sister of accused which provoked accused---Two eye-witnesses had made self-contradictory statements regarding the motive---Record in the light of counter-claims of both the sides had established that illicit intimacy of deceased with sister of accused was the only bone of contention---Deceased had himself invited the trouble by developing illicit intimacy with the sister of accused and in that way had contributed towards his killing to some extent---Normal penalty of death in the circumstances was not warranted by law, in circumstances---Sentence of death was commuted to imprisonment for life with the benefit of S.382-B, Cr. P. C. ---In the light of the statements of the two eye-witnesses, it was not difficult to infer that deceased was immoral and his legal heirs were not entitled to any compensation.

Altaf Ibrahim Qureshi for Appellant.

Zulifqar Ali Sindhu, Addl: Prosecutor-General and Muhammad Ramzan Khalid Joya for the Complainant.

Date of hearing: 14th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1715 #

2009 Y L R 1715

[Lahore]

Before Muhammad Saeed Akhtar, J

Mst. RUKHSANA BIBI---Petitioner

Versus

S.H.O. P.S. KAMEER, DISTRICT SAHIWAL and 2 others---Respondents

Writ Petition No. 1848/Q of 2006, decided on 16th May, 2006.

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

---S.10(2)/16---Constitution of Pakistan (1973), Art. 199,--Constitutional petition---Quashing of F.I.R.---Petitioner had appeared in person and stated that she was neither enticed away nor taken away by accused with an intent to commit zina with her---Relationship between respondent husband of petitioner and herself became strained and she went to live with her relative, of her own free will---Petitioner was lodged in Darulaman---Petitioner had further stated that she had also filed a suit for dissolution of the marriage---Nothing had come out during the investigation that offence under S: 10(2) or S.16 of offence of Zina (Enforcement of Hudood) Ordinance, 1979 was committed---F.I.R. registered against the petitioner, was quashed.

Altaf Ibrahim Qureshi for Petitioner.

Mian Mahmood Rasheed for Respondent No.2.

Muhammad Qasim Khan, A.A.-G. with Abdul Jabbar and Rao Muhammad Younas A.S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 1716 #

2009 Y L R 1716

[Lahore]

Before Mian Saqib Nisar, J

ZAFAR IQBAL and 6 others---Petitioners

Versus

Ch. MUHAMMAD ASLAM and 4 others---Respondents

Civil Revision No.383 of 2005, decided on 22nd October, 2008.

Specific Relief Act (I of 1877)---

----Ss.42 & 12---Suit for declaration and specific performance of agreement---Trial Court dismissed the suit and Appellate Court dismissed appeal filed against judgment and decree of the Trial Court---Both courts below recorded concurrent findings of fact that alleged vendor of suit property had died before the date of alleged agreement to sell---Counsel for the plaintiffs had not been able to satisfy if the concurrent findings of fact of the courts below were based upon any misreading or non-reading .of the evidence---Revision petition against concurrent judgments of the courts below being meritless was dismissed.

Zafar Iqbal Chaudhry for Petitioners.

Mian Muhammad Waheed Akhtar for Respondent No.1.

YLR 2009 LAHORE HIGH COURT LAHORE 1718 #

2009 Y L R 1718

[Lahore]

Before Rana Zahid Mahmood, J

MUHAMMAD MUSHTAQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 11480-B of 2008, decided on 5th December, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, grant of---Further inquiry-Accused though was named in the F.I.R., but prosecution witness did not name him in his statement under S.161, Cr.P.C. recorded during the investigation---Statement of said prosecution witness revealed that fatal injury to deceased was caused by a co-accused while accused had been found innocent during Police investigation---No recovery was made from accused---Case against accused being one of further inquiry, he was allowed bail.

Ch. Aftab Ahmad for Petitioner.

Ch. Muhammad Zafar, Deputy Prosecutor General for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 1719 #

2009 Y L R 1719

[Lahore]

Before Mazhar Hussain Minhas, J

MUHAMMAD HUSSAIN and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 200 and Criminal Revision No.182 of 1991, heard on 4th November, 2008.

Penal Code (XLV of 1860)---

----Ss. 302/148/149---Appreciation of evidence---Benefit of doubt---Two prosecution witnesses had supported the prosecution version contained in the F.I.R. with regard to the occurrence as well as motive---Said witnessed stated that 5/6 months prior to the occurrence in the case, in a fight deceased fractured leg of another person who was a cobbler---Said case was got registered by one of accused persons in the present case who had since died, while another accused was a prosecution witness in that case---Accused persons were not having any direct enmity or motive against deceased, whereas deceased and one of the two prosecution witness whose brother was also involved in the case were having grudge against accused persons for pursuing case of said cobbler against them---Validity---Accused persons would not kill deceased who was already facing trial in a criminal case for the sake of said cobbler---Material discrepancies and improvements were found in the statements of the two prosecution witnesses--While lodging the report with the police, one of the said prosecution witness alleged that one of accused persons fired a gunshot at deceased from inside the car, but he did not mention as to whether that fire shot hit the deceased or not---Said witness had made dishonest improvements and while appearing in the court had attributed a chest injury to said accused---F.I.R. showed that co-accused was alleged to have caused fire-arm injury on right knee of the deceased, but in evidence before the court, one prosecution witness had attributed fire-arm injury on right knee of the deceased to one of deceased accused---In view of such dishonest improvements, the evidence of the prosecution witness could not be safely relied upon without strong corroboration through some other evidence which was not available on record---Other prosecution witness was having grudge against one of co-accused who had since died---Evidence of prosecution witnesses had been found discrepant with the medical evidence---Both accused persons were allegedly armed with .12 bore guns at the time of occurrence, but, no weapon had been recovered from them during investigation---Effect---Prosecution had not successfully proved its case against accused persons beyond reasonable doubt and their conviction recorded by the Trial Court was not warranted by law---Conviction and sentence awarded to accused persons, was set aside and they were acquitted of the charge giving them benefit of doubt.

Altaf Ibrahim Qureshi and Rana A.D. Kamran for Appellants.

Mian Bashir Ahmad, DPG for the State.

Date of hearing: 4th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1729 #

2009 Y L R 1729

[Lahore]

Before Syed Asghar Haider, J

MAJEED AHMED KHAN---Petitioner

Versus

ADDL. DISTRICT JUDGE, FAISALABAD and others---Respondents

Writ Petition No. 14077 of 2008, decided on 21st October, 2008.

Specific Relief Act (I of 1877)---

----Ss.12 & 54---Civil Procedure Code (V of 1908), O. VIII, R.10, & O.XXXIX, Rr.1, 2, 4---Constitution of Pakistan (1973), Art.199---Suit for specific performance of agreement and permanent injunction---Striking off defence for failure to file written statement---Interim injunction, grant and vacation of---Plaintiff filed suit for possession through specific performance with prayer for permanent injunction--Interim injunction was granted to the plaintiff by the Trial Court and application filed by the defendant for vacation of injunctive relief was dismissed---Defendant having failed to file written statement, his defence was struck off by the Trial Court and appeal filed by the defendant against judgment of the Trial Court, having been dismissed by the Appellate Court he had filed constitutional petition---Defendant was granted at least 14 opportunities to file written statement, but he having failed to do so within stipulated period of 30 days, order passed by the Trial Court was unexceptionable---Aggrieved of order of the Trial Court defendant filed appeal after almost lapse of one year---Appellate Court found that appeal was not competent and converted the proceedings into a revision petition, but that was also barred by limitation as same was required to be filed within 90 days of the impugned order---Provisions of S.5 of the Limitation Act, 1908 seeking condonation of delay was not applicable to revision petitions--Impugned order being unexceptionable, petition having no merits, was dismissed.

Rao Manzoor-ul-Haque Khan for Petitioner.

2009 Y L R 1757

[Lahore]

Before M.A. Zafar, J

Rana MUHAMMAD SHER---Petitioner

Versus

GOVERNMENT OF PUNJAB-Respondent

Writ Petition No. 1665 of 2006, decided on 4th November, 2008.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Claim for payment of amount for work done by the petitioner---Petitioner had prayed for payment of amount for work done by him as contractor---Parawise comments submitted by the department revealed that the petitioner did not execute agreement with the department on judicial paper regarding terms and conditions of the contract; and petitioner even had failed to produce completion certificate/clearance by Audit department and that bill of the petitioner would be considered after the fulfilment of said requirements---Petitioner did not fulfil the legal requirements---Petitioner was repeatedly called, but no one was present on his behalf in the Court---High Court in its constitutional jurisdiction could not adjudicate upon the disputed question of facts in view of comments submitted by the department, and controverting assertions of the petitioner made in the constitutional petition.

Nemo for the Petitioner.

Syed Shahid Hussain Kazim, A.A.-G.

YLR 2009 LAHORE HIGH COURT LAHORE 1765 #

2009 Y L R 1765

[Lahore]

Before Kazim Ali Malik, J

NAEEM RIZWAN---Petitioner

Versus

ADDITIONAL INSPECTOR GENERAL OF POLICE (INVESTIGATION), PUNJAB, LAHORE and 6 others--- Respondents

Writ Petition No. 1900 of 2008, heard on 6th May, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 156, 157 & 173---Penal Code (XLV of 1860), S.302---Constitution of Pakistan (1973), Art.199---Constitutional petition--Investigation in cognizable cases---Transfer of investigator---Investigator found the evidence deficient to the extent of one of accused persons and placed him in Column No.2 of the challan---Other two accused persons, however were challaned to stand trial on the charge of murder---Feeling aggrieved of the result of investigation favourable to said accused complainant made an application for transfer of investigation, which was examined by the Standing Board constituted and established under the Police Order, 2002 and said Board recommended transfer of investigation---Addl. Inspector General of police informed the Regional Police Officer that the recommendation of the Board had been consigned to record as the case was sub judice---Complainant had filed constitutional petition for transfer of investigation of the case in the light of recommendation of the Standing Board---Challan had been submitted in court against all accused persons---Mere fact that the Investigator had exonerated said accused of the charge, would not absolve him of his liability to stand trial on the charge of murder---Opinion of the Investigator favourable to accused was neither relevant nor admissible in the evidence---Question of guilt or innocence of said accused would be decided by the Trial Court---Reinvestigation of a case after submission of challan, though was permissible, but investigation after submission of challan would be meaningless---Trial Court having already taken cognizance of the case, re-investigation of the case, in circumstances, would not serve any purpose---Constitutional Petition was dismissed by High Court with the observation that petitioner would be at liberty to prosecute his case qua accused before the Trial Court.

Altaf Ibrahim Qureshi for Petitioner.

Date of hearing: 6th May, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1766 #

2009 Y L R 1766

[Lahore]

Before S. Ali Hassan Rizvi, J

Mst. IMRANA NAZIR---Petitioner

Versus

S.P. REGIONAL INVESTIGATION BUREAU, BHAWALPUR and 6 others---Respondents

Writ Petition No. 1847 of 2008, decided on 18th August, 2008.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Petition had been filed by the petitioner lady for restraining the police from creating illegal harassment as she had entered into marriage with a man but respondent was behind her to disgrace her and was creating illegal harassment---Petitioner had alleged that her matrimonial life was in danger---Petitioner had also alleged that Police had also summoned the petitioner in its office in connection with transfer of investigation in the case---S.H.O. present in the court, had undertaken not to create any harassment; in the light of undertaking so given by the S.H.O.---Police was directed not to create any illegal harassment or to interfere into the matrimonial life of the petitioner---Police was also restrained to act otherwise than in due course of law.

Shahzad Ashraf Mohandra for Petitioner.

Ch. Shafi Muhammad Tariq, A.A.-G. with Muhammad Afzal, Inspector/ S.H.O. Respondent No.4 with record.

2009 Y L R 1784

[Lahore]

Before Syed Sajjad Hussain Shah, J

MUHAMMAD ILYAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.722 of 2004, in Criminal Miscellaneous No. 1 of 2007 decided on 1st July, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 426---Penal Code (XLV of 1860), Ss.302(b)/149---Suspension of sentence, application for---Allegation against applicant/accused was that he had caused injury on right knee of deceased with gun .12 bore---Counsel for the applicant had stated that the injury attributed to the applicant by the prosecution could well be a result of firing by co-accused at the deceased and the said injury, even otherwise, did not appear to be result of an independent fire---Applicant was in jail since long and there was no likelihood of hearing of main appeal in the near future---Detention of the applicant for indefinite period in jail, in circumstances, would serve no useful purpose to the prosecution---Even otherwise, case of the applicant was at par with that of co-accused who had been granted bail by the High Court---Applicant was also entitled to same treatment---Sentence awarded to applicant was suspended and he was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Appellant.

Ch. Zulifqar Ahmad Sidhu, Addl: Advocate-General for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 1789 #

2009 Y L R 1789

[Lahore]

Before Rana Zahid Mahmood and Kazim Ali Malik, JJ

ABDUL AZIZ and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 882, 936, Murder Reference No.730 and Criminal Revision No.440 of 2002, heard on 28th October, 2008.

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

----S. 302(6) (c)/34---Appreciation of evidence--.Benefit of doubt---Co-accused, who at relevant time was empty handed, did not touch the deceased and the prosecution witnesses---Only allegation against co-accused lady was that she instigated her husband to kill his younger brother by raising Lalkara--Trial Court convicted co-accused on the charge of murder with an observation that at the relevant time, she was in a commanding position and that in pursuance of her Lalkara, main accused committed the murder of his brother---Proverbial lalkara without an overt act was normally attributed to innocent family members of principal accused---Impugned judgment qua the conviction and sentence of co-accused lady, was self-contradictory---Trial Court concluded that both accused persons committed the crime in furtherance of their common intention---Trial Court also observed in express terms that co-accused lady was in a commanding position and that in pursuance of her commanding Lalkara, principal accused/husband of co-accused fired at deceased and killed him---Despite said observation and conclusion, the Trial Court convicted accused under S.302(b), P. P. C., whereas co-accused was convicted under S.302(c), P.P.C.---Trial Court itself was not certain as to what offence had been committed by co-accused lady---Had she shared common intention with her husband in commission of the offence of Qatl-i-Amad, she should have been convicted under S. 302(b), P.P.C.---Allegation to the extent of co-accused was open to serious doubt---Benefit of doubt, however slight, was right of accused---Impugned conviction and sentence imposed on co-accused, were set aside and she was acquitted of the charge by giving her benefit of doubt and was ordered to be released.

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

----S. 302(b)/34---Appreciation of evidence---Spot where occurrence had taken place, was not in dispute---Keeping in view the venue of the incident, complainant/father of accused and deceased, was the only natural witness of the killing---Outsiders, non-residents of the area and other disinterested persons were not expected and supposed to be present inside or in front of outer gate of the house of the complainant at the relevant time---Other prosecution witness, was son-in-law of the complainant---Claim of said witness that at the relevant time he was present in the house of his father-in-law, was not open to any exception---Said prosecution witness who was brother-in-law of accused, was not inimical or hostile towards accused---Defence counsel could not point out as to why father and brother-in-law of accused deposed against accused---Complainant had prosecuted his case in such a way that it continued for about six years, which was a circumstance which provided a. basis to infer that it was accused, and none else who killed his younger brother in presence of the complainant and other prosecution witness/son-in-law of the complainant---Complainant and prosecution witness deposed with one voice and in a sure footed manner after having stood the test of cross-examination that accused fired at deceased and killed him at the spot within their view---Both complainant and prosecution witness,. were not hostile or inimical towards accused in any manner---Prosecution had successfully proved the charge against accused with truth inspiring and trustworthy 'statements of complainant and prosecution witness---Accused had murdered his younger brother 23 years old unmarried on account of property dispute in front of the house of deceased in presence of his father---Keeping in view the mode and manner of the incident no mitigating circumstances, whatsoever, were available to accused qua the quantum of his sentence---Conviction and sentence imposed on accused by the Trial Court, were upheld and Murder Reference stood answered in affirmative.

Muhammad Imran Rashid Sulehri and Miss Shahida Saeed for Appellants.

Ch. Zulifqar Ali Sindhu, Addl. Prosecutor-General and Altaf Ibraheem for the Complainant.

Date of hearing: 28th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1795 #

2009 Y L R 1795

[Lahore]

Before M.A. Zafar, J

MARGALLA EDUCATION TRUST---Petitioner

Versus

Dr. Col. (Retd.) M. AFZAL KIANI---Respondent

Writ Petition No. 1757 of 2008, decided on 25th November, 2008.

Specific Relief Act (I of 1877)---

----Ss.42 & 55---Qanun-e-Shahadat (10 of 1984), Art.133---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for declaration and mandatory injunction---Closing the right of cross-examination of defendant---Trial Court, after framing the issues, fixed the case for producing evidence by the plaintiff---Statement of the plaintiff was recorded as his own witness and case was adjourned for his cross-examination---On certain dates said witness, appeared for cross-examination, but matter was adjourned at the, request of the defendant for one reason or the other; and ultimately Trial Court closed right of cross-examination of defendant in respect of said witness---Defendant did not challenge said order by filing the revision petition, but filed review application before the Trial Court, which was dismissed---Feeling aggrieved from said order passed by the Trial Court, defendant filed revision petition, before Appellate Court which was dismissed---Parties had agreed that one opportunity could be given to defendant to cross-examine witness/the plaintiff subject to payment of heavy cost---Impugned orders - passed by the Trial Court and Appellate Court were set aside closing the right of defendant to cross-examine the witness---One opportunity was however granted to defendant to cross-examine the witness.

Abdur Rashid Awan for Petitioners.

Abi Waqas Tariq for Respondent No.1.

YLR 2009 LAHORE HIGH COURT LAHORE 1797 #

2009 Y L R 1797

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM HUSSAIN---Petitioner

Versus

Sardar FATEH KHAN---Respondent

Civil Revision No.34 of 2009, heard on 9th April, 2009.

(a) Court Fees Act (VII of 1870)---

----S. 7 (iv) (c)---Suits Valuation Act (VII of 1887), S.8---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Attestation of mutation on basis of decree for specific performance, terms of which defendant had not complied with---Relief sought in suit for declaring such mutation and sale deeds emanating from such mutation to be illegal and void---Court-fee on plaint and appeal, levy of---Scope---Value for purposes of jurisdiction would be determined in accordance with provisions of Suits Valuation Act, 1887---Plaintiff was entitled to put his own valuation as such relief was fully covered by S.9(iv)(c) of Court-Fees Act, 1877.

(b) Court Fees Act (VII of 1870)---

----S. 7 (iv-A) & (v) [as amended by Punjab Finance Act (XIV of 1973)]---Specific Relief Act (I of 1877), Ss. 8 & 42---Suit for declaration of title on basis of sale-deed and recovery of possession of purchased land-Court-fee on plaint and appeal, levy of---Scope---Relief of declaration of title would be valued in accordance with value, of suit property purchased by plaintiff through sale-deed---Relief of possession of purchased land would be valued in accordance with S. 7(v) of Court Fees Act, 1870 as amended by Punjab Finance Act, 1973.

Ch. Afrasiab Khan for Petitioner.

Sardar Zaheer Ahmad Khan for Respondents Nos. 11 to 16.

Nemo for Respondents Nos. 17 to 22.

Date of hearing: 9th April, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1811 #

2009 Y L R 1811

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

ALLAH DITTA---Petitioner

Versus

MUHAMMAD UMAR and others---Respondents

Writ Petition No. 9885 of 2009, decided on 22nd May, 2009.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

----Ss.13(2)(i), 15 & 25---Civil Procedure Code (V of 1908), S.47---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent---Execution petition---Objection to---Ejectment order passed by Rent Controller against tenant on ground of default in payment of rent, having been upheld up to Supreme Court, respondent/landlord filed execution petition and petitioner who was brother of tenant filed objection petition---Said objection petition was dismissed by the Rent Controller 'on the ground that application had been filed by the petitioner under S.47, C.P.C., but said section was of no help to the petitioner/objector for the reason that only question which related to the execution, discharge and satisfaction of . decree between the parties or their representatives could be taken up by Executing Court; and the person who was neither a party nor a representative of a party could not file any objection-Petitioner/objector was real brother of tenant against whom ejectment order was passed which had attained finality up to Supreme Court---Site plan stood fully proved and upheld upto the level of Supreme Court, with regard to which present execution petition was being proceeded against, same could not be interfered with by High Court in its constitutional jurisdiction---Since the site plan had attained finality from the Supreme Court, courts below had rightly rejected objection petition and thereafter the appeal of the petitioner/objector---Constitutional petition was dismissed.

Municipal Committee, Kasur through Tehsil Nazim v. Additional District Judge, Kasur and 3 others PLD 2008 Lah. 230 rel.

Malik Amjad Pervaiz for Petitioner.

2009 Y L R 1823

[Lahore]

Before Zafar Iqbal Chaudhry, J

NAJEEB ULLAH---Petitioner

Versus

Mst. MAKHDOOM AKHTAR and another---Respondents

Writ Petition No. 4583 of 2009, decided on 11th March, 2009.

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

----S. S, Sched. & S. 14---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Suit for dissolution of marriage on ground of khula---Entitlement of husband to recover gold ornaments---Suit was decreed by the Trial Court and wife in lieu thereof was held liable to return the amount of Rs.500, which she had received as Haq Mehr as well as gold ornaments as consideration of khula---Condition for return of the gold ornaments was struck down by the Appellate Court on appeal---Counsel for the husband had contended that wife had herself executed Iqrarnama for the return of the gold ornaments to the defendant in case she demanded for khula---Alleged gold ornaments were not mentioned in the Nikahnama as Haq-e-Mehr---Appellate Court had rightly observed that alleged Iqrarnama was most doubtful document, which could not be relied upon as the wife had fully explained that her signature on the said document was obtained for employment purpose---If husband wanted to divorce the plaintiff, then he should not tease her to get the dower back; that was unlawful for him---Alleged gold ornaments did not include in the Haq-e-Mehr and Appellate Court had rightly found that bridal gifts' given by husband, was absolute property of the wife and it could not be snatched away from her---Counsel for husband had failed to point out any illegality or jurisdictional defect in the impugned judgment and decree of the Appellate Court, which being based on valid reasons, was maintained.

PLD 2004 Lah. 290 rel.

Zahid Hussain Khan for Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 1825 #

2009 Y L R 1825

[Lahore]

Before Kazim Ali Malik and Hasnat Ahmad Khan, JJ

MUHAMMAD RIAZ-Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2636-B of 2008, heard on 28th July, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of--No evidence was on record which could, prima facie, connect accused with the charge against him---Accused was not present when his co-accused led to the recovery of charas from secret cavities of the truck in question---Accused was also not present when the disputed truck had been seized by the Police---Truck in question remained in the custody of Police for about five months---Only 156 kilograms charas had allegedly been recovered from that truck by the Police---Accused was wrongly described as owner of the truck in question, but it belonged to other person---No direct or circumstantial evidence was available in Support of self-assertion of Sub-Inspector of police that accused purchased the recovered charas from his co-accused---Self-assertion could not be the substitute of evidence---Till date case was of no evidence to the extent of accused---Accused could not be and should not be blamed for the disputed recovery of charas at the pointing out of co-accused---Further detention of accused in the case would amount to his illegal confinement---Accused was admitted to bail, in circumstances.

Sardar Khalil Tahir for Petitioner.

Ch. Muhammad Aslam Sindhu, APG for State.

Date of hearing: 28th July, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1831 #

2009 Y L R 1831

[Lahore]

Before Khurshid Anwar Bhinder, J

ALLAH BAKHSH alias BUTT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 10981/B of 2008, decided on 22nd December, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.395/412---Bail, grant of---Further inquiry---Accused was not nominated in the F.I.R. and no role had been attributed to him---Accused was involved in the case in the supplementary statement which was recorded subsequently---No identification parade had been held in order to identify accused---No direct or indirect evidence was available on record which could connect accused with the commission of offence---Apart from cash money certain other articles had also been allegedly robbed by accused persons---Mere recovery of cash amount, would not suffice until and unless it was established that the money recovered from accused, was exactly the same which was robbed by him---Such aspect of the case would cast serious doubt in ones mind regarding commission of said offence---Co-accused had already been granted bail by the Trial Court and role of accused was identical with that of co-accused---Rule of consistency demanded that accused be also allowed bail as his case was not in any manner distinguishable from co-accused, who had already been granted bail---Case of accused being that of further inquiry into his guilt, he was admitted to bail.

Muhammad Ahsan Nizami for Petitioner.

Ishaq Masih Naz, DPG for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 1837 #

2009 Y L R 1837

[Lahore]

Before Saif-ur-Rehman and Rana Zahid Mehmood, JJ

ABDUL RAZZAQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.651 of 2005, heard on 16th September, 2008.

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

----S. 9(c)---Appreciation of evidence---Benefit of doubt---No explanation was on record as to where was the case property kept by the complainant after taking it into his possession---Complainant remained silent about that fact during his statement---No steps were taken for keeping the case property in safe custody---Both prosecution witnesses had stated before the Investigating Officer when examined under S.161, Cr.P. C. that 15 parcels were given to them---However, during their examination-in-chief both spoke about receipt of 6 sealed parcels---Said lapse of the complainant about disposal of the case property in the light of statements of said two prosecution witnesses before the Police that they received 15 parcels and their failure to provide sufficient explanation, when put to test, had created serious dents in the charge---Accused succeeded in' impeaching the credibility of the prosecution witnesses by creating doubts in the prosecution story, the benefit of which was to be given to accused---Impugned judgment of the Trial Court convicting and sentencing accused was set aside and accused was acquitted of the charge and was released.

Sagheer Ahmad Bhatti forAppellant.

Mian Bashir Ahmad Bhatti, D.P.G. Punjab for the State.

Date of hearing: 16th September, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1841 #

2009 Y L R 1841

[Lahore]

Before Syed Hamid Ali Shah and Arshad Mahmood, JJ

MUHAMMAD ISHFAQ AHMAD SIAL---Appellant

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice Chancellor and 2 others---Respondents

I.C.A. No.101 in Writ Petition No.3330 of 2006, heard on 28th April, 2009.

(a) Bahauddin Zakariya University Uniform Semester Rules 2007---

----Rr.2(i) & 11(v)---Student failing to obtain minimum 2-00 CGPA being required for his promotion to next semester---Effect---Uniform Semester Rules, 2007 did not provide for repeating any course of previous semester in order to improve CGPA so to obtain minimum of 2-00---Rules being effective from Academic Sessions, 2007 had no retrospective application---Name of such student would be removed from rolls of department.

Muhammad Awais Akhtar v. Bahauddin Zakariya University and 2 others 2009 CLC 163 rel.

(b) Interpretation of statutes---

---Rules of University---Court could not direct university authorities to interpret its rules in a specific manner as same would amount to interference in internal arrangement of university regarding examination.

----R. 2(i)---Summer camp, holding of---Scope---Holding of such camp, if recommended by Academic Council and approved by Syndicate, would be with valid authority---Joining of students such camp would benefit them intellectually---Duty of University would be to provide complete details to students either in prospectus or admission from about fruits, which they would reap in joining such camp.

Muhammad Amir Bhatti for Appellant.

Malik Muhammad Tariq Rajwana for Respondent.

Date of hearing: 28th April, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1844 #

2009 Y L R 1844

[Lahore]

Before S. Ali Hassan Rizvi, J

Sh. RASHID SHARIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1105 of 2008, heard on 24th March, 2009.

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

----S.5(2)-Penal Code (XLV of 1860), S.161---Appreciation of evidence---Benefit of doubt--Main plank of prosecution case was that the tainted money was recovered from the possession of accused---Evidence on record, however had shown that said amount was never recovered from the immediate possession of accused but instead it was recovered from prosecution witness, the owner of medical store---No evidence was available to show if tainted amount being passed, was a bribe or illegal gratification at the relevant time--Evidence on record had contradicted the contents of recovery memo--Singular statement of complainant would have to be read with a pinch of salt because the evidence of bribe giver would have to undergo a double-check---Prosecution, in circumstances, had not been able to prove its case beyond reasonable doubt---Accused was acquitted of the charge giving him benefit of doubt.

Muhammad Arif Gondal for Appellant.

Azra Israr D.P.G. for the State.

Date of hearing: 24th March, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1861 #

2009 Y L R 1861

[Lahore]

Before Malik Saeed Ejaz, J

Mst. RASHIDAN BIBI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.346 of 2003, decided on 30th October, 2008.

Penal Code (XLV of 1860)---

----Ss.302 & 308---Appreciation of evidence---Benefit of doubt---Story as alleged in extra judicial confession of accused could not be believed due to the reasons that if such confession was actually made by accused, same would have been firstly made before her brothers and mother who were residing in the same house; and why she would make extra judicial confession before a person who was inimical towards her---Said person being husband of accused did not bother to provide financial assistance for his children who were being looked after by accused for the last 9/10 years---Person of such behaviour would not spare accused after knowing the factum of confession and he would have made first attempt to hand over accused to the Police, while he instead of doing so had constrained himself to going to the Police and getting recorded his statement---Conduct shown by both the witnesses who were inimical towards accused, was highly unnatural and unbelievable---Evidence of judicial confession, which was tried to be got proved by the prosecution through prosecution witness, could not be believed as same was not recorded by fulfilling the formalities required under the law---Before recording the confessional statement under S.164, Cr.P. C., the Magistrate did not bother to adopt the measures for the identity of accused---Factum of judicial confession was also not established by the prosecution as evidence led. in that regard was not confidence inspiring---Blood stained chhuri was shown to be recovered from the house of accused after about one and half month of alleged occurrence and both the witnesses of extra judicial confession were cited in the recovery memo, who were inimical towards accused---No witness from the locality was associated in the alleged recovery proceedings---Even otherwise, no one would retain such weapon with him without removing the blood on it and to produce the same before the Police so that same could be used as ' incriminating evidence against him---Prosecution, in circumstances, had miserably failed to prove its case against accused beyond any shadow of doubt--Impugned judgment of the Trial Court convicting and sentencing accused, was set aside extending him benefit of doubt.

Muhammad Rehman Khokhar for Appellant. .

Nadir Manzoor Duggal, D.P.G. for the State.

Date of hearing: 30th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 1868 #

2009 Y L R 1868

[Lahore]

Before Sheikh Hakim Ali, J

MUHAMMAD AKHTAR---Petitioner

Versus

NAZIM UNION COUNCIL and others---Respondents

Writ Petitions Nos. 321 to 325 of 2006, decided on 5th June, 2006.

Conciliation Courts Ordinance (XLIX of 1961)---

---S.6---Conciliation Courts Rules, 1962, R.10(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of amount---Ex parte decree---Plaintiff filed suit for recovery of amount on basis of the supply of pesticide to the defendant---Defendant having failed to appear despite issuance of notice to him; he was proceeded ex parte and ex parte decree was passed against him---Defendant being aggrieved of that order, had filed constitutional petition---Suit which was filed before Nazim, Union Council, showed that defendant was resident of Tehsil 'M' while the plaintiffs were residents of Tehsil H'---From the address even which was displayed and entered by the plaintiff himself, it was evident that both the parties were not residents of the same Union Council--Nazim or Conciliation Court of Union Council at placeH' had no jurisdiction to entertain and adjudicate the suit---Regarding contention that remedy of appeal being available, direct constitutional petition was not competent and could not be entertained, it could be said that availing of remedy of appeal was not necessary, because the High Court had got jurisdiction to entertain the suit which had stemmed out from such judgment and decree which had been passed without jurisdiction---Constitutional petition, in circumstance, could be entertained directly---Moreover, at the stage when the constitutional petition had been admitted for regular hearing, defendants could not be directed to file appeal---Judgments and decrees of the Conciliation Court, were set aside, in circumstances.

2003 CLC 391; 2003 CLC 1030 and 2003 YLR 2398 ref.

Ch. Shakir Ali for Petitioner.

Syed Mubashar Hassan Gillani for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 1870 #

2009 Y L R 1870

[Lahore]

Before Abdul Sattar Goraya, J

Mst. AFZAL JAHAN---Appellant

Versus

MAQBOOL AHMAD BUTT and others---Respondents

R.S.As. Nos.70 and 71 of 2006, heard on 20th May, 2009.

Specific Relief Act (I of 1877)---

----S.8---Contract Act (IX of 1872), S.55---Suit for possession---Agreement to sell suit land in favour of the defendant was executed by the plaintiff---In part performance of agreement, possession of suit land was delivered to the defendant after receiving earnest money and remaining amount was to be paid at the time of attestation of the sale or on specified date---Defendant in the meantime also brought a suit for specific performance of contract---Both suits were consolidated and the Trial Court decreed suit filed by the plaintiff/vendor and dismissed the suit brought by the vendee/defendant---On filing appeal suit filed by the plaintiff was dismissed and suit filed by the vendee for specific performance of contract was' decreed---Counsel for the plaintiff maintained that the time was essence of the contract and in any case defendants were bound to perform their part of contract upto specified date, whereafter no decree could be passed in their favour---Validity---Notice under S.55 of the Contract Act, 1872 was not given by the plaintiff to make it essence of the contract---No notice, in circumstances, to perform the agreement to sell was given by the plaintiff to the defendants---Nothing could be attributed to the defendants that they wilfully avoided to get the sale deed executed---Sufficient evidence had been brought on record to reach at a conclusion that the matter remained under the encumbrances of the injunctive order issued by the civil court in respect of the suit property, which was instituted in respect of joint khata---Judgment and decree passed by the Appellate Court was rich in detail and each and every aspect had been dealt with minutely---No case for interference by the High Court having been made out, appeals were dismissed.

Seth Essabhay v. Saboor Ahmad PLD 1972 SC 39; Ghulam Nabi and others v. Seth Muhammad Yaqoob and another PLD 1983 SC 344; ISSO and another v. Muhammad Ismail and another 1992 MLD 1787; and Muhammad Nawaz Khan and others v. Mst. Farrah Naz PLD 1999 Lah. 238 and Abdul Aziz v. Abdur Rehman 1994 SCMR 111 ref.

Abdul Majeed Khan for Appellant.

Syed Kaleem Ahmad Khurshid for Respondent.

Date of hearing: 20th May, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1879 #

2009 Y L R 1879

[Lahore]

Before Anwar-ul-Haq Pannun, J

SHAHZAD MUNIR---Petitioner

Versus

NAZIM/CHAIRMAN ARBITRATION COUNCIL, Lahore and 2 others---Respondents

Writ Petition No. 2113 of 2009, decided on 31st March, 2009.

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

----S.7---Constitution of Pakistan (1973), Art.199---Certificate of effectiveness of Talaq---Cancellation of said certificate---Petitioner divorced his wife and ninety days period after the pronouncement/sending of notice to the Chairman Arbitration having elapsed, Chairman Arbitration Council, Union Council concerned issued a certificate of effectiveness of Talaq as required under S.7 of the Muslim Family Laws Ordinance, 1961---After more than two years of effectiveness of Talaq, Naib Nazim Union Council cancelled certificate of effectiveness of Talaq---Petitioner had challenged cancellation of certificate of effectiveness of Talaq contending that Naib Nazim Union Council had no authority to revoke the earlier order of effectiveness of Talaq---On Court Notice, Nazim of Union Council concerned appeared in court along with relevant record and apprised the court that Naib Nazim, who had cancelled certificate of effectiveness of Talaq had died and that he did not own the documents allegedly having been issued by deceased Naib Nazim---Petition was disposed of with the observation that as no record was available with the Union Council regarding certificate cancelling effectiveness of Talaq, it appeared that it had been manipulated---Even otherwise after a lapse of more than two years, Naib Nazim Union Council had no authority to revoke the certificate of Talaq.

Rao Manzoor-ul-Haq Khan, for Petitioner.

Fawad Malik AA.-G. for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 1891 #

2009 Y L R 1891

[Lahore]

Before Rana Zahid Mehmood, J

Mst. AMINA SAEED KHAGA---Petitioner

Versus

JUDGE FAMILY COURT, LAHORE and another---Respondents

Writ Petition No. 3649 of 2008, decided on 11th March, 2009.

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

----S.5 & Sched.---Constitution of Pakistan (1973), Art.199---Suit for dissolution of marriage filed through special attorney---Dismissal of Suit---Suit for dissolution of marriage filed by the plaintiff through her special attorney was dismissed on the ground that special power of attorney placed on record was written on simple paper without payment of stamp duty and also was not verified by the Oath Commissioner---Counsel for the plaintiff had submitted that since the plaintiff was present in the High Court, she could also appear before Judge Family Court and any illegality or irregularity highlighted by the Family Court on the special power of attorney could be cured---Counsel had requested that ease be remanded to the Trial Court for proceeding in accordance with law and that the plaintiff undertakes to appear before the Trial Court---Since the plaintiff was present before the High Court, she could conveniently appear before the Family Court and the irregularity or illegality in the execution of the special power of attorney in favour of special attorney could be rectified and cured by her personal appearance before the Trial Court---Case was remanded to the Trial Court to proceed further in accordance with law after the plaintiff appeared before it in person and supported the execution of special power of attorney through her specific statement in accordance with law.

Raja Jahanzeb Akhtar for Petitioner.

Respondent No.2 ex parte.

YLR 2009 LAHORE HIGH COURT LAHORE 1908 #

2009 Y L R 1908

[Lahore]

Before Abdul Sattar Goraya, J

Rana MASOOD SARWAR---Petitioner

Versus

MAQSOOD AHMAD---Respondent

Civil Revision No. 2016 of 2006, heard on 1st June, 2009.

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

----S. 13---Pre-emption suit---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Plaint finding mention only date, but not time of gaining knowledge of sale by pre-emptor---Effect---Formalities for exercise and enforcement of right of pre-emption must be observed and construed strictly for same being a feeble right---Departure from such formalities and absence of proof of performance of Talbs would result into dismissal of suit---Suit was dismissed in circumstances.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Muhammad Iqbal v. Ali Sher 2008 SCMR 1682; Muhammad Suleman v. Shaukat Ali 2009 SCMR 678 and Mst. Saleem Akhtar v. Chaudhry Shaukat Ahmed 2009 SCMR 673 rel.

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

----S.115---Revision---Concurrent findings of fact of Courts below---Validity---High Court would not interfere in such findings in absence of misreading of evidence, jurisdictional defect, ' illegality or irregularity of vitiative effect.

Allah Ditta and 5 others v. Mst. Rasoolan Bibi through Legal Heirs and 6 others PLD 2006 Lah. 693 rel.

Irshad Ahmad Cheema for Petitioner.

Ch. Ishtiaq Ahmad for Respondent.

Date of hearing: 1st June, 2009. .

YLR 2009 LAHORE HIGH COURT LAHORE 1916 #

2009 Y L R 1916

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD KHALID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5336/B of 2009, decided on 28th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.406 & 506---Ad interim pre-arrest bail, confirmation of---Accused though was nominated in the F.I.R. with specific role, but it had to be seen as to whether provisions of law under which accused was liable to be tried were attracted in the case or not---Accused was merely witness to Nikah Nama about which nothing was on record which could prove the fact that they were the members of "Gang" which advertised in the newspaper regarding proposal of the marriage and subsequently fleeced innocent people--Investigating Officer had not been able to establish anything in that regard---Complainant or her other family members should have been vigilant enough at time of marriage and they should have enquired fully as to whether person with whom she was entering into martial ties, was already married person or not--Levelling allegations after the marriage, were not justified---Such aspect of the case proved mala fides on the part of the complainant to falsely implicate accused with the commission of offence---Accused was only witness to the nikahnama and in that regard---Co-accused who was also witness to Nikahnama, had already been granted bail by the Trial Court---Case of accused was at par with co-accused---Keeping in view the rule of consistency, accused was entitled to the confirmation of ad interim pre-arrest bail---Ad interim pre-arrest bail was confirmed, in circumstances.

Muhammad Gul Zaman for Petitioner.

Malik Riaz for the Complainant.

Saeed Ahmed Sheikh, DDPP with Aslam, A.S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 1922 #

2009 Y L R 1922

[Lahore]

Before Hasnat Ahmad Khan and Zubda-tul-Hussain, JJ

IKRAM ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1744 of 2006, heard on 29th April, 2009.

Penal Code (XLV of 1860)---

----S.449---Explosive Substances Act (VI of 1908), S.41-Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Appreciation of evidence---Sentence, reduction in---Very evidence of defence witness would not be sufficient to disprove the prosecution regarding the mode and the route of attack adopted by the assailants---Though all co-accused had been acquitted by the Trial Court while the evidence against all of them was the same, but it could not be denied that principle of sifting the grain from the chaff, was duly recognized by the criminal jurisprudence---When the situation otherwise was not clear to establish the criminal liability, then there was need to discover the truth---Courts were well within their domain to draw an inference and determine the liability of real culprits on the principle of sifting the grain from chaff---Prosecution, in circumstances had established its case against accused through direct, cogent and coherent evidence of the eye-witnesses, which was duly corroborated by the circumstances including the medical evidence---Trial Court, in circumstances, had rightly recorded the conviction against accused---Deceased, however, was a known criminal and scoundrel of the first order dealing with the offences like theft, illicit arms, stolen property, intoxication, attempt to murder, Police encounter etc. ---Deceased had also a serious dispute of possession of the house with accused and his father---Deceased was a notorious person and was involved in a large number of criminal cases---Sufficient extenuating circumstances existed in favour of accused for reducing his sentence from death to imprisonment for life---Sanction of Central Government for prosecution for an offence against Explosive Substances Act, 1908 was a condition precedent for the trial of accused, which sanction was missing in the case---Sentence imposed upon accused under S.4 of the Explosive Substances Act, 1908, being not sustainable in law, conviction of accused to that extent was set aside---While maintaining the conviction of accused, his sentence was reduced from death to imprisonment for life---Order of compensation, however was upheld.

Tawaib Khan and another v. The State PLD 1970 SC 13 and Shahid Raza and another v. The State and another 1992 SCMR 1647 and Mushtaq Ahmed v. The State PLD 2004 SC 15 ref.

Azam Nazeer Tarar for Appellant.

Muhammad Adeel Aqil Mirza for the State.

Khawaja Sultan Ahmad for the Complainant.

Date of hearing: 29th April, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1930 #

2009 Y L R 1930

[Lahore]

Before Iqbal Hameed-ur-Rahman and Khawaja Farooq Saeed, JJ

Shaikh ALL-UD-DIN---Petitioner

Versus

ELECTION TRIBUNAL, LAHORE HIGH COURT, LAHORE and

12 others---Respondents

Writ Petition No.4835 of 2009, decided on 11th May, 2009.

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

----Ss.55(3) & 63---Civil Procedure Code (V of 1908), O. VI, R.15 & O. VII, R.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Verification of pleadings and affidavit---Non-compliance of provisions---Effect---Petitioner contested election to the seat of Punjab Provincial Assembly and was declared returned candidate---Respondent called in question the validity of the said election by filing election petition which was pending before the Election Tribunal---.Petitioner filed application under S.63 of the Representation of the People Act, 1976 read with O. VII, R.11, C.P.C. for the rejection of the election petition and the same was dismissed by Election Tribunal---Petitioner asserted that the election petition moved by respondent had not complied with the mandatory provisions of law as to verification of the election petition as well as the verification of the affidavit---Such was very significant omission in both verification of the election petition and also in the affidavit---Respondent was required to verify according to his own knowledge and not only on information which he believed to be true, as was required under the provisions of O. VI, R.15(2), C.P.C.---Non-compliance of the mandatory provisions of the law regarding the verification of pleadings was fatal which under S. 55(3) of the Representation, of the People Act, 1976 entails . that every election and every schedule or annex thereto shall be signed by the petitioner and verified in the manner laid down in. the Code of Civil Procedure, 1908 for verification of the pleadings---High Court accepted the constitutional petition and dismissed the election petition.?

Ch. Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCMR 34; Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362; Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600; Engineer Jamal Ahmad Malik v. Shaukat Aziz and 6 others 2007 CLC 1192; Syed Saghir Ahmd Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165 and Ch. Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCMR 34 ref.

Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 ref.

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

----S. 55(3)---Civil Procedure Code (V of 1908), O. VI, R.15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Attestation and verification of affidavit on different dates---Validity---Petitioner contended that affidavit was attested by the Oath Commissioner a day before verification of the election petition---Affidavit was attested on 17th of March, 2008 by the Oath Commissioner while the verification of the deposition had been made on the 18th of March, 2008 was irreconcilable in nature which nullified the attestation made by the Oath Commissioner on 17th of March, 2008 when the same was being sworn a day before attestation, such affidavit would be deemed not duly verified on oath---High Court accepted the constitutional petition and dismissed the election petition---Requirements of law including verification of petition in terms of S.55(3) of Representation of the People . Act, 1976 for having prescribed a penalty of dismissal of petition for its non-compliance had become mandatory---Such defect in verification, whether pointed out by respondent or not Election Tribunal would be bound to ensure compliance of such mandatory provisions---High Court accepted the constitutional petition and dismissed the election petition.?

Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 rel.

----Arts. 225 & 199---Constitutional petition--- Election petition---Maintain?ability---Scope---Respondent contended that by virtue of Art.225 of the Constitution, there was complete bar against exercise of constitutional jurisdiction under Art.199 and constitutional petition was not maintainable---Respondents further contended that no forum was provided to challenge interlocutory orders arising out of an election petition under the provisions of election laws---Validity---Powers of High Court could not be curtailed on mere fact that question of -law brought before the High Court directly or indirectly related to election dispute rather the High Court had to determine the question of its jurisdiction in light of facts of a case before it and points involved therein---Constitutional jurisdiction under Art.199 of the Constitution could be exercised at any stage in all matters of elections involving questions of law or interpretation of law in respect of an election dispute---In all election matters at all stages, the jurisdiction of the High Court under Art.199 of the Constitution or that of Election Commissioner of Pakistan, a constitutional forum, was not completely ousted by virtue of Art.225 of the Constitution---High Court accepted the constitutional petition and dismissed the election petition pending before the Election Tribunal.?

Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49, Islamabad and others PLD 2008 SC 487; Ch. Muhammad Arif Hussain v. Rao Sikandar Iqbal and 10 others PLD 2008 SC 429 and Muhammad Hussain Babar v. Election Commission of Pakistan through Secretary and others PLD 2008 SC 495 rel.

Ahmad Waheed Khan for Petitioner.

Sheram Sarwar assisted by Ch. Sultan Mehmood for Respondents.

Date of hearing: 22nd April, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1938 #

2009 Y L R 1938

[Lahore]

Before Tariq Shamim and M.A. Zafar, JJ

SARWAR KHAN---Appellant

Versus

MUHAMMAD AYUB and another---Respondents

Criminal Appeals Nos.239, 284 of 2007, 51 of 2008, Criminal Revision No.131 and Murder Reference No.396 of 2007, heard on 17th February, 2009.

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

----Ss.302(b)/34, 324/34, 337-D & 302(c)--Appreciation of evidence---Deposition of injured witness---Credibility---Principle---Evidence of an injured witness to have intrinsic value must not suffer from intentional material improvements---If a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon and his credibility becomes doubtful.

Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825 rel.

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

----Ss.302(b)/34, 324/34, 337-D & 302(c)--Appreciation of evidence---Complainant had suppressed material facts in the F.I.R., in particular the injuries suffered by the accused and his co-accused son and the damage caused to their car---Motive was not strong enough for mounting a murderous assault on so many persons---Eye-witnesses had introduced new facts in order to bring ocular account in line with medical evidence---Three accused were not found even to be present at the place of occurrence at the relevant time during police investigation---Prosecution had implicated the entire family of the accused in the case including his two sons who were students and his aging father---Prosecution evidence being replete with material discrepancies and improvements was not creditworthy, whereas defence evidence appeared to be closer to truth and the defence plea raised by accused might as well be true--Right of self-defence was a fundamental right guaranteed by law---Occurrence had taken place while the accused and his son were passing on the main road in their car from near house of the complainant---Complainant and others, five in number while armed with "Lathis "and knife opened an attack on the accused and his son, who after having sustained injuries retaliated resulting in the death of two persons and injuries to three witnesses---Car had also been damaged prior to firing by the accused---Accused had the right of private defence of his own person and that of his son and his property in circumstances no doubt, but he in the process had exceeded the right---Conviction and - sentences awarded to accused were consequently set aside and instead he was convicted under S.302(c), P.P.C. read with S.100, P.P.C. and sentenced to 14 years' R.I. in circumstances.

Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825 rel.

---Ss. 96, 97, 98, 99, 100, 101, 102, 103, 104, 105 & 106---Right of self-defence, exercise and extent of---Once an occasion of the exercise of the right of private defence has arisen, the accused cannot be expected to regulate the extent of force to be used by him to keep his act within the limits prescribed by the law and therefore, the law gives some marginal latitude to the accused---Where the force used is grossly out of proportion to the danger precipitated by the assailant or the force used after the danger is over that the law considers such force to be in excess of the right of self-defence and imposes punishment.

Muhammad Ghani for Appellants.

Ahsan Rasool Chattha, Dy. P.-G. for Respondents.

Muhammad Asif Ismail for the Complainant.

Date of hearing: 17th February, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1950 #

2009 Y L R 1950

[Lahore]

Before Ijaz Ahmed Chaudhry, J

KHALID RIZWAN & CO through Proprietor---Petitioner

Versus

PUNJAB COOPERATIVE BOARD FOR LIQUIDATION through

Chairman and 7 others---Respondents

Petition No.70/C of 2006, decided on 19th May, 2009.

Punjab Undesirable Co-operative Societies (Dissolution) Act (I of 1993)---

----S. 11---Limitation Act (IX of 1908), S.5---Application for condonation of delay--Scope---Application under S.11 of Punjab Undesirable Co-operative Societies (Dissolution) Act, 1993 was filed after more than sixty days before the Co-operative Judge---Respondents contended that S.5 of Limitation Act was not applicable as it was a special law and delay in filing the application against order of Judicial Officer could not be condoned---Validity---No provision of Punjab Undesirable Co-operative Societies (Dissolution) Act, 1993 empowered the Co-operative Judge to entertain an application under S.5 of the Limitation Act, 1908 which stated that it did not automatically apply to all the enactments but its application had to be specifically extended to the provisions of any enactments---High Court refusing to interfere dismissed the application for condonation of delay.

Muhammad Hanif v. Collector/Deputy Commissioner, Kasur and 2 other PLD 1982 Lah. 239 and Rana Zulfiqar v. Judicial Officer and other 2007 CLC 1542 rel.

Javed Iqbal Bhatti for Petitioner.

Ahmad Hassan Anweri for PCBL.

YLR 2009 LAHORE HIGH COURT LAHORE 1955 #

2009 Y L R 1955

[Lahore]

Before Rana Zahid Mahmood, J

FAZAL ABBAS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1348/B of 2009, decided on 26th February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Complainant, real brother, and mother of the deceased as well as another eye-witness, all mentioned in the F.I.R., had appeared before High Court along with their affidavits and denied participation of the accused in the commission of the murder of the deceased, which according to them had been committed by some unknown person at the instance of the husband of the deceased---Said husband of the deceased had filed a private complaint against the accused in which accused had been summoned, but he was not mentioned in the F.I.R. as an eyewitness of the occurrence---All the prosecution witnesses of the F.I.R. had also appeared with their affidavits before the Trial Court and exonerated the accused from the commission of the offence---Case against accused required further inquiry in circumstances and he was admitted to bail accordingly.

1991 SCMR 111; 1997 SCMR 32 and 2004 MLD 1 rel.

PLD 2008 Lah. 268 ref.

Rai Muhammad Abdullah Salim Bhatti for Petitioner.

Ch. Muhammad Zafar Khan, Dy. P.-G. along with Samar Abbas, A.S.-I. for the State.

Ibne Hassan for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 1971 #

2009 Y L R 1971

[Lahore]

Before Hafiz Tariq Nasim, J

IFTIKHAR ALI---Petitioner

Versus

DISTRICT POLICE OFFICER, NANKANA SAHIB and 2 others---Respondents

Criminal Miscellaneous No.1267/H of 2008, decided on 7th November, 2008.

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

----Ss.491 & 497---Habeas corpus petition-Detenu, twelve years old student of school, no doubt was nominated in an F.I.R., but he was detained by the police in illegal confinement without recording his arrest in daily diary for six days and without producing him before any competent Court of law, violating the specific provisions of law-According to police record detenu was not a previous convict---Habeas corpus petition was converted into bail petition and the detenu was released on bail in circumstances.

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

----S. 491---Habeas corpus petition---Detenu was neither named in the F.I.R. nor required to the police in any other case---S.H.O. and a Sub-Inspector had illegally taken away the detenu from his house and had not only detained him in the police station without any justification, but also subjected him to severe torture in order to know about the whereabouts of his absconding son involved in some criminal case---Such inhuman act was a clear and abrupt violation of not only fundamental rights as guaranteed by the Constitution, but also of the human rights granted to every individual by the International law--Innocent man could not be illegally confined and tortured to get information about his relative or any other person involved in any offence, who was absconding from the police---Both the said Police Officers had abused their powers and the process of law and should be held responsible not only by the High Court, but also by their authorities in order to set an example for others---Detenu was consequently set at liberty, but with special costs of Rs. 1,00,000 recoverable from the Sub-Inspector who had detained the detenu in illegal custody and Rs.50,000 recoverable from the Inspector S.H.O. who had failed in his duty to ensure that his police station was free from power abusing officials---Recovered amount was directed to be paid to the detenu as a token of compensation for his illegal detention and physical torture---Petition was disposed of accordingly.

Ch. Azhar Siddique Cheema for Petitioner.

Malik Nazar Abbas, D.P.-G. with Muhammad Iqbal, S.H.O., Jahangir, S. -I. and Sajjad Abbas A.S.-I. for the Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 1977 #

2009 Y L R 1977

[Lahore]

Before S. Ali Hassan Rizvi, J

GHULAM MUSTIFA and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5624/B .of 2009, decided on 22nd June, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.436/337-H(ii)/148 & 149---Bail, refusal of---According to the result of investigation, offence had been established against accused persons---Recovery had been effected from them---Police also recovered many articles including roof material and burnt material of a large number of articles---Recovery of empties at large scale had been effected---Role of accused persons to be members of unlawful assembly in prosecution of common object and the commission of the offence had been established and accused had not agitated for transfer of investigation---Object to burn the house of the complainant and to put at fire by sprinkling petrol and kerosene oil had been achieved---Recovery of empties, prima facie for resorting to aerial firing connected with the offence---Accused had travelled beyond their object and burnt every thing of the complainant---Mere denial of participation with any overt act was not sufficient to hold that accused were not vicariously liable for act done by every member of the unlawful assembly, because participation in the occurrence armed with deadly weapons, would be sufficient---Offence allegedly had taken place in a dreadful manner---Keeping in view ferocity of attack, use of firearm, existence of criminal intention and element to the prior concert of mind, case was not fit for grant of bail.

Muhammad Akram Chaudhary for Petitioners.

Mrs. Azra Israr, D.P.-G. with Muhammad Aslam Inspector for the State.

Shahid Shaukat and Ch. Muhammad Munir, for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 1983 #

2009 Y L R 1983

[Lahore]

Before Khawaja Muhammad Sharif, CJ

LIAQAT HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1129/M of 2009, decided on 12th June, 2009.

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

----S. 561-A---Penal Code (XLV of 1860), S.489-F---Announcement of final judgment in the criminal case sought to be stayed till the decision of the civil suit qua the same subject-matter---Case had a chequered history---Admittedly accused had issued a cheque which was dishonoured and a criminal case had been registered against him---Accused being on bail had started adopting dilatory methods to avoid conclusion of the criminal trial; filed a civil suit, then started moving applications to the Trial Court, Appellate Court as also the Revisional Court to stay the proceedings, but he remained unsuccessful---Pendency of civil suit could not be a ground to stay criminal proceedings---Criminal proceedings were not barred in presence of civil proceedings and civil and criminal proceedings could be proceeded simultaneously---For the last more than three years trial was pending but had not yet concluded, which being a mockery of law could not be allowed---Petition was meritless and was dismissed accordingly.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 rel.

1995 SCMR 1621; 2008 PCr.LJ 469; 1972 SCMR 85; PLD 1985 SC 134 and 1993 SCMR 2177 ref.

(b) Administration of justice---

----Civil and criminal proceedings---Simultaneous running---Criminal proceedings are not barred in presence of civil proceedings and civil and criminal proceedings can proceed simultaneously.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; PLD 1985 SC 134 and 1993 SCMR 2177 ref.

Pir S.A. Rashid for Petitioner.

Rana Bakhtiar Ali, Dy. P.-G. for the State.

Miss Aaliya Naeelam for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 1988 #

2009 Y L R 1988

[Lahore]

Before Khalil Ahmad, .1

FESCO LIMITED through Chief Executive, Faisalabad and 3 others---Petitioners

Versus

LIAQAT ALI---Respondent

Civil Revision No.485 of 2008, decided on 5th March, 2009.

Electricity Act (IX of 1910)---

----S. 54-C [as amended by Electricity (Amendment) Ordinance (LXII of 1979)]---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, R.1, 2 & S.115---Suit for declaration and permanent injunction---Application for stay order under O.XXXIX, Rr.1 & 2, C.P.C.---Trial, Court accepted application subject to deposit of half amount of detection bill---On filing appeal against judgment of the Trial Court, Appellate Court modified order of the Trial Court and stay was granted subject to payment of 1/4th of the detection bill---Validity---Under amended S.54-C of Electricity Act, 1910 till the time outstanding electricity charges had been deposited in the court, the order of temporary injunction restraining Authorities to discontinue the supply of electricity to the plaintiff/consumer would be violative of express provisions of Electricity Act, 1910--Orders passed by the courts below to deposit 1/2 or 1/4th of the detection bill, in circumstances, was against clear provisions of amended S.54-C of the Electricity Act, 1910, which could not be sustained---Consumer/plaintiff could be granted stay by the courts below if he had deposited the full amount of detection bill---Order accordingly.

Water and Power Development Authority through Chairman and 5 others v. Messrs Kashmir Steel Furnace alias T.I. Steel Furnace 1999 CLC 492; Muhammad Akbar v. WAPDA through Chairman WAPDA House Lahore and 3 others 1999 CLC 1198 and Mst. Raisa Bibi v. The Sub Divisional Officer (E) WAPDA, Operation Sub-Division, Mansehra and 2 others PLD 1990 Pesh. 105 rel.

Saeed Ahmad Bhatti-I for Petitioner.

Respondent: Ex parte.

YLR 2009 LAHORE HIGH COURT LAHORE 1991 #

2009 Y L R 1991

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD JAHANGIR and 6 others---Appellants

Versus

SHAHEEN BIBI and 8 others---Respondents

Second Appeal from Order No.128 of 2008, heard on 4th June, 2009.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13, 13-A & 15(6)---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.30---Ejectment petition---Grounds of default in payment of rent and personal need---Relationship of landlord and tenant---Petitioner claiming to have purchased evacuee shop from its allottee---Dismissal of earlier ejectment petition for want of proof of petitioner's ownership---Filing of present ejectment petition by petitioner after obtaining declaratory' decree regarding his ownership from Civil Court---Ejectment order passed by Rent controller set aside by Appellate Authority on ground that petitioner had neither asserted in ejectment petition nor proved that respondent had entered in disputed shop as his tenant---Validity---Substance of ejectment petition and history of case stated therein would show that petitioner in fact was asserting that respondent was his tenant---Omission to use of word "a tenant" in ejectment petition would hardly make any difference, when petitioner's title was undisputed and he was claiming tenancy on its basis---Respondent had failed to show as to how he entered into possession of shop---Respondent's possession being admittedly illegal same could not be protected---After purchase of shop being evacuee property from its allottee by petitioner, statutory tenancy had come into being between parties as respondent was claiming to be in possession thereof soon after independence of Pakistan---Earlier ejectment petition would serve as notice to respondent under S.13-A of West Pakistan Urban Rent Restriction Ordinance, 1959---Respondent had contumaciously denied relationship of landlord and tenant between parties after passing of such decree in favour of petitioner---Such denial of respondent coupled with closure of his evidence would be sufficient to hold that both title and tenancy were proved and case fell within realm of rule of forfeiture of tenancy---High Court accepted appeal, set aside order of Appellate Authority and upheld order of ejectment passed by Rent Controller.

Malik Arshad Abbas for Appellants.

Saleem Anwar Khan for Respondents.

Date of hearing: 4th June, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 1994 #

2009 Y L R 1994

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

JAFARI & CO. through Muhammad Javed ---Petitioner

Versus

TEHSIL MUNICIPAL ADMINISTRATION (T.M.O.), SHEIKHUPURA and

4 others---Respondents

Writ Petition No.8141 of 2009, decided on 4th June, 2009.

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

----S. 190---Constitution of Pakistan (1973), Art.199---Constitutional petition---Tenders for development program---Cancellation of the tendering process---Tehsil Municipal Administration ("TMA ") invited tenders for the development program for the year 2008-09---Petitioner being one of the registered contractors participated in the process---Contention of the petitioner was that no tender was issued to anyone which was reflected through report regarding tendering process of TMA by District Officer Coordination=-Petitioner further contended that tenders had been issued to favourites on political basis against heavy cost, which was in violation of the rules of the Local Government depriving the petitioner and others of their genuine and lawful rights---Validity---Petitioner duly participated in the tendering process as was evident from the deposit receipt as well as the tender forms submitted by the petitioner and the list of the attendance of the contractors, on which the petitioner had signed---Petitioner had not approached the High Court with clean hands and had made material concealment---Assertion of the petitioner that no tenders were issued completely fell to the ground when the petitioner himself had participated in the said proceedings---Tender proceedings were duly initialed and the tender forms were issued after the rumours regarding the injunctive order by the court had been found to be false alarm and thereafter, the tender proceedings were duly conducted on the specified date and time---Work orders were issued to 920 participants---High Court declined to entertain matter in constitutional jurisdiction in circumstances.

(b) Punjab Local Government (Appeal) Rules, 2002---

----R. 4, Sched. 1, Column 3--- Punjab Local Government Ordinance (XIII of 2001), S.190---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Cancellation of tendering process---Petitioner had alternative remedy of filing an appeal within 30 days according to S.190 of the Punjab Local Government Ordinance, 2001 and the petitioner instead of filing appeal had filed constitutional petition under Art.199 of the Constitution---Petitioner had remedy of filing appeal but he did not avail that remedy---Constitutional petition was not maintainable in view of the alternative remedy available--- Constitutional' petition being not maintainable, having no merits, was dismissed by High Court.

Mian Ghulam Rasool and Rana Irfan Ahmad Khan for Petitioner.

Mian Ahmad and Dr. M. Mohy-ud-Din Qazi for Respondents Nos.1 to 3.

Baby Tabassum for LG and CD/Respondent No.5.

Shah Faisal Aziz, Assistant Director (Legal).

YLR 2009 LAHORE HIGH COURT LAHORE 1999 #

2009 Y L R 1999

[Lahore]

Before Khurshid Anwar Bhinder, J

LIAQAT alias SAAIN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.904/B of 2009, decided on 17th February, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 337-L(ii), 148 & 149---Bail, grant of---Further inquiry---Accused persons no doubt were nominated in the F.I.R. with specific role, but one of accused persons was empty handed at the place of occurrence and no role had been assigned to him and no recovery had been effected from him as well---Accused was simply armed with Danda and simple injury had been attributed to him which had been declared an offence under S. 337-L(ii), P.P.C. which was bailable in nature---Accused persons were not liable to be tried under Ss. 324 & 302, P.P.C. because had there been any intention of committing murder of the deceased, they could have also caused grievous injuries as well---Above all free fight took place between the parties and it was not really known as to which one was the aggressor party and it was to be seen at the time of trial of the case on the basis of evidence as to which party had launched attack first---Accused persons case being that of further inquiry into their guilt, they were admitted to bail, in circumstances.

Mushtaq Raj for Petitioners.

Ishaq Masih Naz, D.P.G. with Abid, A.S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 2013 #

2009 Y L R 2013

[Lahore]

Before Maulvi Anwarul Haq, J

LAHORE DEVELOPMENT AUTHORITY through Director-General, L.D.A., Lahore---Petitioner

Versus

MUKHTAR AHMED and 2 others---Respondents

Civil Revisions Nos.881 and 882 of 1997, heard on 8th May, 2009.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 17---Dismissal of appeal for non-prosecution on a date fixed for ﻣﺰﻳﺪﻛﺎﺭﻭﺍﺋﻯ---Validity---Appeal for absence of appellant could be dismissed only on a date fixed for its hearing---Date of hearing in matter of an appeal would be the date on which arguments would be heard---Present appeal was not fixed for hearing, thus, could not have been dismissed for non-prosecution---High Court set aside impugned order in circumstances.

Manager, J & K, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 fol.

Rashid Ahmed for Petitioner.

Respondents Nos.1 and 2: Ex parte.

Nemo for Respondent No.3.

Date of hearing: 8th May, 2009.

2009 Y L R 2062

[Lahore]

Before Syed Shabbar Raza Rizvi and Habib Ullah Shakir, JJ

ADNAN SAEED---Appellant

Versus

INSPECTOR-GENERAL OF POLICE (PUNJAB), LAHORE and 2 others---Respondents

I.C.A. No.387 of 2008 in Writ Petition No.13221 of 2008, decided on 2nd June, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 154 & 200--Law Reforms Ordinance (XII of 1972), S.3---Registration of criminal case--Earlier, appellant filed petition before Ex-officio Justice of Peace for registration of criminal case against respondent---On said petition, Justice of Peace passed order that as prima facie the matter between the parties was of civil nature, there was no justification to pass any order for registration of criminal case--Said order of the Justice of Peace having been upheld by Single Judge of High Court in constitutional petition---Intra court appeal was filed----Held, filing of private complaint before a competent court, in circumstances, was an adequate remedy-Counsel for the appellant if chose to file a private complaint, the Trial Court would decide the same after considering the evidence adduced by the parties expeditiously and strictly in accordance with law.

PLD 2005 Lah. 470 ref.

Ch. Abdul Ghaffar for Appellant.

Mazhar Sher Awan, Addl. P.-G., Punjab "along with Asif, D.S.P. for the State.

Muhammad Younas for Respondent No.3.

YLR 2009 LAHORE HIGH COURT LAHORE 2063 #

2009 Y L R 2063

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

RIAZ AHMAD---Petitioner

Versus

AMANULLAH and another---Respondents

Civil Revision No.1769 of 2002, heard on 29th May, 2009.

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

----S. 24(2)---Non-deposit of Zar-e-Soim---Statutory period---Plaintiff filed suit for purchase of disputed land under right of pre-emption---Trial Court ordered the plaintiff to deposit Zar-e-Soim. amounting to Rs. 75,000 within a period of twenty-two days from the date of filing of the suit---Plaintiff failed to deposit the Zar-e-Soim within the stipulated period of 21 days and verbally requested for extention of time for deposit of Zar-e-Soim but the Trial Court refused to accept the oral request of the plaintiff and dismissed suit for non-deposit of the Zar-e-Soim---Appeal filed by the plaintiff was also dismissed by the Appellate Court--Contention of the plaintiff was that the statutory period for the deposit of Zare-Soim was 30 days while the plaintiff was directed by the Trial Court to deposit Zar-e-Soim by affording him 21 days only, the extention of time for the deposit of Zar-e-Soim to the period of 30 days would be in the interest of justice---Validity---Statutory provision of 30 days had been provided by the Legislature in order to guide and regulate the court in fixing the period to be given to the plaintiff for depositing the Zare-Soim which should not be more than 30 days---Trial Court had given to plaintiff 21 days to deposit Zar-e-Soim but he failed to do the same---Penal provision of S.24(2) of the Punjab Pre-emption Act, 1991 had to be complied with---Granting extention of time would defeat the mandatory provision of law---High Court declined to interfere in its revisional jurisdiction.

Sheikh Muhammad v. Haji Nazir Ahmad PLD 2005 Lahore 689 and Subedar (Retd.) Muhammad Khan v. Adalat Khan and another 2002 CLC 971 ref.

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

----S. 24(2)---Plaintiff had got prepared a challan form for the deposit of Zar-e-Soim but the same was refused by the Trial Court and the plaintiff on his own deposited the same in the Government Treasury before expiry of 30 days---Validity---Plaintiff could not deposit 1/3rd of sale price as Zar-e-Soim of his own and it has only to be deposited by the order of the court---Both Trial Court and Appellate Court had passed judgments in accordance with law---High Court declined to interfere in revision petition.

Rana M. Siddique v. Additional District Judge, Bahawalnagar and others PLD 2005 Lahore 647; Muhammad Nawaz Tahir v. Said Akbar 2005 YLR 269; Sheikh Muhammad v. Haji Nazir Ahmad PLD 2005 Lahore 689; Subedar (Retd.) Muhammad Khan v. Adalat Khan and another 2002 CLC 971; Ahmad Bakhsh v, Nasir Khan and others 2002 CLC 119 and Mian Muhammad Lutfi v. Mian Muhammad Talha Adil NLR 2000 Civil 422 ref.

Mian Zafar Iqbal Kalanuri for Petitioner.

Ch. Shaukat Ali Javed for Respondents.

Date of hearing: 29th May, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 2068 #

2009 Y L R 2068

[Lahore]

Before Khurshid Anwar Bhinder, J

Raja KHALID PERVAIZ---Petitioner.

Versus

THE STATE---Respondent

Cr. Misc No. 178/B of 2009, decided on 21st January, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 342/376/511/109/420/468/471---Police Order (22 of 2002), Art. 155 (c)---Bail grant of---None of the essential ingredients to constitute an offence under section 376, P.P.C. was made out against the accused, as no sexual intercourse was performed---Accused had prima facie outraged the modesty of the complainant, making an offence under S. 354, P.P.C. which was a bailable offence---Rest of the offences were not attracted in the case---Story narrated in the F.I.R. appeared to be implausible, illogical and unbelievable for the reason that despite having. no impediment in his way accused had not raped the complainant---No incriminating material had been produced by the complainant to strengthen her case, so much so that she had not got herself medically examined in order to show any marks of violence on her body to establish an attempt of Zina-bil-Jabr having been made on her---Tentative assessment of the role of accused had cast serious doubts on the prosecution version---Accused was admitted to bail in circumstances.

Azam Nazeer Tarrar for Petitioner.

Fiaz Ahmed, D.P.-G. with Aman Ullah S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 2072 #

2009 Y L R 2072

[Lahore]

Before Maulvi Anwarul Haq, J

ZUBAIR AHMAD and another---Appellants

Versus

SHAHID MIRZA and 2 others---Respondents

F.A.Os. Nos.252 and 286 of 2006, heard on 15th May, 2009.

Civil Procedure Code (V of 1908)---

----S. 104, O.XXI, R.90, O.XXXVII, R.1 & O.XLIII, R.1---Modification of decree by court---Effect---Suit for recovery of amount under O.XXXVII, R.1, C.P.C.---Leave to defend was granted to the defendants subject to furnishing of Bank guarantee---Said order was not complied with by defendants and suit was decreed with interest at the rate of 2% till realization---Appeal against the decree was partly allowed by High Court subject to waiver of interest amount while the decretal amount was upheld---Appeal against the judgment of High Court which was dismissed by the Supreme Court---Plaintiffs filed application for execution of decree before the Trial Court---Defendants' property was attached and subsequently sold through auction---Defendants filed an application in Executing Court with the contention that the decree had been modified and the decretal amount be amended accordingly---Application of the defendants was dismissed by the Executing Court against which defendants filed revision in the High Court---High Court dismissed the order passed in the application and directed the court to decide the application afresh---Defendants also filed another application under O.XXI, R.90, C.P. C. in the Executing Court for setting aside of the sale of the property--Executing Court dismissed objections raised by the parties and directed the decree-holder/plaintiffs to withdraw decretal amount while balance was withdrawn by the defendants---Plaintiffs and defendants filed appeal against said order of the Executing Court---Contention of the defendants was that the decree had been modified in appeal and a fresh decree had been prepared thereafter, the execution of decree passed by the Trial Court could not have been executed and the sale ordered and conducted when appeal was allowed was void---Decree passed by Trial Court with interest on principal amount was modified by High Court in appeal and the same was maintained in appeal filed by defendants---Effect---Entire process of execution commenced when decree passed by Trial Court has ceased to exist---High Court dismissed appeal filed by the plaintiffs and directed them to comply with the orders passed in modified decree.

F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 and Sorimuthu Pillai and others v. Muthukrishna Pillai AIR 1933 Masd. 598 ref.

Kristo Kinkur Ray and another v. Rajah Burrodacaunt Roy and another 14 Moor's I. A. 465 and Nizam-ud-Din and 11 others v. Ch. Muhammad Saeed and another 1993 CLC 2130 rel.

Saif-ul-Malook for Appellant.

Syed Akmal Hussain for Respondents Nos.1 and 2.

Sh. Sajid Mehmood for Respondent No.3.

Date of hearing: 15th May, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 2085 #

2009 Y L R 2085

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

NAVEED AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3503/B of 2009, decided on 4th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 449, 148, 149 & 109---Bail, grant of---Further inquiry---Contents of the F.I.R. were not free from doubts---Previous litigation existed between the parties and in that regard civil and criminal litigation between them, was pending adjudication---Role attributed to accused was that of making aerial firing---Accused was not present at the spot at the time of occurrence; he was not alleged to have caused any injury to the deceased---Fire arm injuries were attributed to co-accused--Accused had been declared innocent during the course of investigation---Parties had a long standing inimical relationship and in the circumstances presence of the witnesses of the complainant at the Bathak of accused had become doubtful---False involvement of accused, in circumstances, could not be ruled out---Guilt of accused required further inquiry and in such like cases, the bail should not be withheld---Accused was admitted to bail, in circumstances.

Nazar Hussain and 2 others v. The State and another 2008 PCr.LJ. 850; Malik Ejaz Ali v. The State 2005 MLD 997; Muhammad Afzal Patwari v. The State 2007 YLR 392 and Allah Bakhsh v. The State 2007 PCr.LJ 1755 rel.

Ch. Noor Muhammad Jaspal for Petitioner.

Ghulam Qadir Bari, Asstt. P.-G. for the State and Amjad Asif S.-I. with Record.

YLR 2009 LAHORE HIGH COURT LAHORE 2099 #

2009 Y L R 2099

[Lahore]

Before Maulvi Anwarul Haq and Abdul Sattar Goraya, JJ

IJAZ HUSSAIN WALLANA---Petitioner

Versus

BOARD OF REVENUE, PUNJAB, LAHORE through Senior Member and

another---Respondents

Writ Petitions Nos.19553 of 2005 and 672 of 2006, heard on 10th June, 2009.

Land Acquisition Act (I of 1894)---

----Ss. 6, 11, 17(4r) & 18---Punjab Land Acquisition Rules, 1983, R.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Land acquisition---Petitioners' land was acquired by National Highway Authority (NHA) during the year 1994 under the Land Acquisition Act, 1894 and the matter was referred to District Assessment Committee (DAC) to assess its value---Committee assessed the value of land and conveyed its decision to E.D.O. (R) for obtaining sanction of the Board of Revenue under R.12 of the Punjab Land Acquisition Rules, 1983---Notification under Ss.17(4) & 6 of the Land Acquisition Act, 1894 was also issued---Board of Revenue approved estimated cost of the land in the year 2005---Land Acquisition Collector proceeded and assessed the value of land lower than the one approved by Board of Revenue and published the award---Board of Revenue declared the award to be illegal and Land Acquisition Collector had withdrawn the award with the intimation that a fresh award would be given later---Contention of the petitioner was that under the Rules framed under the Land Acquisition Act, 1894 for Punjab, the price had to be assessed in the manner as was done in the current case, and the Land Acquisition Collector had no authority to give an award at a rate less than the approved estimated cost of land---No provision in the Land Acquisition Act, 1894 existed whereby Provincial Board of Revenue could interfere with an award given under S.11 of Land Acquisition Act, 1894---High Court allowed the constitutional petition filed by landowner and declared the order of Provincial Board of Revenue for cancellation of award illegal and disposed of the constitutional petition of the petitioner with the direction to file a reference in terms of S.18 of the Land Acquisition Act, 1894 and the referee Court should decide the reference accordingly.

Malik Asif Ahmad Nissoana for Petitioner.

Jehanzeb Khan Bharwana for Respondents.

Date of hearing: 10th June, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 2104 #

2009 Y L R 2104

[Lahore]

Before Hasnat Ahmad Khan, J

BASHIR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.3658/B and 1268-M of 2009, decided on 8th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.436, 427, 354, 148 & 149---Bail, grant of---Further inquiry---At the first blush, the crime in question appeared to be of very heinous nature, but .on a closer scrutiny of the record, including the Police file, it appeared the loss caused by the fire was not of that magnitude as claimed by the complainant---No household article or clothing was burnt in the alleged occurrence, but some building material of "Dhapper/Thatched Cottage" was burnt---Serious dispute existed between the parties regarding the ownership and possession of the land in dispute---Since complicated issues were involved with regard to the ownership and possession of the parties over the disputed land, the court avoided to return any finding in that behalf, lest it should prejudice the case of either of the parties, pending before the civil as well as revenue courts---Main allegation had been levelled against the son of accused, who according to the complainant put the "Dhapper/Thatched cottage" to torch---At the time of occurrence a lot of people having assembled at the place of occurrence, it could not be established as to who set the "Dhapper" ablaze---Case of accused requiring further inquiry, he had become entitled to bail as a matter of right---Investigation had already been completed---No useful purpose would be served by detaining accused any further---Accused was admitted to bail, in circumstances.

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 and Ibrahim v. Hayat Gul 1985 SCMR 382 rel.

Sh. Najam-ul-Hassan for Petitioner, Muhammad Adeel Aaqil Mirza, Dy. P.-G. with Jehangir, A.S.-I. for the State.

Ch. Zulfiqar Ali Noon for the Complainant/Applicant in Criminal Miscellaneous No.1268/M of 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 2109 #

2009 Y L R 2109

[Lahore]

Before Ijaz Ahmad Chaudhry, J

STATE LIFE INSURANCE CORPORATION OF PAKISTAN

through Incharge Legal Estate Department---Petitioner

Versus

PUNJAB COOPERATIVE BOARD FOR LIQUIDATION through Chairman and another---Respondents

Petition No.115/C of 2006, decided on 26th May, 2009.

Punjab Undesirable Co-operative Societies (Dissolution) Act (I of 1993)---

----S.11---Limitation Act (IX of 1908) S.5---Constitution of Pakistan (1973), Arts.123 & 270-AA---Punjab Undesirable Co-operative Societies (Dissolution) (Amendment) Ordinance (LIII of 1999)---Validation---Petitioner asserted that Punjab Undesirable Co-operative Societies (Dissolution) Act, 1993 which provided time for filing petition within 60 days through Punjab Undesirable Co-operative Societies (Dissolution) (Amendment) Ordinance, 1999 had been promulgated on 9-10-1999 and assemblies were dissolved and the said Ordinance automatically elapsed after three months as per Art.123 of the Constitution---Petitioner further asserted that under Art.270-AA of the Constitution only those enactments were saved which had been promulgated after the military regime while this Ordinance had been issued earlier thereto, which was no more in the field and the question of limitation did not arise----Punjab Undesirable Co-operative Societies (Dissolution) (Amendment) Ordinance, 1999 was promulgated on 9th October, 1999 providing the time for filing petition under S.11 of Punjab Undesirable Co-operative Societies (Dissolution) Act within 60 days and the said Ordinance was still in force when Provisional Constitution Order I of 1999 was promulgated and Art.5-A(1)(2) of the Order had validated the Ordinances which were in force or which were promulgated after the Provisional Constitution Order 1 of 1999---Punjab Undesirable Co-operative Societies (Dissolution) Act, 1993 was a special law and unless it was specially mentioned that S.5 of Limitation Act, 1908 shall apply, delay could not be condoned---Co-operative Judge dismissed petition being time barred.

Rana Zulfiqar v. Judicial Officer/ Liquidator, Punjab, Cooperative Board for Liquidation 2007 CLC 1542 ref.

Irfan Khalil Qureshi for Petitioner.

Ahmad Hassan Anwari for PCBL.

YLR 2009 LAHORE HIGH COURT LAHORE 2117 #

2009 Y L R 2117

[Lahore]

Before Hasnat Ahmad Khan and Zubda-tul-Hussain, JJ

MUHAMMAD RIAZ AHMAD---Appellant

Versus

MUHAMMAD AZAM and 4 others---Respondents

Criminal Appeal No.767 of 2007, decided on 4th May, 2009.

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

----Ss. 302/148/149/109---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Medical evidence had contradicted the ocular testimony--- Complainant had not disclosed the identity of accused in the F.I.R., but on the same day in his supplementary statement he had nominated all the accused assigning specific roles to them---Prosecution in cases of duly witnessed crimes normally did not rely on circumstantial evidence, but in the present case prosecution being conscious of inherent infirmities had tried to rely upon the evidence of abetment, extra judicial confession and Wajtakkar witnesses, which had been discarded by Trial Court on very sound and cogent reasons---Impugned judgment was neither based upon arbitrary, fanciful, artificial or perverse reasoning, nor rested upon misreading or non-reading of evidence---Even no illegality in approach or irregularity in the procedure adopted by Trial Court was pointed out--Appeal against acquittal of accused was dismissed in limine in circumstances.

The State through A.-G. N.-W.F.P. v. Mehmood Khan and others 2007 SCMR 1390 ref.

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

----S. 417---Penal Code (XLV of 1860), Ss. 302/148/149/109---Appeal against acquittal---Principles---For interference in the judgment of acquittal principles are quite different than the judgment of conviction---Initial presumption of innocence of an accused is doubted and made stronger after his acquittal by a Court of law---Judgment of acquittal would not be disturbed by Appellate Court until and unless the same is based upon artificial, perverse and fanciful reasoning.

The State through A.-G. N.-W.F.P. v: Mehmood Khan and others 2007 SCMR 1390 ref.

Sahib Akram Gondal for Appellant.

YLR 2009 LAHORE HIGH COURT LAHORE 2132 #

2009 Y L R 2132

[Lahore]

Before Ijaz Ahmad Chaudhry, J

NATIONAL POLICE FOUNDATION COOPERATIVE HOUSING SOCIETY

LTD., ISLAMABAD through President---Petitioner

Versus

PUNJAB COOPERATIVE BOARD FOR LIQUIDATION, LAHORE

through Chairman and another---Respondents

Petition No.13-C and W.P. No.4857 of 2007, decided on 21st May, 2009.

(a) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----Ss. 11 & 7(e)---Application to Cooperative Judge---Petitioner had challenged the auction conducted by Punjab Cooperative Board of Liquidation in respect of disputed land and further the notice to appear---Petitioner alleged that it had purchased disputed land from defunct society in consideration duly paid through cash, cheques and Demand Draft vide registered sale-deeds and had got approval of establishing Housing Scheme over the disputed land from the Local Development Authority in the year 1991---Punjab Cooperative Board for Liquidation issued letter in the year 1994 to the petitioner to appear before it to reconcile the . accounts etc.--Petitioner approached the Board and thereafter established a Housing Society---Board filed application in the year 2006 before Executive District Officer (Revenue) challenging sale-deeds of the disputed land and made proclamation for auction of the disputed land in favour of third person---Petitioner served legal notice to challenge said auction---Board also issued notice to the petitioner to appear before it with evidence to prove its claim---Respondent refused to appear and challenged the notice issued by the Board---Board also filed constitutional petition to challenge mutations of the disputed land---Contention of the Board was that the petitioner had been summoned by the, Liquidation Board in order to verify whether the sale-deeds were genuine and were executed after payment of consideration amount and further that Liquidation Board was fully authorized to summon the petitioner and to cancel the agreements and sale-deeds as the disputed property still exists in name of the defunct Society and the payment made by petitioner had not been proved in the record of said Society---Liquidation Board had found that though the sale-deeds had been executed but the record of the Society did not show that sale consideration had been actually paid by the petitioner---Petitioner had not mentioned the number of the cheques in the original sale-deeds---Under provision of S.7(e) of the Act, Liquidation Board was empowered to go into genuineness of the title deed and to cancel all agreements entered into by defunct Society or its previous management or Directors, Officers or agents which in the opinion of the Board were mala fide and against the interest of such a society or the members thereof---Held; Liquidation Board could call title holders and could investigate to ascertain that the sale-deeds were genuine and the amount of sale consideration had been actually paid to the defunct Society or not--Board in the notice had not passed any order against the petitioner but had only asked that the claim of the petitioner was to be scrutinized in the light of evidence Board possessed---No illegality had been found in the issuance of the impugned notice to the petitioner---Petitioner was directed to appear before Chairman of Board who should decide the matter according to law---Constitutional petition of the Board had also been disposed of with the direction to get the matter first decided by the Board and then take recourse to the court---Application and constitutional petition were disposed of accordingly.?

(b) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S.11---Registration Act (XVI of 1908), S.60---Tampering with the sale-deed---Effect---Petitioner contended that the land had been purchased by him from defunct Society through registered sale-deed and the said original sale-deed had been alleged to have been tampered with by showing other sale-deeds with variation of last digits number of it, due to this . reason the Liquidation Board claimed that the said land was owned by the Society and, therefore, the sale-deed was not executed in favour of the petitioner---Petitioner further contended that it was not within the powers of the Liquidation Board to call for the petitioner and to pass any order regarding the said land, the presumption of truth was attached to the sale-deed---Validity---Held, Liquidation Board was entitled to call for the title holders and could investigate to ascertain that the sale-deed was genuine and the amount of sale consideration had been actually paid to the defunct cooperative society or not---If the Board did not decide the claim of the petitioner, the petitioner had remedy to challenge the same before High Court---High Court disposed of petition with direction to the petitioner to appear before the Chairman of the Board. ?

Akhtar Hussain Awan and Asghar Hussain Sabzwari for Petitioner.

Irshad Ullah Khan for PCBL.

Mian Mehmood Hussain for Respondent No.2.

Ahmad Hassan Anwar for PCBL.

YLR 2009 LAHORE HIGH COURT LAHORE 2139 #

2009 Y L R 2139

[Lahore]

Before Tariq Shamim and Zafar Iqbal Chaudhry, JJ

MUHAMMAD HAYAT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 287-J of 2003 and Murder Reference No.902 of 2002, heard on 29th October, 2008.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Motive behind the occurrence was not proved through any cogent or convincing evidence---Recovery of rifle at the instance of accused from an open place after more than three months of occurrence was of no avail to prosecution---No crime empty was secured by the police from the spot---Complainant had failed to explain nine hours inordinate delay in lodging the F.I.R. as well as his presence at the scene of occurrence, and he had also made many material improvements in his statement at the trial---Other eye-witness, according to his own showing, was a chance witness, who had reached the spot after the occurrence had taken place---None of the eye-witnesses appeared to have seen the incident---Eye-witness account having been disbelieved, medical evidence though in line with the same, could not provide any corroboration to it---Accused was acquitted in circumstances.

Syed Ijaz Qutab for Appellant.

Ahsan Rasool Chattha, Deputy Prosecutor-General for Respondent.

Date of hearing: 29th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 2154 #

2009 Y L R 2154

[Lahore]

Before Ijaz Ahmad Chaudhry, J

NAUSHAD KHAN---Applicant

Versus

PUNJAB COOPERATIVES BOARD FOR LIQUIDATION through Chairman---Respondent

Coop. Petition No.95-C of. 2008, decided on 7th May, 2009.

(a) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----Ss. 11 & 14---Delay in filing application for No Objection Certificate' and execution of sale deed---Petitioner filed an application in the office of Punjab Cooperatives Board for Liquidation for issuance of 'NOC' and execution of sale-deed in its favour-'NOC' was issued and the petitioner was directed to deposit 2% liquidation charges---Punjab Liquidation Board,: thereafter reviewed its order and dismissed application of the petitioner on the ground that same was not filed within 30 days which was a requirement of law as per defunct societies' policy and passed an order dispossessing petitioner from the land in question---Petitioner alleged that he purchased disputed land through registered sale-deed and at the time of registration of the sale-deed defunct Society was exempted from payment of stamp duty and petitioner got executed the sale-deeds in favour of . society after payment of entire sale consideration---Society, thereafter executed sale-deeds in favour of the petitioner transferring disputed property and the same was duly attested by the competent authority but due to scam coming on the surface, sale-deed could not be registered--Delay in filing of application for grant ofNOC' and execution of sale-deed could be condoned as the petitioner was continuously in possession of the disputed property and original sale-deed was also in its possession---Defunct Society had never shown the said property in its ownership and Liquidation Board also did not try to disturb the possession of the disputed property which was retained by the petitioner---Petitioner being an illiterate person if he had not filed application within 30 days it could be ignored---High Court accepted petition and remanded the case to the Board for decision afresh within 30 days in accordance with law.

(b) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----Ss. 11&14---Illiterate persons are equal to `Pardanasheen ladies'---Petitioner was an illiterate person and was in possession of the disputed property, it was not expected from the illiterate person that he would file application within time---Delay in filing application for 'NOC' could be ignored---Technicalities should not come in the way of substantial justice and people should not be ousted on the ground of technicalities---Decision had to be on merits instead of ousting the people on technical grounds and if the petitioner was owner of the property, his ouster from the said property only on the ground that he being illiterate person had not approached the authorities in time, would not be appreciated by law---High Court accepted petition and remanded case for decision afresh.?

----S. 78---Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993), S.11---Government taxes and stamp duty---Petitioner was alleged to have evaded government taxes and stamp duty---Relevant authority could initiate proceedings against the persons at fault for the recovery of alleged dues along with penalty---Matter could be brought to the notice of Sub-Registrar concerned where the sale-deed was executed but the petitioner could not be deprived of his claim under S.11, Punjab Undesirable Cooperative- Societies (Dissolution) Act, 1993 on this score alone. ?

PLD 1992 SC 1; 2002 CLC 1209 and Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 196 SC 382 ref.

Khawaja Saeed uz Zafar for Petitioner.

Muhammad Ilyas Khan for P.C.B.L.

YLR 2009 LAHORE HIGH COURT LAHORE 2159 #

2009 Y L R 2159

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4148/B of 2009, decided on 8th May, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2)---Penal Code (XLV of 1860), S.302/109---Bail, grant of---Benefit of doubt---Further inquiry---Deceased having been strangled to death by unknown persons, crime was an un-witnessed affair---Complainant while lodging the F.I.R. had failed to nominate accused as a perpetrator of the crime---Complainant however, claimed that his brother was done to death on the abetment of wife of deceased, who according to the complainant, was having a questionable character---Contents of the F.I.R. had revealed that till the lodging of the F.I.R., it was not claimed by the complainant that accused had extra-marital relations with wife of deceased---However on the second day of the lodging of F.I.R. two people came forward with a claim that 3/4 days before the occurrence, they had heard a whispering between accused and wife of the deceased who were sitting in a Dhaari---While making their statements under S.161, Cr.P.C., before the Investigating Officer, they gave a detailed version of the conspiracy, which statedly was heard by them while passing near the said Dhaari---In the peculiar circumstances of the case, claim of said witnesses of hearing the hatching of conspiracy, called for further inquiry within the purview of S.497(2), Cr.P.C., especially when it was seen in the perspective that said witnesses never reported the said villainous/dangerous design/plot, made by accused to any person what to talk of Police---Benefit of doubt could be given to accused even at bail stage---After making out a case of further inquiry, accused had become entitled to bail as a matter of right and he could not be denied bail merely on the ground of commencement of trial---Accused was admitted to bail, in circumstances.?

Muhammad Umar v. The State and another PLD 2004 SC 477 and Muhammad Ismeel v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Malik Mubarik Ali for Petitioner.

Muhammad Adeel Aqil Mirza, Dy. P.-G. with Attaullah, S.-I.

Rana Muhammad Zahid for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 2176 #

2009 Y L R 2176

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Sayyida SHEHNAZ BATOOL---Petitioners

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Lahore and 2 others---Respondents

Writ Petition No.7912 of 2009, decided on 18th May, 2009.

Punjab Government Servants Housing Foundation Act (X of 2004)---

----S. 13---Punjab Government Servants Housing Foundation Rules, 2005, Rr. 4 & 5---Constitution of Pakistan (1973)', Art.199---Constitutional petition---Special concession to government servants---Effect---Respondents introduced a scheme for providing houses on no profit no loss basis to government employees or their families in case of death during the service---Deceased husband of the petitioner got membership of the Foundation and a house was provisionally allotted to the petitioner along with other legal heirs---Respondents issued demand notice to the petitioner demanding construction and development charges otherwise the petitioner was to lose her rights---Contention of the petitioner was that as per decision of the respondents nothing was to be charged from the widows and legal heirs of the deceased employees, who died during the service---Once the concession had been announced and got circulated by the Government, it was binding to be implemented by its functionaries in letter and spirit and due to lapses on their parts, the heirs of the deceased employees could not be deprived of the said concession---Somersault could not be taken by the respondents by demanding amount of construction and development charges from the widow and legal heirs of the deceased who died during the service as per condition laid down in the brochure---When the concession was allowed, it was the duty of the concerned authorities to get the rules amended for implementation thereof---High Court accepted the constitutional petition and set aside the demand notice issued by respondents---Constitutional petition was accepted.

Ali Imran Rizvi for Petitioner.

Mian Ahsan-ul-Haq Sajjid, Addl. A.-G.

Muhammad Ashraf Joyia for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 2179 #

2009 Y L R 2179

[Lahore]

Before Iqbal Hameedur Rehman, J

MUHAMMAD ASLAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3405-B of 2009, decided on 5th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324, 337-F(vi) & 34---Bail, grant of---Further inquiry---Accused was behind the bars for the last about one year and there was no progress in the trial of the case---Injury, caused by accused was on the non-vital part of the body of the victim and accused did not repeat the fire, while he could do so---Injury suffered by the victim fell within the purview of S.337-F(iii), P.P.C. which was punishable with DAMAN and could also be punished with imprisonment extending to three years as Tazir---Sentence of Tazir was awarded to the offenders who were previous convict, habitual or hardened, desperate or dangerous criminals; while the prosecution had not brought any material to show that accused suffered such attributes---Award of sentence of Tazir being a matter of further inquiry, case' of accused fell within the purview of further inquiry, entitling him to concession of bail---Co-accused had already been granted bail---Prima facie the intention to kill, did not appear to be available keeping in view the seat of injury, the fact that was on the non-vital part of the body and was no t repeated---Accused was admitted to bail, in circumstances.

Ch. M. Lehrasib Khan for Petitioner.

Ghulam Qadir Bari, Asstt. P.-G. and Yaqoob, A.S.-I. with record for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 2187 #

2009 Y L R 2187

[Lahore]

Before Mian Muhammad Najamuz Zaman, J

HASHMAT ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9040-B of 2009, decided on 12th August, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 302/324/452/337-F(iii), (ii)/337-L(ii)/148 & 149---Bail, grant of---Further inquiry---Both parties had received injuries during the occurrence---Medico-legal Reports had also shown that parties were taken to hospital by the Police on day of occurrence---Case was registered after many hours of the occurrence i.e. much after the medical examination of both the parties, but the F.I.R. was silent qua the injuries on accused and other accused persons---Circumstances available on record had shown that it was a case of two versions and which of the party had aggressed was yet to be determined by the Trial Court---Accused had not caused any injury to the deceased and the precise allegation against him was that of causing injury to one of the prosecution witnesses---During occurrence accused had also received injuries and in such like situation normally, if there was no allegation qua causing injuries to the deceased, the bail was granted to accused on the principle of further inquiry---Accused was granted bail, in circumstances.

Nadeem Shibli for Petitioner.

M.A. Ameen for the Complainant.

Syed Faisal Raza Bukhari, D.-P.G. with Muhammad Boota, S.I. for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 2189 #

2009 Y L R 2189

[Lahore]

Before M. Bilal Khan, J

Ch. ABDUL GHAFOOR TAHIR and another---Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION PEOPLES COLONY, FAISALABAD and 3 others---Respondents

Writ Petition No. 9043 of 2006, heard on 28th November, 2008.

Penal Code (XLV of 1860)---

----S.489-F---Constitution of Pakistan (1973), Art. 199-- Constitutional jurisdiction---Scope---Quashing of F.I.R.---Accused were specifically nominated in the F.I.R. with definite allegation against them, prima facie disclosing commission of cognizable offence---Contention that accused could not be burdened with any criminal liability and that they had been dragged into the criminal case in order to extract money, needed a factual inquiry which could not be embarked upon by High Court in the summary proceedings under Article 199 of the Constitution---High Court could not resolve disputed facts in constitutional jurisdiction---In case an offence had, prima facie, been committed, ordinary course of trial before the Court should not be deflected by resorting to constitutional jurisdiction of High Court---High Court had no jurisdiction to quash F.I.R. by appreciation of documents produced by the parties without providing chance to cross-examine or confronting the documents in question---Challan had since been submitted and all the pleas raised for quashing the F.I.R. could legitimately be taken before the trial Court---No malice on the part of complainant to involve the accused falsely in the case had been pointed out---Constitutional petition was dismissed in circumstances.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

Abdul Khaliq Safrani for Petitioners.

Ch. Muhammad Hussain, Additional A.-G. with Muhammad Sharif, S.I. for Respondents Nos.1, 2, 4 and 5.

Rai Muhammad Tufail Khan Kharal for Respondent No.3.

Date of hearing: 28th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 2191 #

2009 Y L R 2191

[Lahore]

Before Zafar Iqbal Chaudhry, J

ABDUR RAZZAQ---Petitioner

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE, GUJRANWALA

and 2 others---Respondents

Criminal Miscellaneous No.506/H of 2008 and Writ Petition No.2619 of 2009, decided on 25th February, 2009.

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

----S. 491---Habeas corpus petition---Petitioner who was father of alleged abdcutee, had alleged that deceased detenu had been abducted from the territorial jurisdiction of police station concerned---Sufficient evidence was produced by the petitioner in that behalf before the Investigating Officer as well as before the High Court---During the pendency of the habeas corpus petition, alleged detenu was murdered, which had shown that the offence of murder was in continuation of the offence of abduction---In view of such fact and peculiar circumstance of the case, S.H.O. police station concerned was directed to register the case against the delinquent person on the written application of the petitioner.

Mst. Pari v. S.H.O. Police Station `A' Section, Sukkur and another NLR 1997 Criminal 655; Karachi Mevo v. The State and 2 others and 2002 PCr.LJ 247; Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556 ref.

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

---S. 173---Police opinion---Evidentiary value----Finding of the police was not binding on the Court, which would decide the case finally on the basis of the evidence adduced before it.

Abdul Khaliq Safrani and Waseemul-Hassan Naqvi for Petitioner.

Ch. Muhammad Rafique Jathol for Petitioner (in Writ Petition No.2619 of 2009).

Ch. Muhammad Suleman, Addl. A.-G. and Mian Ismat Ullah, Dy. P.-G. for the State.

Muhammad Ahsan Javed, A.I.-G. (Legal) with Muhammad Afzal, Inspector/SHO P.S. Sadar Wazirabad.

YLR 2009 LAHORE HIGH COURT LAHORE 2197 #

2009 Y L R 2197

[Lahore]

Before Syed Sajjad Hussain Shah, J

SHABBIR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail No.955/B of 2007, decided on 2nd November, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/337-A(i)/109/34---Bail, refusal of---Earlier petition for post-arrest bail was dismissed having been withdrawn---Submission of counsel for complainant was that statements of all the prosecution witnesses, except one had been recorded by the Trial Court and the trial was almost complete---Bail petition of accused was dismissed with the direction to the trial Court to conclude the trial expeditiously.

Muhammad Tanvir Ch. for Petitioner.

Syed Asghar Hussain Sabzwari for the Complainant.

Ch. Saleem-ul-Haq A.A.-G. with Abdul Razzaq, S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 2198 #

2009 Y L R 2198

[Lahore]

Before Muhammad Akram Qureshi and Syed Ihtasham Qadir Shah, JJ

GHULAM MUSTAFA---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.2305 of 2003, 25-J of 2004, Criminal Revision No.86 of 2004 and Murder Reference No.143 of 2004, heard on 25th June, 2009.

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

----S. 302(b)---Appreciation of evidence---Motive part of incident was admitted by both the parties---Complainant and prosecution witness had proved that when the witnesses went to the house of accused, they were assaulted and injuries were caused on the deceased---Nothing was on record that any of the witnesses was armed with any weapon or he or they assaulted accused persons or' any of the persons residing in their house---Honour and respect of deceased was being smashed, it was his natural duty to protect and restore it; his arrival at the venue of incident, in circumstances was natural---Defence version that deceased was armed with "Bugda and he was breaking the door of the room where co-accused was present, was not borne out from the record---Story narrated by the defence could not be accepted---Both eye-witnesses were independent and had no enmity against accused persons---Both the said witnesses had narrated a clear incident of case from which the guilt of accused was apparent---Statements of witnesses were free from any material discrepancy or improvement---Witnesses had taken up a specific stand before the Investigating Officer and their stand remained the same before the Trial Court---Guilt of accused was clear in view of crystal clear evidence of witnesses and the fact that it was well-supported by the medical evidence---Ocular account of case was well-supported by the recovery of 44 bore rifle from accused---Report of Forensic Science Laboratory was positive with regard to rifle recovered from accused and accused had not been able to shatter that evidence---Prosecution evidence qua accused had been fully proved on record---Conduct of accused was such that he was not entitled to any leniency---Conviction and sentence passed by the Trial Court against accused being adequate, was maintained---Death sentence awarded was confirmed, in circumstances.?

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

----S.302(b)---Appreciation of evidence---Proverbial Lalkara was attributed to co-accused, but same was not supported by any other evidence---Co-accused was the root cause of incident and because of her, her father lost his life and the respect and honour of his family shattered---Aggrieved by such situation the complainant party implicated her, however role assigned to her could not be substantiated on record---Co-accused had not played any role in the incident---To her extent, appeal was accepted and her conviction and sentence was set aside.

Sheryar Sheikh and Mian Liaquat Ali for Appellant.

Mazhar Sher Awan, Addl. P.-G. for the State.

Ch. Imtiaz Hussain Bhatti for the Complainant.

Date of hearing: 25th June, 2009.?????????

YLR 2009 LAHORE HIGH COURT LAHORE 2205 #

2009 Y L R 2205

[Lahore]

Before Zubda-tul-Hussain, J

MUHAMMAD AMIN and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1104 of 2008, decided on 22nd May, 2009.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S.302(b)---Suspension of sentence---Application for---Powers under S.426, Cr.P.C. had to be exercised judiciously by considering the relevant facts without entering into or commenting upon the merits of the case---If the contentions raised required deeper appreciation or probe and evaluation of evidence, the sentence would not be suspended and only a tentative assessment of the evidence forming the basis of the findings of guilt against accused could be undertaken---Appellate Court could not question the appraisal of the evidence carried out by the Trial Court as to its conformity with the law and while dealing with the application under S.426, Cr. P. C. it would ordinarily look into the judgment itself---Where on perusal of the facts in the judgment of the Trial Court, the Appellate Court would come to the conclusion that where the judgment suffered from any legal error, it would be justified to suspend the sentence and grant the bail, but again care had also to be taken in that behalf,- that the observations should not tantamount to reappraising the evidence or embarking upon the merits of the case---No doubt, in the present case, one firearm injury was attributed to each of the petitioners/accused, but the judgment had itself shown that those were fires which were shot subsequent to the fatal injury given by one who was not the petitioner on the head of the deceased---Trial Court had taken that aspect of the case into consideration, while imposing mitigating sentence upon the petitioners---Weakness of the motive or the failure of the prosecution to establish the motive by itself, would not be enough to draw any adverse inference against the prosecution, but the effect and legality of the judgment as borne out by its very contents, could be taken into consideration without conducting its analysis---Motive for the commission of the offence was weak, weapons of offence could not be recovered from the applicants; and the deceased was involved in a number of criminal cases---Said facts and circumstances were available on the face of the impugned judgment and had also been found out and relied upon by the Trial Court in its findings---Applicants, in circumstances were entitled to be released on bail by suspension Of sentence against them---Sentence awarded to applicants, was suspended, in circumstances.

Muhammad Arshad v. The State 2006 PCr.LJ 1568; Muhammad Arshad v. The State 2006 PCr.LJ 1568 and Khalil-ur-Rehman v Muhammad Afzal and another 1998 SCMR 523 ref.

Shaheryar Sheikh for Appellant.

Zubair Afzal Rana and Abdul Khaliq Safrani for the Complainant.

Ishaq Masih Naz, Dy. P.-G.

YLR 2009 LAHORE HIGH COURT LAHORE 2209 #

2009 Y L R 2209

[Lahore]

Before Arshad Mahmood, J

ABDUL HAFEEZ---Petitioner

Versus

MEMBER, BOARD OF REVENUE, LAHORE and 4 others---Respondents

Writ Petition No.3559 of 2009, decided on 13th May, 2009.

West Pakistan Land Revenue Rules, 1968---

----R.17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Lumberdar, appointment of--- Preconditions---Hereditary claim---Substituting of preference---Jurisdiction of High Court--The petitioner was aggrieved of order passed by authorities whereby he was not appointed as Lumberdar, though he had hereditary claim---Validity---Rule of primogeniture was in force but hereditary claim was not the sole ground for appointment of Lumberdar---It was only one of the relevant considerations for such appointment, which had to be made on merit and blood relationship or descend could not be made basis for claiming preference in the matter of appointment---At the time of filing application for the post of Lumberdar, petitioner was landless whereas respondent owned 87 Kanal and 12 Marla of land and he also lagged behind respondent in education---Allegation against petitioner being defaulter of bank remained uncontroverted before the forums below---High Court in exercise of constitutional jurisdiction could not substitute its own preferences with that of competent fora unless it was shown that decision made by competent authorities suffered from any jurisdictional defect or any illegality---Concurrent findings of Revenue Courts being not open to exception in constitutional petition, High Court declined to interfere in appointment of Lumberdar---Petition was dismissed in circumstances.

Maqbool Ahmed Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484; Noor Muhammad Lambardar v. Member, Board of Revenue, Punjab, Lahore and others 2003 SCMR 708; Haji Noorwar Jan v. Senior Member Board of Revenue N.-W.F.P. Peshawar and 4 others PLD 1991 SC 531 and Muhammad Rafique v. Nazir Ahmed and others 2007 SCMR 287 rel.

Muhammad Arif Alvi for Petitioner.

YLR 2009 LAHORE HIGH COURT LAHORE 2211 #

2009 Y L R 2211

[Lahore]

Before Saif-ur-Rehman, J

Rana ABDUL JABBAR---Petitioner

Versus

Mst. RAZIA BEGUM and 2 others---Respondents

Writ Petition No.15697 of 2003, heard on 5th May, 2009.

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

----S. 5 & Sched. ---Qanun-e-Shahadat (10 of 1984), Art.33---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance allowance---Statement of Referee---Plaintiff filed a suit for maintenance allowance in the Trial Court which was decreed on the basis of statement of the Referee appointed with mutual consent of the parties---Appellate Court on appeal upheld decision of the Trial Court and dismissed appeal of the defendant---Contention of the defendant was that by inquiry into the matter and hearing the parties, Referee had lost his status of Referee and in fact he had passed an award against which the Trial Court must have invited objections from the parties and after dismissal of the same should have proceeded to decide the controversy---Validity---Both parties through their mutual consent and statements recorded in the year 2003 had appointed Referee in the case by further binding themselves that any decision made by the Referee would be acceptable to them---Parties were bound by the statement of the Referee by virtue of their admission--High Court declined to interfere in constitutional petition---Constitutional petition was dismissed.

Chirag Din v. Muhammad Shafi, 2002 YLR 2479 ref.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Statement of Referee---Validity---Defendant objected to the procedure adopted by the Referee on his drawing conclusion after hearing the parties and contended that the Referee, in fact, had acted as an arbitrator---Matter Referred to Referee was of matrimonial dispute and Referee was fully acquainted with the affairs of the parties---Statement by the Referee was not sufficient to prove that he had conducted an inquiry like an arbitrator and did not decide the controversy on the basis of his knowledge---Nothing could be contended by the defendant to show that Referee had acted as an Arbitrator---Defendant could not be allowed to approbate or reprobate under the circumstances of the case---High Court declined to interfere in constitutional petition---Constitutional petition was dismissed.

Aamer Zahoor Chohan for Petitioner.

Nemo for Respondents.

Date of hearing: 5th May, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 2215 #

2009 Y L R 2215

[Lahore]

Before Jamshed Rahmat Ullah, J

Mst. HANEEFAN BIBI---Petitioner

Versus

DISTRICT JUDGE, LODHRAN and another---Respondents

Writ Petition No.6449 of 2005, decided on 12th June, 2009.

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

----S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dowry articles, recovery of---Limitation---Suit for recovery of dowry articles filed by wife, eleven years after divorce was decreed by Family Court but Lower Appellate Court dismissed the same being time-barred---Validity---Dowry articles were not in unlawful possession of husband till wife demanded the same and husband refused to return them---According to plaint, cause of action accrued a week before when husband refused to give dowry articles on the demand of wife---From pleadings of parties, wife had taken a definite stand that husband refused to return dowry articles a week before filing of suit which was specifically denied by husband---Limitation had started from one week before filing of suit so the suit was not barred by limitation---High Court in exercise of constitutional jurisdiction, set aside judgment and decree passed by Lower Appellate Court and restored that of Family Court---Petition was allowed in circumstances.

1995 SCMR 885; 1996 MLD 2017; PLD 2001 SC 128; 2000 MLD 1301 and PLD 2006 Pesh. 96 ref.

2000 MLD 1301 fol.

Muhammad Abdul Wadood for Petitioner.

Ch. Nazir Ahmad Jat for Respondent No.2.

YLR 2009 LAHORE HIGH COURT LAHORE 2217 #

2009 Y L R 2217

[Lahore]

Before Syed Zulfiqar Ali Bokhari, J

PAKISTAN POST OFFICE through Post Master General and 2 others---Petitioners

Versus

PRINCIPAL DIVISIONAL PUBLIC SCHOOL AND COLLEGE, SAHIWAL---Respondent

Civil Revision No.233 of 2009, decided on 7th May, 2009.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2, 3---Limitation Act (IX of 1908), Art.159---Suit for recovery of amount on the basis of "Defence Saving Certificates"---Application for leave to appear and defend suit---Limitation---Application for leave to appear and defend suit was filed by the defendants with a delay of more than two months from statutory period of 10 days as provided under Art.159 of Limitation Act, 1908, without giving any plausible explanation for such delay---Application to appear and defend suit, being barred by limitation, application for condonation of such delay was to be filed through which delay of each and every day was to be explained by the defendants, but they failed to do so---Application for leave to appear and defend the suit being badly time barred, same was not to be entertained without application for condonation of delay---In absence of any illegality or material irregularity committed by the court below while passing the impugned order, whereby application for leave to appear and defend suit filed by the defendants was dismissed, same could not be interfered with in revision before the High Court.

Muhammad Zubair v. Haji Muhammad Tufail and another 2003 SCMR 1334 and Khan Muhammad v. Mst. Zainab Bibi through legal heirs and others 2000 SCMR 1227 ref.

Khawaja Noor Mustafa for Petitioners.

Ch. Muhammad Hafeez Ahmad for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 2224 #

2009 Y L R 2224

[Lahore]

Before Arshad Mahmood, J

JAMAT ALI---Appellant

Versus

MUHAMMAD AFZAL and 3 others---Respondents

S.A.O. No.11 of 2008, decided on 5th May, 2009.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 15(6)-Second appeal---Concurrent findings of Courts below---Bona fide personal need of landlord---Proof---Ejectment order passed by Rent Controller against tenant was maintained by Lower Appellate Court---Plea raised by tenant was that landlords failed to prove that other shops owned by them in the vicinity were not suitable for their personal need--Validity-Both forums below after appraising, of evidence recorded findings of fact against tenant---Although landlords failed to disclose in their ejectment petition that they had other shops in the locality and that the same were not suitable for their personal requirement, yet one of the landlords while appearing as witness stated that he had other shops in the bazaar but-those were not at front, therefore, not suitable for their business---Failure on the part of landlords seeking ejectment of non-residential property to mention in their ejectment petition that they were not occupying similar commercial property in same area suitable for their needs, was not fatal---Disclosure of landlords in their eviction petition that they were occupying any other shop was not necessary and it was prerogative of landlords to select any shop for their business---High Court declined to interfere in concurrent findings of forums below---Second appeal was dismissed in circumstances.

Muhammad Hafeez and another v. District Judge, Karachi East and others 2008 SCMR 398; Messrs. F.K. Irani and Co. v. Begum Feroze 1996 SCMR 1178 and Malik Talkies Distributors v. Khawaja Mehboob Ellahi 2004 MLD 724 ref.

Haji Mohibullah & C. and others v. Khawaja Bahaudin 1990 SCMR 1070 and Tahir Umar v. Messrs Bata Shoes Pakistan Limited and 3 others 1991 MLD 1236 rel.

Ch. Abdul Ghani for Appellant.

Ch. Muhammad Anwarul Haq for Respondents.

Date of hearing: 16th April, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 2226 #

2009 Y L R 2226

[Lahore]

Before Pervaiz Inayat Malik, J

MUHAMMAD SHAFIQUE---Petitioner

Versus

S. H.O.---Respondent

Writ Petition No.2228 of 2007, decided on 28th April, 2009.

Forest Act (XVI of 1927)---

----Ss.62 & 68---Penal Code (XLV of 1860), Ss.411/109---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Forest Department agreed to compound the case subject to petitioner's deposit of price of alleged stolen wood---Under the provisions of S.62 of the Forest Act, 1927 and under the compromise the Forest' Department having received the price of alleged stolen woods, in view of S.68 of the Forest Act, 1927, no case could be ,registered nor could the petitioner be penalized twice for same offence---Further prosecution of the petitioner in respect of the same offence, in circumstances was unreasonable, mala fide and would amount to punishing the petitioner twice for the same offence.

1987 PCr.LJ 452 ref.

Sagheer Ahmad Bhatti, for Petitioner.

Mian Bashir Ahmad Bhatti, Dy. P.-G. for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 2229 #

2009 Y L R 2229

[Lahore]

Before Hafiz Tariq Nasim and Khalil Ahmad, JJ

Mst. NASIM AKHTAR TAHIR---Appellant

Versus

Syed ZAFAR ABBAS GILLANI---Respondent

Regular First Appeal No.273 of 2007, heard on 2nd June 2009.

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

----S. 12---Specific performance of agreement to sell---Discretionary relief---Plaintiff filed suit for specific performance of an agreement to sell in respect of the disputed property before Trial Court alleging therein that plaintiff had paid sale consideration of Rs. 2,80,00,000 in shape of prize bonds and the possession had been handed over to him through tenant---Defendant contested the suit and stated that plaintiff had no cause of action and locus standi and further stated that neither any price was fixed nor any earnest money was received by the defendant and the defendant also did not execute any agreement to sell in favour of the plaintiff---Trial Court decreed suit of the plaintiff---Plaintiff allegedly had handed over the sale consideration to the defendant against a stamp paper of worth Rs.100 without getting sale-deed executed---Plaintiff being an Advocate, paid the sale consideration to the defendant and did not spend some hundred thousands on the sale-deed's registration and let the defendant to go outside the country during this period without completion of the sale-deed--High Court put certain questions to the counsel for the plaintiff who kept silent and such attitude of the counsel created a doubt in mind of the court particularly when plaintiff was also an Advocate---Remedy of specific performance being a discretionary relief which the court, after taking into consideration all the facts and circumstances of the case, may or may not allow/grant---Appeal was accepted by High Court.

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

----S. 12---Specific performance of agreement to sell---Vendor had categorically denied the receiving of the sale consideration---Effect---Suit for specific performance of an agreement to sell was decreed by the Trial Court in respect of the disputed property---Fact of payment of money was categorically denied by the defendant---Agreement to sell could not be said to be genuine---Possibility of connivance of the plaintiff against the defendant further strengthened this transaction---Plaintiff's mala fide intentions to dispossess the real owner of the disputed property through using his legal skills in wrong direction and getting unjustly enriched at the cost of defendants real right were possible---Defendant being an old lady specifically denied the execution of agreement to sell, denied the receipt of the payment and deposed in explicit terms that disputed property was more than double the consideration/price as was alleged by the plaintiff---Appeal was accepted by High Court.

Abdul Aziz v. Abdul Rehman 1994 SCMR 111 rel.

Syed Hamad Raza Bokhari for Appellant.

Syed Samar Hussain Shah for Respondent.

Date of hearing: 2nd June, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 2238 #

2009 Y L R 2238

[Lahore]

Before Syed Zulfiqar Ali Bokhari, J

MUHAMMAD ASLAM---Petitioner

Versus

MEMBER (JUDICIAL-I), BOARD OF REVENUE PUNJAB, LAHORE and 4 others---Respondents

Writ Petition No.2083 of 2008, decided on 14th May, 2009.

West Pakistan Land Revenue Rules, 1968---

----R.17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Lumberdar, appointment of---Temporary Lumberdar---Vested right---Petitioner was aggrieved of order passed by authorities whereby he was not appointed as permanent Lumberdar, though he worked as temporary Lumberdar for considerable period---Validity---Appointment of permanent Lumberdar under R.17 of West Pakistan Land Revenue Rules, 1968, was exclusive discretion of revenue authorities---Recommendation of functionaries of revenue hierarchy carried weight and the same should not be ignored---Petitioner could not claim as a right mere on the ground that he worked for some years as temporary Lumberdar as he was neither recommended by revenue field staff nor was appointed by any of the authorities upto -Board of Revenue---Higher educational qualification of petitioner could be a good ground for appointment of Lumberdar but the same could be ignored in absence of recommendation of lower functionaries from Patwari to Tehsildar and no confidence of revenue field staff on the candidate who worked with them for a considerable period---Choice of revenue authorities selecting permanent Lumberdar ought not to be ignored unless there was a gross irregularity in such appointment---There was no specific disqualification or ineligibility in appointee---High Court declined to interfere in the exclusive choice of revenue authorities to appoint any one as permanent Lumberdar---Petition was dismissed in circumstances.

Noor Muhammad, Lumbardar v. Member (Revenue), Board of Revenue Punjab, Lahore and others 2003 SCMR 708; Naik Muhammad v. Mazhar Ali and others 2007 SCMR 112; Abdur Rehman v. Allah Rakha PLD 1966 W.P. (Revenue) 190; Muhammad Amir v. Naeem Arshad 2001 CLC 1773; Muhammad Maalik v. Member, Board of Revenue, Punjab, Lahore and 3 others 2006 CLC 755; Mst. Sarwari Bibi v. Arshad Ali Khan and others 2007 YLR 702; Mazhar Ali v. Naik Muhammad and others 2004 YLR 2543 and Muhammad Jameel v. Member (Judicial-I), Board of Revenue, Punjab, Lahore and others 2004` YLR 440 ref.

Muhammad Suleman Bhatti for Petitioner.

Rana Luqman Ali Khan for Respondent No.3.

YLR 2009 LAHORE HIGH COURT LAHORE 2241 #

2009 Y L R 2241

[Lahore]

Before Saif-ur-Rehman and Zafar Iqbal Chaudhry, JJ

MUHAMMAD NAWAZ alias BAMBU---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.340 of 2002 and Murder Reference No.363 of 2002, heard on 12th January, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Facts admitted by the two eye-witnesses in their statements, had proved a long standing enmity between the parties---According to complainant, he and his deceased brother were the target of alleged aggression of accused---Nothing was found from the evidence of the prosecution to hold that any attempt was made on the life of complainant, though he was present at the distance of just two feet from the deceased from whom accused were at a distance of just five feet---Such position indicated that accused had no grudge against the complainant---Inference belied the motive set up by the prosecution---Conduct of the complainant and other prosecution witnesses had suggested the possibility that the occurrence did not take place in the manner as alleged by the prosecution---Had the eye-witnesses been present at the place of occurrence, their first reaction after the occurrence must have been to save the life of the deceased as he was then alive in an injured condition---In presence of admitted enmity and the fact that complainant was real brother of the deceased and other prosecution witness was son of sister of his wife, both the eye-witnesses were interested and their testimony had to be subjected to a careful scrutiny---Nothing was disclosed by Investigating Officers to draw a conclusion that on the day of occurrence the parties were called by the Investigating Officer to join investigation in the murder case of another brother of the complainant---Seat of injuries mentioned by the eye-witnesses though were corroborated by medical evidence, but there appeared some confusion while preparing the injury statement by the Police---Since the crime weapon and crime empty were dispatched to Forensic Science Laboratory on the same day, report of the Police that empty tallied with the pistol recovered from accused, carried no force---Defence plea was supported by court witness---Though no importance had been attached to plea taken by accused, but prosecution had to stand on its own legs---Prosecution was to prove the charge beyond any shadow of doubt--Evidence regarding motive, ocular account, manner of occurrence, medical evidence and recoveries created doubts---Impugned judgment of the Trial Court, was not sustainable---Appeal was accepted and conviction and sentence awarded to accused by the Trial Court were set aside---Accused was acquitted of the charge and was released.

Abdul Aziz Khan Niazi for Appellant.

Ch. Zafar Iqbal Chadhar for the Complainant.

Ch. Sarfraz Ahmad Zia, Dy. P.-G. for the State.

Date of hearing: 12th January, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 2253 #

2009 Y L R 2253

[Lahore]

Before Syed Shabbar Raza Rizvi and Khurshid Anwar Bhinder, JJ

MUHAMMAD AJMAL---Petitioner

Versus

ELECTION TRIBUNAL, LAHORE and 5 others---Respondents

Writ Petition No. 14808 of 2009, decided on 27th July, 2009.

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

----O. XVII, R.3---Representation of the People Act (LXXXV of 1976), Ss.64 & 67(1A)---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Petitioner filed election petition before Tribunal---During proceedings of the election petition, the matter was adjourned on the request of the petitioner for adjournment with clear direction that no further opportunity shall be granted and in case of non-compliance penal consequences shall be followed---Order further indicated that counsel and witnesses should be present on the next date of hearing---Contention of the petitioner was that his counsel was on adjournment on ground of sickness; evidence of the petitioner was closed without fulfilling the requirement of O.XVII, R.3, C.P.C. which required presence of parties and no penal consequences could follow---Validity---Adjournments were granted to the petitioner at his request on several occasions and the same were for the purpose of producing evidence---Petitioner defaulted in producing the evidence--- Section 67(1A) of Representation of the People Act, 1976, required Election Tribunal to complete the trial within four months from receipt of the election petition---Section 64 of the said Act empowered the Election Tribunal to exercise all powers of a Civil Court and when it was read with O.XVII, R.3, C.P. C. it was absolutely clear that as a penalty, right of petitioner to produce evidence, in defence could be struck off---Constitutional petition was dismissed by High Court.

2006 MLD 1577 and 1990 CLC 1743 ref.

2006 MLD 1577 rel.

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

----O. XVII, R.3---Constitution of Pakistan (1973), Art.199---Constitutional petition-"Penal" or "penal consequences"---Expression "penal" or "penal consequences" refers to imposition of penalty in form of cost or fine---Scope---Imposition of penalty in the form of cost or fine could not be ascribed to the expression `penal"-Order XVII, R. 3, C.P.C. had made clear that where any party to suit whom time had been granted failed to produce his evidence, or to cause the attendance of his witnesses, the court, notwithstanding such default, could proceed to decide the suit forthwith---Constitutional petition was accordingly dismissed.

2006 MLD 1577 rel.

Ch. Fawad Hussain for Petitioner.

2009 Y L R 2265

[Lahore]

Before Jamshed Rahmat Ullah, J

Sardar IFTIKHAR-UD-DIN KHAN and 4 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, D.G. KHAN and another---Respondents

Writ Petition No.1698 of 2006, decided on 30th June, 2009.

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

----S.12---Civil Procedure Code (V of 1908), O.XIII, Rr.1 & 2---Qanun-e-Shahadat (10 of 1984), Art.85---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for specific performance of sale agreement---Denial of execution of agreement by defendant---Passport of defendant showing his absence from Pakistan at relevant time neither filed along with written statement nor entered in List of Reliance---Plea of defendant that at the time of framing of issues, he being out of Pakistan was not in contact with his counsel, thus, his Passport could not be entered in List of Reliance---Objection of plaintiff that defendant had not mentioned in written statement that he was out of Pakistan at relevant time, thus he could not bring on record his Passport at a late stage---Order of Trial Court allowing defendant to produce his Passport in evidence set aside by revisional court---Validity---Defendant's denial to have executed such agreement would mean that no transaction had taken place between parties regarding suit land---Defendant by bringing on record his Passport and entries thereof intended to demonstrate that he was not signatory to such agreement and his signatures thereon had been forged---Question as to whether defendant was in Pakistan or not at relevant time would not require determination, rather question requiring consideration would be as to whether defendant had signed such agreement or not---Non-mentioning in written statement factum of absence of defendant from Pakistan at relevant time would not make much difference---Object of O. XIII, Rr.1 & 2, C.P.C. was to prevent fraud and not to penalize parties for non-production of documents in time---Public documents of unimpeachable authenticity might be entertained at a late stage---Passport was a public document---High Court set aside impugned order and restored order passed by Trial Court.

1969 SCMR 965 and 2002 CLC 254 ref.

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

----Art.199---Constitutional jurisdiction exercise of---Scope---Such jurisdiction being discretionary with High Court must be exercised in good faith, fairly, justly and reasonably having regard to all relevant circumstances.

----O.XIII, Rr.1 & 2---Qanun-e-Shahadat (10 of 1984), Arts.85 & 86---Object of O.XIII, Rr.1 & 2, C.P.C. being to prevent fraud and not to penalize parties for non-production of documents in time---Principles.

The object of Order XIII, Rules 1 and 2, C.P.C. is to prevent fraud and not to penalize parties for non-production of documents in time. Accordingly, when the genuineness of the document is beyond doubt, it ought not to be shut out of evidence, if produced at a late stage. In fact, it is the nature of document, which is to be considered i.e. private documents, manipulation and tampering cannot be ruled out, therefore, mostly private documents are not entertained at a later stage. However, public documents of unimpeachable authenticity may be entertained even at a later stage as their authenticity can hardly be challenged and the chances of their manipulation and tempering are remote. Passport is a public document.

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

----Art.85---Passport is a public document.

Muhammad Maalik for Petitioner.

Muhammad Naveed Hashmi for Respondent No.2.

YLR 2009 LAHORE HIGH COURT LAHORE 2270 #

2009 Y L R 2270

[Lahore]

Before Syed Shabbar Raza Rizvi, J

SHAHNAWAZ RANJHA---Petitioner

Versus

RETURNING OFFICER (SYED PERVEZ ALI SHAH)/ADDITIONAL DISTRICT & SESSIONS JUDGE, SARGODHA and another---Respondents

Writ Petitions Nos.390 of 2006 and 17594 of 2005, decided on 1st June, 2009.

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

----S. 2 (xxvi) (xli)---Industrial Relations Ordinance (XCI of 2002), S. 2(xxx)--Constitution of Pakistan (1973), Art. 199(1) (b) (ii)---Constitutional petition---Naib Zila Nazim, election of---Election of Naib Zila Nazim contested by respondent in his capacity as member of Zila Council elected against seat reserved for worker/peasant---Declaration of respondent as elected Naib Zila Nazim---Petitioner being a voter in Electoral College for election of Naib Zila Nazim pleaded that respondent was not a worker, thus, was not qualified to be elected as member of Zila , Council and then Naib Zila Nazim---Validity---Allegation against respondent was that he posed himself as a worker while contesting election of member of Zila Council in violation of constitutional provisions and Punjab Local Government Ordinance, 2001, thus, succeeded illegally to occupy a public office for which he was not qualified---High Court, in view of such plea, raised by petitioner had to satisfy itself whether respondent was qualified to hold such public office or not---Record showed that respondent owned about 102 acres of agricultural land and was working in Sugar Mills on administrative side---Respondent had taken loans against his agricultural land from three Banks---Respondent's application for division of agricultural land was pending before Tehsildar concerned---Respondent had not challenged authenticity of documents relied upon by petitioner---Certificates of D.D.O. (R) and Patwari Halqa on plain papers showing respondent not to be owing agricultural land had been alleged to be issued during period, when father of respondent was sitting as Revenue Minister---Respondent was disqualified to contest election against a seat reserved for workers---High Court declared election of respondent as member of Zila Council as unlawful and of no legal effect, thus, set aside his election to seat of Naib Zila Nazim while directing concerned authorities to take appropriate and required measures in pursuance of its order.

PLD 1966 Kar 1; PLD 1969 SC 223; PLD (sic) Lahore 544; PLD 1962 Lahore 2630; 1981 SCMR 74; 2006 YLR 643; 2006 CLC .104; PLD 1965 Dacca 330 and PLD 1970 SC 98 ref.

Muhammad Maqsood Sabir Ansari v. DRO and others Writ Petition No.16703 of 2005; Muhammad Shafiq Raja v. Government of the Punjab, 1991 CLC 617 and Sardar Asif Ahmad Ali v. Muhammad Khan Junejo PLD 1986 Lah. 310 rel.

S.M. Masud for Petitioner.

Munir Ahmad Bhatti for Respondent No.2.

YLR 2009 LAHORE HIGH COURT LAHORE 2277 #

2009 Y L R 2277

[Lahore]

Before Fazal-e-Miran Chauhan and Hasnat Ahmad Khan, JJ

NASIR KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.639 of 2008, decided on 6th January, 2009.

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

----Ss.2(g), (h), (t), (u) & 3---Appreciation of evidence---Application for determination of percentage of opium alkaloids---Dismissal of application---Appeal---More than 8000 unlabelled intoxicating/sedative injections were recovered at the instance and from the possession of accused---According to the report of Chemical Examiner, said injections contained opium alkaloids, but the Chemical Examiner had failed to give the percentage of the opium alkaloids, which was found to be the component of the recovered material---According to S.3 of Control of Narcotic Substances Act, 1997 Federal Government was required to make rules prescribing the method with which the percentage of liquid preparations could be calculated for the purpose of clauses (g) (h) (t) & (u) of S.2 of Control of Narcotic Substances Act, 1997---Provisions of S.3 of Control of Narcotic Substances Act, 1997, had provided that in case of recovery of any material defined under clauses (g) (h) & (u) of S.2 of said Act percentage till the framing of the rules by the Government would be determined in accordance with the Proviso to S.3 of said Act---In the present case while examining the recovered material, Chemical Examiner failed to give percentage of opium alkaloids, which according to him were detected in the recovered injections---Chemical Examiner who was under a legal obligation to find ,out the percentage of the detected opium alkaloids, having failed to do so, appeal against order of Special Court whereby the application filed by the applicant for the determination of the percentage of opium alkaloids from the material allegedly recovered from the applicant was dismissed, was set aside and application of applicant before the Trial Court was allowed.

Muhammad Saeed v. The State 2007 PCr.LJ 156 and The State v. Amjad Ali PLD 2007 SC 85 rel.

Muhammad Ahsan Nizami for Appellant.

A. D. Nasim, Legal Advisor, ANF for the State.

Date of hearing: 2nd December, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 2281 #

2009 Y L R 2281

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD SHAHID---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.3006-B of 2008, decided on 3rd December, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), Ss.302/34/201---Bail, grant of-Further inquiry---Recovery of pistol with six bullets, prima facie, was the only evidence available with the prosecution against accused---Nomination of accused by complainant through a supplementary statement and that too without disclosing the basis for making such statement, had made the case of accused one of further inquiry---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Nadir Manzoor Duggal, Dy. P.-G.

Syed Nadeem Haider Rizvi for the Complainant.

Naeem, S.I.

YLR 2009 LAHORE HIGH COURT LAHORE 2283 #

2009 Y L R 2283

[Lahore]

Before Arshad Mehmood, J

ABDUL GHAFOOR---Appellant

Versus

MULAZIM HUSSAIN---Respondent

First Appeal against Order No.6 of 2009, heard on 1st June, 2009.

Conciliation Courts Ordinance (XLIV of 1961)---

----S.3 & Sched. ---Civil Procedure Code (V of 1908), O. VII, R.10 & O.XXXVII, Rr.2, 3---Suit for recovery of amount on basis of pro note---Return of plaint---Trial Court observing that suit being triable by conciliation court, returned the plaint to the plaintiff for its presentation to the competent court---Plaintiff had filed appeal against said order of the Trial Court---Plea of the plaintiff was that value of suit being Rs.1,00,000 (Rupees one lac only) same could not be referred to the conciliation court without consent of the parties thereto---In view of conditions couched in S.3(1) (b) of Conciliation Courts Ordinance, 1961 pre-requisites for referring the matter to the Conciliation Courts, were; (i) Residence of parties in the vicinity as enunciated in S.6 of Conciliation Courts Ordinance, 1961; (ii) Consensus of parties for such reference; and (iii) claim not exceeding Rs. 1,00,000, in value---In the present case, value of subject-matter was Rs. 1,00,000, consent of the plaintiff was lacking in the case---Order returning plaint, in circumstances had been passed in gross violation of S.3(1)(b) of Conciliation Courts Ordinance, 1961---Impugned order was set aside, with the result that suit filed by the plaintiff would be deemed to be pending before the Trial Court, which would proceed further in accordance with law.

Rafique Ahmad Malik for Appellant.

Muhammad Arif Alvi for Respondent.

Date of hearing: 1st June, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 2285 #

2009 Y L R 2285

[Lahore]

Before Saghir Ahmad, J

TARIQ MAQSOOD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.630/B of 2008, decided on 14th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 392/458/411---Bail, grant of---Accused was not nominated in the F.I.R.---Accused was behind the bars since 27-11-2006 without there being any progress in the trial---F.I.R., showed that accused was armed with fire-arm, but during investigation no such weapon had been recovered from accused---Nothing was to be recovered from accused after conclusion of investigation when the trial had commenced---Further incarceration of accused without any progress in the trial would not serve any useful purpose to the prosecution---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Muhammad Younas Sheikh for the Complainant.

Ch. Zulfiqar Ali Sindh, Addl. P.-G. with Muhammad Bakhsh, S.I.

YLR 2009 LAHORE HIGH COURT LAHORE 2294 #

2009 Y L R 2294

[Lahore]

Before Saif-ur-Rehman, J

MUHAMMAD TUFAIL---Petitioner

Versus

ABDUL MAJEED and 3 others---Respondents

Civil Revision No.2781 of 2004, heard on 6th April, 2009.

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

----S.42---Transfer of Property Act (IV of 1882), Ss. 107 & 116---Qanun-e-Shahadat (10 of 1984), Arts. 17(2) (a) & 79---Registration Act (XVI of 1908), Ss. 17 & 49---Civil Produced Code (V of 1908), S.35-A---Suit for declaration on basis of unregistered lease deed for a term of four years---Defendant alleged lease deed to be forged---Proof---Examination of scribe and two marginal witnesses of lease deed by plaintiff---Validity---One marginal witness had deposed nothing about signing of lease deed by defendant, while other witness during cross-examination had deposed about signing of lease deed in his presence by defendant---Registration of lease deed for a term of more than one year was compulsory and its execution by both lessor and lessee was mandatory---Lease deed was unregistered and was not signed by defendant---Lease deed for involving future financial obligation had to be proved by examining its two attesting witnesses---Scribe not being an attesting witness could not substitute requirement of an attesting witness---Deposition . of one marginal witness about signing of lease deed by defendant would not be sufficient to prove its execution---Plaintiff while cross-examining defendant had not confronted him with his signatures on lease deed, which failure of plaintiff was fatal for his case---After denial of execution of lease deed by defendant, plaintiff was duty bound to prove that its contents had been read over to defendant, who had signed same in token of its correctness---No note to such effect was found on lease deed---Plaintiff had failed to prove execution of lease deed---Unregistered documents, though requiring compulsory registration, would not create or extinguish any title---Plaintiff had filed suit to get his possession prolonged---Suit was dismissed with special costs of Rs.5000 under S. 35-A, C.P.C.

V. Swarnam Iyar v. Veeragu Animal AIR (30) 1943 Madras 286 and Saeed Ahmad and others v. Mst. Khatoon Begum and others 1998 MLD 53 ref.

Mst. Noor Jehan and others v. Muhammad Rafique and other 1995 CLC 43; Ghulam Sidique v. Mst. Ajaib and others 2002 CLC 1244; Haji Dawood & Co. v. Haji Muhammad Iqbal and others PLD 1962 WP Karachi 368; Bashir Ullah and others v. The Province of East Pakistan and others PLD 1962 Dacca 126 and Muhammad Nazir and others v. Malli 1994 CLC 1687 rel.

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

----Ss. 106 & 107---Registration Act (XVI of 1908), Ss. 17 & 49---Unregistered lease deed for a term of more than one year---Validity---Registration of such lease was compulsory and its execution by both lessor and lessee was mandatory---Unregistered document, if essentially required to be registered, would not create or extinguish any title---Such unregistered lease could be used for co-related purpose and lease could avail of its benefit, if his case fell under S.106 of Transfer of Property Act, 1882.

----Arts. 17(2) (a) & 79---Document required by law to be attested, proof of---Scribe of document, deposition of---Validity---Scribe, who was not an attesting witness, could not substitute requirement of an attesting witness.

Ch. Tanvir Ahmad Hinjra for Petitioner.

Abdul Majeed in person (Respondent No.1).

Ali Ahmad, A.S.-I. (Respondent No.4).

Date of hearing: 6th April, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 2299 #

2009 Y L R 2299

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD ARIF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2228/B of 2008, decided on 23rd September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.337-F(iv)---Bail, grant of---Further inquiry---Accused had throughout claimed that the injury was inflicted by some other manner, however, it was on non-vital part of the body---Injured despite notices issued by the Medical Board, had failed to appear for re-examination---Accused was behind the bars for last three months, while the challan was submitted, but no progress had been made in the trial---Accused if kept in jail till finality of trial same would amount to punishment without trial---Offence did not fall within the prohibitory clause of S. 497, Cr. P. C. ---Attending circumstance had made case of accused that of further inquiry---Accused, was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Ch. Zulfiqar Ali Sidhu, Addl. I'.-G. assisted by Mumtaz Hassan Awan with Haq Nawaz, S.I.

YLR 2009 LAHORE HIGH COURT LAHORE 2300 #

2009 Y L R 2300

[Lahore]

Before Habib Ullah Shakir, J

SHAH NAWAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.250/B of 2009, decided on 20th April, 2009.

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

----S.497(2)---Penal Code (XLV of 1860), Ss. 302/201/148/149---Bail, grant of--Further inquiry---Accused persons though were nominated in the F.I.R., but no direct evidence was available on record regarding murder of the deceased---Though murder of a human being had been committed, but there was no reason, especially in the absence of any direct evidence to connect accused persons with the alleged crime---None amongst accused persons had been attributed specific role---During the investigation two accused persons were found innocent and placed in column No.2 in the report submitted under S.173, Cr.P.C., while another one was placed in column No.3---Such facts had made case against accused persons one of further inquiry entitling accused for grant of bail---Nothing was recovered from accused persons and they were no more required by the Police for further investigation---Charge though had been framed in the case, but there was no likelihood of early conclusion of the trial because accused persons had submitted an application for submission' of complete challan and the other under S.265-C, Cr.P.C. for supply of copies, "while the 'complainant had also submitted an application for summoning an other person as" accused, which was pending adjudication---Accused were admitted to bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Niaz Ali v. The State and another 2003 YLR 163 and Muhammad Arif Hussain v. The State 1999 MLD 939 ref.

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

----S.497(2)---Penal Code (XLV of 1860), SS.302/201/148/149---Bail, grant of---Principles of,---Bail could not be refused merely on the ground that the offence fell within. the prohibitory clause of S.497, Cr. P. C.-Court seized of the matter should consider whole case available on record and if any doubt would arise, benefit of same must be given to accused---Court, while considering question of bail, was not to keep in view only maximum sentence of death or imprisonment for life, provided under the law, but at bail stage, if reasonable ground appeared showing that person was not guilty of offence with which he was being charged, such person, by virtue of subsection (2) of S.497, Cr.P.C, would be entitled to bail and prohibition contained in subsection (1) of S.497, Cr. P. C. would not create a bar against grant of bail.

Mumtaz Mustafa for Petitioner.

Ch. Muhammad Ashraf Mohandra, Dy. P.-G. for Respondent.

Malik Dost Muhammad Awan for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 2305 #

2009 Y L R 2305

[Lahore]

Before Muhammad Khalid Alvi, J

MUNAWAR HUSSAIN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2154/B of 2008, decided on 29th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.376(2)---Bail, grant of---Further inquiry-Complainant according to F.I.R., managed to escape while she was being carried in a car by two accused persons on her either side with a pistol put at her ribs; and she raised alarm whereupon she was rescued---Documents produced by counsel for accused persons, which was an application by the complainant to NADRA Authorities for obtaining her NIC by mentioning accused as her husband, had clearly demonstrated that, if she had been under threat, she could have raised such an alarm in the office of NADRA, rather raising alarm in the car, when she was directly under the threat of a firearm-Apart from that, although police verdict was not binding, still it appeared that the police had examined the Nikah Mama, affidavit and other material and came to the conclusion that accused persons were innocent-Accused persons were behind the bars for last about one year---Said facts also needed further inquiry---Accused were admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioners.

Ch. Sarfraz Ahmad Zia, Dy. P.-G.

Humayun Rasool for the Complainant.

Haq Nawaz, S.I.

YLR 2009 LAHORE HIGH COURT LAHORE 2307 #

2009 Y L R 2307

[Lahore]

Before Saif-ur-Rehman, J

MUSHTAQ AHMAD---Petitioner

Versus

GHULAM RASOOL and another---Respondents

Civil Revisions Nos.1807, 1867 and 1868 of 2007, decided on 20th April, 2009.

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

----O. XVI, R.1(3), Proviso & O. XVII, R.3---Closure of plaintiff's evidence due to non-appearance of summoned witness for not taking of his summons 14 days prior to date fixed in suit---Validity---Record showed that process server on notice received back by Court had reported his failure to locate witness---Defendant had objected to recording of partial evidence of two witnesses of plaintiff present in Court---Court on last date of hearing had adjourned proceedings without recording statements of plaintiff's witnesses present in Court while throwing burden on his shoulders to provide evidence on his own responsibility on adjourned date---Validity---Non-presence of summoned witness was sufficient to grant adjournment---Court, while adjourning proceedings, must have bound down present witnesses to appear on next date---Adjournment granted . on last date of hearing would be treated to be an adjournment granted at request of defendant---Penal provision of O.XVII, R.3, C.P.C., would not attract to such case---Court on last date of hearing had itself waived conditions prescribed under O. XVI, R. 1(3), thus, it should have allowed one more opportunity to plaintiff to get summons served on summoned witness---Conduct of plaintiff was not contumacious as service on summoned witness had been repeatedly effected on him in person---Defendant could be compensated by awarding costs for delay caused---High Court set aside impugned order and remanded case to Trial Court with direction to allow 2 to 3 opportunities to plaintiff to produce evidence subject to payment of costs of Rs. 5,000.

PLD 1980 SC 129; PLD 1990 SC 1192; PLD 1991 SC 1109; PLD 1988 Lahore 183; PLD 1994 Lahore 37 and 1998 CLC 610 rel.

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

----O. XVI, Rr. 1(3) & 8---Non-obtaining of summons of a witness by a party 14 days prior to date fixed in suit---Effect---Court in such circumstances could refuse to issue summons---Court once waiving to exercise discretion under Proviso to R. 1(3) of O.XVI, C.P.C., would be legally bound to examine as to whether service on witness had been effected in accordance with provision of R.8 thereof.

Sh. Naveed Sheharyar for Petitioner.

Qazi Khurshid Alam for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 2311 #

2009 Y L R 2311

[Lahore]

Before Habib Ullah Shakir, J

MUHAMMAD ILYAS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.1824/B of 2008, decided on 20th April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---No direct evidence of murder was available against accused---Only evidence available on record against accused was that of last seen---Dead body of deceased was found in a garden and same was neither recovered from the possession of accused nor on the pointation of accused---Motive was alleged against co-accused who had been found innocent during the course of investigation---Case against accused, prima facie appeared to be one of further inquiry---Bail could not be refused on the ground that offence fell within the prohibitory clause of S.497, Cr. P. C. ---Accused, who was in jail since 22-5-2008, was no more required by the Police for further investigation---Challan though had been submitted in the Court, but there was no likelihood of early conclusion of the trial---Bail could not be withheld as a punishment---Accused was admitted to bail, in circumstances.

Sheraz Muhammad Khan for Petitioner.

Ch. Muhammad Ashraf Mohandra, Dy. P.-G. for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 2313 #

2009 Y L R 2313

[Lahore]

Before Malik Saeed Ejaz, J

ISHTIAQ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2147/B of 2007, decided on 21st October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Bail, grant of---Further inquiry---Accused though was nominated in the F.I.R. and role of lalkara was attributed to him, but during the investigation, he was not found present at the spot---Role assigned to accused, in circumstances, needed further probe to connect him with the commission of offence---Accused was shown to be empty handed at the scene of occurrence and he did not cause any injury to any one---No allegation was levelled against accused that he facilitated his co-accused to abscond---Accused could not be deprived of concession of bail merely on the, ground that his co-accused had not been arrested---No proceedings under Ss. 87/88, Cr.P.C., had been initiated against co-accused who had absconded---Accused was admitted to bail, in circumstances.

Sh. Muhammad Usman for Petitioner.

Nadir Manzoor Duggal, Dy. P.-G. with Liaqat Ali, S.-I. for Respondents.

Altaf Ibrahim Qureshi for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 2315 #

2009 Y L R 2315

[Lahore]

Before Tariq Shamim, J

Rao MANZAR ALI KHAN---Petitioner

Versus

SECRETARY HOUSING & PHYSICAL PLANNING DEPARTMENT, GOVERNMENT OF THE PUNJAB, LAHORE and 3 others---Respondents

Writ Petition No.16265 of 2008, decided on 3rd March, 2009.

Land Acquisition Act (I of 1894)---

---Ss. 4 & 23---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Acquisition of land with constructed Dera---Awarded compensation partly received by petitioner---Auctioning of planned plots by Government as per policy in vogue---Application by petitioner after 19 years for de-notification of constructed Dera for not having received compensation therefor---Rejection of such application by authority---Validity---Award announced included entire land of petitioner along with constructed Dera---Remaining amount of compensation of petitioner was still lying with Land Acquisition Collector---Acquired land had already been auctioned, thus, constructed Dera could not be retrieved at such stage---Authority had communicated factual position 19 years ago, but petitioner had slept over the matter---Petitioner had deliberately not received entire awarded compensation---High Court dismissed constitutional petition in circumstances.

Hassan Ahmad Khan Kanwar for Petitioner.

Amjad Ali Chatha, Asstt. A.-G., Punjab for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 2317 #

2009 Y L R 2317

[Lahore]

Before Iqbal Hameedur Rehman, J

MUBASHAR ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.10213/B of 2008, decided on 31st March, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324, 354, 337-F(vi), 148 & 149---Bail, grant of--Further inquiry---Injury attributed to accused indicated that he fired upon the legs of injured, which was not corroborated by the medico legal report---Co-accused, who was also attributed the role of causing firearm injury to the injured had been declared innocent during the investigation---Case of accused, in circumstances, had become that of further inquiry---Injury allegedly attributed to accused, was on the non-vital part of the body of the injured---Accused was behind the bars for the last about 11 months and was no more required for further investigation---Further detention of accused, in circumstances, would not serve any useful purpose---Challan though had been submitted, but the trial was not progressing---Accused was admitted to bail, in circumstances.

Muhammad Umer v. The State PLD 2004 SC 477; Raham Hussain v. The State and another 2008 YLR 1064 and Muhammad Mansha v. The State 2007 YLR 515 ref.

Abdul Jabbar Langa for Petitioner.

Ghulam Qadir Bari, Asstt. P.-G. Punjab for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 2319 #

2009 Y L R 2319

[Lahore]

Before Sh. Azmat Saeed, J

PROVINCE OF PUNJAB through Collector, Sargodha and 4 others---Petitioners

Versus

MUHAMMAD TARIQ---Respondent

F.A.O. No.236 of 2008, decided on 4th November, 2008.

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

----O.XLIII, R.3---Appeal against interim order---Appearance of respondent at limine stage before District Judge, who on his objection, returned appeal for its filing in High Court---Respondent's objection before High Court that appeal was not maintainable for having been filed without giving him prior notice thereof---Validity---Respondent's appearance at limine stage before District Judge would make clear that he had full knowledge of grounds of appeal, thus, provision of O. XLIII, R. 3, C. P. C., stood substantially complied with---Such objection was not relevant for having been raised after admission of appeal for regular hearing---Respondent had not shown any prejudice caused to him by non-service of notice of filing of appeal---High Court overruled such objection in circumstances.

Attaullah Khan and others v. Sami Ullah Khan and others 1991 MLD 941; 1997 MLD 2003; Messrs Heavy Electrical Complex v. Sarhad Development Authority 1999 CLC 790 and Salah ud Din v. Syed Mansoor Ali Shah and others 1997 SCMR 414 ref.

Mrs. Dino Maneki Chinoy and 8 others v. Muhammad Matin, PLD 1983 SC 693; United Bank Ltd v. Messrs Khawaja Radio House 2004 CLD 1609 Ch. Bashir Ahmed and 4 others v. Province of the Punjab through Collector Sargodha and 4 others 1990 MLD 986 and Fateh Muhammad v. Muhammad Hanif and another PLD 1990 Lahore 82 rel.

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

----Ss.8, 42 & 54---Punjab Mining Concession Rules, 2002, R.222---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration, possession of mining site with alternative relief for damages---Application for grant of temporary injunction---Plaintiff's grievance was that after grant of mining lease, complete mining site was not handed over to him during lease period-Relationship between parties would be governed by mining lease and Punjab Mining Concession Rules, 2002 being a special law applicable thereto---Contract Act, 1872 and Specific Relief Act, 1877 would not apply to such lease contract---According to R. 222 of Punjab Mining Concession Rules, 2002, plaintiff was entitled to refund of proportion of consideration paid to defendant authority---Plaintiff himself had translated his grievance and loss in pecuniary terms through alternative relief of damages in suit---Plaintiff had remedy to claim monetary compensation, thus, was not entitled to permanent or temporary injunction---Application for temporary injunction was dismissed in circumstances.

Bolan Beverages (Pvt.) Ltd. v. Pepisco Inc and 4 others PLD 2004 SC 860 and Puri Terminal Ltd. v. Government of Pakistan through Secretary Ministry of Communication and Railways Islamabad and 2 others 2004 SCMR 1092 ref.

Rizwan Mushtaq, A.A.-G. for Appellants.

Jehanzeb Akhtar Bharwana for Respondent.

YLR 2009 LAHORE HIGH COURT LAHORE 2323 #

2009 Y L R 2323

[Lahore]

Before Muhammad Khalid Alvi, J

SHAHAMAND and 5 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2932/B of 2008, decided on 11th November, 2008.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss. 337-A(ii), 337-F(i), 337-H(ii), 354, 430, 148 & 149---Pre-arrest bail, confirmation of---Prosecution story and cross version showed that accused persons were present at the spot, but only role attributed to them was that of aerial firing---Trial Court after recording evidence would see as to whether they actually made aerial firing; and if so, what was its effect---Bail was allowed to accused and pre-arrest bail already granted to them was confirmed.

Altaf Ibrahim Qureshi for Petitioners.

Asjad Javaid Ghural, Dy.P.-G. for Respondents.

Muhammad Nadeem Kanjoo for the Complainant, Rao Naseem, S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 2324 #

2009 Y L R 2324

[Lahore]

Before Syed Shaheen Masud Rizvi and Saghir Ahmed, JJ

SHAUKAT ALI and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No.189 of 2001/BWP, P. S. L. A. No.7 of 2001 and Murder Reference No.43 of 2001, heard on 14th October, 2008.

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

----Ss.302(b) & 324---Appreciation of evidence---Benefit of doubt---Out of seven accused persons, four were acquitted by the Trial Court by giving them benefit of doubt while out of remaining three accused persons, two were convicted and sentenced to 10 years' imprisonment with fine---Seventh accused was convicted under S.302(b), P.P.C. and was sentenced to death with compensation of Rs. 1,00,000 to be paid to the legal heirs of deceased---Said three accused persons had filed appeal against their conviction and sentence---Out of those two accused who were convicted and sentenced under S.324, P.P.C., one was convicted on the sole ground that he fired towards the injured prosecution witness who narrowly escaped and had his fire hit the injured he would have been guilty of Qatl-e-Amd---Second accused was sentenced for the reasons that he was present at the spot and had overtly acted, but no such overt act had been cited by the Trial Court for which he could have been convicted---As said two accused were only accused of ineffective firing, their case was at par with that of those four accused persons who were acquitted as those were also accused of ineffective firing---Rule of consistency had gone in favour of said two accused persons---By extending benefit of doubt appeal to the extent of said two accused persons, was accepted and they were acquitted from the charge and were directed to be released.

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

----S.302(b)---Appreciation of evidence---Sentence, reduction in---Accused pleaded that on the day of occurrence, he along with his brother was watering the land which was on lease with him, when complainant party committed criminal tresspass and complainant diverted the water in order to damage standing crops---Accused alleged that when he tried to stop complainant party they started firing at him and he, in exercise of his right of self-defence of his person and property fired at complainant party and resultantly the deceased sustained injuries---Validity---Dispute existed regarding path between the parties and civil and criminal litigation was going on between them---No occasion existed, in circumstances for the complainant party to pass through the cotton crop of accused---Similarly there was no occasion for accused to carry the gun during the day time---Both the sides had not come forward with true facts of the case and the court had to draw conclusion from the evidence produced by both the sides---Occurrence had been admitted by both the parties and each had tried to twist the story in his own favour---By way of abundant caution and for the safer administration of justice, death sentence awarded to accused by the Trial Court was converted into life imprisonment by maintaining his conviction under S. 302 (b), P.P.C.

Hafiz Shahid Nadeem Kahloon for Appellants.

Syed Ghulam Asghar Rizvi for Complainant.

Ch. Aftab Ahmad Goraya, Addl. P.-G. for the State.

Date of hearing: 14th October, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 2330 #

2009 Y L R 2330

[Lahore]

Before S. Ali Hassan Rizvi, J

HAKIM ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2670/B of 2008, decided on 22nd October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 324/334/336/148/149---Bail, grant of---Further inquiry---Role of accused was not specified in the F.I.R. for causing of any injury---Original F.I.R. nominated the accused with the role that he had participated in the quarrel with Sota, but had caused no injury---Supplementary statement was recorded after 5/6 days, wherein he was ascribed role that accused was armed with hatchet and had caused injury on the forearm of the injured---Injury caused by accused was simple in nature and it was to be determined by the Trial Court, if accused had caused any injury and participated in unlawful assembly---In one of the versions, accused was shown not to have caused any injury, while in the supplementary statement his role was ascribed to have caused injury with hatchet, which was simple in nature---Said facts had made out the case as of further enquiry entitling accused to be released on bail---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner:

Ch. Sarfraz Ahmad Zia, Dy. P.-G. with Muhammad Riaz, A.S.-I.

YLR 2009 LAHORE HIGH COURT LAHORE 2334 #

2009 Y L R 2334

[Lahore]

Before Khawaja Farooq Saeed, J

BASHIR AHMAD---Petitioner

Versus

ATTIA PARVEEN and 2 others---Respondents

Writ Petition No.11893 of 2008, decided on 12th November, 2008.

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

----S. 5 & Sched. ---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of dowry articles---Judgment of Family Court decreeing suit upheld by Appellate Court---Plea of defendant was ,that list of dowry articles exhibited in evidence did not find mention price thereof---Validity---Defendant having accepted at various stages of proceedings existence of articles and its list not be allowed to go back of his words just for reason that no corresponding amount of dowry articles had been calculated---High Court dismissed constitutional petition in circumstances.

Pakistan National Shipping Corporation v. Rent Controller, Lahore and 2 others PLD 1992 Lahore 305 ref.

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

----Art. 199---Constitutional petition involving factual controversy---Jurisdiction of High Court---Scope---Factual controversy, unless suffering from jurisdictional error or illegality committed by subordinate Courts, could not be decided in constitutional jurisdiction of High Court.

----S.14---Constitution of Pakistan (1973), Art. 199---Constitutional petition against order of Appellate Court---Scope---Legislature by not providing further appeal against order of Appellate Court had given an impression of culmination of issue at such stage---Such impression should not be blurred by using powers under Art. 199 of the Constitution as if same was an appellate jurisdiction---Extraordinary jurisdiction could be exercised only in extraordinary circumstances.

Ch. Nazir Ahmad Ranjha for Petitioner.

Mian Shahzad Ali for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 2336 #

2009 Y L R 2336

[Lahore]

Before Habib Ullah Shakir, J

SHAKEEL AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.222-B of 2009, decided on 30-3-2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (X4,V of 1860), Ss. 302/324/337-A (ii)/337-F(i)/34 & 148/149---Bail, grant of----Further inquiry---Bail application earlier filed by accused for grant of post-arrest bail on the same ground was dismissed as withdrawn with . the direction to the Trial Court to conclude the 'trial of the case expeditiously, preferably within a period of six months positively---Despite said direction, the trial had not been concluded and statement of even a single witness had not been recorded---Most of the adjournments were made due to non-availability of the Presiding Officer or at the request of the Counsel for the complainant---Only a few adjournments were made at the request of the defence counsel---Delay in conclusion of the trial, could not solely be attributed to accused, in circumstances---No chance of an early disposal of the trial was present---Accused was in jail for the last 2-1/2 years without any progress in the trial of the case---Such was a sufficient ground to admit accused to bail as his incarceration in jail for an indefinite period, without any progress in the trial would not be justified--Accused party had taken the stance that the complainant party was aggressor and occurrence had not taken place in the manner as alleged by the complainant---Fact as to who was aggressor, would be determined during the trial after recording of evidence---Co-accused, who was duly nominated in the F.I.R. had already been declared innocent by the Police, which fact, prima facie had made the case one of further inquiry---Alleged recovery had already been made from accused and he was no more required by the Police for further investigation---Accused was admitted to bail, in circumstances. ?

Malik Dost Muhammad Awan for Petitioner.

Ch. Muhammad Ashraf Mohandra, Dy: P.-G. for the State.

Mumtaz Mustafa for the Complainant.

2009 Y L R 2346

[Lahore]

Before Habib Ullah Shakir, J

RIAZ AHMAD-Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.249-B of 2009, decided on 8th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.365, 324, 148, 149, 109, 337-A(ii), 337-F(ii)(iii) & 337-L(ii)---Bail, grant of---Further inquiry---Previous enmity existed between the parties---Alleged abductee appeared before the Police of her own and submitted a written application wherein she stated that she was got abducted by person other than accused for ransom and was released after taking Rs.4,00,000 from her son---Alleged abductee further nominated in her application 12/13 persons, independent of the F.I.R., however, all those persons were declared innocent during the investigation and the version of alleged abductee regarding her abduction was found incorrect by the Police---Declaring of the nominated accused persons in the statement recorded under S.161, Cr.P. C. of alleged abductee, by the Police and the story of the prosecution qua abductee of alleged abduction and demand/receipt of ransom having been found false, prima facie case had become that of further inquiry---Alleged abductee had not been recovered from accused nor from any of his co-accused, as she appeared before the Police of her own---Co-accused with similar allegations having already been admitted to bail, accused was also entitled for grant of bail on the rule of consistency---Accused was alleged to have been armed with rifle at the time of alleged occurrence, whereas recovery of repeater was effected from him---Injury was not caused by accused with fire-arm as alleged in the F.I.R.---Injury allegedly suffered by the complainant at the hands of accused, fell under S.337-L(ii), P.P.C. which was bailable--Injuries attributed to accused regarding the injured fell within the compass of Ss.337-F(ii)(iii), P.P.C., whereunder punishment of three years was provided, which offences did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was admitted to post arrest bail, in circumstances.

Malik Sadiq Mahmood Khurram for Petitioner.

Ch. Muhammad Ashraf Mohandra, D.P.-G. for the State.

Mehar Muhammad Asim Khan for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 2349 #

2009 Y L R 2349

[Lahore]

Before Syed Zulfiqar Ali Bokhari, J

ISHRAT JEHAN and 5 others---Petitioners

Versus

PROVINCE OF PUNJAB through Secretary Housing, Physical and Environmental Planning Department, Lahore and 5 others---Respondents

Writ Petition No.9470 of 1999, decided on 9th April, 2009.

(a) Punjab Acquisition of Land (Housing) Act (VII of 1973)----

----S. 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Plot exempted in favour of petitioner in lieu of compensation of acquired land---Cancellation of such plot on basis of decision of District Housing Committee convened on application made by petitioner through his general attorney---Denial of petitioner to have made such application or appointed any general attorney or received compensation of acquired land---Validity---Alleged application and general power of attorney were not available on record, thus, in absence whereof, no valid proceedings had been held by such Committee--Impugned order was not based on any material document---High Court quashed proceedings of such Committee and directed respondent to deliver possession of such plot to petitioner subject to payment of development and other charges.

Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others 2006 SCMR 12 and Umer Hayat Khan v. Inayat Ullah Butt and others 1994 SCMR 572 ref.

(a) Punjab Acquisition of Land (Housing) Act (VIII of 1973)---

----S.11---Plot exempted in favour of petitioner in lieu of compensation of his acquired land---Cancellation of such plot for failure of petitioner to raise construction thereon within stipulated period---Scope---Petitioner was allottee of plot against his compensation of acquired land, thus, no condition could be imposed on him like general allottees in a Housing Scheme---Such plot could not be cancelled on violation of any condition by petitioner.

----Art.199---Constitutional jurisdiction---Scope---Impugned finding of an authority suffering from patent illegality and non-consideration of important material on record---Validity---High Court in constitutional jurisdiction could interfere with such finding.

Syed Muhammad Ali Gillani for Petitioners.

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

Date of hearing: 2nd April, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 2354 #

2009 Y L R 2354

[Lahore]

Before Malik Saeed Ejaz, J

FIAZ AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1350/B of 2008, decided on 1st July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Bail, grant of---Accused was named in the F.I.R. and 76 Koppies of liquor, each containing half litre of liquor were recovered from accused, which would mean that 38 litres liquor had been shown to be recovered from accused; which offence did not fall within the prohibitory clause of S. 497, Cr. P. C.-Accused was not a previous record holder; he was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Mumtaz Hassan Awan for the State Atta Muhammad, A.S.-I. with record.

Manzoor Hussain, A.S.-I. Complainant in person.

YLR 2009 LAHORE HIGH COURT LAHORE 2355 #

2009 Y L R 2355

[Lahore]

Before M. Bilal Khan, J

ZARSHID and another---Petitioners

Versus

THE STATE through Directorate of Intelligence and Investigation, FBR, Lahore---Respondents

Criminal Miscellaneous No.3794/B of 2008, decided on 4th June, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Customs Act (IV of 1969), Ss.2(s), 156(1), (89), 157 & 178---Bail, grant of--Further inquiry---Role ascribed to accused persons was that when the vehicle in question was checked, accused were allegedly found in possession of foreign cloth in heavy quantity and other smuggled items---Offence under S.156(1)(89) of the Customs Act, 1969 with which accused had been charged, would entail maximum punishment of six years, to which the prohibitory clause of S.497(1), Cr. P. C. was not attracted---Section 2(s) of the Customs Act, 1969 was a definition clause whereas the rest of the offences charged related to forfeiture of the vehicle and the seized commodity---Alleged smuggled cloth had been seized by the authorities concerned---Was yet to be determined during the trial whether the stuff recovered from accused persons and other smuggled things fell within the definition of smuggled items; and that whether the provision of S.156(1)(89) of the Customs Act, 1969, were attracted---Even otherwise it also needed to be thrashed out as to whether accused were merely driver and cleaner respectively or had any proprietary interest in cloth in question---Trial had not even commenced though F.I.R. had been registered on 10-2-2008---Case of accused persons, in circumstances, fell within the contemplation of further inquiry entitling them to the concession of bail---Accused, were admitted to bail, in circumstances.

Muhammad Akram Nizami for Petitioners.

Muhammad Khalid Chaudhary, Legal Advisor to Customs Department for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 2356 #

2009 Y L R 2356

[Lahore]

Before Anwarul Haq Pannun, J

ABDULLAH KHAN through L. Rs. ---Petitioner

Versus

MUHAMMAD EISA KHAN and others---Respondents

Writ Petition No. 4267 of 2000, decided on 5th May, 2009.

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

----O. VI, R.17---Application for amendment of written statement---Plea sought to be raised in written statement having effect to nullify unqualified admission of certain facts stated in plaint---Validity---Amendment in written statement was not allowed in circumstances---Illustration.

2006 YLR 1341; 2000 CLC 892; 2002 CLC 551; PLD 2003 LHR 192; 2008 CLC 161 and 2007 MLD 1580 ref.

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

----O. VI, R.17----Pleadings, amendment of--Scope stated.

The amendment in the pleadings can be allowed at any stage of the litigation, and the amendments sought for by the parties are liberally granted, unless it affects the very form and nature of the suit. Even the parties are allowed to raise contradictory pleas in their pleadings at their own risk, but under the garb of an amendment, the unqualified admission made by a party on the factual aspect of the case is not needed to be proved by the party in whose favour it is made.

Likewise, the advantage of one party cannot be allowed to be reduced into its disadvantage by the act of Court unless it is proved that the same was result of human error not beyond the control of that party or but some misunderstanding.

The pleadings of the parties are verified on oath under the law by the respective parties, therefore, some element of solemnizing can be attached to its contents, particularly when it is submitted in the Court under the advice of legal expert.

---Advantage of one party cannot be reduced into its disadvantage by an act of Court---Exceptions stated.

The advantage of one party cannot be allowed to be reduced into its disadvantage by an act of Court, unless it is proved that same was result of human error or beyond the control of that party or due to some misunderstanding.

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

----O. VI, Rr. 1 & 15---Pleadings verified on oath by parties and filed in Court under advice of legal expert---Validity---Some element of solemnizing could be attached to contents of such pleadings.

Muhammad Arif Alvi for Petitioners.

Malik Muhammad Tariq Rajwana for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 2365 #

2009 Y L R 2365

[Lahore]

Before Malik Saeed Ejaz, J

MUHAMMAD YASEEN and others---Petitioners

Versus

DISTRICT CO-ORDINATION OFFICER, MUZAFFARGARH and 4 others---

Respondents

Writ Petition No.6996 of 2008, decided on 31st March, 2009.

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

----S. 30(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Acquisition of proprietary rights in State land through registered conveyance deed and its implementation in revenue record through mutation in favour of tenant---Complaint to District Officer (Revenue) alleging such acquisition to be illegal and fraudulent---Order of District Officer (Revenue) directing Deputy District Officer (Revenue) to hold inquiry into such complaint---Validity---Before insertion of subsection (2) in S. 30 of Colonization of Government Lands (Punjab) Act, 1912 through Punjab Ordinance (VII of 1978), Civil Court had jurisdiction to upset bogus or illegal allotment, but after its insertion, only Member, Colonies, Board of Revenue had jurisdiction to cancel allotment and resume land at any stage after fraud or misrepresentation was proved---Object of S.30(2) of Colonization of Government Lands (Punjab) Act, 1912 was to discourage acquisition of allotments through fraud or misrepresentation and protect rights of genuine allottees by discouraging false and frivolous complaints against them---No preliminary inquiry upon. such complaint could be initiated by any Revenue Officer except Member, Colonies--Initiation of proceedings by Collector before referring matter to Board of Revenue would be illegal assumption of jurisdiction by him---Where any complaint was lodged to any other authority in revenue hierarchy, then he could only act as a Post Officer and his primary duty would be only to transmit same to Member, Colonies for appropriate orders---Member, Colonies before initiating any action or inquiry on a complaint would evaluate genuineness of complaint and ascertain whether allegations levelled therein were supported by document or logical evidence---Where fraudulent allotment was detected, then Member, Colonies would be duty bound to pass strict orders against delinquent staff fixing liability upon them, award them exemplary punishment and recover from them loss of Government occasioned due to fraudulent allotments---High Court set aside orders of D.D.O. (R) and D.O.(R) and referred complaint to Member, Colonies for passing appropriate orders thereon---Principles.

Muhammad Akhtar v: Senior Member Board of Revenue, Punjab, Lahore 2008 CLC 825 and Syed Mazhar Hussain Shah through L.Rs v. Member, Board of Revenue, Punjab, Lahore and others 2006 SCMR 959 distinguished.

Tahir Mehmood for Petitioners.

Zafarullah Khan Khakwani, A.A.-G. with Malik Fayyaz Hussain, Naib Tehsildar and Saeed Ahmad, Head Clerk, D.O.R. Officer for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 2370 #

2009 Y L R 2370

[Lahore]

Before Saghir Ahmad, J

MUHAMMAD NASIR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1333/B of 2008, decided on 17th November, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Bail, grant of---Further inquiry---Name of accused was not -mentioned in the F.I.R.---Through supplementary statement accused along with another person was involved in the case, but later on during the investigation, witnesses made the statement that accused was innocent and his co-accused was discharged from the offence---Police on the basis of evidence also declared accused innocent, but he was not discharged from the offence---Accused was in judicial lock up since 26-8-2007---Detention of accused in jail was punishment before trial which was not mandate of law---Accused was not required for further investigation---As accused had been declared innocent by the Police and no evidence was available on the file, prima facie, it was a case of further inquiry to the extent of accused---Accused was allowed post arrest bail, in circumstances.

Shahzad Ashraf Mohandra for Petitioner.

Mirza Mukhtar Baig, Dy. P.-G. for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 2371 #

2009 Y L R 2371

[Lahore]

Before Anwar-ul-Haq Pannun, J

NIAZ HUSSAIN alias GHULAM QAMBER---Petitioner

Versus

SHAHNAZ MAI and 2 others---Respondents

Writ Petition No.919 of 2005, decided on 6th May, 2009.

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

----S.5 & Sched.---Suit for recovery of dower by wife after getting decree for dissolution of her marriage on ground of Khula---Maintainability---Wife seeking decree for dissolution of marriage oh ground of Khula would be required to return gains taken by her from husband, and would not be entitled to dower amount and would render herself to be disentitled to recovery of any other consideration.

Mohamedan Law by D.F. Mulla's para. 320 rel.

Muhammad Shoaib Khan Buzdar for Petitioner.

Nemo for Respondent No.1.

YLR 2009 LAHORE HIGH COURT LAHORE 2376 #

2009 Y L R 2376

[Lahore]

Before Muhammad Ashraf Bhatti and Saghir Ahmad, JJ

MUHAMMAD AYUB---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.260 and Murder Reference No.63 of 2004, heard on 27th November, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Complainant made statement in line with the contents of the F.I.R. and other prosecution witness toed the line of the complainant and statements of both said witnesses corroborated each other on all material aspects of the case---Said witnesses were subjected to cross-examination by the defence, but nothing substantial damaging to the prosecution could be elicited from - their statements---Testimony of the eye-witnesses was further corroborated by the medical evidence which had fully corroborated the ocular account on the point of nature of injury, its seat, dimention and also the kind of weapon used in causing the injury---Witness of recovery of crime weapon/churri had made drastic improvement by saying that at the time of recovery, said churri was stained with fresh blood, whereas said recovery was effected about five days after the occurrence---Evidence of witness about recovery proceedings had become extremely doubtful---Both the parties were not on hostile terms with each other prior to the incident and though the complainant had tried to make out a case of pre planning or pre-consultation, but in fact it was sudden flare up which erupted on some dispute over cattle---Only one blow was inflicted by accused on the person of deceased, which unfortunately proved fatal---Complainant neither in F.I.R. nor in his statement had attributed any motive to accused for committing such an offence carrying capital charge---Age of accused at the time of commission of offence was just about seventeen to eighteen years---Prosecution had thrown a wide net to involve maximum number of innocent persons---Prosecution case to the extent of accused stood sufficiently proved through the ocular account and the medical evidence---Conviction of accused under S.302(b), P.P.C. being unexceptionable, was upheld and maintained, but as accused was of young age, it was motiveless occurrence having taken place at spur of the moment over some dispute over cattle, wherein only one injury was inflicted, death sentence awarded to accused was converted to life imprisonment.

Muhammad Arshad's case PLD 1996 SC 122 ref.

Hafiz Shahid Nadeem Kahloon for Appellant.

Mirza Mukhtar Baig, Dy. P.-G. for the State.

Date of hearing: 27th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 2379 #

2009 Y L R 2379

[Lahore]

Before Malik Saeed Ejaz, J

MUHAMMAD IRSHAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN 8 and others---Respondents

Writ Petition No.3856 of 2000, decided on 3rd April, 2009.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 2 (c) (i), 13(2) (i) (3) & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment application on grounds of default in payment of rent of the premises and personal requirement of landlord---Relationship of landlord and tenant between the parties---Proof---Rent Controller dismissed ejectment application on the ground that respondents could not prove relationship of landlord and tenant between them---Appellate Authority, however reversed the findings of the Rent Controller and accepted ejectment application of respondents---Validity---Not a single receipt for payment .of alleged rent was placed on record by the respondents---No rent deed had been alleged to have been executed in that regard and ejectment of the petitioner was sought on mere oral assertion that he was in possession of the premises and had been paying the rent---Permanent Transfer Deed of premises was issued in the name of deceased and after his death his legal heirs/respondents as well as the wife of the petitioner had become owners and the petitioner was brother of deceased and he was residing in the premises as member of the family---No relationship of landlord and tenant existed between the parties---Contention of counsel for the respondents that petitioner would become tenant by operation of law, was repelled for the reason that throughout the civil litigation, respondents never alleged him as a tenant under them---No doubt a tenant was always liable to be ejected if he denied his relationship as tenant with the landlord, but primarily it was duty of the landlord to establish his status first by proving the existence of tenancy and if no such relations had ever existed then no ejectment application was maintainable---Landlord could not absolve himself of his liability to prove his status as landlord---Petitioner, alleged tenant, in the case, who was real brother of respondent's husband was residing in the alleged premises since long as a family member of the respondent--Respondent had never declared the petitioner as her tenant---Respondent, instead of adopting civil remedy to eject the petitioner from alleged unlawful possession, opted wrong forum of Rent Controller---Ejectment application filed by the respondent, in circumstances, was rightly rejected by the Rent Controller, whereas Appellate Authority passed impugned order by ignoring said factual as well as legal aspect of the case---Impugned judgment was set aside and that of the Rent Controller was restored.

Muhammad Siddique v. Abdul Razzaq 1998 SCMR 349 and Abdul Hameed v. Abdul Rasheed 1981 SCMR 527 ref.

Mian Habibur Rehman Ansari for Petitioner.

Sh. Dilawar Hussain for Respondents.

YLR 2009 LAHORE HIGH COURT LAHORE 2381 #

2009 Y L R 2381

[Lahore]

Before Azizullah M. Memon and Abdur Rehman Farooq Pirzada, JJ

MUHAMMAD SALEEM---Appellant

Versus

FAROOK MINOCHER JOSHI and others---Respondents

H.C.A. No.104 of 2007, decided on 17th February, 2009.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1 & 2---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Application for grant of temporary injunction---On filing application by the appellant under O. XXXIX, Rr.1, 2, C.P.C., Single Judge of High Court had passed the order---Counsel for the respondents had asserted that impugned order was passed on an application for appointment of the Receiver over the suit property and not on an application for grant of temporary injunction---Controversy as to whether the impugned order was passed on an application for temporary injunction or on an application for appointment of Receiver of suit property, was not to be entered into and only the contents/details mentioned in the impugned order itself were to be looked into which had clearly stated that order was passed on application for grant of temporary injunction---Irrespective of the nature of the application, which was heard by Single Judge, the impugned order itself had indicated that application for grant of temporary injunction was heard and same was passed thereon---High Court appeal was allowed, impugned order was set aside with request to Single Judge to rehear the parties on all the pending applications and to decide same afresh in accordance with the relevant provisions of law.

Malik Aman v. Haji Muhammad Tufail PLD 1976 Lah. 1446; In Shabbir and 2 others v.' Mst. Ghulam Fatima 1987 CLC 1407; Hassan Gul v. The State 1975, PCr.LJ 437; Muhammad Younis v. Crown PLD 1953 Lah. 321; Syed Altaf Hussain Bokhari v. Siddique Ahmed Chaudhry 1996 CLC 654; Muhammad Juman and another v. Mst. Aglan and 2 others PLD 1980 Kar.108; Dr. Nur Muhammad and another v. Khushi Muhammad and 6 others PLD 1975 Lah. 515; Abdul Rashid v. Mahmood Ali Khan 1994 SCMR 2163; Nur Elahi v. The State PLD 1966 SC 708; Muhammad Arif v. Malik Muhammad Farooq 2002 CLC 1316; Mst. Jahana Bibi v. Iqbal 1991 CLC 553;. M.A. Khan v. Khan PLD 1984 Lah. 396; Rashid Ali's case 1997 SCMR 171; Suleman Ali Muhammad's case PLD 1982 Kar.111; Raam Narainan and others v. Nawab Sajad Ali Khan AIR 1946 (sic) 1999 and Hirnavan v. Bassan AIR 1943 Cal. 227 ref.

Munir-ur-Rehman and Raza Muhammad Raza for Appellant.

Khursheed A. Hashmi for Respondent No.1.

Agha Faisal for Respondent No.2.

Salahuddin Ahmed for Respondent No.3.

Date of hearing: 17th February, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 2390 #

2009 Y L R 2390

[Lahore]

Before Malik Saeed Ejaz, J

Rana TALIB HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.503 of 2005, heard on 7th November, 2008.

(a) Emigration Ordinance (XVIII of 1979)---

----S.22---Appreciation of evidence---Benefit of doubt---Allegation against accused was that he instigated the complainant to get visas for his two nephews for Dubai; that on demand of accused, amount Rs.3,60,000 were given to him by the complainant in the manner that Rs. 60,000 were paid in cash and against remaining amount of Rs.3,00,000 land of one acre was transferred in the name of accused---Further allegation was that nephews of complainant were sent to Dubai where they were received by the relatives of accused and both remained in Dubai under the employment for one year, but the relatives of accused detained them during that period and ultimately both of them were deported after serving out one month detention in jail of Dubai---No copy of mutation or any other revenue record was produced by the complainant to establish transfer of one acre land to accused in lieu of amount of Rs. 3,00,000---Names of alleged relatives of accused were not mentioned by the complainant under whom nephews of the complainant remained confined in Dubai---Neither month, date, time and place nor the year was mentioned with regard to making of payment of alleged amount to accused---Contradiction was found in statements of prosecution witnesses, which contradictions could not be ignored by saying that same were minor in nature---If the prosecution would fail to prove its case, then the version of accused would be accepted in toto---Prosecution in the case had failed to prove its case beyond doubt---Accepting statement of accused and by extending benefit of doubt to him, he was acquitted of the charge and he was released.

(b) Criminal Trial---

----Benefit of doubt---Scope---No one should be punished on the basis of flimsy and shaken evidence; and for conviction the evidence of the prosecution should have confidence inspiring and unshaken---If any doubt would arise, the benefit of doubt must be given to accused.

Abdul Aziz Khan Niazi for Appellant.

Khawaja Noor Mustafa, Dy. Attorney-General, Multan for the State.

Date of hearing: 7th November, 2008.

YLR 2009 LAHORE HIGH COURT LAHORE 2396 #

2009 Y L R 2396

[Lahore]

Before Khawaja Muhammad Sharif, C J and Ijaz Ahmad Chaudhry, J

SALAHUDDIN BUTT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9436/B of 2009, decided on 12th August, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.498 & 497(2)---Penal Code (XLV of 1860), Ss.420 & 468---Pre-arrest bail, confirmation of---Further inquiry--Investigating Officer had submitted that accused though had opened the account, in the Bank but the alleged forgery had been committed by his nephew who was dealing in foreign currency and had been coming to the Bank---Accused did not withdraw any amount rather, his nephew got signatures of the accused on different cheques and misused the same---Case of accused was definitely one of further inquiry within the meaning of subsection (2) of S.497, Cr.P.C.---Ad interim pre-arrest bail granted to accused was confirmed, in circumstances.

PLD 1997 SC 544; 2008 YLR 1220 and PLD 2003 Lah. 1 ref.

Barrister Muhammad Ahmad Pansota for Petitioner.

Petitioner in person.

Ch. Jamshed Hussain, Dy. P.G. with Asghar Ali, S.-I.

Asim Hafeez for the Complainant.

YLR 2009 LAHORE HIGH COURT LAHORE 2397 #

2009 Y L R 2397

[Lahore]

Before Syed Zulfiqar Ali Bokhari, J

MUHAMMAD IS'HAQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7771/B of 2009, decided on 14th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324, 427, 337-F(iii), 109, 148 & 149---Bail, grant of---Occurrence had taken place within the heart of the city in the .darkness of night, but case was' reported to the Police with delay of one day without any plausible explanation for such delay, when the distance of place of occurrence from the Police Station was only 2-1/2 kilometers--Injury attributed to accused did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was previous non-convict and remained fugitive from law for six months, but he was behind the bars since more than two years---Challan was submitted, but, trial had not commenced even after more than two years of arrest of accused---Every accused is presumed to be innocent until his guilt was established after the trial---Bail of accused could not be withheld as punishment before his conviction---Accused was admitted to bail, in circumstances.

Agha I. A. Imran for Petitioner.

Ch. Abdul Razzaq, Dy. P.-G. with Liaqat Ali, S.-I. for Respondent.

2009 Y L R 2450

[Lahore]

Before Maulvi Anwarul Haq, J

ASAD MEHMOOD and others---Petitioners

Versus

PAKISTAN and others---Respondents

Civil Revision No.142/D of 2001, decided on 30th July, 2009.

Land Acquisition Act (I of 1894)---

----S.4---Specific Relief Act (I of 1877), S.42---Suit for declaration---Acquisition of land---Concurrent findings of facts by Courts below---Suit-land was reserved for graveyard and authorities without acquiring land in question, included the same in their premises---Suit and appeal filed by plaintiffs were concurrently dismissed by both the Courts below---Validity---Authorities were in possession of land in question in the manner reflected in revenue record---Suit-land was neither acquired nor compensation had been paid---Question of limitation was not involved as there was no plea of dispossession of plaintiffs or adverse possession taken by authorities---Courts below without examining evidence and also pleadings had simply knocked out plaintiffs by observing that at one time land was recorded as graveyard, therefore, it had become Waqf---High Court, in exercise of revisional jurisdiction, set aside judgments and decrees passed by two Courts below and decreed the suit in favour of plaintiffs--High Court directed the authorities to initiate acquisition proceedings and to assess compensation of land with reference to its market value---Revision was allowed in circumstances.

Shahbaz Khan and others v. Haji Fazal Shah and others PLD 1993 Pesh. 185; Mst. Barkat Bibi v. West Pakistan Province and others 1984 CLC 2314(DB) and Noor-ur-Din v. Pakistan and others 1997 CLC 1971 ref.

Haji Fazal Shah and 2 others v. Shahbaz Khan and 5 others 1995 SCMR 85 rel.

Mirza Viqas Rauf for Petitioner.

Attique-ur-Rehman Kiani, or Respondents Nos.1 to 3.

Razzaq A. Mirza, Addl. A.-G. for the State.

YLR 2009 LAHORE HIGH COURT LAHORE 2475 #

2009 Y L R 2475

[Lahore]

Before Ijaz Ahmad Chaudhry, Hasnat Ahmad Khan and Zubda-Tul-Hussain, JJ

Hafiz MUHAMMAD SAEED and 3 others---Petitioners

Versus

GOVERNMENT OF THE PUNJAB, HOME DEPARTMENT through Secretary, Lahore and 2 others---Respondents

Writ Petition No.6208 of 2009, decided on 2nd June, 2009.

(a) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan (1973), Art.199---Preventive detention---Constitutional jurisdiction--- Scope---Constitutional jurisdiction of High Court is not barred even after the Review Board extends the detention period, but compelling circumstances should exist for reviewing the opinion of the Board.

PLD 1986 Quetta 270 ref.

(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan (1973), Arts.199 & 10---Constitutional petition---Preventive detention---Quashing of detention orders---Review Board having been constituted only to form an opinion and to provide safeguard to the detainee, its opinion could not be termed as a judicial decision---Review Board did not have powers of the Government to extend the extension, but detaining authority could do so, on the opinion of the Review Board that sufficient cause for further detention was available---Constitutional petition was, therefore, maintainable and High Court could examine the validity of the detention orders---Detaining Authority, in the present case, had clearly violated the express mandatory provisions of Art.10(5) of the Constitution by not providing the grounds of detention to the detenus within 15 days of the passing of the order and deprived them to assail their detention before the competent forum and also to know the allegations against them---Petitioners detenus, thus, were not in a position to plead their case before the Review Board being completely ignorant about the allegations against them and first time they were confronted with the said allegations---Such violation of law alone was sufficient to declare the detention of the petitioners as illegal---Case of the present two petitioners was not distinguishable from the case of other detenus whose detention had not been extended---Detaining Authority was influenced only from Resolution of International Body and had not seen any other material---UNO Resolution did not require detention of any of the petitioners and no sufficient ground was available for their detention---Detention order, therefore, was bad and even if one of the grounds was bad, the whole of the order would be vitiated---Petitioners had been deprived of their liberty under the garb of preventive detention and they were being blamed for security risk without any evidence against them---Detaining Authority had passed a mechanical order without having considered the valuable rights of the petitioners regarding their liberty---Even no documentary or any other evidence had been produced in High Court or even alleged in their comments by the respondents to support the detention order---Fresh documents and fresh grounds could not be considered for extending the period of detention---No evidence was available to indicate involvement of the petitioners in anti-State activities and security risk--Impugned detention orders including the subsequent orders passed in continuation thereof were quashed and the petitioners were directed to be released forthwith in circumstances---Constitutional petition was allowed accordingly.

Ibrar Hassan's case PLD 1976 SC 315; Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161; University of Mysore v. Govinda Rao AIR 1965 SC 491; Haider Bux Jatoi's case PLD 1969 SC 210; PLD 1986 Quetta 270; Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC 382; PLD 1988 Kar. 237; Nathania Naz v. Additional District Magistrate, Sialkot and another PLD 1983 Lah. 244; Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442; Liaqat Ali v. Government of Sindh through Secretary, Home PLD 1973 Kar. 78; Mst. Kush Niaz v. Federation of Pakistan 2004 YLR 1680; Malik Ghulam Jilani's case PLD 1975 SC 66; The Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali Khan PLD 1966 SC 286; PLD 1954 Lah. 813; PLD 2000 SC 442 and Mamoona Saeed v. Government of Punjab and others PLD 2007 Lah. 128 ref.

----Technicalities---Effect---Technicalities should not come in the way of substantial justice and people should not be ousted on the ground of technicalities.

Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC 382 ref.

(d) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3(1)---Preventive detention---Requirements to be satisfied by an order of preventive detention enumerated.

Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442 ref.

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

----Arts. 199, 9 & 10---Criminal Procedure Code (V of 1898), S.491---Illegal custody---Powers of High Court---High Court can issue a writ of habeas corpus if the custody of the person is found violative of Arts.9 & 10 of the Constitution.

Malik Ghulam Jilani's case PLD 1975 SC 66 ref.

A.K. Dogar, Abdul Khaliq Safrani, Rao Nasim Hyder Khan and Sh. Fazal Elahi Shahid for Petitioners.

Sardar Muhammad Latif Khan Khosa, Attorney-General for Government of Pakistan, Naveed Inayat Malik, Deputy Attorney-General for Respondent No.3 alongwith Abdul Waheed, S.O. Ministry of Interior.

Muhammad Raza Farooq, Advocate-General, Punjab for Respondent No.1 with Iqbal Hussain, Assistant, Section IS-I, Home Department, Lahore.

Shahid Azeem for Respondent No.2.

Dates of hearing: 6th, 7th, 8th, 12th, 15th, 21st, 27th, 30th May, 1st and 2nd June, 2009.

YLR 2009 LAHORE HIGH COURT LAHORE 2501 #

2009 Y L R 2501

[Lahore]

Before Maulvi Anwarul Haq, J

NAZIR AHMED---Petitioner

Versus

MEMBER (JUDICIAL-IV), BOARD OF REVENUE, PUNJAB, LAHORE and 3 others---Respondents

Writ Petition No.15464 of 2009, decided on 4th August, 2009.

West Pakistan Land Revenue Rules, 1968---

----Rr.17 & 19 (2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Lumberdar, appointment of---Respondent had been officiating as Sarbrah Lumberdar and after the death of Lumberdar, he was appointed as Lumberdar by Revenue Authorities---Plea raised by petitioner was that respondent was defaulter of government dues and could not be appointed as Lumberdar---Validity---Neither deceased Lumberdar nor respondent as Sarbrah were ever dismissed and there was no default at the time when Lumberdari file was initiated---Only contesting parties before revenue authorities were petitioner and respondent and the case was decided in presence of concerned parties----Appointment of Lumberdar was not a right it was an administrative measures and the best judges were Revenue Officers appointed under Land Revenue Act, 1967---Inter se revenue hierarchy, choice of Collector was to be respected---Petitioner having no edge over respondent, High Court declined to exercise discretion in his favour---Petition was dismissed in circumstances.

Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484 rel.

Muhammad Zaheer Butt for Petitioner.

Peshawar High Court

YLR 2009 PESHAWAR HIGH COURT 11 #

2009 Y L R 11

[Peshawar]

Before Muhammad Alam Khan, J

Syed GHAWAS KHAN---Appellant

Versus

ZAMIRULLAH KHAN and another---Respondents

Criminal Appeal No. 268 of 2007, decided on 2nd May, 2008.

Penal Code (XLV of 1860)---

----Ss. 337-A(i) and 337--F(vi) ---Criminal Procedure Code (V of 1898), S.417(2) (A)---Appeal against acquittal---Benefit of doubt--Record had revealed that initially appellant/complainant had not explained the nature of weapon of offence in the F.I.R, but later on he made an improvement in his statement that he was hit by accused with planks/Rahel, as according to him alleged occurrence took place in a Mosque---Initially the complainant had nominated three persons to be the witnesses of the occurrence, but in his statement before the court, he admitted that only one was present and that his brother and son were attracted to the spot later on---Prosecution witness had contradicted that at the time of offence two out of three nominated witnesses were not present---No person from the village was present and later on people were attracted to the spot---Said witness stated that he had seen no person injuring the complainant, only altercation took place between the parties---Said witness had no relationship with any of the parties---Existing evidence on record, proved no charge against accused and the benefit of doubt had been extended to accused---Evidence on the record was properly appreciated by the Trial Court and the same warranted no interference by the High Court.

Yousuf Khan Yousafzai for the Appellant.

YLR 2009 PESHAWAR HIGH COURT 30 #

2009 Y L R 30

[Peshawar]

Before Zia-ud Din Khatak and Muhammad Alam Khan, JJ

MUTEEN KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 127 of 2007, decided on 1st July, 2008.

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

----S. 9(c)---Appreciation of' evidence---Sentence, reduction in---Impugned judgment of conviction was result of correct appreciation of evidence brought on record, which need not to be interfered with---Huge quantity of contraband narcotics was recovered from the secret cavities of the car in question which was being driven by accused at the relevant time---Official witnesses were as good witnesses as general public till such time that any animosity was proved on record against them---No evidence was available against accused to prove that he was either a drug trafficker, previous convict or previously involved in such like activities---Case of accused, in circumstances could be considered for reduction of sentence---Quantum of sentence seemed to be harsh and needed to be reviewed---Maintaining conviction of accused, sentence of imprisonment awarded to accused was reduced from eight years to four years' R.I. and sentence of fine was also reduced from Rs. 50,000 to Rs. 20,000 accordingly.

Nazar Muhammad v. The State 1986 PCr.LJ 2065 rel.

Muhammad Yousaf Khan for the Appellant.

Sanaullah Shamim Gandapur, D.A.G. for the State.

Date of hearing: 1st July, 2008.

YLR 2009 PESHAWAR HIGH COURT 45 #

2009 Y L R 45

[Peshawar]

Before Muhammad Alam Khan, J

AKHTAR JAN---Applicant

Versus

THE STATE---Respondent

Bail Application No. 610 of 2008, decided on 25th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of--Accused was charged under S.9(b) of Control of Narcotic Substances Act, 1997, maximum sentence for which was 7 years--Investigation in the case was complete and accused was no longer required for investigation---Punishment for offence against accused was not hit by the embargo laid in S.497, Cr. P. C. ---Accused was released on bail, in circumstances.

M. Ibrahim Khan and Murad Ali Khan for the Petitioner.

Miss Shabana Tajik for the State.

Date of hearing: 25th July, 2008.

YLR 2009 PESHAWAR HIGH COURT 49 #

2009 Y L R 49

[Peshawar]

Before Muhammad Alam Khan, J

TAJ-UD-DIN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 837 of 2008, decided on 18th August, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.496-A, 365-B & 380---Seeking bail on ground ~f compromise---Complainant produced a compromise deed and submitted that he had effected a compromise with accused persons with the intervention of the elders of the locality and that he did not want to pursue the matter any further---Written compromise deed which was placed on record, joint statement of complainant and elders of the locality, endorsed the genuineness of the compromise---Validity---Offences against accused persons, were not compoundable and the compromise could not be the sole ground entitling accused person to the concession of bail, but same could be taken into consideration as a mitigating circumstance while considering the prayer of bail of accused persons along with other grounds on the principle of forgive and forget.

"Mukhtar Ahmad and 3 others v. The State" 1999 PCr.LJ 1107 Lah. rel.

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

----S. 497---Penal Code (XLV of 1860), Ss.496-A, 365-B & 380---Bail, grant of---Accused persons had been charged for abetment and helping the enticement of alleged abductee---Nikahnama was showing the marriage of alleged abductee with accused and nothing had been brought on record by the prosecution that alleged abductee was previously married to other person---Prosecution had to prove during trial the factum of previous Nikah of alleged abductee---Such aspect of the case had made the case of accused persons arguable for the purpose of bail---Accused persons were released on bail, in circumstances.

Fayaz Khan for the Petitioner.

Sadribullah and Munir Hussain for the Complainant.

Date of hearing: 18th August, 2008.

YLR 2009 PESHAWAR HIGH COURT 61 #

2009 Y L R 61

[Peshawar]

Before Syed Yahya Zahid Gillani and Muhammad Alam Khan, JJ

GULDARAZ KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 204 of 2008, heard on 13th August, 2008.

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

----S. 9(c)---Appreciation of evidence---Accused did not opt to contest the appeal on merits and had requested for reduction in the sentence awarded to him by the Trial Court---Validity and scope---Accused was a first offender and was neither a drug-trafficker nor previously involved in such like cases---Accused being a young student of about eighteen years, his submission needed due consideration---Case of accused could be considered leniently in circumstances and he could be granted reduction in quantum of sentence---While maintaining conviction of accused, his sentence was reduced from one year R.I. to the period already undergone, but his sentence of fine was maintained.

Nazar Muhammad v. The State 1986 PCr.LJ 2065 rel.

Rehan Saeed for the Appellant.

Ikramullah Khan, Addl. A.-G. for the State.

Date of hearing: 13th August, 2008.

YLR 2009 PESHAWAR HIGH COURT 189 #

2009 Y L R 189

[Peshawar]

Before Muhammad Alam Khan, J

GULAB HUSSAIN---Applicant

Versus

THE STATE---Respondent

Bail Application No.542 of 2008, decided on 25th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Bail, grant of---Recovery had allegedly been made from accused in a train stationed at Railway Station, which was a busy place, but none among the public had been associated with recovery proceedings---Charas recovered was 1200 grams which by margin exceeded 1000 grams---Court while seized of the bail application, had also to keep in mind the maximum sentence likely to be awarded to accused---In the present case, record did not show that accused was a previous convict or involved in such like cases---Accused, in circumstances, was entitled to the concession of bail---Bail was allowed to accused, in circumstances.

Noor Ali Khan v. The State and other 2003 MLD 1637 rel.

Qaiser Abbass Bangash for Applicant.

Miss Shabana Tajak for Respondent.

Date of hearing: 25th July, 2008.

YLR 2009 PESHAWAR HIGH COURT 195 #

2009 Y L R 195

[Peshawar]

Before Muhammad Alam Khan, J

MUHAMMAD KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 237 of 2008, decided on 22nd August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.489-B---Bail, grant of---Further inquiry---Forged currency notes, no doubt, had been recovered from the possession of accused, but same had not been used or passed on; in such like situation, the question of applicability of correct section of law i.e. 489-B or 489-C, P.P.C. would arise, while the prosecution would have to prove during the trial of the case which had made the case of accused as one of further inquiry---Accused was a class IV government servant and there was no apprehension of his absconsion---Accused deserved to be released on bail---Accused was admitted to bail, in circumstances.

S.M. Attique Shah for Petitioner.

Hafizul Asad for the State.

Date of hearing: 22nd August, 2008.

YLR 2009 PESHAWAR HIGH COURT 202 #

2009 Y L R 202

[Peshawar]

Before Muhammad Alam Khan, J

HABIB AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 593 of 2008, decided on 25th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.419/420/468/471---Bail, grant of---Disputed motorcar had been handed over to the complainant and accused was behind the bars since 10-7-2007---Investigation in the case was complete and challan had been put in court and the presence of accused was no longer required for investigation---None of the offences with which accused was charged was hit by the embargo laid down in S.497, Cr.P.C.---Accused, in circumstances, was entitled to the concession of bail---Accused was admitted to bail, in circumstances.

Badrey and 3 others v. The State and another 2000 PCr.LJ 1914 rel.

Muzamil Khan for Petitioner.

Ikramullah Khan, A.A.-G. for the State.

Yousaf Khan Yousafazi for the Complainant.

Date of hearing: 21st July, 2008.

YLR 2009 PESHAWAR HIGH COURT 213 #

2009 Y L R 213

[Peshawar]

Before Muhammad Alam Khan, J

ZAFAR KHAN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 677 of 2008, decided on 25th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 14---Penal Code (XLV of 1860), Ss. 457/148/149---Bail, grant of---Further inquiry---Accused persons had not been identified by any of the inmates of the house, who were present at the time of alleged occurrence---No recovery of the stolen articles had been made from the possession of accused---Kalashnikov was recovered from the house of other person and not from the possession of accused, which had made case of accused one of further inquiry---Accused, who were entitled to the concession of bail, were granted, in circumstances.

Shah Jee v. The State 1999 PCr.LJ 1062; Ateequllah v. The State and others Criminal Misc. No.389 of 2008; Khakan and another v. The State and another 1999 PCr.LJ 198 and Nadeem Ali and others v. The State, 2000 PCr.LJ 159 rel.

Hussain Ali Khan for Petitioner.

Ikramullah Khan, A.A.-G. for the State.

Sahibzada Asadullah Khan for the Complainant.

Date of hearing: 21st July, 2008.

YLR 2009 PESHAWAR HIGH COURT 246 #

2009 Y L R 246

[Peshawar]

Before Muhammad Alam Khan, J

SHERAZ KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 761 of 2008, decided on 22nd August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of---Further inquiry---F.I.R. showed that 4500 grams Gardah Charas was recovered from the possession of accused, which was not "Charas" in its entirety and was always subject to baking and chemical process and after that process the quantity was always substantially reduced---Recovery in the case was allegedly made and same was received by the Laboratory after 22 days of the alleged recovery---Under the provisions of Control of Narcotic Substances (Government Analysis) Rules, 2001 sample had to be sent to the Laboratory within 72 hours---In the present case it was not discernible from the record that during 22 days of the recovery in whose possession the sample remained, which had made the case of accused one of further inquiry---Investigation in the case was complete---Challan had been put in court and trial was in progress and accused was no longer required to be kept in jail as same would never serve any useful purpose---Accused was ordered to be released on bail, in circumstances.

Nisar Khan v. The State 2007 YLR 836; Iftikhar alias German v. The State Cr.LJ 2005 1245 and Inayatullah v. The State 2006 PCr.LJ 840 ref.

Nek Nawaz Khan Awan for Petitioner.

Surriya Jabeen for the State. .

Date of hearing: 22nd August, 2008.

YLR 2009 PESHAWAR HIGH COURT 260 #

2009 Y L R 260

[Peshawar]

Before Muhammad Alam Khan, J

AMANULLAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.585 of 2008, decided on 18th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.409/468/471---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, refusal of---Accused was directly charged for embezzlement of huge amount from the college fund---Laboratory report available on the file regarding the disputed cheques was in positive---Agreement deed was also executed by accused himself admitting his liability with respect to the embezzlement---Offence with which accused was charged had come within the prohibitory clause of S. 497, Cr. P. C. ---Evidence was on record to connect accused with the commission of offence---Accused, in circumstances, being not entitled to the concession of bail, his bail petition was dismissed.

Mirza Muhammad Zulfiqar and others v. The State 2000 SCMR 1072; Abdul Hay-u-Zafar v. The State 1983 PCr.LJ 2010 ; Brig: (Rtd.) Sahibdad Khan v. The State and 2 others 1977 PCr.LJ 676 and Haji Nooruddin v. The State 1977 PCr.LJ 498 ref.

Fateh Muhammad v. The State 2003 PCr.LJ 1115 and Tanveer Ahmad Haral v. The State 2002 SCMR 1327 rel.

Azizur Rehman for Petitioner.

F.M. Sabir for the State.

Date of hearing: 15th August, 2008.

YLR 2009 PESHAWAR HIGH COURT 280 #

2009 Y L R 280

[Peshawar]

Before Muhammad Alam Khan, J

GHULAM FARID---Petitioner

Versus

SIFATULLAH and another---Respondents

Criminal Miscellaneous No. 736 of 2008, decided on 21st August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324---Bail, grant of---Further inquiry---Accused was charged for ineffective firing, that too for criminal intimidation and the injuries attributed to him were with blunt weapon and simple in nature---Question as to which section of law would be applicable to the facts and circumstances of the case, would be determined during the trial, which would make the case of accused as one of further inquiry---Investigation in the case was complete and challan was ready to be put in court for the same---Case of accused could be considered for the purpose of bail---Accused was ordered to be released on bail, in circumstances.

Messrs Sakhi Janan and Ijaz Ahmad for Petitioners.

Lal Jan Khattak and Habibur Rehman for the State.

Date of hearing: 15th August, 2008.

YLR 2009 PESHAWAR HIGH COURT 436 #

2009 Y L R 436

[Peshawar]

Before Muhammad Alam Khan, J

TAHIR SHAHNAWAZ KHAN---Petitioner

Versus

THE STATE and 4 others---Respondents

Criminal Miscellaneous Quashment Petition No. 62 of 2008, decided on 11th November, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 154 & 561-A---Quashing of order---No action having been taken on application of complainant by the functionaries of the police department, he filed application under S.22-A, Cr.P.C. to the Justice of the Peace who, after obtaining the report of Local Police, ordered the registration of the case against the petitioner who had filed petition for quashing of said order---Validity---Once the allegation with respect to the commission of a cognizable offence was communicated to the police, the police was duty bound to register a case; and in case of refusal or resorting to delaying tactics, the aggrieved person was well within his rights to approach the Justice of the Peace under S.22-A, Cr.P. C. with a prayer for registration of the case, whenever the Justice of the Peace would come to the conclusion that a cognizable offence was discernible from the data available on the record, he could pass an order even in the absence of complainant---When a cognizable offence was reported to the Police, accused was not to be given a notice under S.154, Cr.P.C.---Non-issuance of a notice to accused was not fatal to the registration of the case---Impugned order of Justice of the Peace being strictly in accordance with law, and the same was within jurisdiction, and could not be quashed---High Court, under S. 561-A, Cr.P.C. would be reluctant to interfere in the investigation of the case as same would be a direct interference in the domain of prosecution agency---Accused had a remedy to approach the Trial Court when the case was put in court to seek his remedy under provisions of S. 249-A, Cr.P.C.

Muhammad Aslam v. Additional Sessions Judge and others PCr.LJ 2004 Lahore 1254 and Brig (Retd.) Imtiaz Ahmad. v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142 ref.

Rustam Khan Kundi for the Petitioner.

Sanaullah Shamim, D.A.G. for the State.

Akbar Ali Khan for Respondent No.2.

Date of hearing: 11th November, 2008.

YLR 2009 PESHAWAR HIGH COURT 593 #

2009 Y L R 593

[Peshawar]

Before Muhammad Alam Khan, J

SONA KHAN---Petitioner

Versus

Haji RAEES KHAN and others---Respondents

Civil Revision Petition No.251 of 2007, decided on 11th September, 2008.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption--Plaintiff who claimed to be co-sharer and contiguous owner, pre-empted suit land against defendant/vendee---Another person had also filed a suit for pre-emption of the same transaction as a rival pre-emptor---Trial Court, after hearing the parties and considering the data available on record dismissed both the suits by a consolidated judgment and appeal against said judgment of the Trial Court was also dismissed by the Appellate Court---Validity---Vendee/ defendant had transferred suit-land by way of exchange to other vendee---Plaintiff had contended that after issuing Talb-e-Ishhad notice of transfer by the vendee/defendant in favour of second vendee through exchange, would be hit by the doctrine of lis pendens---Despite second transaction by defendant in favour of second vendee through exchange, neither the plaintiff had arrayed second vendee nor said second transaction was pre-empted by the plaintiff---Knowledge of said second transaction was admitted by the plaintiff as well as by rival pre-emptor---Transfer through exchange vide registered deed was made prior to the issuance of notice of Talb-e-Ishhad by the plaintiff---Said second transaction, would not be hit by the doctrine of lis pendens as said transfer was neither effected during the pendency of the suit nor after the issuance of Talb-e-Ishhad---Suit was rightly dismissed by the courts below and their findings were perfectly sound, well reasoned and in accordance with the established principles of appreciation of evidence---Said con-current findings of the courts below, were maintained by High Court.

Abdul Qayum through legal heirs v. Mushki Alam and another 2001 SCMR 798 and Abdul Yameen Khan v. Ashrat Ali Khan and others 2004 SCMR 1270 ref.

Muhammad Waheed Anjum for Petitioner.

Respondent in person.

Date of hearing: 10th September, 2008.

YLR 2009 PESHAWAR HIGH COURT 603 #

2009 Y L R 603

[Peshawar]

Before Muhammad Alam Khan, J

CHAIRMAN PESCO, and 4 others---Petitioners

Versus

FAIZ ULLAH---Respondent

Civil Revision No.163 of 2008 with C.M. 132 of 2008, decided on 14th October, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Suit for recovery of amount---Plaintiff brought a suit against the Chairman of WAPDA and five others/defendants for recovery of Rs. 60,000 as price of cow which died due to negligence of defendants---Plaintiff had alleged that during fateful night, a windstorm had blown, as a result of which two electric poles fell down about which Authorities were duly informed, but they` failed to disconnect the electric supply to the fallen electric poles; and that due to said negligence of defendants, cow of the plaintiff was killed---Suit was concurrently decreed by the Trial Court and Appellate Court to the tune of Rs.35,000 instead of Rs. 60,000 as prayed by the plaintiff---Validity---Record had revealed that at the relevant time, electric poles containing 4400 Volts direct supply, fell to the ground due to the windstorm about which WAPDA functionaries were duly informed, but they did not take any remedial action and due to their negligence the cow of the plaintiff was killed on receipt of electric shock---Local Police was also informed of the situation---Functionaries of the State were jointly and individually liable of their acts and omissions---Judgment and decrees of the two courts below being well-reasoned, based on facts and law on established principles of appreciation of evidence, called for no interference by the High Court in exercise of its revisional jurisdiction under S.115, C.P.C.

Minhajud Din Alvi for Petitioners.

Faizullah for Respondent.

Date of hearing: 14th October, 2008.

YLR 2009 PESHAWAR HIGH COURT 628 #

2009 Y L R 628

[Peshawar]

Before Muhammad Alam Khan, J

WAPDA through Chairman, WAPDA, Lahore and 7 others---Petitioners

Versus

ANJUM TARIQ---Respondent

Civil Revision No.206 of 2004, decided on 18th November, 2008.

Electricity Act (IX of 1910)---

----S.20---Specific Relief Act (I of 1877), Ss.42, 54 & 55---Suit for declaration, prohibitory and mandatory injunction---Detection charges---Authorities removed the meter of the plaintiff, who was consumer without notice; and instead installed a .second meter and on the same day handed over two bills, one for consumption of electricity and other for detection of illegal use of energy to the plaintiff---Junior clerk produced by the authorities as prosecution witness, had categorically stated in his examination-in-chief that there was no defect in the suit meter---Held, before taking any action against any person, a notice must be given to him as envisaged under S.20 of Electricity Act, 1910; and any action taken at the back of the consumer and without notice to him, would be violative of the principles of natural justice---Having a notice issued to him was the vested right of the plaintiff or at least at the time of removing the meter, respectables from the locality ought to have been associated with the proceedings---Checking of the meter without notice to the consumer was violative of the principles of natural justice and illegal---Trial Court decreed the suit filed by the plaintiff and Appellate Court dismissing appeal filed by the authorities, maintained judgment passed by the Trial Court---Concurrent findings of the two courts below were based on the correct appreciation of evidence---No misreading or non-reading of evidence, had been pointed out by the counsel for the authorities-.Two Courts below had arrived at concurrent findings of facts and law and had considered the evidence strictly in accordance with established principles of appreciation of evidence, which findings could not be set at naught in the revisional jurisdiction of the High Court.

Water and Power Development Authority, through Chairman WAPDA House, Lahore and others v. Mian Shaukat Hayat 2003 CLC 1574; Abdul Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346, Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rasheed Ahmad v. Muhammad Siddique PLD 2002 SC 293 ref.

Minhajuddin Alvi for Petitioners.

Sultan Sheharyar Khan Marwat for Respondent.

Date of hearing: 10th November, 2008.

YLR 2009 PESHAWAR HIGH COURT 653 #

2009 Y L R 653

[Peshawar]

Before Muhammad Alam Khan, J

MURAD KHAN and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No.69, Criminal Revision Petition No.32 and Criminal Miscellaneous No.110 of 2008, decided on 19th June, 2008.

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

----Ss. 324/34, 337-(ii) & 337-F(ii)---Appreciation of evidence---Complainant and prosecution witness had deposed against two accused persons and had given a consistent version in which the actual firing was attributed to them---Motive on the record had duly been proved and the recovery of empties from the spot further augmented the case of the prosecution---Medical evidence was also in line with the injuries on the complainant and injured prosecution witnesses; they had received injuries on the leg and lacerated wounds on the left side and right side of the head---Witnesses had been subjected to lengthy cross-examination, but nothing had been squeezed out from their mouth to shatter their testimony as given in their statements before the court---Trial Court had awarded sentence to accused persons which commensurated with the offence they had committed, which needed no interference---Petition for, enhancement of sentences of accused persons, was dismissed, in circumstances.

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

----Ss. 324/34/337-(ii)/337-F(ii) --- Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Co-accused had rightly been extended the benefit of doubt by the Trial Court by acquitting them of the charge on the ground that, though the complainant had charged all said co-accused for commission of the offence, but prosecution witness being an eye-witness of the occurrence, had not named or shown the presence of co-accused, while said witness had deposed against the accused person who had been convicted and sentenced---Once an acquittal was earned by accused, then strong and exceptional grounds had to be shown for interference in the such acquittal order---Impugned judgment of the Trial Court was strictly in accordance with the facts of the case and established principles of appreciation of evidence; which called for no interference as the Trial Court had minutely taken all the material aspects of the case while drawing the impugned conclusion and same was maintained.

Gohar Zaman Khan Kundi for Appellants.

Sanaullah Shamim Gandapur, D.A.-G. for the State.

Sultan Shaharyar Khan Marwat for Respondents Nos.2 and 3.

Date of hearing: 19th June, 208.

YLR 2009 PESHAWAR HIGH COURT 669 #

2009 Y L R 669

[Peshawar]

Before Muhammad Alam Khan, J

JAVED KHAN---Appellant

Versus

THE STATE---Respondent

Criminal J. A. No.66 of 2007, decided on 21st October, 2008.

Penal Code (XLV of 1860)---

----Ss. 419/420/364/365---Appreciation of evidence---Evidence of prosecution witnesses was coherent, consistent and same had not been shattered in cross-examination---Corroborative evidence on record had established the guilt of accused beyond reasonable doubt---Prosecution having proved its case against accused, conviction and sentence recorded by the Trial Court warranted no interference---Regarding the quantum of sentence, the Trial Court had already taken a lenient view and had awarded a meagre sentence, which needed no reduction.

Appellant in person.

Farooq Akhtar for the State.

Shad Ali Khan for the Complainant.

Date of hearing: 21st October, 2008.

YLR 2009 PESHAWAR HIGH COURT 688 #

2009 Y L R 688

[Peshawar]

Before Muhammad Alam Khan, J

WAPDA through Chief Executive PESCO, Peshawar and 4 others---Petitioners

Versus

MUHAMMAD RAZA KHAN-Respondent

Civil Revision No.41 of 2007, decided on 21st November, 2008.

Electricity Act (IX of 1910)---

----S.20---Specific Relief Act (I of 1877), Ss.42, 54 & 55---Suit for declaration, permanent, mandatory and prohibitory injunction---Allegation of tampering with the seal of electric meter---Bill was received by the plaintiff in which some penalty was shown on account of tampering with the seal of the electric meter---Subsequently another bill was sent by the authorities to the plaintiff in which amount of bill was increased---Plaintiff filed suit against issuance of said bill for declaring it to be illegal, collusive and against the rules and regulations---Suit was decreed by the Trial Court and order was maintained by Appellate Court---Validity---Alleged checking of the meter was carried out at the back of the plaintiff---Plaintiff was neither given a notice nor he was associated with the alleged checking of the meter---Under the law the plaintiff was entitled to have been associated with the checking of the meter as nobody should be a Judge of his own cause under S.20 of the Electricity Act, 1910---Owner of the premises was entitled to a notice before checking the meter which was lacking in the case and any action taken by the WAPDA functionaries, in the absence of consumer and in violation of S.20 of the Electricity Act, 1910, would be illegal and without jurisdiction---Two courts below had recorded concurrent findings of fact, which were based on sound appreciation of evidence and dates available on the file---Same could not be set at naught, unless it was shown that same was either perverse or erroneous---Concurrent judgments and decrees of the two courts below being strictly in accordance with law and established principles of appreciation of evidences, could not be interfered with by the High Court in revision, when no misreading or non-reading of evidence had been pointed out by the defendants.

Mian Muhammad Munir v. WAPDA and others 1983 CLC 211 Lahore; WAPDA through is Chairman WAPDA House Lahore and others. v. Mian Shaukat Hayat 2003 CLC 1574; Abdur Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rasheed Ahmad v. Muhammad Siddique PLD 2002 SC 293 ref.

Arif Rahim Ustrana for Petitioners.

Gohar Zaman Khan Kundi for Respondent.

Date of hearing: 21st November, 2008.

YLR 2009 PESHAWAR HIGH COURT 708 #

2009 Y L R 708

[Peshawar]

Before Tariq Parvez Khan and Ghulam Mohyuddin Malik, JJ

ZAINAB IDREES ---Petitioner

Versus

PRINCIPAL, AYUB MEDICAL COLLEGES, ABBOTTABAD and 3 others---Respondents

Writ Petition No.197 of 2008, decided on 23rd December, 2008.

Pakistan Medical and Dental Council, Ordinance (XXXII of 1962)---

----S. 4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Educational Institution---Examination---Petitioner, who was a student of Medical College, was studying in First M.B.,B.S. Part-I, but could not clear her subjects in Annual as well Supplementary Examination in year 2007 and February, 2008---Petitioner was directed by the principal of the college to re-take the class of First year M.B.,B.S. as on her failure in the Part-I M.B.,B.S. Examination, she could not be promoted to second part as per rules and regulations of the college as well as Pakistan Medical and Dental Council Ordinance, 1962---Validity---If petitioner had failed in the First Professional Class, then she could not be promoted to Class-II Professional nor be allowed to take examination of the higher class---Actually, both Part-I and Part-II were part and parcel of First M.B.,B.S. and did not constitute two different classes---Second part could not be termed as higher class nor Part-I as lower class---Bar contained in the Prospectus of College, rules and regulations of the University of Health Sciences and S.4 of Pakistan Medical and Dental Council Ordinance, 1962, imposed bar in unequivocal terms on the promotion to next higher class i.e. if a student had not cleared all the subjects of First Professional Year Part-I & Part-II, and as such petitioner could not be promoted to second class---Petition was allowed with the direction to the authorities to allow the petitioner to take examination in Part-II of the Ist M.B.,B.S. Professional Examination---Ad interim order passed by the court stood confirmed.

PLD 2004 page 307 and PLD 2006 SC 300 and PLD 2004 Pesh. 307 ref.

Basharat Khan for Appellant.

Fawad Sarwar for Respondent.

Date of hearing: 16th December, 2008.

YLR 2009 PESHAWAR HIGH COURT 809 #

2009 Y L R 809

[Peshawar]

Before Shah Jahan Khan Yousafzai and Syed Yahya Zahid Gilani, JJ

GUL BAHADUR and 20 others---Petitioners

Versus

AMAN KHAN and 59 others---Respondents

Writ Petition No.1790 of 2008, decided on 27th November, 2008.

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

----S. 135---Constitution of Pakistan (1973), Art.199---Constitutional petition---Partition of joint Khata---Application for suspension of partition proceedings---Grievance of the petitioners was that their application for suspension of partition proceedings till the disposal of civil suit between the parties, was rejected---Proceedings in question were related to partition of the joint Khata among the co-owners---Petitioners would be allotted to extent of shares of those persons from whom they had acquired the title and only the owners of title would share in the partition---If some-body was in possession of some part of the joint holding in the Column of cultivation he would surrender it in favour of the owners of title---Revenue courts were right in holding that no cogent ground existed for suspension of the proceedings in partition suit---No ground being available for interference in the orders passed by the revenue hierarchy constitutional petition was dismissed in limine.

Mukhtar Ahmad for Petitioners.

YLR 2009 PESHAWAR HIGH COURT 883 #

2009 Y L R 883

[Peshawar]

Before Muhammad Alam Khan, J

FALAK SHER---Appellant

Versus

Dr. NASEER-UD-DIN and 3 others---Respondents

Criminal Appeal No.45 of 2008, decided on 25th November, 2008.

Canal and Drainage Act (VIII of 1873)---

---- S.70---Criminal Procedure Code (V of 1898), Ss. 417(2-A) & 249-A---Appeal against acquittal---Impugned order of acquittal of respondents/accused persons passed by the court below was based on correct legal premises as appellant/ complainant had failed to produce any cogent evidence in support of his allegations against the respondents, despite lapse of sufficient period---Once an acquittal order was secured by accused in a criminal case, presumption of double innocence would accrue to him and strong grounds had to be made out for interference in acquittal order, especially in the circumstances when accused had undergone the agonies of protracted trial for two years---Order of acquittal of accused, was upheld, in circumstances.

State through AG Sindh Karachi v. Raja Abdul Rehman 2005 SCMR 1544 ref.

Ahmad Ali Khan Marwat for Appellant.

Date of hearing: 25th November, 2008.

YLR 2009 PESHAWAR HIGH COURT 906 #

2009 Y L R 906

[Peshawar]

Before Muhammad Alam Khan, J

BAHADAR SHER and another---Petitioners

Versus

FARHAD RASUL and 3 others---Respondents

Civil Revisions Nos.42 and 43 of 2004, decided on 13th October, 2008.

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

----S. 4---Succession---Suit for partition of inherited property---Plaintiffs had claimed that they were the sons and daughters of one of the sons of deceased original owner who died before death of original owner and that they being grand son and daughter of original owner were entitled to the share of their deceased father---Defendants who were son and daughter of deceased original owner resisted suit on the ground that as plaintiffs' father died prior to the death of original owner, plaintiffs were not entitled to their share in the inheritance of original owner for the reason that S.4 of Muslim Family Laws Ordinance, 1961 had been declared un-Islamic---Plaintiffs were sons and daughters of predeceased son of original owner of the suit property---Original owner died in the year 1987 and the inheritance mutation was attested at the time when Muslim Family Laws Ordinance, 1961 was intact---Plaintiffs being grand sons and daughters of deceased were entitled to the inheritance of their grand father and could not be excluded by any stretch of imagination from the inheritance of their grand father---Subsequent declaration by Federal Shariat Court declaring S.4 of the Muslim Family Laws Ordinance, 1961 un-Islamic, had no relevancy to the facts of the present case as it was the death of the pre-positus which would determine the succession---Even if it was presumed that by then S.4 of Muslim Family Laws Ordinance, 1961, had been declared by Federal Shariat Court to be un-Islamic, same was sub judice in appeal before the Supreme Court (Shariat Appellate Bench) the operation of which stood suspended under Art.203-D of Constitution---Petitions were dismissed.

Mst. Samia Naz and others v. Sheikh Pervaiz Afzal and others 2002 SCMR 164; Mst. Bhaggay Bibi and others v. Mst. Razia Bibi and others 2002 SCMR 1595; Muhammad Sharif through legal heirs and 5 others v. Nawab Ali and 2 others 2002 CLC 285 and Muhammad Khan others v. Muhammad Ishaq and others 2005 CLC 1240 rel.

S. Abid Hussain Shah for Petitioner.

Gohar Zaman Khan Kundi for Respondents.

Date of hearing: 13th October, 2008.

YLR 2009 PESHAWAR HIGH COURT 933 #

2009 Y L R 933

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

GUL BAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.74 of 2008, decided on 14th January, 2009.

Penal Code (XLV of 1860)---

----Ss. 324/353/34---Anti-Terrorism Act (XXVII of 1997), Ss. 7(b) (h) & 21(H)---West Pakistan Arms Ordinance (XX of 1965), S.13---Explosive Substances Act (VI of 1908), Ss.3/4---Appreciation of evidence---Accused was a fugitive from law at the time of his arrest in a murder case, who, when chased by the police, had fired at the police party with his Kalashnikov which was also retaliated by the police in defence---Huge quantity of illicit arms and ammunitions had been recovered from the direct conscious and physical possession of accused with no plausible explanation therefor---Accused had voluntarily confessed his guilt before prosecution witness who had fulfilled all the legal formalities in that behalf; and accused, without any force or coercion, had admitted his accusation and said admission was admissible in evidence under the provisions of S.21(11) of Anti-Terrorism Act, 1997---Accused had failed to show any animosity towards the prosecution witnesses---Prosecution case was fully supported from the recoveries effected from the spot of occurrence---Positive report of Bomb Disposal Squads, the effectively firing at the police party with intention to kill them which also created terror and panic in the locality, had fully brought home the charge to accused---Prosecution case was fully proved against accused---Counsel for accused had failed to prove any illegality or irregularity in the impugned conviction of the Trial Court which was the result of sound appraisal of evidence brought on record and to which no exception could be taken by the High Court.

Noor Gul Khan Marwat for Appellant.

Farooq Akhtar for the State.

Date of hearing: 14th January, 2009.

YLR 2009 PESHAWAR HIGH COURT 1076 #

2009 Y L R 1076

[Peshawar]

Before Muhammad Alam Khan, J

KHAN SARDAR and another---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.125 of 2008, decided on 7th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/148/149---Bail, grant of---Further inquiry---Record had revealed that accused persons though were named in F.I.R., but the role of ineffective firing had been assigned to one of them---No recovery had been made from the places assigned to them in the site plan---Was yet to be determined at the trial whether it was a case of common object and the provisions of Ss.148/149, P.P.C. were to be attracted or not---Tentative assessment of the material available on record, had brought the case of accused persons within the ambit of further inquiry entitling them to the concession of bail---Accused persons were admitted to bail, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Sher Khan and 2 others v. The State and another 2003 PCr.LJ 1149, Sabir Hussain v. The State 2008 PCr.LJ 1327 and Manzoor Hussain v. The State 2000 MLD 1279 rel.

Sanaullah Khan Gandapur for Petitioner.

Sanaullah Shamim Gandapur, D.A.-G. for the State.

Ziauddin Malik for the Complainant.

Date of hearing: 7th October, 2008.

YLR 2009 PESHAWAR HIGH COURT 1139 #

2009 Y L R 1139

[Peshawar]

Before Jehan Zaib Rahim and Shahji Rehman Khan, JJ

MUHAMMAD FAISAL KHAN---Petitioner

Versus

Mst. YUSRA ABID and others---Respondents

Writ Petition No.1900 of 2007, decided on 26th November, 2008.

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

----S. S, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Suit for dissolution of marriage, recovery of dower amount, past and future maintenance amount and recovery of dowry articles--Suit filed by the plaintiff having been decreed by the Family Court, defendant had challenged same in constitutional petition--Family Court, after taking pains and giving due weight to all the essential aspects of the case, decreed the suit of the plaintiff, allowing dower amount and maintenance allowance along with dowry articles etc.---Such findings of the Family Court having been given after thorough sifting the evidence on record, could not be said to be unwarranted in the eye of law---Keeping in view the decretal amount, defendant was required to avail his remedy before the Appellate Court by way of appeal---Having not availed the remedy of appeal under S.14 of the West Pakistan Family Courts Act, 1964, impugned judgment and decree of the Trial Court, which was free from any jurisdictional error, was not open to any interference in the exercise of extraordinary equitable discretionary constitutional

jurisdiction of High Court.

Asad Jan for Respondents.

Date of hearing: 26th November, 2008.

YLR 2009 PESHAWAR HIGH COURT 1234 #

2009 Y L R 1234

[Peshawar]

Before Shahji Rahman Khan, J

MOTABAR KHAN---Appellant

Versus

MUBARAK JAN---Respondent

R.F.A. No.38 of 2000, decided on 21st November, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Suit for recovery of amount---Plaintiff had stated that he gave suit amount to defendant who was his maternal uncle abroad with the promise/undertaking that defendant would pay/return same in his native village, but defendant had failed to do so---Defendant denied claim of the plaintiff in his written statement---Trial Court dismissed the suit---Plaintiff who claimed to have given suit land to the defendant, had not produced any witness of the said transaction from the 'Hujra' where both parties were allegedly residing, nor he had obtained any receipt of the payment of said amount-Both witnesses of the plaintiff who claimed that plaintiff paid amount to defendant on three-different occasions, had contradicted each other on material points---Trial court, in the impugned judgment and decree, had discussed the matter in detail and findings reached by the Trial court were justified in the facts and circumstances of the case and it could not be maintained that the conclusion arrived at by the court below was perverse, arbitrary or illegal---No misreading or non-reading of evidence or any patent illegality or legal infirmity was pointed out in the judgment and decree of the court below---Trial case had acted in accordance with law and proper appreciation of evidence brought on record---In absence of any misreading/non-reading of evidence or any illegality or any material irregularity or any jurisdictional error or defect, the findings of the court below could not be interfered with by the High Court.

Atlas Khan Dagai for Appellant.

Mian Fazal Amin for Respondent.

Date of hearing: 21st November, 2008.

YLR 2009 PESHAWAR HIGH COURT 1305 #

2009 Y L R 1305

[Peshawar]

Before Zia-ud-Din Khattak, J

Messrs ZARDAD & CO., GOVERNMENT CONTRACTORS, ABBOTTABAD through Zardad Khan---Petitioner

Versus

MANAGING DIRECTOR, FRONTIER HIGHWAY AUTHORITY, PESHAWAR through Secretary C & W and 2 others---Respondents

C.R. No. 149 of 2007, decided on 30th March, 2009.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), Ss.20(c), O. VII, R.2 & O. VII, R.11---Suit for declaration and recovery of amount---Rejection of plaint, application for---Defendant (government) contested the claim of the plaintiff by filing application under O. VII, R11, C. P. C. and also challenged the territorial jurisdiction of civil court at place 'A'---Contentions of the counsel for the plaintiff were that cause of action accrued to the plaintiff at place 'A' as bulk of construction work was done at place 'A'; that the plaintiff received the letters from the defendants at place 'A'; that defendants had subordinate offices all over the Province including the place at 'A' and that civil court at place 'A' had the jurisdiction---Validity---Admittedly, the work done by the plaintiff being in District 'A', cause of action in the suit wholly and partly arose in view of S. 20(c), C.P.C. at place 'A' considering that defendant/ Government, could not be said to carry on business or could be said to reside or work for gain, as said terms were used with reference to natural person---Impugned judgments of the two courts below were set aside and case was remanded to civil court at place `A ' for decision on merits after due notice to the parties in accordance with law.

PLD 1965 SC 310 and PLD 2003 SC 930 ref.

Tanveer Ahmad Mughal for Petitioner.

Malik Akhtar Hussain along with Abid Shaffi, A.D. for Respondents.

Date of hearing: 30th March, 2009.

YLR 2009 PESHAWAR HIGH COURT 1323 #

2009 Y L R 1323

[Peshawar]

Before Jahanzaib Rahim and Shahji Rehman Khan, JJ

AKRAM SAID---Petitioners

Versus

Mst. SAFIA and 2 others-Respondents

Writ Petition No. 899 of 2008, decided on 2nd February, 2009.

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

----S.5, Sched. & S. 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suits for conjugal rights and recovery of maintenance amount---Family Court dismissed suit filed by the petitioner/husband for conjugal rights and decreed suit filed by respondent/wife against the husband for maintenance allowance---Appellate Court maintained judgment of the Family Court---Validity--Family Court, after taking into consideration all essential aspects of the case, decreed the suit of respondent/wife for maintenance allowance, which judgment of the Family Court was affirmed in appeal by the Appellate Court and which could not be said to be excessive or exorbitant by any stretch of imagination---Impugned judgments and decrees of both the courts below being free from any jurisdictional error, were not open to any interference in the exercise of extraordinary equitable discretionary constitutional jurisdiction of the High Court.

Saifullah Khan Khalid for Petitioners.

Date of hearing: 2nd February, 2009.

YLR 2009 PESHAWAR HIGH COURT 1362 #

2009 Y L R 1362

[Peshawar]

Before Ghulam Mohy-ud-Din Malik and Zia-ud-Din Khattak, JJ

Mst. ROZINA REHMAN and another---Petitioners

Versus

BABAR KHAN, SUB-INSPECTOR, INVESTIGATION, HARIPUR and 5 others---Respondents

Writ Petition No.53 of 2007, decided on 25th February, 2009.

Penal Code (XLV of 1860)---

----S.363---Criminal Procedure Code (V of 1898), Ss.173 & 249-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Proceedings relating to re-investigation of case---Quashing of proceedings---Baby-boy having been kidnapped, mother of said baby-boy, got registered F.I. R. under S. 363, P.P.C. against unknown lady---Subsequently mother of baby in her supplementary statement, charged a lady for the crime, but mother of the baby, exonerated said lady on the ground of compromise, where upon the Trial Magistrate vide order acquitted said lady under S.249-A, Cr.P.C.---Five months later complainant/mother of kidnapped baby in her statement charged petitioners who were husband and wife for kidnapping her child, which prompted the local Police to re-investigate the case---Said re-investigation of the case by the local Police, had been impugned by the petitioner through constitutional petition---Validity---Held, after acquittal of accused lady earlier, nothing wiz left in the tease/F.I.R. to be re-investigated or tried in the court of law---Police if felt expedient to re-investigate the case, the right course was that before acquittal order of accused earlier, it should have dropped the prosecution and sought permission of the court to re-open the case, but the Police did not meet any of said requirements---No doubt, while challan under S.173, Cr.P.C. was sub judice before a competent court, there was no bar to re-investigate the case and submit a second report under S.173, Cr.P.C., but the matter became totally different when a Police report being a final report under S.173, Cr.P.C. was submitted and the Court, after trial, had acquitted accused---After acquittal of lady earlier, despite identification parade, nothing was left in the case to be investigated by the Police, which otherwise amounted to misuse of process of law, which was not sustainable---Proceedings relating to re-investigation of the case, being illegal were quashed.

2006 SCMR 373 rel.

Saeed Akhar for Petitioner.

Malik Amjad and Abdul Hakeem D.A.-G. for the State.

Date of hearing: 11th February, 2009.

YLR 2009 PESHAWAR HIGH COURT 1380 #

2009 Y L R 1380

[Peshawar]

Before Muhammad Alam Khan and Yahya Zahid Gilani, JJ

FAZL-E-MAULA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.126 of 2006 with Criminal Miscellaneous No.22 of 2009, decided on 25th March, 2009.

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

----S. 9---Appreciation of evidence---No admissible evidence of any kind was available to show any nexus of co-accused with the recovered charas---Prosecution was bound to prove with cogent evidence that accused was the driver and co-accused was the conductor of the bus in question from secret cavity of which charas was allegedly recovered---Accused persons had been convicted on the basis of conjectures and surmises and not on the basis of tangible evidence---Neither there was ocular testimony nor documentary proof of the fact that accused was the driver and co-accused was the conductor of the bus in question---Accused persons had not made any confessional statement-Conviction of accused persons, was not sustainable for lack of evidence---Conviction and sentence of both accused persons, was set aside and they were acquitted of the charge levelled against them and they were directed to be released forthwith.

Tariq Khan Afridi and Nasru Minallah for Appellant.

Farooq Akhtar for the State.

Date of hearing: 25th March, 2009.

YLR 2009 PESHAWAR HIGH COURT 1402 #

2009 Y L R 1402

[Peshawar]

Before Ghulam Mohy-ud-Din Malik and Zia-ud-Din Khattak, JJ

MUHAMMAD MISKEEN and 3 others---Petitioners

Versus

MUHAMMAD ZAREEN and others---Respondents

Writ Petition No.233 of 2007, decided on 30th January, 2009.

Land Acquisition Act (I of 1894)---

----Ss.4 & 5-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Acquisition of land---Notification for---Objection to notification---Jurisdiction of civil court---In response to notification issued by the Authority under S.4 of Land Acquisition Act, 1894 for acquisition of land, owners of land presented some objections to the Collector---Landowners, however, filed a suit for declaration challenging notification issued under S.4 of the Act---Trial Court holding that owners could object to the acquisition proceedings before the Collector who alone was competent Authority to adjudicate upon the matter; and civil court lacked jurisdiction returned the plaint under O. VII, R.10, C.P.C. for presentation to the proper forum---Appellate Court, however set aside order of the Trial Court and remanded suit to the Trial Court---Validity---Objections would be adjudicated upon by the Authority mentioned in S.5-A of the Land Acquisition Act, 1894, which debarred a civil court from questioning the propriety of notification issued under S. 4 of the Land Acquisition Act, 1894---Objectors had to go to the Collector---Land Acquisition Act, 1894 had created a special jurisdiction and had provided a special remedy for persons aggrieved of any act done in the exercise of that jurisdiction---When jurisdiction had been conferred upon a special court for investigation of a particular matter, such jurisdiction was exclusive---Impugned judgment passed by the Appellate Court was set aside and that of the Trial Court was restored.

Mrs. Raheela Mughal for Petitioners.

Date of hearing: 30th January, 2009.

YLR 2009 PESHAWAR HIGH COURT 1516 #

2009 Y L R 1516

[Peshawar]

Before Muhammad Alam Khan, J

SARDAR KHAN---Petitioner

Versus

SHAH NAWAZ and others---Respondents

Civil Revision No.125 of 2004, decided on 27th October, 2008.

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

----Ss.42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for declaration and permanent injunction---Two rival suits in respect of same subject matter, were pending. adjudication before the Trial Court---Trial Court decreed one suit which resulted in dismissal of the other---Plaintiffs of the other suit filed appeal before Appellate Court below against judgment and decree passed by the Trial Court and Appellate Court set aside judgment and decree passed by the Trial Court and granted decree in favour of plaintiffs of the other suit and plaintiffs of suit which was decreed by Trial Court had challenged judgment and decree of the Appellate Court in revision---Respondents were arrayed in the main appeal, but they were not made party in the revision; and Appellate Court passed an indivisible decree against respondent and against the omitted respondents---Such was a joint decree and non-impleading of respondents who were parties before the Appellate Court would render the revision petition incompetent---Where the decree was indivisible and some of the parties were omitted, then the appeal or revision was incompetent---Present revision petition being incompetent was liable to be dismissed on that ground alone---Judgment and decree of Appellate Court was perfectly sound, just and in accordance with the established principles of appreciation of evidence---No misreading or non-reading of evidence having been pointed out by the counsel for the petitioner to warrant interference by High Court in revision petition.

Musmar and another v. Khairullah and another PLD 1954 Pesh. 52; Shah Muhammad and others v. Muhammad Bakhsh PLD 1972 SC 321; Maqbool Begum and others v. Ghulan and others PLD 1982 SC 46; Kashmir v Amir Bahadur and others 2001 MLD Pesh. 1765; Muhammad Suleman v. Abdul Rashid and 13 others PLD 1987 Lah. 387 and Subah Sadiq v. Mst. Rajehan L.Rs PLD 2006 Lah. 585 ref.

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

----S.52---Presumption in favour of entries in record of rights---Revenue record and Jamabandi had got presumption of correctness, unless and until rebutted---Old revenue record of about a century could not be set aside on surmises and conjectures.

Muhammad Hussain and others v. Khuda Bakhsh 1989 SCMR-1563 and Ghulam Hassan v. Soharu and 131 others PLD 1984 Pesh. 278 ref.

Rustam Khan Kundi for Petitioner.

Sardar Allah Nawaz Khan for Respondent.

Date of hearing: 20th October, 2008.

YLR 2009 PESHAWAR HIGH COURT 1538 #

2009 Y L R 1538

[Peshawar]

Before Muhammad Alam Khan, J

MUHAMMAD NAWAZ and others---Petitioners

Versus

SAIFUR REHMAN through LRs. and 4 others---Respondents

Civil Revision Petition No.269 of 2007, decided on 26th January, 2009.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement of sale---Trial Court dismissed the suit filed by the plaintiffs, but their appeal was partially allowed by the Appellate Court to the extent of refund of earnest money given in advance to the defendants---Record had revealed that the impugned judgments and decrees of the lower fora were based on misreading and non-reading of material evidence brought on record and thus were not sustainable---Courts on the one hand had admitted the oral sale of the suit land through the agreement deed, while on the other hand it had dismissed the suit on the ground that the defendant/vendor had transferred the suit land to another .person through registered sale-deed---Record had clearly shown that ,defendants had struck the agreement to sell in favour of the plaintiffs with respect to the suit land and an earnest money was received by them---Such fact was also reported by the Patwari Halqa on the same date in the Roznamcha Waqiati duly signed by the defendant---Said fact was further supported by the entry of mutation in favour of the plaintiffs duly admitted by the vendor on oath---Impugned judgments and decrees of the lower fora were set aside and the lis was sent back to the Trial Court for decision de, novo.

Nazimullah and others v. Mst. Gohar Taja and others 2003 YLR 2008 and Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 ref.

Muhammad Ayyaz Khan Qasuria for Appellant.

Date of hearing: 26th January, 2009.

YLR 2009 PESHAWAR HIGH COURT 1606 #

2009 Y L R 1606

[Peshawar]

Before Muhammad Alam Khan, J

Malik SAEED AHMAD---Petitioner

Versus

Mrs. ASAMA BIBI---Respondent

Civil Revision No.154 of 2006, decided on 23rd February, 2009.

Civil Procedure Code (V of 1908)---

----O. VII, R.2 & O.IX, R.13---Limitation Act (IX of 1908), Art.164---Suit for recovery of golden' ornaments or its price--Ex parte decree---Setting aside of---Limitation---Trial Court having passed ex parte decree in favour of the plaintiff, defendant filed application for setting aside the same, which was accepted by the Trial Court and ex parte decree was set aside---On filing appeal against order of the Trial Court, Appellate Court came to the conclusion that defendant had knowledge of the ex parte decree passed against him, but he filed application for setting aside ex parte decree after about 15 months from passing of ex parte decree, which was not within the stipulated period of thirty days as envisaged under Art.164 of the Limitation Act, 1908---Appellate Court, in circumstances, had rightly held that the ex parse decree was passed strictly in accordance with law---Revision petition filed by the defendant against judgment of the Appellate Court was also time barred by two days and no cogent reason had been given for condonation of delay---Appellate Court had fully scanned the record and had arrived at correct conclusion to which no exception could be taken---Revision failed both on merits as well as being time-barred.

Muhammad Tariq v. Mst. Shaheen and others PLD 2006 Pesh. 189 ref.

Malik Muhammad Asad for Petitioner.

Sultan Sheharyar Khan Marwat for Respondent.

Date of hearing: 30th January, 2009.

YLR 2009 PESHAWAR HIGH COURT 1663 #

2009 Y L R 1663

[Peshawar]

Before Muhammad Alam Khan, J

FAQIR RIAZ ASIF and 2 others---Petitioners

Versus

Mst. ZARMARJANA and 7 others---Respondents

Civil Revision Petition No. 56 with C.M. No. 40 of 2006, decided on 22nd December, 2008.

Specific Relief Act (I of 1877)---

----Ss.12, 42, 54 & 55---Suit for specific performance of agreement, declaration and permanent mandatory injunction---Plaintiff filed suit for declaration to the effect that she was owner in possession of suit land through sale which had been effected in her favour in the last one year---Plaintiff had also prayed for decree of permanent mandatory injunction restraining the defendants from interfering in the suit land---Plaintiff had also prayed for specific performance of agreement regarding suit land and cancellation of mutation of suit land in favour of defendants---Trial Court decreed the suit which was maintained by the Appellate Court---Validity---Defendants in their written statement had admitted the factum of sale in favour of the plaintiff, but denied the receipt of the sale consideration---Patwari Halqa appeared and placed on record Daily Diary which clearly bore the endorsement with respect to the sale on behalf of the vendor in favour of the plaintiff duly attested by the witnesses---That being a public document, presumption of correctness was attached to it---Once a document was exhibited and brought on record without reservation, no subsequent objection could be raised with respect to its admissibility---Besides the admission of the defendants, the plaintiff had led overwhelming evidence on record to prove the sale transaction in her favour---Mutation in respect of suit land was rejected by the Revenue Authorities without showing any reason and on the other hand mutation was attested in favour of defendants on behalf of the same vendor--Intention was manifest to deprive the plaintiff of the suit land---No convincing and cogent evidence had been led in rebuttal by the defendants---Suit mutation in favour of the defendants was attested during pendency of the suit which was hit by the doctrine of lis-pendens---Two courts below had recorded concurrent findings against the defendants---No misreading or non-reading of evidence had been pointed out by the defendants---Findings of the courts below were strictly in accordance with the established principles of appreciation of evidence, which could not be interfered with in the revisional jurisdiction of the High Court.

National Bank of Pakistan, Bannu Branch through Manager v. Sayed Mir 1987 CLC 1103 Pesh. Muhammad Sharif and others v. Mst. Fateh Bano and others 2004 SCMR 813; Abdur Rahim and another. v. Mst. Jantay Bibi and others 2000 SCMR 346; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rasheed Ahmad v. Muhammad Siddique PLD 2002 SC 293 ref.

Nasrullah Khan for Petitioners.

Muhammad Ayaz Khan Qasuria for Respondent on Pre-admission notice.

YLR 2009 PESHAWAR HIGH COURT 1732 #

2009 Y L R 1732

[Peshawar]

Before Zia-ud-Din Khattak, J

ALI MUHAMMAD and others---Appellants

Versus

GHULAM NABI---Respondent

Civil Revision No.188 of 2009, decided on 8th June, 2009.

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

----S. 115(3)--- Second revision---Maintainability---By virtue of subsection (3) of S.115, C. P. C., when a revision had been moved before the High Court or District Court, no further application would be entertained by either of them and by virtue of subsection (4) of S.115, C.P.C., the High Court could not entertain a further revision against an order passed in revision by the District Court.

1986-SCMR 1166 ref.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 25(2)---Decree passed for a lesser amount than amount already deposited by the pre-emptor---When a decree was passed for a lesser amount, than the amount already deposited by the pre-emptor, the court would refund the excess amount to such pre-emptor.

Muhammad Shoab Khan for Appellant

Date of hearing: 8th June, 2009.

YLR 2009 PESHAWAR HIGH COURT 1796 #

2009 Y L R 1796

[Peshawar]

Before Ghulam Mohyuddin Malik, J

CHANWAIZ KHAN---Petitioner

Versus

CHANGRIAZ KHAN and 3 others---Respondents

Criminal Miscellaneous No. 420 of 2008, decided on 8th June, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.324/34---Cancellation of bail, application for---Respondents/accused, no doubt were directly charged in the F.I.R. for attempting at the lives of complainant party by firing at them with their respective weapons and shot fired by one of accused persons hit the lady on wrist, but in the site plan, the distance between accused and the complainant was about .80 paces---Accused were shown outside the house, whereas the victim was in the courtyard---When four persons were firing simultaneously at the complainant party, how it could be said the fire of one of accused hit the lady---Said lady was wounded on non-vital part of her body which was her wrist---Accused were on bail for the last about 7 months and no allegation was levelled to the effect that they had misused the liberty by tampering with the prosecution evidence or there was apprehension of their abscondence---Complete challan had been submitted in the court for trial and final decision was in the sight---Cancellation of bail, would serve no useful purpose at this stage.

Naseem Zaman Khan for Petitioner.

Munir Ahmad Bhatti for Respondent No.1 in person along with Atif Ali Sadoon Advocate.

Date of hearing: 8th June, 2009.

YLR 2009 PESHAWAR HIGH COURT 1818 #

2009 Y L R 1818

[Peshawar]

Before Syed Yahya Zahid Gilani, J

FAZAL-UR-REHMAN---Petitioner

Versus

KHALID and 2 others---Respondents

Criminal Miscellaneous Bail Cancellation Petition No. 149 of 2009, decided on 8th June, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss.302/324/34---Bail, cancellation of---Petition for---Petitioner/complainant. who was father of the deceased was aggrieved of the concurrent orders of the Magistrate and Additional Sessions Judge whereby respondents/accused persons who were nominated by the petitioner in his statement under S.164, Cr. P. C., were released without giving the complainant notice and affording him opportunity of being heard; and Addl. Sessions Judge did not cancel their bail despite said glaring legal lacuna---Since the introduction and implementation of Islamic Concept of dispensation of justice in criminal cases, wherein hurt or Qatle-e-Amd was involved, the right of compensation being a personal right of the victim or descendants of a deceased victim, the superior courts were of the consistent view that they had a vested right to be heard before an order favourable to an accused was passed---In the present case, both the courts below had ignored the established right of legal heirs of the deceased to be heard---Impugned bail orders were set aside and bail granted to accused was recalled for having been granted without notice to complainant party.

Muhammad Ashraf v. Duarriyaman and another PLD 1993 Pesh. 151 and Muhammad Shafiq v. Muhammad Mir Khan 2001 PCr.LJ 968 ref.

Allah Nawaz Khan for Appellant.

Fazal-ur-Rehman Bakhsh for the State.

Respondents Nos. 1 and 2 in Person.

Date of hearing: 8th June, 2009.

YLR 2009 PESHAWAR HIGH COURT 1833 #

2009 Y L R 1833

[Peshawar]

Before Ghulam Mohyuddin Malik, J

ISHAQ and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 130 of 2009, decided on 8th June, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Further inquiry---Inordinate delay of about two days in making the report---Such delay was always viewed with suspicion because the promptly made F.I.R. would eliminate the chances of fabrication, consultation and deliberation---Out of total amount a considerable amount had been recovered by Investigating Officer, but to connect the recovered money with the stolen amount, the description of the snatched money had not been disclosed in the report---Currency notes recovered were yet to be proved and identified as stolen property---Mobile set allegedly snatched from the victim had not been recovered---Accused and the complainant party were closely related inter se and due to some family problems, present case had been recorded for compelling accused party to effect compromise---Such was also a matter of further probe, because in F.I.R. the culprits were shown with muffled faces on the dark night and they had come close to the complainant from door side of the vehicle---It would be examined at the trial as if there was any possibility of correct identification and no possibility at all was of mistaken identity---Investigation in the case was almost completed---Accused were no more required to the Police for investigation or interrogation---Keeping accused persons behind the bars for further indefinite period, would serve no useful purpose---Accused were granted bail, in circumstances.

Shad Muhammad Khan for Petitioner.

Zaib Khan Tanoli for Complainant.

Sher Muhammad Khan Tanoli for the State.

Date of hearing: 8th June, 2009.

YLR 2009 PESHAWAR HIGH COURT 1835 #

2009 Y L R 1835

[Peshawar]

Before Syed Yahya Zahid Gillani, J

FAZAL AMIN---Petitioner

Versus

MIR REHMAN and another---Respondents

Criminal Miscellaneous No.238 of 2008, decided on 9th January, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.145 & 561-A---Quashing of order, petition for---Complaint of respondent against petitioner filed under S.145, Cr. P. C. was dismissed at initial stage by the Judicial Magistrate on the main ground that as the complainant was absconder, he could not get relief from the court of law---Appellate Court in revision had held that in proceedings under S.145, Cr.P.C. parties could appear in person or by the pleader and that same being semi civil proceedings, complaint could not be dismissed---Appellate Court by setting aside order of the Magistrate, remanded the case for decision on merits---Petitioner aggrieved by order passed in revision, had challenged the same through petition under S.561-A, Cr. P. C. ---Scope--- Proceedings under S.145, Cr.P. C. did not always demand the presence of a complainant and existence of a formal complaint---Primary object of S.145, Cr.P.C. was to prevent breach of peace because of a dispute over land or water---Magistrate could take action on the basis of complaint by a person, report of Police or any other information received by him from any source---Inquiry under subsection (4) of S.145, Cr.P.C. was with the object to safeguard the possession of the person under threat or to put in possession the person who had been dispossessed of property within two months prior to the dispute or attack the same, if possession of none of the parties over the disputed property could be ascertained---All that was a legal arrangement to temporarily save the society from criminal clashes and apprehended losses, which could extend to the formidable loss of human lives---Since the prime object of the whole proceedings was to thwart breach of peace, the technicalities relating to complaints and the complainants were . of secondary importance---Appellate Court, in revision had rightly remanded the case to the concerned Magistrate to pass a proper order on merits fully paying attention towards the likelihood of breach of peace, if not properly paid attention, as same could result in armed clashes and irreparable losses---Impugned order was not suffering from any illegality, material irregularity or any jurisdictional defect---Petition was dismissed.?

Jan Mohd Khan for Petitioner.

Nemo for Respondent.

Date of hearing: 9th January, 2009.

YLR 2009 PESHAWAR HIGH COURT 1849 #

2009 Y L R 1849

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, J

Mir SAHIB KHAN---Appellant

Versus

ZAREEN KHAN and 3 others ---Respondents

Criminal Appeal No.19 and Murder Reference No.1 of 2008, decided on 26th March, 2009.

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

----S.302/34---Appreciation of evidence---Delay of four hours and 55 minutes in lodging F.I.R.---Delay in lodging F.I.R., itself was not fatal; if it was not inordinate and well-explained---Delay in lodging F.I.R. was satisfactorily explained which, in circumstances, was not fatal to prosecution case---Both complainant and other eye-witness were not chance witnesses, as a chance witness was that who should not be normally present at a particular place, at the given time or that he could not reasonably explain his presence at the place of occurrence in a normal course of life, whereas said eye-witnesses had fully explained reasons to be present at the spot---Both complainant and other eye-witness though were near relatives of the deceased, but during cross-examination, no personal enmity of said witnesses against accused could be brought on record---Even no suggestion had been given to them in that regard---Both said eye-witnesses were not interested witnesses because they had no personal grudge against accused---No extensive contradiction was found with previous statements of the prosecution witnesses---Medical evidence was not in conflict with the statements of the eye-witnesses---Forensic Science Laboratory's report was also strongly corroborating the ocular testimony---Medical evidence, recoveries from the spot, Forensic Science Laboratory's report, and the abscondence of accused had also effectively corroborated the ocular account of the eye-witnesses--Motive had been ambiguously alleged, which could not be properly explained and proved, but weakness of motive or its absence, was not considered fatal to prosecution case---Statements of defence witnesses who were closely related to accused were not proved to have been recorded soon after the occurrence---In cross-examination they having suppressed their relations, their overall statements were not so credible to wash out the strong prosecution evidence---Occurrence took place in daylight and assailants were known---In such circumstances, substitution or false implication of someone as accused, was not expected---Eye-witnesses had given consistent answers on all cross-questions relating to kind of weapons used, mode of fire, number of fire shots of each accused---Statements of eye-witnesses, in circumstances, intrinsically rang true---Accused was rightly convicted, however, since the standard of evidence required for conviction under clause (a) of S.302, P.P.C. was not available, conviction of accused was required to be recorded under clause (b) of S.302, P.P.C.---Qatle-e-amd having, been duly proved, no mitigating circumstances existed in the case---Death sentence, in circumstances had aptly been imposed on accused.?

Khalil Ahmad alias Khalil and another v. The State 1975 SCMR' 442; Radha Kishan v. Emperor AIR 1938 Lah. 714-B; Astam Khan v. The State 1995 PCr.LJ 459-C; Nasrullah and others v. The State 1996 SCMR 1926; Mst. Shamim Akhtar v. Fayaz Akhtar and 2 others PLD 1992 SC 211-B; Muhammad Ashraf and another v. State PLD 1977 SC 538; Mehmood Ahmad v. The State 1997 SCMR 89; Soomar and another v. The State 1990 MLD 1077; Iqbal v. State 1998 MLD 1372; 1997 SCMR 1424 (B) & (C); Matloob Hussain and another v. The State 2007 PCr.LJ 1699; Abdul Majid alias Fauji and another v. The State 1998 PCr.LJ 1914; 2005 SCMR 1110 (B) and 1568 (F); Ashfaq Ahmad v. The State 2007 SCMR 641; Ejaz alias Billa and 3 others v. The State 2002 SCMR 294 B, and Haroon Rasheed and 6 others. v. The State 2005 SCMR 1568-B, C & F. ref.

(b) Witness---

----Interested witness---Interested witness was that who had motive to falsely implicate someone as accused and mere relationship with the deceased was not sufficient to declare a person to be interested witness.?

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

----Art.140---Cross-examination as to previous statement---If a witness would make any improvement in his previous statement, his credibility could be impeached in cross-examination drawing his attention towards his previous statement under Art.140 of Qanun-e-Shahadat, 1984.?

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

----Art.164---Evidence available because of modern devices and technique---"Tracer Ammunition ", "Tracer Bullets"---Meaning, introduction, .history and construction, explained.?

Sultan Sheheryar Khan Marwat and Mazhar, Alam Khan, Ahmed Ali Khan for Appellants.

Farooq Akhtar and Marghoob Hassan Khan for the Complainant.

Date of hearing: 24th March, 2009.

YLR 2009 PESHAWAR HIGH COURT 1876 #

2009 Y L R 1876

[Peshawar]

Before Syed Yahya Zahid Gilani, J

QISMAT KHAN---Appellant

Versus

WAHEED and another---Respondents

Criminal Appeal No.72 of 2006, decided on 11th May, 2009.

Penal Code (XLV of 1860)---

----Ss.377/511---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 4(3)(4)-Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Acquitted accused persons being aged less than 18 years at the time of occurrence, and thus their case was exclusively triable by the Special Court established under Juvenile Justice System Ordinance, 2000---Case of Juvenile accused having been tried by the normal Sessions Court, impugned judgment was without jurisdiction and nullity in the eyes of law--Impugned judgment of the Trial Court was set aside and case was remanded to the Trial Court for entrustment of the case for trial under Juvenile Justice System Ordinance, 2000.

Ghulam Shabbir and 36 others v. Punjab Special Court 1992 PCr.LJ 1932 and Neelam Nawaz v. The State PLD 1991 SC 640 ref.

Shaukat Hayat Khan Khakwani for Appellant.

Fazal-ur-Rehman Baloch for the State and Yousaf Haroon for Respondent.

Date of hearing: 11th May, 2009.

YLR 2009 PESHAWAR HIGH COURT 1911 #

2009 Y L R 1911

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

SHAH NAWAZ---Petitioner

Versus

GHULAM ABBAS and 5 others---Respondents

Writ Petition No.289 of 2008 and C.M. No.89 of 2009, decided on 20th May, 2009.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss.6 & 13---Civil Procedure Code (V of 1908), O.XLI, .R.31---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for pre-emption was dismissed by the Trial Court---Appellate Court set aside judgment and decree passed by the Trial Court, except to the extent of finding regarding superiority of right---Suit of plaintiff stood decreed in the manner that . plaintiff would substitute defendant to the extent of share transferred to him---After five months, the plaintiff came to know that he had been directed to deposit the pre-emption money within thirty days, which period by that time had expired and suit had abated---Application filed by the plaintiff for deposit of pre-emption money was rejected by the Trial Court and revision filed by the plaintiff also met the same fate on which the plaintiff had filed constitutional petition---Judgment and decree of the Trial Court was set aside by the Appellate Court below in its entirety, except the superior right of pre-emption of the parties who were found equally entitled, but revisional court had not adverted to that aspect of the case---Non-consideration of such aspect of the case had definitely caused prejudice to the parties and under the provisions of O.XLI, R.31, C.P.C., the court had to formulate a moot question and give findings thereon, which were not done in the case---Constitutional petition was accepted and impugned order of the revisional court, was declared to be without lawful authority and of no legal effect---Lis was remitted for decision afresh after affording an opportunity of hearing to the parties or their counsel.

Muhammad Sanadi and 2 others v. Abdul Wali Shah PLD 1979 Pesh. 17; Muzaffar v. Ali Khan and 3 others 1989 CLC 2342 and Shujat Ali v. Muhammad Riasat and others PLD 2006 SC 140 ref.

Inamullah Khan Yousafzai for Appellant.

Salim Nawaz Awan for Respondents.

Date of hearing: 20th May, 2009.

YLR 2009 PESHAWAR HIGH COURT 1962 #

2009 Y L R 1962

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

MUKARAM---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.20 of 2006, decided on 11th June, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Prosecution witness who was cousin of deceased, was not mentioned in the F.I.R. as eye-witness; his name and place as an eye-witness had also been omitted in the site plan prepared on the day of occurrence---Said omissions were the first dent of doubt in the allegation of his having seen the occurrence---Statement of said witness under S.161 Cr. P. C. was recorded by the police after two days of the occurrence when he went to police station for the said purpose---Such a belated statement under S.161, Cr. P. C., rendered the credibility of a witness seriously suspicious because no plausible explanation existed for his non-examination on the day of occurrence---For said reason, presence of prosecution witness on the spot and having seen the occurrence, was held to be doubtful and not reliable---Complainant/ prosecution witness though had no direct motive to falsely charge accused, but motive for the occurrence, was also shrouded in doubts because in the F.I.R. he referred to some altercation, but in the court he expressed lack of knowledge thereof---Statement of complainant was materially contradicted by the medical evidence; it was, in circumstances, deemed highly unsafe to rely on the statement of the complainant for conviction of accused in the case---Prosecution having not proved its case beyond doubt, benefit of doubt was extended to accused to which he was entitled- Impugned judgment of conviction and sentence, was set aside and accused was acquitted of the charge against him and he was released.

Muhammad Khan v. Maula Bakhsh 1998 SCMR 570; Mehmood Khan v. Ahmad and 2 others 1972 SCMR 620 and Quresh v. The State PLD 2007 Pesh. 294 ref.

Sanaullah Khan Gandapur for Appellant.

Sanaullah Khan Shamim, D.A.-G. for the State.

Saleemullah Khan Ranazai for the Complainant.

Date of hearing: 5th May, 2009.

YLR 2009 PESHAWAR HIGH COURT 2057 #

2009 Y L R 2057

[Peshawar]

Before Ghulam Mohy-ud-Din Malik, J

SHAHZAD JEHANGIRI---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No.32 with Criminal Miscellaneous No.364 of 2007, decided on 29th May, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 22-A & 154---Penal Code (XLV of 1860), Ss. 302/109/34---Quashing of order---Petition for---Registration of second F.I.R.---Complainant filed complaint against murder of his son and daughter-in-law---After about 8 days of occurrence, mother of her deceased daughter submitted application to Justice of Peace with counter story charging complainant party for abducting and then murdering her daughter and Justice of peace directed S.H.O. concerned to register second F.I.R.-Complainant party had sought quashing of order whereby S.H.O. was directed to register case of double murder against the complainant party---In the application for registration of case, there was no allegation against the Local Police that complainant had, gone for registration of case and it was not registered---It did not stand to reason that their daughter had been murdered inside the house and they would go into hiding without attending to dead body and making report of the incident---In that view of the matter, delay of 8 days in lodging the report of Justice of Peace as fatal---In the presence of one F.I.R. of double murder case, registration of second F.I.R. was hardly a requirement of law---Respondents, if at all had any evidence of proof in support of their respective version, could put the same before Investigating Officer or could avail alternate remedy of private complaint to the Trial Court---No provision existed in S. 154, Cr.P.C. to record a second F.I.R. containing different version of the same incident---Police during investigation of registered F.I.R. in a cognizable offence, was competent to challan any one including the complainant, if it would come to the conclusion on evidence that they had committed the crime---Registration of second F.I.R. was neither necessary nor would meet the ends of Justice---Investigating Officer in the registered murder case was duly bound to conduct investigation justly and fairly without fear and favour with profound reverance towards God---Impugned order passed by the Ex-officio Justice of Peace, directing S.H.O. to register second F.I.R:, was quashed.?

1984 PCr.LJ 1454 and PLD 2007 SC 589 ref.

Ghulam Mustafa Khan Sawati for Petitioner.

Munir Bhatti for the State.

Complainant in person.

Akbar Khan. and S.H.O. is also present in person.??????? .

Date of hearing: 29th May, 2009.

YLR 2009 PESHAWAR HIGH COURT 2091 #

2009 Y L R 2091

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gillani, JJ

DIL FARAZ KHAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.58 with Murder Reference No.2 of 2007, decided on 25th June, 2009.

Penal Code (XLV of 1860)---

----S. 302 (b)---Appreciation of evidence---Complainant had furnished ocular account of the occurrence and charged her own husband for killing her father, mother and brother---Complainant was an illiterate Para Nasheen lady and had given straight-forward account of incident---Complainant was the only eye-witness of the occurrence who was put to a lengthy cross-examination, but nothing favourable to accused was squeezed out from her mouth--Presence of the complainant at the time of occurrence on the spot was duly proved beyond any shadow of reasonable doubt---Argument of the counsel for accused that report was lodged after deliberation and consultation, was baseless---Report was lodged with all reasonable promptitude--Investigating Officer had taken into consideration the bulb installed at the place of occurrence in presence of prosecution witness and recovered an empty from the place of occurrence, which had further corroborated the version of the prosecution---Report of the Fire-arm Expert that the recovered crime-empty was that of 7.62 bore and that the blood-stained earth and blood-stained clothes of the deceased were mottled with human blood were further corroborative pieces of evidence to the case of the prosecution---Medical evidence was fully in conformity with the eye-witness account of the complainant---Complainant in her first report had stated motive behind the occurrence as monetary dispute between accused and the deceased--Case of the prosecution was fully established by the motive part---Incident was a single accused case witnessed by a solitary eye-witness who was the wife of accused and there was no chance of false implication in the matter---Case of the prosecution was duly established from the overwhelming eye-witness account of the complainant, recoveries effected from the spot of occurrence, report of Fire-arm Expert, medical evidence and motive as alleged by the complainant in her initial report---Prosecution had successfully brought home guilt of accused and the Trial Court on appraising the evidence brought on record had rightly drawn the impugned conclusion by awarding the death penalty to accused on three counts which could not be interfered with by High Court and were accordingly maintained.?

Gohar Zaman Khan Kundi for Appellant.

Sanullah Shamim Gandapur, D.A.-G. for the State.

S. Fakhruddin Shah for the Complainant.

Date of hearing: 23rd June, 2009.

YLR 2009 PESHAWAR HIGH COURT 2123 #

2009 Y L R 2123

[Peshawar]

Before Muhammad Alam Khan, J

NOWSHAD KHAN and another---Petitioners

Versus

IRSHAD KHAN and another---Respondents

Bail Cancellation Petition No.54 of 2009, decided on 1st June, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302/429/109/34---Bail, cancellation of--Impugned bail granting order passed by the Trial Court was not based on correct legal footings and merits---Accused was directly nominated by the petitioner/complainant in his initial report which was lodged promptly for committing murder of his brother in a daylight occurrence in furtherance of common intention of his co-accused---Prosecution case was duly supported by the medical evidence and sufficiently long and unexplained abscondance of fourteen years---Only ground which prevailed with the Trial Court for enlarging accused on bail was that his co-accused was acquitted at trial---Such order was not justified and was unwarranted under the law as it had prejudiced the case of the prosecution before trial---Section 497(1), Cr. P. C. prohibited the grant of bail for offences punishable with death or imprisonment of 10 years and more---Appreciation of evidence and drawing the conclusion therefrom was the exclusive function of the Trial Court which could not be anticipated at bail stage---Being a fugitive from law accused had lost some of his normal rights available to him under the procedural and substantive law and his noticeable abscondence had disentitled him to concession of bail despite the fact that his co-accused had been acquitted by the Trial Court---Admitting an accused to bail on the solitary ground of acquittal of his co-accused would amount to an order of acquittal of an accused before trial and subsequent trial then would become a mere formality---At bail stage, court had to consider prima facie case against accused and tentative assessment of the material available on record---Deep appreciation of the prosecution case at bail stage was not permissible for disposal of bail petition---Accused had made himself available only when his co-accused was acquitted---Accused, in circumstances, was not entitled to the discretionary relief of bail as bonus for his absconsion---Impugned order granting bail to accused by the Trial Court, was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice---Same was liable to be struck down---Bail cancellation application was accepted---Bail granted to accused was cancelled.

Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66; Aamer Shahzad v. Muhammad Asim and another 2006 SCMR 558; Inamullah v. State and 2 others 2008 MLD 1492; Muhammad Jan v. Sanobar and 2 others 2008 PCr.LJ 1219; Ghulam Qasim v. Inayatullah alias Tulla and another 2008 MLD 1484; Muhammad Nawaz v. Baitullah and another 2008 PCr.LJ 819; Alif Gul v. Noor Afzal and others PLD 2009 Peshawar 20; Muhammad Ashfaq v. State 2008 PCr.LJ 159; Rais Khan v. Said Hanif and another 1979 SCMR 90; Sardar v. The State PLD 1979 Pesh. 16 and Ch. Javed Riaz v. The State 2007 PCr.LJ 1332 ref.

Faqir Mehboobul Hamid for Petitioners.

Muhammad Ismail Alizai, Mirzali Khan and Farooq Akhtar for the State.

Date of hearing: 1st June, 2009.

YLR 2009 PESHAWAR HIGH COURT 2148 #

2009 Y L R 2148

[Peshawar]

Before Shah Jehan Khan and Shahji Rehman Khan, JJ

ROOH-UL-AMIN---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No.230 of 2006, decided on 20th May, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Both the eye-witnesses had consistently claimed that it was the accused who fired upon the deceased with kalashnikov and the Medical Officer had also found only one firearm injury on the person of the deceased and despite the lengthy cross-examination, the credibility of both the eye-witnesses could not be shattered by bringing on record material contradictions going to the roots of the prosecution case---Incident was broad-daylight occurrence and the parties were known to each other---No misidentification was possible in circumstances, in. charging accused and substituting him for the real culprit---Statements of the eye-witnesses could not be disbelieved---No doubt both the prosecution witnesses were inter related, but their evidence could not be discarded, merely because of their inter se relationship as they had furnished plausible explanation and reasons of their presence at the place of occurrence at the relevant time---Medical evidence was in conformity with ocular evidence---Single accused having been charged for the offence, substitution of real culprit was a rare phenomenon---When evidence of the prosecution was overwhelming, strong and consistent, disappearance of accused after occurrence would lend support to the prosecution---Prosecution had proved its case against accused beyond reasonable doubt and accused was liable for the murder of deceased under S. 302 (b), P.P.C. and not under S.302(c), P.P. C. as held by the Trial Court---Maximum leniency had already been extended to accused by the Trial Court and in view of the circumstances, punishment of death was not justified because of the mitigating circumstances mentioned in the impugned judgment.

1978 SCMR 136; 2008 SCMR 565; 2003 SCMR 522; 2003 SCMR 474; 2007 SCMR 876; 2001 SCMR 90 and 1997 PCr.LJ (sic) ref.

Barrister M. Zahoor-ul-Haq for Appellant.

Abdur Rauf Khan Gandapur for the State.

Date of hearing: 20th May, 2009.

YLR 2009 PESHAWAR HIGH COURT 2169 #

2009 Y L R 2169

[Peshawar]

Before Shah Jehan Khan, Actg. C.J. and Shahji Rahman Khan, J

GHANI-UR-REHMAN---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No.72 of 2009, decided on 28th May, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence--Benefit of doubt---Case of prosecution was pregnant with major contradictions and dishonest improvements and omissions---Eyewitness account by the complainant was itself contradicted by him while appearing as prosecution witness---Complainant and prosecution witness though had admitted that in the occurrence accused had sustained injuries, but in the report and in their examination-in-chief, had suppressed and concealed the said injuries as well as the registration of cross-case against the complainant party---Counsel for accused had contended that alleged motive was not of the magnitude to prompt accused to commit offence of double murder---Motive by itself, however did not prove or disprove any assertion conclusively---Case of the prosecution was full of doubts and the prosecution had failed to bring home charge to accused beyond any shadow of reasonable doubt---Accused were entitled to the benefit of doubt, because it was an axiomatic principle of law that in case of doubt the benefit thereof must accrue in favour of accused as a matter of right and not of grace---Conviction and sentence imposed on accused vide impugned judgment, was set aside and accused was acquitted from the charges levelled against him and he was released from custody.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

Khawaja Muhammad Khan for Appellant.

Barrister Waqar Ali Khan, Dy. A.-G. and Abdul Fayyaz Khan for Respondents.

Date of hearing: 28th May, 2009.

YLR 2009 PESHAWAR HIGH COURT 2220 #

2009 Y L R 2220

[Peshawar]

Before Ejaz Afzal Khan and Jehanzaib Rahim, JJ

KASHIF-UR-REHMAN KHALIL--- Petitioner

Versus

KHYBER MEDICAL UNIVERSITY AND GIRLS CAMPUS, PESHAWAR through Vice-Chancellor and 5 others---Respondents

Writ Petitions Nos.713 and 1303 of 2008, decided on 2nd July, 2009.

Constitution of Pakistan (1973)---

----Art.199---General Clauses Act (X of 1897), S.24-A---Constitution petition---Educational institution---Migration from one Medical College to another---Petitioners had asked for the issuance of appropriate writ directing the authorities to countenance their prayer for migration from one College, to another College---Migration, on papers though was regulated by the provisions contained in the Prospectus, but the details as to the number of the students migrating from different colleges to the Khyber Medical College would show that except for one or two, all the migrations had been allowed at the instance of the Government in derogation of the said provisions---Neither the college nor the Government adhered to the provisions of the Prospectus; they permitted it, if and when their whim and caprice permitted and they declined it if it was otherwise---Validity---If the provisions of the Prospectus mean anything, they mean something for every body including Government---Once an application before the Principals of the colleges or the Government was made, it was to be decided . for reasons to be recorded in accordance with the provisions of S.24-A of the General Clauses Act, 1897---Such application was not to be sat upon and slept over for an indefinite period of time, but was to be decided with due regard to the merits of each case in the light of the grounds mentioned in the application as expeditiously .as possible---Many of the contentions raised by counsel for the petitioners fell in the realm of factual controversy, same could not be decided by the High Court in the exercise of its constitutional jurisdiction---High Court, instead of expressing its own view one way or the other, directed Principals of the colleges and the Government to decide the cases strictly in accordance with law for the reasons to be recorded within specified period.

M.S.H. Qureshi for Petitioner.

Ghulam Shoaib Jolly and Qaiser Rashid, A.A-G. for Respondents along with Baghdad Shah, S.O. for Respondents.

Dates of hearing: 1st and 2nd July, 2009.

YLR 2009 PESHAWAR HIGH COURT 2227 #

2009 Y L R 2227

[Peshawar]

Before Syed Yahya Zahid Gilani, J

AMEEN-UD-DIN---Petitioner

Versus

TEHSIL KHAN---Respondent

Civil Revision Petition No.97 of 2009, decided on 22nd May, 2009.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss.6, 13, 31 & 32---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for pre-emption---Limitation---Rejection of plaint---Plaint had concurrently been rejected by the Trial Court and Appellate Court---Impugned transaction of sale having been carried out through a registered deed dated 5-12-2005, the pre-emption suit should have been instituted within 120 days from the date of registration of the deed in view of S.31(a) of the North-West .Frontier Province Pre-emption Act, 1987, but it had been filed on 13-9-2006, after about 250 days, which was badly barred by time---Provision of S.31 of the North-West Frontier Province Pre-emption Act, 1987, which was mandatory in nature, was independent of S.32 of the said Act which was directory .in nature and said section 32 could not operate to change the clear and visible effect of S.31 of the Act---Plaint was rightly rejected by both the courts below, in circumstances.

Muhammad Shah v. Additional District Judge, Kohat 2004 SCMR 535; Maulana Noor ul Haq v. Ibrahim Khalil 2000 SCMR 1305 and Reham Badshah v. Zalia Khan 2004 SCMR 1941 ref.

Muhammad Younis Thaheem for Petitioner.

YLR 2009 PESHAWAR HIGH COURT 2249 #

2009 Y L R 2249

[Peshawar]

Before Muhammad Alam Khan, J

Haji NAWAB KHAN---Petitioner

Versus

SHAIZULLAH KHAN---Respondent

Civil Revision No.280 of 2006, decided on 27th May, 2009.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Benami transaction---Suit for declaration and perpetual injunction---Suit had concurrently been dismissed, both by the Trial Court and Appellate Court---Claims of the plaintiff were that he was owner-in-possession of suit shop since its purchase in the year 1974; that being elder, as a benami owner regarding the title of the suit shop a decree was obtained in the name of the defendant in the event of civil suit---Plaintiff had alleged that the defendant having refused to transfer of the suit shop in the name of the plaintiff, he filed the present suit---Validity---Whenever a person alleged a transaction to be benami" in nature, the initial onus lay on him to prove the same, but said onus could shift during the evidence, if he proved the ingredients of said benami transaction, then the burden would be on defendant to disprove the allegation---Plaintiff had produced overwhelming evidence on record to substantiate his case and had proved on record that possession since its inception was with the plaintiff; and he in the presence of the defendant raised huge construction of three storeyed building and no objection was raised to the said construction, but neither the Trial Court nor the Appellate Court had scanned the evidence produced by the plaintiff---Non consideration of important evidence produced by the plaintiff resulted in placing the onus wrongly---Impugned judgments and decrees of the two courts below, were set aside and case was' remanded to the Trial Court for decision afresh after affording opportunity of hearing to the parties---Trial Court was directed to decide the matter positively within stipulated time.

Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577; Muhammad Yaseen Siddiqui v. Tahseen Jawaid Siddiqui 2003 MLD 319; Al-Haaj Muhammad Rafique v. Mst. Khalida Shehzadi 2003 CLC 559 and Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 rel.

Abdul Aziz Khan Khundi for Petitioner.

Riaz Muhammad Khan for Respondent.

Date of hearing: 30th March, 2009.

YLR 2009 PESHAWAR HIGH COURT 2263 #

2009 Y L R 2263

[Peshawar]

Before Muhammad Alam Khan, J

CHAIRMAN, WAPDA and 4 others---Appellants

Versus

ASLAM KHAN and 13 others---Respondents

Regular First Appeal No.29 of 2007, decided on 30th March, 2009.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 18, 23, 28, 34 & 54---Acquisition of land---Award of compensation---Enhancing the amount of compensation by Referee Court---Land Acquisition Collector fixed amount of acquired land at the rate of Rs.1687.48 per kanal, but on filing reference, Referee Court enhanced amount of compensation from Rs.1687.48 to Rs.12,000 per 'kanal along with 15% compulsory charges and the current rates of interest of the Bank---Appellant/acquiring authorities had filed appeal against judgment of the Referee Court---Land Acquisition Collector while fixing amount of compensation of acquired land had overlooked the potential value of the acquired land which was arbitrary, despite the fact that in Award in question, market value was shown as Rs.12, 000 per kanal---Price was rightly enhanced by the Referee Court to Rs.12, 000 per kanal along with requisite charges, except the rate of interest through the impugned judgment, which was based on the correct appraisal of evidence on record---Referee Court had granted interest at the Bank rate which was violation of Ss.28 & 34 of the Land Acquisition Act, 1894---Previously the landowners were entitled to 8% compound interest on the award compensation under S.34 of Land Acquisition Act, 1894, but in the year 1983 the law was amended and 8% compound interest was converted into six per cent simple interest per annum---To that extent only the judgment and decree of Referee Court was modified---Appellant/ Authorities had failed to point out any illegality, irregularity, perversity, misreading or non-reading of material evidence available on record so as to call for interference by High Court through appeal---Findings of the Referee Court were based on correct assessment of evidence and material on record and were strictly in consonance with law, justice and equity--Appeal against judgment of the Referee Court was dismissed, except with only modification that the expropriated landowners would be entitled to 6% simple interest instead of interest at Bank rate.

Minhajuddin Alvi for Appellants.

S. Abid Hussain Bukhari for Respondents.

Date of hearing: 27th March, 2009.

YLR 2009 PESHAWAR HIGH COURT 2282 #

2009 Y L R 2282

[Peshawar]

Before Syed Yahya Zahid Gilani, J

Haji SHER DARAZ KHAN---Petitioner

Versus

REHMZAD KHAN and 4 others---Respondents

Civil Revision No.317 of 2004, decided on 26th June, 2009.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss.6 & 13---Suit for pre-emption---Half of the suit-land was decreed by the Trial Court in favour of pre-emptor because both the pre-emptor and the vendee were held to be contiguous owners---Appellate Court, however dismissed the suit solely on the ground that the pre-emptor was not in possession of the contiguous Khasra number---AKS Shajra Kishtwar had revealed that Specific/Suit Khasra in Khata was the suit Khasra number---Vendee/ defendant owned another khasra which was adjacent to suit Khasra number---Plaintiff owned two different khasras which were adjacent inter se in one block and out of those two one was contiguous to suit Khasra---Appellate Court misunderstood the law and wrongly found that plaintiff being owner of the Khasra which was adjacent to suit Khasra, had succeeded in proving his right of pre-emption and was rightly granted/decreed half of the suit-land by the Trial Court because he and the vendee both had equal rights of pre-emption---Impugned judgment and decree of the Appellate Court whereby the plaintiff was non-suited, was set aside and that of the Trial Court was restored.

Muhammad Waheed Anjum for Petitioner.

Khawaja Nawaz Khan for Respondents.

Date of hearing: 26th June, 2009.

YLR 2009 PESHAWAR HIGH COURT 2303 #

2009 Y L R 2303

[Peshawar]

Before Ejaz Afzal Khan and Shahji Rehman Khan, JJ

MUJAHID and another---Petitioners

Versus

APA/ADM BARA KHYBER AGENCY and 7 others---Respondents

Writ Petition No.1426 of 2009, decided on 17th June, 2009.

Criminal Procedure Code (V of 1898)---

----S. 86-A---Constitution of Pakistan (1973). Act.199---Constitutional petition---Removal in custody to Tribal areas---Petitioners had prayed for issuance of an appropriate writ directing the authorities not to arrest and remove them to the Tribal areas without complying with the provisions contained in S. 86-A, Cr.P.C.---Petitioners were arrested in criminal cases registered against them in Peshawar in which they were released on bail---When their release warrants were taken in jail, where they were confined, it transpired that they were also required in a case' registered against them in the Tribal areas---Effect---If the petitioners were required in a case registered against them in the Tribal areas, then resort could be had to the course provided by law---When the. authorities did not resort to the course provided by law, they were out to defeat the spirit of law and such a course could not be allowed---Courts of law, in any case, had to preserve the spirit of law, while preserving its words, notwithstanding the device employed towards that end was quite deft, dexterous and even deceitful---Allowing constitutional petition, it was directed that the petitioners be released forthwith---In case the authorities required the petitioners in the case, they would be at liberty to procure their arrest and put them to trial in the courts functioning under the umbrella of the relevant law after complying with the provisions of S.86-A, Cr.P.C.

Shabbir Ahmad for Petitioners.

Qaisar Rasheed, A.A.-G. and Iqbal Ahmad Durrani for Respondents.

Date of hearing: 17th June, 2009.

2009 Y L R 2028

[Quetta]

Before Akhtar Zaman Malghani and Muhammad Nadir Khan, JJ

JUMA KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.299 and Criminal Revision No.98 of 2005, decided on 23rd April, 2009.

Penal Code (XLV of 1860)---

----Ss.302(c) & 324---Appreciation of evidence---All the prosecution witnesses, though in their court deposition had specifically implicated accused for causing death of deceased and injuries to prosecution witnesses, but their such court deposition was a material improvement in their statements recorded under S.161, Cr. P. C. ---One of the prosecution witnesses, also had improved his previous version by putting whole blame upon accused for causing injuries to deceased---Dishonest improvements made by prosecution witnesses in their court deposition in order to put whole responsibility upon accused for causing death of deceased and injuries to witnesses had made their statements worthy of no reliance and could not be believed---No other independent evidence was on record to inculpate accused in the commission of offence or prove charge against him beyond any shadow of doubt---Conviction of accused could not be legally sustained as onus of proof of guilt of accused was always on prosecution---Prosecution had failed to prove the charge against accused beyond reasonable doubt--Impugned judgment rendered by the Trial Court, was set aside and accused was acquitted of the charge and was set at liberty.

1993 SCMR 550 ref.

Muhammad Qahir Shah and Abdul Khair Achakzai for Appellant (in Criminal Appeal No.299 of 2005).

Miss Noor Jehan Kahoor for the State (in Criminal Appeal No.299 of 2005).

Abdullah Khan Kakar for Petitioner (in Criminal Revision No.98 of 2005).

Miss Noor Jehan Kahoor for Respondent (in Criminal Revision No.98 of 2005).

Date of hearing: 7th April, 2009.

YLR 2009 QUETTA HIGH COURT BALOCHISTAN 2127 #

2009 Y L R 2127

[Quetta]

Before Akhtar Zaman Malghani and Muhammad Nadir Khan, JJ

MUMTAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 80 and Murder Reference No.13 of 2008, decided on 23rd April, 2009.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Deceased in his dying declaration had not attributed any overt act to accused nor he was shown to be armed with any weapon, but two prosecution witnesses in their court depositions had stated that three accused persons who were brothers made firing upon deceased; which statements being contradictory to dying declaration of deceased, could not be believed without independent corroboration, which was lacking in the case-Relations between the parties were strained on account of matrimonial dispute between absconding accused and his wife who was sister of deceased and eye-witnesses---Possibility, in circumstances, could not be ruled out that absconding. accused had committed murder of deceased alone, but deceased as well as eye-witnesses had implicated accused in the commission of offence being brother of absconding accused---Both pieces of evidence relied upon by prosecution to sustain conviction of accused i.e. dying declaration and statements of eye-witnesses being contradictory to each other, none of those could be relied upon to maintain conviction of accused---Prosecution, in circumstances, had failed to prove charge against accused beyond shadow of doubt---Judgment passed by the Trial Court, was set aside and accused was acquitted of the charge and was set at liberty.

PLD 2005 Quetta 157, PLD 2007 Quetta 50, 2006 SCMR 1251, 1993 PCr.LJ 2264; 2006 SCMR 841 and 1978 SCMR 49 ref.

Amanullah Kanrani for Appellant.

Miss Noor Jehan Kahoor for the State.

Date of hearing: 16th April, 2009.

YLR 2009 QUETTA HIGH COURT BALOCHISTAN 2183 #

2009 Y L R 2183

[Quetta]

Before Akhtar Zaman Malghani and Muhammad Nadir Khan, JJ

ABDUL QADEER and others ---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No.112 and Criminal Revision No.14 of 2008, decided on 11th May, 2009.

Penal Code (XLV of 1860)---

----Ss.302(c) & 302(a)---Appreciation of evidence---Confessional statement which was got recorded by accused just after three days of his arrest, was voluntary---Though said confessional statement was retracted and it had been pleaded that same was result of torture, but such plea could not be accepted in view of statement of prosecution witness, who stated that apparently there was no sign of torture on the person of accused---Truthfulness of fact narrated in the confessional statement could not be doubted as said confessional statement was exhaustive in nature and contained such facts which were in exclusive knowledge of the accused---Said confessional statement was further corroborated by statement of prosecution witness as well as by medical evidence---Confessional statement of accused corroborated by circumstantial evidence, could be safely relied upon in circumstances---In absence of any other evidence, confession of accused was to be considered in toto---In his confessional statement accused had narrated circumstances forcing him to commit murder of deceased---According to medical opinion accused at the time of committing offence was a grown up man as he was 18-19 years old---Accused, in circumstances, had committed offence punishable under S. 302 (b), P.P.C.---Charge against accused was altered from S. 302 (a), P.P.C. to that of 302(c), P.P.C. and sentenced him to seven years' R.I. ---Benefit of S. 382-B, Cr. P. C. was also extended in his favour.

PLD 1996 SC 274 ref.

Abdul Kareem Khan Yousafzai for Appellant (in Criminal Appeal No.112 of 2008).

Abdullah Kurd for the State (in Criminal Appeal No.112 of 2008).

Muhammad Qahir Shah for Petitioner (in Criminal Revision No.14 of 2008) .

Abdul Kareem Yousafzai for Respondents (in Criminal Revision No.14 of 2008).

Abdullah Kurd for the State (in Criminal Revision No.14 of 2008).

Date of hearing: 27th April, 2009.